Tey v Plotz [No 2] - [2011] WASC 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: TEY -v- PLOTZ [No 2] [2011] WASC 34

CORAM: JENKINS J

HEARD: 17 SEPTEMBER 2010

DELIVERED : 16 FEBRUARY 2011

FILE NO/S: SJA 1139 of 2009
SJA 1033 of 2010

BETWEEN: KOK YONG TEY
Appellant
AND
MARTIN DANIEL PLOTZ
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 41286 of 2009

Catchwords:

Criminal law - Appeal against conviction - Failing to comply with request to give police personal details - Whether request was lawfully made - Whether request was made for an improper purpose - Whether appellant failed to comply with request - Whether appellant had a reasonable excuse for not complying with the request - Prosecution failed to seize CCTV footage

Criminal law - Appeal against sentence - Failing to comply with request to give police personal details - Whether magistrate properly assessed appellant's ability to pay a fine - Whether magistrate improperly took into account adverse material in the presentence reports

Criminal law - Review of provisional decision - Offender's application for leave to appeal from decision in Magistrates Court criminal proceedings - Identity of the respondent to the appeal - Prosecutor named as WA Police - Prosecution commenced by a police officer

Legislation:

Criminal Appeals Act 2004 (WA), Pt 2, s 14(2)
Criminal Investigation (Identifying People) Act 2002 (WA), s 16, s 16(6)
Criminal Investigations Act 2006 (WA), s 27
Criminal Procedure Act 2004 (WA) s 42, s 61(5)(e), s 78
Criminal Procedure Rules 2005 (WA), r 63, r 68(1)
Sentencing Act 1995 (WA) s 39(2), s 41, s 53

Result:

Provisional decision confirmed
Leave to appeal on each ground refused
Appeals dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J R Ludlow
Respondent: Ms R Young

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Hounslow v Woodward [2007] WASC 27
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454
Tey v Plotz [2010] WASC 163
The State of Western Australia v Mohamed (No 2) [2007] WASC 311

JENKINS J: On 20 November 2009 in the Magistrates Court at Perth Kok Yong Tey was convicted, after trial, of failing to comply with a request to give police her personal details. She was fined $500. Mrs Tey appeals against both her sentence and conviction.
In both the notices of appeal against conviction and sentence, Mrs Tey named 'WA Police' as the respondent. In Tey v Plotz [2010] WASC 163 I gave reasons for deciding that the titles of the appeals should be amended to substitute Martin Daniel Plotz as the respondent. My decision was a provisional decision made under the Criminal Procedure Rules 2005 (WA). Pursuant to r 63 Mrs Tey has lodged a request for a hearing of that provisional decision.
These reasons concern the appeals against conviction and sentence, as well as the hearing of the provisional decision.

Grounds of appeal

At the hearing of the application for leave to appeal I gave Mrs Tey leave to rely on proposed substituted grounds of appeal against conviction which are:
1.Magistrate Wheeler and the learned trial Magistrate erred in law and in fact in failing to rule that the prosecution should not be permitted to proceed, on the grounds that the prosecutor had failed to prevent the Department of Transport from destroying its closed circuit television records containing evidence relevant to important issues in dispute in the prosecution, and had therefore also:
a.put himself into a position where he would be, and was, unable to comply:
i.with his common law obligation to disclose all relevant evidence to the Appellant;
ii.with s 61(5)(e) of the Criminal Procedure Act 2004 (WA) if lawfully required to do so; and
b.put the Appellant into a position where she would be, and was, unable to obtain the closed circuit television records even by serving a subpoena on the Department of Transport;
with the result that there was a miscarriage of justice.
2.The learned trial Magistrate erred in law in failing to consider whether the prosecutor had proved beyond reasonable doubt that Constable Plotz had not failed to take into account a relevant consideration in deciding to exercise his statutory power under s 27(1) of the Criminal Investigation Act 2006 (WA), with the result that there was a miscarriage of justice.
Particulars of matters raising a question whether Constable Plotz had failed to take into account a relevant consideration
The Statement of Material Facts alleged that Constable Plotz had exercised his statutory power, and there was evidence before the Magistrate indicating that Constable Plotz had purported to exercise his statutory power, under s 16 of the Criminal Investigations (Identifying People) Act 2002 (WA) for the purpose of giving an order under s 270) of the Criminal Investigation Act 2006, but there was no allegation, nor any evidence, to the effect that in deciding to make that order Constable Plotz had taken into account the matters he was required by s 27(3) of the Criminal Investigation Act 2006 to take into account in making any such order.
3.The learned trial Magistrate erred in law in failing to consider whether the prosecutor had proved beyond reasonable doubt that Constable Plotz had not purported to exercise his statutory power under s 16 of the Criminal Investigations (Identifying People) Act 2002 (WA) for an improper purpose, with the result that there was a miscarriage of justice.
Particulars of evidence raising possible improper purpose
There was evidence before the trial Magistrate raising an issue as to whether Constable Plotz had purported to exercise the relevant statutory power as part of a strategy by Constable Plotz, another police officer, and an officer or officers of the Department of Transport, aimed at facilitating the wrongful infringement of the Appellant's lawful right to transact business with the State of Western Australia in respect of the renewal of her driver's licence, and, in particular, at preventing her from re entering the office of the Department of Transport to transact such business.
4.In considering whether Constable Plotz had validly made a statutory request for the Appellant's name, the learned trial Magistrate erred in law in failing to take into account the relevant fact that as at the date of the alleged offence the Appellant had recently supplied the first law officer of the State, the Attorney‑General, with her name and address, and that, to the knowledge of the relevant police officers at the relevant time, the Attorney‑General had even more recently responded to the Appellant's communication by sending her a letter bearing her name and address, with the result that there was a miscarriage of justice.
5.In considering whether Constable Plotz had validly made a statutory request for the Appellant's name, the learned Magistrate erred in law in failing to take into account:
a.the Appellant's uncontradicted evidence to the effect that immediately before the alleged offence had allegedly taken place, the Appellant had supplied an employee of the Department of Transport, a person named Alison, with the Appellant's name, address, and date of birth;
b.other evidence to the effect that the Department of Transport had been responsible for calling the relevant police officers to the place where the alleged offence had allegedly later taken place; and
c.the prosecutor's election not to call Alison as a witness
with the result that there was a miscarriage of justice.
6.In considering whether Constable Plotz had made a valid statutory request for the Appellant's name, the learned trial Magistrate erred in law in failing to take into account the prosecutor's and his fellow police officer's relevant admissions under oath that the Appellant had offered outside the relevant premises of the Department of Transport shortly prior to the alleged occurrence of the alleged offence to show the fellow police officer the original letter from the Attorney‑General bearing her name and address, and that the fellow police officer had rejected that offer, with the result that there was a miscarriage of justice.
7.Further or alternatively, the learned trial Magistrate erred in law in failing to consider whether the Appellant had a reasonable excuse for not complying with any valid statutory request that might have been made by Constable Plotz for her name, and, in particular, in failing for that purpose to consider:
a.the fact, not disputed by the prosecution witnesses, that the Appellant had recently given her name and address to the first law officer of the State, the Attorney‑General;
b.the Appellant's uncontradicted evidence to the effect that immediately before the alleged offence had allegedly taken place, the Appellant had supplied an employee of the Department of Transport, a person named Alison, with the Appellant's name, address, and date of birth;
c.the prosecutor's election not to call Alison to contradict that evidence;
d.other evidence to the effect that the Department of Transport had been responsible for calling the relevant police officers to the place where the alleged offence had allegedly later taken place;
e.the fact, not disputed by the prosecution witnesses, that the Appellant had at least waved a bank card with her name on it in front of the relevant police officers before exiting the premises of the Department of Transport;
f.the Appellant's evidence to the effect that in fact she had held the bank card in such a manner that her name on it could have been read by the relevant police officers while she was holding it in front of them;
g.the fact, not disputed by the prosecution witnesses, that the Appellant had offered to show Constable Plotz's fellow police officer the original letter from the first law officer of the State setting out her name and address;
h.the fact, not disputed by the prosecution witnesses, that the fellow police officer had rejected that offer;
with the result that there was a miscarriage of justice.
Mrs Tey's notice of appeal against sentence contains five paragraphs but Mr Ludlow, her counsel, relied on the issues raised in only two of them. The two grounds of appeal which can be distilled from those paragraphs are:
(1)The sentence was manifestly excessive because it was based upon an overly optimistic assessment of [Mrs Tey's] ability to pay a fine; and
(2)In sentencing [Mrs Tey] the Magistrate took into account pre‑sentence reports that painted an unfairly distorted picture of [Mrs Tey] with the result that the sentence was manifestly excessive.
The application for leave to appeal on the above grounds was heard at the same time as the appeals.

