JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : VANDER WAIDE (AKA ADAM WAIDE) -v- RATCLIFFE [2012] WASC 299 CORAM : HALL J HEARD : 6 AUGUST 2012 DELIVERED : 6 AUGUST 2012 PUBLISHED : 24 AUGUST 2012 FILE NO/S : SJA 1059 of 2012 BETWEEN : CHRISTINE VANDER WAIDE (AKA ADAM WAIDE) Appellant
AND
PAUL ANTHONY RATCLIFFE
Respondent
ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE W TARR
File No : PE 5224 of 2011
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Catchwords:
Criminal law - Appeal against conviction - Miscarriage of justice - Whether evidence new or fresh - Whether verdict of guilty unreasonable or could not be supported on the evidence - Whether appellant denied opportunity to give evidence - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr P D Spragg
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272DPJB v The State of Western Australia [2010] WASCA 12Harvey v Matthews [1999] WASCA 58Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559Lovell v Fullman [2011] WASC 312M v The Queen [1994] HCA 63; (1994) 181 CLR 487Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13(Page 3)Rasoolifard v Nicol [2001] WASCA 180Rinaldi v The State of Western Australia [2007] WASCA 53Ryan v The State of Western Australia [No 2] [2011] WASCA 144SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400Smart v Albuquerque [2011] WASCA 231Stavrianakos v The State of Western Australia [2011] WASCA 130The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
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Introduction 1 On 6 August 2012 at the hearing of this appeal I refused leave and ordered that the appeal be dismissed. I gave brief reasons and indicated that more detailed reasons would be published.
2 The appellant sought leave to appeal against convictions for road traffic offences. Those convictions followed a trial in the Magistrates Court that commenced on 28 February 2012 and was then adjourned to 5 April 2012 and completed on that date. The convictions were for the following offences, driving whilst disqualified contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA), reckless driving, contrary to s 60(1) of the Road Traffic Act, and failing to stop when called upon by police contrary to s 53(1)(b) of the Road Traffic Act. Those convictions triggered suspended sentences imposed on 25 May 2010 for other driving offences.
3 As a consequence of his convictions the appellant was ordered to serve the suspended sentences of 12 months' imprisonment. He was then sentenced to a further 6 months' imprisonment concurrent on the first charge; 4 months' imprisonment cumulative on the second charge and fined on the third charge. The end result was a total effective sentence of 16 months' imprisonment.
Grounds of appeal
4 The appellant engaged counsel to appear on his behalf before the Magistrates Court but represented himself on the appeal. His original grounds of appeal were difficult to understand and it was for that reason that I commenced a directions hearing on 1 August 2012. It became apparent that what the appellant was complaining about was, first, that the evidence given by the police witnesses did not in his view support his conviction. Secondly, that he had been denied an opportunity to give evidence in his defence. Thirdly, that there was fresh or new evidence available that would establish that he should not have been convicted. I gave the appellant an opportunity to file amended grounds and also to file affidavits in support of his claims as to the fresh or new evidence. He did not file the affidavits in the required timeframe but sought to hand them up at the hearing of the appeal. Insofar as it is possible to do so having regard to the need to ensure that the proceedings are fair to both parties, I have made allowances for the fact that the appellant has represented himself from the outset of this appeal.
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5 The appellant did file amended grounds of appeal and they were as follows:
6 I understand these grounds to reflect the concerns raised by the appellant at the directions hearing. I will deal with ground 2 first as it requires a consideration of the evidence at the trial.Ground 2 - Were the verdicts unreasonable?
7 Where a finding of guilt is challenged on the basis that it is unreasonable or cannot be supported on the evidence, the question for the appellate court is whether the tribunal of fact must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J). See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 495 (Mason CJ, Deane, Dawson and Toohey JJ).
8 The principles applicable to whether a verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate: The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA, with whom McLure P and Mazza JA agreed). See also Harvey v Matthews [1999] WASCA 58 [11] (Miller J); Rasoolifard v Nicol [2001] WASCA 180 [25] (McLure P); Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272 [79] (Johnson J); Smart v Albuquerque [2011] WASCA 231 [16] (McLure P, Buss JA and Mazza J); Lovell v Fullman [2011] WASC 312 [8] - [10] (Hall J).
9 A ground of this type requires the appellate court to examine the whole of the evidence, not just to determine its sufficiency, but to weigh the evidence and decide whether or not it gives rise to any reasonable doubt: M v The Queen; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. In SKA v The Queen French CJ, Gummow and Keefle JJ said that:
(Page 6) On appeal the task of the [appellate court is] to make an independent assessment of the whole of the evidence to determine whether the verdicts of guilty [can]be supported ... [and to] weigh the competing evidence [22].