Hearing of the provisional decision

Mrs Tey attacks the provisional decision on its merits as well as on the basis that I should not have heard the respondent's application to recall the interim order which I made on 3 May 2010. The order which I made on 3 May 2010 was that the respondent had leave to file and serve within seven days amended notices of the respondent's intention which named 'WA Police' as the respondent. Mrs Tey also says that as a consequence of the way that the respondent has dealt with this issue, I should order the respondent to pay her costs, regardless of the outcome of the hearing or the appeal.
In respect to my decision to hear the respondent's application to recall my order on its merits, the Criminal Procedure Rules r 68(1) states that anytime after an appeal is commenced and before it is concluded a party may apply for an interim order or an order amending or cancelling an interim order. Rule 58 defines an interim order so that it includes:
Any other order that the court may make before the appeal is concluded, other than an order giving or refusing to give leave to appeal.
I am of the view that, as a consequence of the above rules, I had a discretion to hear the respondent's application to recall my interim order on its merits. In effect, the application was for an order to cancel an interim order and to make a different interim order.
I reject Mrs Tey's submission that by hearing the application on its merits I was permitting the respondent's lawyers 'to pick on' her. I further reject her submission that the application to recall the interim order was frivolous and vexatious.
As Mrs Tey has pointed out, a number of appeals have been allowed to proceed in similar circumstances with the respondent named as 'WA Police'. In other appeals the police officer who initiated the prosecution has been named as the respondent. It is in the interests of the orderly administration of justice that parties to appeals against the decisions of magistrates in criminal proceedings commenced by police officers know who should be named as the parties to the appeal. Mrs Tey's position is that either the police officer initiating the prosecution or 'WA Police' can be named as the respondent. This is not a view with which I agree, but even if it was it would be in the interests of the orderly administration of justice that parties to such appeals knew that those were the options. As the issue was fairly raised by the respondent's application to recall my interim order, it was appropriate that I exercise my discretion to hear that application on its merits. This was despite the fact that the respondent's application to recall my order of 3 May 2010 was based on a different view of the relevant law to that of his counsel when the matter was before me on 3 May 2010. It is undesirable for parties to change their position but in this case it was more important to clarify the issue for the parties and for future parties.
The decision to hear the application to recall my interim order on 3 May 2010 did not, and still does not, have any adverse effect on Mrs Tey's appeals.
Mrs Tey submits that the respondent to the appeals is Constable Plotz but that he is permitted to be known as 'WA Police'. She says that in appeals such as these appellants are entitled to name him and other prosecuting police officers by this statutory pseudonym. I have had regard to Mrs Tey's written and oral submissions and I remain of the view which I expressed in my provisional decision that the proper respondent to the appeal is Martin Daniel Plotz. I acknowledge that in the relevant statutory scheme it is sufficient in a prosecution notice, in respect of a prosecution commenced by a police officer, to name the 'WA Police' as the prosecutor for the purpose of proceedings in the Magistrates Court. However, this statutory scheme does not apply to appeals commenced under the Criminal Appeals Act 2004 (WA) Pt 2.
I further acknowledge that a court may give a party leave to be known by a pseudonym for one of a number of reasons. Similarly, a court may order that a party be known by a pseudonym. However, this is not a case where it is necessary in the interests of justice that Mr Plotz be known as 'WA Police'. There is no reason why he should not be identified by his true name.
Mrs Tey submits that the consequence of not reviewing my provisional decision would be that all the worthwhile benefits of having a statutory pseudonym for individual police officers who commenced public prosecutions would be lost, at least in appeals such as this. The fact is that the benefits of the relevant provisions in the Criminal Procedure Act 2004 (WA) have never applied to appeals such as this.
It has long been the practice in this court that individual prosecuting police officers are named as the respondents to offender appeals from criminal proceedings in the Magistrates Court. There have been some cases since the Criminal Procedure Act commenced where this tradition has not been followed but my decision does not constitute a substantial loss or alteration to the procedure which has operated to date.
In respect to the issue of costs, I am of the view that the respondent should bear his own costs of this issue up until I delivered my provisional decision. He should also pay Mrs Tey's costs of the issue up until that time but as she was then unrepresented, I presume that she does not have such costs. The issue has an element of public interest which transcends its relevance to Mrs Tey's case. Mrs Tey should not bear the respondent's costs because she, in ignorance, named the 'WA Police' as the respondent.
The situation is different after Mrs Tey filed her request for a hearing of the provisional decision. As I have said, the provisional decision had no adverse affect on Mrs Tey's appeals and there was no reason for her to seek a hearing of it. By doing so she has increased both her and the respondent's costs of the appeal unnecessarily. Further, she has been unsuccessful in seeking to have me reverse the provisional decision. Whilst these matters would justify me making a costs order in the respondent's favour in respect to the hearing of the provisional decision, given that there is a public interest in the determination of the matter, my view is that there should be no order as to costs in respect to the application for a hearing of my provisional decision.

Details of the charge and proceedings on it

The prosecution notice alleged that on 11 June 2009 at West Perth Mrs Tey, when requested by Martin Daniel Plotz, a police officer, to supply personal details, namely her name refused to do so contrary to the Criminal Investigation (Identifying People) Act 2002 (WA) (the Identifying People Act) s 16(6).
Relevantly, the Identifying People Act s 16 states:
16. Officer may ask for name, address etc.
(1)In this section -
personal details, in relation to a person, means —
(a)the person's full name;
(b)the person's date of birth;
(c)the address of where the person is living;
(d)the address of where the person usually lives.
(2)If an officer reasonably suspects that a person whose personal details are unknown to the officer —
(a)has committed or is committing or is about to commit an offence; or
(b)may be able to assist in the investigation of an offence or a suspected offence,
the officer may request the person to give the officer any or all of the person's personal details.
…
(6)A person who, without reasonable excuse, does not comply with a request made under subsection (2) or (3) commits an offence.
Penalty: Imprisonment for 12 months.
On 29 October 2009 Mrs Tey caused a witness summons to produce a record or thing to be issued out of the Magistrates Court to the director general, Department of Transport, commanding him or her to produce to the Magistrates Court on 16 November 2009 CCTV footage of the public area inside the Licensing Centre, City West on 11 June 2009 at approximately 2.00 pm to 3.45 pm covering service counter number 1.
On 18 November 2009 Mrs Tey appeared before Magistrate Wheeler in the Magistrates Court in Perth. His Honour advised Mrs Tey that the court had received correspondence sent on behalf of the director general advising that the relevant CCTV footage had been erased and recorded over in the course of the usual procedure whereby such footage is retained for a limited period of time and once storage capacity has been reached the oldest recorded footage is then reused. Mrs Tey complained to the magistrate that the relevant correspondence had not been sent to her. His Honour advised her that the correspondence said that the Department of Transport had written to Mrs Tey. Mrs Tey then made a submission which is not comprehensible as seeking any further order from the court. It seems that she complained about the lack of the CCTV footage. His Honour was quite short with Mrs Tey and, in effect, said to her that there was no CCTV footage and that was the end of the matter. He said that the hearing would proceed as soon as possible.

Later that day the charge was heard before a different magistrate, Magistrate Lane. Her Honour confirmed that Mrs Tey was pleading not guilty to the charge.
The prosecution called three witnesses: Constable Martin Daniel Plotz, Ronleh Corine Wood, the acting team leader at the Department of Transport Licensing Centre, City West (the Licensing Centre), and Paul John Le Corre, a senior constable of police who was on duty with Constable Plotz on the relevant day. Mrs Tey gave evidence in her own defence. At the end of Mrs Tey's evidence the matter was adjourned to the following morning. On 19 November 2009 the parties made oral submissions to the magistrate. At the conclusion of the submissions the matter was adjourned to the following day for decision. On 20 November 2009 the magistrate delivered written reasons for convicting Mrs Tey. Her Honour then heard submissions on sentence and imposed a fine of $500.