10 The prosecution case was that the appellant had driven his car in a reckless manner and whilst disqualified from driving. The prosecution called two police witnesses. The first of those was Sergeant Ratcliffe. Sergeant Ratcliffe was the driver of a police vehicle that was in the Bayswater area on 19 November 2010. He said that at 11.39 am on that day he was in company with other police officers in his vehicle when he noticed a black Holden Commodore utility. He noted the registration number of that vehicle. He said that as he looked at the driver he had a clear view and he gave a description of the driver, including by reference to a distinctive haircut. 11 Sergeant Ratcliffe said that as the vehicle approached it accelerated heavily and the driver glanced towards him. He said he had a clear view of the driver. He said that at the closest point the driver was about a car's length away. He said that after the vehicle accelerated another police officer in the vehicle, Constable Woodward, who was the other police witness called at the trial, entered the registration details into the car's on-board computer and obtained an image of the owner of the vehicle on the computer screen which he turned and showed to Sergeant Ratcliffe. Sergeant Ratcliffe said that he immediately recognised the image that appeared as being that of the same person who he had just seen in the car.
12 Sergeant Ratcliffe said that the car then sped off, travelling at about 20 kilometres over the speed limit for the area. The car then made a number of turns which involved causing danger to others who were on the road and causing the car to fishtail. The lights and siren of the police vehicle were activated but the car did not stop. It was followed for a distance but the police officers gave up the chase because it was too dangerous to continue.
13 It was put to Sergeant Ratcliffe in cross-examination that his opportunity to view the driver of the vehicle was limited because the windows of the other vehicle were raised and were tinted. He said, 'No, it wasn't tinted. If it was, it wasn't a dark tint'. He maintained that he could see the face of the driver. He identified the appellant in court as being the person who he saw, both in the image on the screen and as the driver of the vehicle.
14 Sergeant Ratcliffe said that about 10 days later, on 29 November 2010, he attended at the home of the appellant. There was a delay
(Page 7) because he had been on annual leave and rostered days off. He said when he attended the address there was a dog, which he saw, barking. This is significant because the vehicle that was followed on 19 November 2010 had a dog in the rear tray. He said when he saw the dog at the appellant's house he recognised it as the same dog.
15 Sergeant Ratcliffe knocked at the door and when the appellant came to the door Sergeant Ratcliffe immediately recognised him as being the driver of the vehicle that he had seen on 19 November 2010. He said that the appellant had the same haircut, same features, same coloured skin and same build. 16 The appellant agreed to accompany Sergeant Ratcliffe to the Morley police station. There the appellant declined an opportunity to answer any questions in relation to any driving offence. He was then charged. Sergeant Ratcliffe gave evidence that at the time that these offences occurred the appellant was under a life suspension.
17 Constable Woodward gave evidence that he was in the passenger seat of the police vehicle on 19 November 2010. He too said that the incident occurred at about 11.39 am. He said that it was a fine day and that the police vehicle was stopped at the intersection of Raleigh Road and Beechboro Road South. He saw the black Holden Commodore utility and saw it accelerate. He said that, 'The male driver turned, looked directly at us, and then heavily accelerated his vehicle away' (ts 33). He said he got a look at the driver. He also noticed that there was a dog in the rear tray.
18 Constable Woodward was asked how long he had to see the driver. He said, 'Two or three seconds. Long enough for me to get a good look at the identity of the driver' (ts 33). He said that he then immediately entered the relevant details into the police computer system in the police car and that brought up details including a photograph of the owner of the vehicle. It was not disputed at the trial that the appellant was the owner of the vehicle.
19 Constable Woodward said that when he saw the image on the screen he was able to confirm that it was the same person who was driving the vehicle. He described the way in which the vehicle drove in similar terms to Sergeant Ratcliffe.
20 Constable Woodward was cross-examined in regards to his opportunity to see the driver and said that it was long enough for him to get a clear unobstructed view. He said he saw the driver from the side and also saw the driver's face when the vehicle was coming towards them. He
(Page 8) was asked whether there was any tinting on the windows of the vehicle and he said that there was not.
21 The appellant did not give evidence at the trial, and I will return to that issue shortly, however, two witnesses were called in his defence. One was Franco Vercelli, who had formerly employed the appellant. The purpose of this evidence appears to have been to establish an alibi on the relevant day but it is fair to say that Mr Vercelli's evidence established no such thing. He confirmed that he had employed the appellant in the past. Some records were produced in that regard including an invoice, but he said that he could not give evidence as to whether the appellant was actually working for him on 19 November 2010. He said that he could not say one way or the other. 22 The other witness called for the defence was the appellant's mother, Ms Teresa Gray. Ms Gray gave evidence that she had attempted to sell her son's Holden Commodore vehicle around the period that this offence was said to have occurred. She said that in that regard a number of people made inquiries about the vehicle including a person, who she said went by the name of Trevor. Later in her evidence she said his name was Derek. She said that when this person came to look at the car he was keen to take it for a drive. She said she agreed to this and that when she unlocked the vehicle her son's dog jumped into the vehicle and could not be moved. She said that 'Derek' then said that he would take the dog with him for the test drive. Ms Gray was asked when this had occurred and she was unable to give any evidence that would enable a conclusion to be reached that this person could have been the person driving the car on 19 November 2010.
23 Ms Gray was also asked to describe the windows of the car, and she said that they were black tinted:
The windows were quite black, tinted. It's the same black, the blackest you can go in a window tint, which I'm having done in a car of mine at the present time - very dark. The windscreen graduated from very dark to dark to not so dark. It went down in, like, gradation (ts 21).
24 There was no independent evidence as to the car windows and no photographs of the car from the relevant time have ever been produced. 25 As is apparent from that review of the evidence, the issue at trial was principally one of identification. The prosecution case was that it was the appellant who was driving the vehicle. This was based upon the evidence of the police officers and also evidence that the vehicle was registered in
(Page 9) the name of the appellant. As I have noted, the appellant did not give evidence, however, his record of interview with the police was tendered by his counsel at the trial and became an exhibit.
26 Where issues of credibility are raised, it must be borne in mind that the magistrate had the opportunity to see and hear the witnesses. In that regard, some recognition of the magistrate's conclusions should be made unless it can be shown that the magistrate failed to use, or palpably misused, the advantage that he had of seeing the witnesses himself. 27 The magistrate found that the evidence of identity was compelling. He noted that the prosecution case did not solely rely upon the evidence of the police witnesses but also included the fact that the car was registered in the name of the appellant. He considered the evidence of the mother, Ms Gray, but found that evidence to be vague and unsatisfactory and not such as to raise a reasonable doubt as to the appellant's guilt. In my view it was clearly open to his Honour to reach those conclusions on the available evidence.
28 The appellant argued that it was not possible for the police witnesses to identify him given the limited observation time and the tinted car windows. However, these were matters put to the police witnesses and both maintained that they did see the appellant and recognised him as being the same person when the owner's image came up on the computer screen. The defence evidence either did not assist the appellant (in the case of Mr Vercelli) or inherently lacked credibility (in the case of Ms Gray). In my view, it was not merely open to come to the conclusion that the appellant was the driver, it was the only reasonable conclusion open on the evidence. For these reasons ground 2 had no reasonable prospects of success.
Ground 3 - Was the appellant denied an opportunity to give evidence?
29 In the course of the trial, after the prosecution had closed its case, the defence called its witnesses. There was no suggestion at the commencement of the defence case that the appellant would be giving evidence. After the two defence witnesses had completed their evidence there was an exchange with the magistrate in which defence counsel said that she wished to check with the appellant as to whether he wanted to give evidence. The magistrate noted that if he wished to give evidence he should have given it first and that was conceded. Thereafter there is no indication in the transcript that the appellant wished to give evidence in his defence.
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30 The appellant raised as an issue on the hearing of the appeal that he was not fit to instruct his lawyer during the trial because he was suffering from a mental illness. That was not suggested at the time of the trial. There is nothing in the transcript to suggest that he was unfit and, indeed, the appellant appears to have taken an active interest in the proceedings. One illustration of this is an incident where the appellant's counsel notes that her client is unhappy about the extent of her re-examination of a witness (ts 25). That witness was then recalled, and further questions were put, presumably on instructions.
31 A person is presumed to be fit to stand trial in the absence of evidence to the contrary: s 10 Criminal Law (Mentally Impaired Accused) Act 1996 (WA). There was no such evidence at the trial. The appellant said that he could produce evidence as to his state of health from a doctor who he has been consulting. However, he conceded in exchanges at the appeal hearing that the doctor did not see him on the relevant day of the Magistrates Court trial, being 5 April 2012, and that such evidence would be of a general nature as to mental health conditions that he has suffered in the past. Evidence of that type falls far short of what is required in order to conclude that the appellant was unfit to make a decision as to whether to give evidence on a particular relevant day. In any event, despite being afforded an opportunity to do so, the appellant produced no such evidence on the appeal.
32 As to the suggestion that the appellant's lawyer did not follow, or indeed seek, his instructions, this is a difficult thing to establish in circumstances where there is no support for that claim in the transcript. The decision to not give evidence was an entirely reasonable one, given that the record of interview was admitted, and there would clearly be a risk of exposure to cross-examination if the appellant gave evidence.