The magistrate's reasons

In respect to the facts, the magistrate stated that on 11 June 2009 Constable Plotz and Constable Le Corre were called to attend a disturbance at the Licensing Centre. They were on bicycle patrol at the time and attended at approximately 3.25 pm ‑ 3.30 pm. They spoke to Mrs Tey inside the premises in front of staff and customers and then outside the premises. Outside the premises, Mrs Tey stated to the police officers that she would not leave. Constable Plotz asked Mrs Tey her name in order to write her a move on order, but she refused to supply the name. Mrs Tey was then arrested and conveyed to the Perth Police Station. At the Perth Police Station the duty sergeant asked Mrs Tey her name but she again refused to supply it to him. Constable Le Corre then obtained a letter from the Attorney General, which Mrs Tey had in her bag. The letter had Mrs Tey's name and address on it. Constable Le Corre then checked those details on the police computer to confirm their accuracy so that Mrs Tey could be summonsed for the offence.
Her Honour said that the issue for her to determine was whether the prosecution had proven its case beyond a reasonable doubt that Mrs Tey refused the request by Constable Plotz to supply her name. She said it was not in issue that Mrs Tey had an entitlement to renew her driver's licence at the Licensing Centre.
Her Honour summarised Ms Wood's evidence to the effect that on 11 June she was the effective officer in charge of the Licensing Centre. Mrs Tey was being served by an officer named Allison, but Allison requested assistance from Ms Wood because of Mrs Tey's behaviour. Ms Wood told Mrs Tey that she was required to produce 100 points of identification before her application for a renewal of her licence could be processed. Mrs Tey did not accept this advice from Ms Wood and 'loudly and abusively insisted that she be served'. In the process she kept brandishing a letter from the Attorney General. Ms Wood asked her to leave and asked another staff member to call the police. Mrs Tey stayed inside the Licensing Centre until the police arrived.
Ms Wood agreed with Mrs Tey that they spoke about the 100 point requirement and that Mrs Tey requested to be served in a private room and not in front of other customers. There were about 60 people in the Licensing Centre at the time. Ms Wood agreed that she refused that request because there was no access to the computer in the interview room and, as Mrs Tey could not produce 100 points of identification, her application could not be processed that day, in any event.
When Constable Plotz and Constable Le Corre arrived they spoke to Mrs Tey and Constable Le Corre explained to her that she needed 100 points of identification before her application could be processed. Mrs Tey continued to argue with the police for at least five minutes before she agreed to go outside with them.
Her Honour found that Mrs Tey did not show Constable Le Corre her bankcard and that Constable Le Corre did not look at it and read it. She said that the evidence of Constable Le Corre and Constable Plotz was that Mrs Tey brandished her bankcard after Constable Le Corre tried to explain to her that she was required to produce 100 points of identification. But that she did so quickly and then put it away. Her Honour found that Mrs Tey did not hand her bankcard to Constable Le Corre. She found that Mrs Tey was loud and aggressive inside the Licensing Centre for about five minutes. She said that this was the evidence of Ms Wood and the two police officers and she accepted it entirely. She found that Mrs Tey was not being truthful with the court on this issue. She said that the police officers did not know Mrs Tey's name because neither had an opportunity to read the bankcard. She found that it took the two police officers five minutes before they could persuade Mrs Tey to step outside the Licensing Centre and quieten down.
The magistrate found that outside the Licensing Centre it was Constable Plotz who asked Mrs Tey for her name because he had obtained a handheld electronic device, known as a Tardis, which the police use in order to access personal information about people to whom they speak and move on order book to issue a move on notice to Mrs Tey. She said that she did not believe the evidence of Mrs Tey. She said that Mrs Tey cross‑examined Constable Plotz and put to him that at no time did he ask her her name and that he was fabricating his evidence. She said that Mrs Tey also put those allegations to Constable Le Corre and said that it was he who she spoke to at all times, not Constable Plotz. The magistrate noted that when Mrs Tey gave her evidence she said that Constable Le Corre asked for her name but because she gave him her bankcard inside the Licensing Centre, he knew her name and she did not need to supply it to him. The magistrate found that this was 'blatantly untrue'. The magistrate found that outside the Licensing Centre Mrs Tey refused to leave and insisted that she be served inside the Licensing Centre because of the letter she had from the Attorney General. She was asked by Constable Plotz for her name so that he could issue her with a move on notice but she refused to give her name and insisted that she was not leaving until she was served inside the Licensing Centre. It was then that she was arrested and Constable Le Corre called for a van to take Mrs Tey to be processed.
Mrs Tey took some time to get into the van insisting that she be seated with the police, but eventually she complied. Her handbag was placed in a sealed bag and transported with the police. Once at the Perth Police Station she was introduced to a sergeant. She refused to state her name to him and that was when the police opened her bag and obtained her details from the letter from the Attorney General.
The magistrate referred to Mrs Tey's submission that the police officers used 'entrapment' to get her into trouble and that the police officers' stories had been 'twisted and fabricated'. She also referred to Mrs Tey's submission that at no time did Constable Le Corre speak to her inside the Licensing Centre about requiring 100 points of identification. Mrs Tey had said that she was at the Licensing Centre to renew her licence and that the police should of helped her.
The magistrate then repeated her findings concerning what occurred inside and outside of the Licensing Centre. She said that she found the prosecution had proven beyond reasonable doubt that Mrs Tey had refused to supply her name to Constable Plotz upon his request on 11 June 2009. She convicted Mrs Tey of the offence.

Appeal against conviction - ground 1

Mrs Tey says that at common law, a prosecutor is obliged to disclose all relevant evidence to the accused: Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708; Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125. She says that the respondent could and should have obtained the CCTV footage of the inside of the Licensing Centre on the day in question because it was relevant to whether she had produced her bankcard to the police and whether they had read it. She said that the respondent should have also obtained the CCTV footage in order to comply with the Criminal Procedure Act s 61(5)(e). She says that in the absence of proper disclosure of the footage, she was put into a position where she was unable to obtain it herself, even by serving a summons. Therefore she was unable to rely on the footage at trial. In light of those matters, she submits that either Magistrate Wheeler or Magistrate Lane should have made an order permanently staying the prosecution.
I am of the view that this ground has no prospects of success for the following reasons:
(1)Mrs Tey did not ask either magistrate to stay the prosecution. Thus, there is no decision of either magistrate which can be the subject of an appeal on this ground;
(2)The decision appealed from is the decision of Magistrate Lane to convict Mrs Tey. Thus, there is no appeal in respect of anything Magistrate Wheeler did or did not do in respect of the prosecution;
(3)At common law, the obligation on the prosecution is to disclose all relevant evidence in the possession of the police or the prosecutor to an accused. Evidence may be relevant to either the prosecution or the defence. There may be cases where the police or the prosecutor knows of the existence of relevant material and they have such a close connection to the person or body who possesses it that they may be regarded as having the same obligation of disclosure in respect to it as they have in respect to evidence which is in their actual possession. However this is not such a case. Constable Plotz gave evidence that he was unaware that the Licensing Centre had cameras (ts 18/11/09, page 28). Assuming that at some point he did become aware that there were cameras inside the Licensing Centre, the prosecution case was that the offence occurred outside of the centre. The prosecution was not to know of the nature of Mrs Tey's defence. In these circumstances, it cannot be said that the obligation on a prosecutor to disclose all relevant evidence included an obligation to obtain the CCTV footage from inside the Licensing Centre and to disclose it to Mrs Tey;
(4)This case is not comparable to that of Mallard. In Mallard the prosecution withheld material evidence which was in the possession of investigating police before and during the trial. In this case, the police had never had possession of the CCTV footage and were not aware of what it contained. There is still no evidence as to what it contained;
(5)The police did not breach the duty of disclosure in the Criminal Procedure Act s 61(5)(e) by not disclosing to Mrs Tey any CCTV footage from the Licensing Centre. Section 61(5)(e) required the police to serve on Mrs Tey any evidentiary material which was relevant to the charge. 'Evidentiary material' is defined in the Criminal Procedure Act s 42 in a way which would not include CCTV footage that had never been in the possession of the police or any organisation or person acting on behalf of the police. Thus, it would not include the CCTV footage from the Licensing Centre;
(6)I do not accept Mrs Tey's submission that because the CCTV footage was in the possession of a State government organisation then it should also be regarded as being in the police's possession. Each case must be determined on its facts and there may be cases where possession of an item by another organisation will be sufficient to satisfy a court that it was also in the possession of the police or the prosecutor. This is not such a case. As Constable Plotz testified, he was not aware of the CCTV cameras, the way in which any surveillance system which was in the Licensing Centre worked or of the relevance of any material on it to Mrs Tey's defence;
(7)The absence of the CCTV footage, which may or may not have been relevant to the charge, is not a ground for the stay of a prosecution of this type and does not establish that there has been a miscarriage of justice: Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147 [76]; R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 [31]. In criminal proceedings it happens on occasions that relevant material is not available. 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; and
(8)There is no evidence in this case that the police or any other person failed to preserve the CCTV footage in order to prejudice Mrs Tey's defence of the charge. There is no evidence of any impropriety on behalf of the prosecution. Mrs Tey says that the CCTV footage was gathered for a public purpose. This is an assumption, which is unsupported by evidence. Mrs Tey says that the trial was unfair because the CCTV footage was destroyed by the very department which had called the police to the Licensing Centre. I accept that the department was responsible for calling the police and for requiring that she leave the Licensing Centre. However, the departmental officers were not involved in the transaction between the police and Mrs Tey which resulted in the charge being laid and neither were they instrumental in Mrs Tey being charged. The offence was constituted by Mrs Tey's failure to give her name to the police. There was no evidence that departmental officers or the department itself were acting improperly when there was apparently no intervention to stop the erasure and taping over of the CCTV footage in the usual course of the department's business. This is especially as the acts which were said to constitute the offence occurred outside the Licensing Centre; not within it.

Appeal against conviction - ground 2

Ground 2 raises the issue of the relationship between the Identifying People Act s 16(6) which is the statutory provision creating the offence the subject of the appeal and the Criminal Investigation Act 2006 (WA) s 27.
Constable Plotz gave evidence that the offence occurred in circumstances where he, Constable Le Corre and Mrs Tey were speaking outside the Licensing Centre. Constable Le Corre told Mrs Tey that if she went back inside the Licensing Centre she would be trespassing and told her that she had to leave. Mrs Tey then refused to leave. Constable Plotz formed the opinion that Mrs Tey may be trespassing so he went back to his bicycle and obtained his Tardis. He also got a movement order book. He said that he went up to Mrs Tey and explained to her that he reasonably suspected that she may be trespassing so he intended to issue her with a movement order to move her on. He then asked her for her name. Mrs Tey refused to tell him her name. Constable Plotz said that he again asked Mrs Tey for her name and explained to her that in Western Australia if requested to do so by a police officer, any person is required to give their full personal details including their name, date of birth and address. He said that Mrs Tey continued to refuse to give her name and he told her that he may have to arrest her if she maintained that refusal. Due to Mrs Tey's continued refusal, Constable Plotz then arrested her for refusing to give her personal details to him (ts 18/11/09, page 6).
The Criminal Investigation Act s 27(1) empowers a police officer to order a person who is in a public place to leave it if the officer reasonably suspects that the person intends to commit an offence or has just committed or is committing an offence. Section 27(2) states that a police officer giving an order under s 27(1) may, in addition to ordering a person to leave the public place, order the person to go beyond a reasonable distance from the place and order the person to obey the order for a reasonable period set by the police officer; but the period must not be longer than 24 hours. Section 27(3) states:
(3)When giving a person an order under subsection (1), a police officer must take into account the likely effect of the order on the person, including but not limited to the effect on the person's access to the places where he or she usually resides, shops and works, and to transport, health, education or other essential services.
Mrs Tey submits that if a person, exercising a statutory power, fails to take into account a relevant consideration the person is bound to take into account in exercising that power, the purported exercise of the power is improper: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 42.
Mrs Tey also submits that the evidence raised an issue as to whether Constable Plotz had improperly exercised the statutory power under s 27. Thus, the magistrate should have considered and decided whether the prosecution had proved beyond reasonable doubt that Constable Plotz had not failed to take a relevant consideration into account in deciding to exercise his statutory power under s 27(1). Mrs Tey says that the magistrate failed to take this matter into account and therefore there was a miscarriage of justice.
There is no merit in this ground. The elements of the offence under the Identifying People Act s 16(6) are:
(1)the accused's personal details are unknown to a police officer;
(2)that police officer reasonably suspects that the accused has committed or is committing or is about to commit an offence;
(3)that police officer requests the accused to give the officer any or all of his or her personal details; and
(4)the accused does not comply with the request.
If those elements are made out, the accused will still be not guilty for failing to comply with the request if he or she establishes that they had a reasonable excuse for not complying with the request.
Constable Plotz gave evidence that the offence which he suspected Mrs Tey had committed or was about to commit was the offence of trespass. Constable Plotz gave evidence that his initial intention was to issue a move on order under the Criminal Investigation Act s 27 because he suspected that Mrs Tey had committed or was about to commit that offence. However, that initial intention was not an element of the offence in the Identifying People Act s 16(6). Thus, the magistrate was not required to take into account in deciding whether the offence had been proved whether Constable Plotz had taken into account the likely effect of a move on order on Mrs Tey. In any event, as the respondent points out, the failure of a police officer to take such matters into account could only be established if the move on order was issued without the matters in s 27(3) being considered. In this case Constable Plotz never issued a move on order. Mrs Tey's complaint is premature.

Appeal against conviction - ground 3

Ground 3 alleges that there was evidence before the magistrate which raised the issue as to whether Constable Plotz purported to exercise his statutory power under the Identifying People Act s 16 for an improper purpose. Yet the magistrate erred in law in failing to consider that issue. Consequently, Mrs Tey says that there was a miscarriage of justice. The improper purpose which is alleged is that Constable Plotz's actions were 'aimed at facilitating the wrongful infringement of [Mrs Tey's] lawful right to transact business with the State of Western Australia in respect of the renewal of her driver's licence, and, in particular, at preventing her from re‑entering the office of the Department of Transport to transact such business'.
I will assume, without deciding, that Mrs Tey had a right to transact lawful business with the State of Western Australia. Further, I accept that Mrs Tey was at the Licensing Centre to renew her driver's licence. I will assume that she genuinely believed that she had a right to do so without producing 100 points of identification. Her belief was apparently based on a letter she had from the Attorney General.

I do not accept that the authorities establish that Mrs Tey had the right to transact her business with the State wherever, whenever and in whatever circumstances she wished to do so. Neither do they establish that a person has an unqualified right to be successful in the transaction between themselves and the State.
The evidence in this case established that the departmental officers required Mrs Tey to produce 100 points of identification in order to renew her driver's licence. They may have been wrong about that requirement and, if so, Mrs Tey may have been able to obtain legal or other redress to enforce her right to renew her licence. That does not mean that Mrs Tey had the right to remain at the Licensing Centre, create a disturbance, insist on the departmental officers renewing her driver's licence and commit a trespass.
Mrs Tey's written submissions focus on whether Constable Plotz failed to consider Mrs Tey's common law rights in deciding whether to exercise his statutory power under the Criminal Investigation Act s 27. However, as I have explained above, the issue in respect to s 27 was a byplay in respect to the commission of the offence under the Identifying People Act s 16(6).
In any event, there was no evidence before the magistrate which raised, as an issue, whether Constable Plotz attempted to exercise either the power to issue a move on order or the power to ask Mrs Tey for her personal details for the improper purpose alleged by Mrs Tey. If Constable Plotz had obtained Mrs Tey's name and had issued a move on order, it would have required Mrs Tey to move away from that particular Licensing Centre for up to 24 hours. It would not have prevented Mrs Tey from transacting business with the State of Western Australia at any other location or at any other time. Further, it is apparent from the evidence of Ms Wood that Mrs Tey had transacted her business at the Licensing Centre on that date in that she had attempted to obtain a renewal of her driver's licence at the centre. She had been refused that renewal because she had not produced 100 points of identification. The evidence was clear that that decision was not going to be reversed on that day at that Licensing Centre. Her business at the Licensing Centre on that day had been completed, albeit not to Mrs Tey's satisfaction.
This ground has no prospects of success.

Appeal against conviction - grounds 4 ‑ 6

These grounds, considered together, complain that in determining whether Constable Plotz made a valid statutory request for Mrs Tey's name, the magistrate erred in law in failing to take into account that:
(1)Mrs Tey had recently supplied the Attorney General for the State of Western Australia with her name and address and that the Attorney General had more recently responded to Mrs Tey's communication by sending her a letter bearing her name and address;
(2)Immediately before the alleged offence took place, Mrs Tey supplied Allison, an employee of the Department of Transport, with her name, address and date of birth, the Department of Transport were responsible for calling the police to the Licensing Centre and the prosecution elected not to call Allison as a witness; and
(3)Mrs Tey offered to Constable Plotz and Constable Le Corre to show Constable Le Corre the original letter from the Attorney General bearing her name and address and Constable Le Corre rejected that offer.
Mrs Tey submits that on the proper construction of s 16 and s 27, they do not authorise a police officer to request information that is already known, or has already been given, to another part of the executive arm of the State and which is easily obtainable by that officer from that other source. She says that in those circumstances the existence of the power created by s 16 is not necessary for the police officer to obtain the information.
Mrs Tey says that for similar reasons, even if neither Constable Plotz nor Constable Le Corre knew her name, s 16 did not authorise Constable Plotz to request her name if she had previously offered to tell Constable Le Corre her name and Constable Le Corre had declined that offer.
Mrs Tey says these principles of construction are consistent with various statements made in some authorities emphasising the importance of the right to personal liberty, as the most elementary and important of all common law rights.
It is self‑evident from the terms of s 16 that the right of a police officer to request a person to give the officer his or her personal details is absolute as long as that officer reasonably suspects that the person has committed or is committing or is about to commit an offence and that person's details are unknown to that officer. Thus, in my view the matters raised by Mrs Tey have no application to Constable Plotz's right to request Mrs Tey to give him her name unless they could raise a doubt that Mrs Tey's name was not unknown to Constable Plotz.
The element of the offence that the personal details of the accused are unknown to the relevant police officer is made out if the officer making the request does not have actual knowledge of the personal details of the accused. This is the ordinary meaning of 'unknown'. There is good reason why it would apply in this statutory context. When a police officer reasonably suspects that a person has committed an offence, it is important that the police officer correctly identifies the suspect. This is a protection for the suspect and other members of the public, as much as it is a forensic tool for the police officer. It may be inferred that a person has knowledge of something from circumstantial evidence. It is another thing to impute knowledge of something to a person as a consequence of others having that knowledge. In my opinion, the Act does not contemplate the latter circumstance.
For some purposes the State of Western Australia is regarded as indivisible and what is known to one part of the executive arm of the State is regarded as being known by the State, in general. However, that constitutional principle does not apply to the application of s 16 as the element of the offence which must be proven is that the accused's personal details are unknown to the relevant police officer; not unknown to the State of Western Australia. By framing the statute as it did, it seems to me that the legislature was careful to make the lack of knowledge, the suspicion and the request personal to the relevant police officer.
In this case, Mrs Tey does not suggest that Constable Plotz had prior actual knowledge of her identity (directly or by inference), or that he was advised of her identity by any other person. It seems to be accepted that at the time he started to speak to her at the Licensing Centre her personal details were unknown to him. However, she asserts that certain circumstances meant that the magistrate should not have been satisfied that when Constable Plotz asked for her name, her personal details were unknown to him. In respect to each of these circumstances I say as follows:
(1)The fact that a Department of Transport officer knew Mrs Tey's name, does not affect the magistrate's finding that Constable Plotz did not know Mrs Tey's name. There was no evidence that Constable Plotz had spoken to Allison or obtained any information about the identity of Mrs Tey from any departmental officer. The prosecutor's election not to call Allison as a witness does not take this point any further. I have assumed for the purposes of this ground that Mrs Tey had provided Allison with her personal details.
(2)Constable Plotz said that whilst inside the Licensing Centre, Mrs Tey produced a card of some sort. He said it did not contain a photo ID and it was not a driver's licence or anything like that. He said it could have been a bankcard or something similar (ts 18/11/09, page 5). Mrs Tey put to him that he knew her identity straightaway after she showed her bankcard identification, which showed her full name. Constable Plotz answered 'that's incorrect. I did not know who you were' (ts 18/11/09, page 13). Constable Le Corre gave evidence that Mrs Tey reached into her bag and pulled out a card of some description. She waved it in his face and then put it back in her bag (ts 18/11/09, page 51). Mrs Tey gave evidence that the police knew her name from the bankcard. The magistrate did not accept this evidence. There was no evidence which was accepted by the magistrate that Constable Plotz knew Mrs Tey's name from reading that card.
(3)Constable Plotz said that he heard Mrs Tey say to Constable Le Corre that she would like to show him a letter from the Attorney General. He said that Constable Le Corre told Mrs Tey that he could not help her with her enquiry at the Licensing Centre and that the letter did not affect the fact that she was trespassing. He said that as far as he was aware, Constable Le Corre did not look at the letter. During his evidence, Mrs Tey asked Constable Plotz whether he knew that the letter contained her full name and address. Constable Plotz said 'No, I didn't' (ts 18/11/09, page 16). Constable Plotz also said that the letter was produced by Mrs Tey to prove that she had an issue with the Department. He said that she did not offer it as a means of identification (ts 18/11/09, page 18). The magistrate clearly accepted Constable Plotz's evidence. There was nothing within that evidence which could have affected the magistrate's finding that Mrs Tey's personal details were unknown to Constable Plotz.
These grounds of appeal have no prospects of success. However, the matters raised by Mrs Tey may be relevant matters to take into account in determining whether Mrs Tey had a reasonable excuse for failing to comply with the request. That issue is dealt with in ground 7.

Appeal against conviction - ground 7

Ground 7 alleges that the magistrate erred in law in failing to consider whether Mrs Tey had a reasonable excuse for not complying with Constable Plotz's request. What is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of 'reasonable excuse' is an exception: Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454, 464.
The onus was on Mrs Tey, to prove on the balance of probabilities, that she had a reasonable excuse for failing to comply with Constable Plotz's request: Criminal Procedure Act s 78.
In Hounslow v Woodward [2007] WASC 27 Johnson J accepted that the purpose of s 16(2) is to enable a police officer to identify a person suspected of committing an offence. I would agree with that comment. Her Honour said:
In that regard it is a significant forensic tool. The provision also facilitates identification of those suspected of being involved in offences, and those who have witnessed offences, who might not otherwise wish to assist the police in their enquiries. The imposition of the penalty emphasises the importance of the power and must have been intended to influence those who might not wish to assist the police to do so. In those circumstances, I believe that the term 'reasonable excuse' was not intended to have a broad operation [97].
As I have already said, I am also of the opinion that the power protects members of the public from the risk that they will be misidentified by the police as a suspect or other relevant person.
I have also had regard to E M Heenan J's dicta in The State of Western Australia v Mohamed (No 2) [2007] WASC 311 [6] ‑ [10] to the effect that a person's personal details are not privileged information.
Taking these matters into account, I do not believe that the legislature intended that a person's refusal to comply with an otherwise valid request for their personal details would be excused simply on the basis that the subject of the request subjectively thought that the police officer had or should have had sufficient identifying material already or should have asked some other person who knew the accused's personal details for the information.
In my view, a reasonable excuse for the purpose of s 16(6) is one which the court thinks that an ordinary and reasonable person in the accused's position, but without any of the idiosyncratic characteristics of an individual accused, would think was reasonable. The reasonable person takes into account not only the circumstances from the accused's point of view but also from the police officer's point of view as they ought reasonably to have been known to the accused, and the public interest issues, which I have identified above which render it important that police officers be able to identify suspects correctly.
In this case, the magistrate does not appear to have expressly considered whether Mrs Tey had established, on the balance of probabilities, that she had a reasonable excuse for her failure to comply with Constable Plotz's request. This may well be because Mrs Tey was not legally represented at the trial and did not appreciate the significance of the reasonable excuse provision. Her Honour did consider whether certain actions of Mrs Tey meant that Constable Plotz had knowledge of her details. In particular, she found that Mrs Tey's evidence that because she had given Constable Le Corre her bankcard and he therefore knew her name to be 'blatantly untrue'.
In any event, the magistrate's failure to expressly consider whether Mrs Tey had established on the balance of probabilities that she had a reasonable excuse for not complying with Constable Plotz's request, did not result in a substantial miscarriage of justice: Criminal Appeals Act s 14(2).
This is principally for the reasons which I have given in respect of grounds 4 ‑ 6 above. It may be a reasonable excuse for an accused not to comply with a request when they have tendered to that officer a document containing their personal details and advised the police officer that those details were correct. This is not such a case. It may also be a reasonable excuse for an accused not to comply with a police officer's request when they have within that officer's earshot advised another officer or public officer of their personal details and they advised the requesting officer that those details were correct. Again, this is not such a case.
It is not a reasonable excuse for someone to decline to comply with a police officer's request because they have given another public officer their personal details in respect to an entirely different transaction. Neither, simply because a Minister of the State is aware of their personal details does it mean that a police officer must be as well. There is a separation of information within government. This separation is generally for the protection of a person's privacy.
Even considering all of the matters raised by Mrs Tey I am not of the view that they constituted a reasonable excuse for her failing to comply with Constable Plotz's request for her personal details.
In determining that there was no substantial miscarriage of justice, I have accepted that the magistrate rejected Mrs Tey's evidence on certain relevant matters, as she was entitled to do. The magistrate had the advantage of hearing the evidence. This was a substantial advantage in this case and it is one which I do not have. Thus, I have determined whether there was a substantial miscarriage of justice on the basis of the prosecution witnesses' evidence, which the magistrate accepted.

Appeal against sentence - ability to pay the fine

The maximum penalty for the offence is 12 months' imprisonment. However, where the offender is a natural person, the court may also use any one of the sentencing options in the Sentencing Act 1995 (WA) s 39(2) and the maximum fine which may be imposed is $12,000: Sentencing Act s 41.
In determining the amount of a fine, a court is obliged to take into account the offender's ability to pay the fine and the extent to which payment of the fine will burden the offender: Sentencing Act s 53. However, it is also a relevant factor to take into account that an offender can apply for time to pay a fine and that their means will be taken into account in determining a time to pay arrangement. Thus, there are no longer the burdens which used to be on an offender as a consequence of having to pay a fine by a particular date and having to spend time in custody in default of payment.
Mrs Tey advised the magistrate that she owned her own home. She said that her income was from interest, which was around $600 per month, on the investments which she received in her divorce settlement and a sickness benefit. Mrs Tey told the magistrate that she did not have a capacity to pay a fine as she was not working and was on sick leave. She told her Honour that she had a vacant block of land which was not earning her any income. Mrs Tey told the magistrate that she wanted to build on that land but she did not yet have the capacity to do so. The magistrate took the view that because Mrs Tey had the block of land she had the capacity to pay a fine. This determination is challenged by Mrs Tey on the basis that she should not have to attempt to raise money against the land in order to pay a fine. Her Honour took into account that Mrs Tey could make a time to pay arrangement.
Taking these matters into account, in my view there is nothing to indicate that the fine of $500 was manifestly excessive. The magistrate was entitled to, and did, take into account Mrs Tey's income and her assets in determining that Mrs Tey had the capacity to pay a fine of that amount and in determining the amount of the fine.
Mrs Tey says the magistrate should also have taken into account the 'considerable and unreasonable hardship that would be caused' if she was forced to sell her assets to fund the payment of a fine of $500. It is said that there is nothing in the transcript to indicate that the magistrate took such hardship into account. I agree that there is nothing to indicate that the magistrate took such a matter into account. This was because there was no evidence before her that Mrs Tey would be forced to sell an asset to meet payment of the fine. There is nothing before me to indicate that she will have to sell an asset in order to pay the fine so it would not be appropriate for me to take such a matter into account either.
This ground of appeal has no prospect of success.

Appeal against sentence - pre‑sentence reports

The magistrate ordered a pre‑sentence report and a psychological report.
The first report prepared dated 12 January 2010 is headed a 'Non‑Contact Pre‑Sentence Report'. It set out why a pre‑sentence report and psychological report had not been prepared as requested. The report was adverse to Mrs Tey in that it stated that she had attempted to manipulate the process by dictating how the pre‑sentence report process was to be undertaken. There was nothing of substance in the report and it does not appear to have played any part in the sentencing process.
The magistrate then permitted further time so that the reports could be prepared. A standard pre‑sentence report was prepared dated 9 March 2010. The report was favourable to Mrs Tey. It reiterated her view that she was not guilty of the offence and stated her view of it.
The report noted that Mrs Tey's second eldest child had attended the interview and that he appeared to be under instruction not to participate in it. Mrs Tey appears to take offence at this comment but there is nothing to indicate that the magistrate placed any weight on it. It appears to have been irrelevant to the determination of the appropriate sentence.
Mrs Tey says that that report and the accompanying psychological report contained significant factual inaccuracies and unfair criticisms. She said that the magistrate still relied upon them and so there was a miscarriage of justice.
Putting aside for one moment any factual inaccuracies in the account of Mrs Tey's background, I read both reports as being quite favourable to Mrs Tey. The standard pre‑sentence report noted that Mrs Tey appeared to be a very well established member of the community. It said that there did not appear to be any pertinent need or risk factors which required the intervention of Community Corrections. Therefore Mrs Tey was considered not suitable for a community‑based disposition. The psychological report said that Mrs Tey presented as a pleasant and talkative lady who did not present with any mental health issues at the time of the interview and there were no psychological issues evident.

The psychological report noted that Mrs Tey presented with strong personality traits which had contributed to her offending behaviour. There is no doubt in my mind that this is an accurate statement having regard to the transcript of the proceedings before the magistrate, which I have read.
I do not read anything in the magistrate's reasons for sentence which indicates that her Honour was led into error by the contents of any of the reports.
If there are material matters in a pre‑sentence report which are not accepted by an offender then a sentencing court cannot take them into account in a manner that is adverse to the offender, unless they are proved. This was not such a case. On a fair reading of the reports and the reasons of the magistrate I am not satisfied that there were any matters in the reports which were in dispute which were taken into account by the magistrate in a manner that was adverse to Mrs Tey.
I would not grant leave to appeal in respect of either of the grounds of appeal against sentence.
For the above reasons, I would dismiss the appeals against conviction and sentence.