Weaver v Lundy

[2021] WASC 110

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WEAVER -v- LUNDY [2021] WASC 110

CORAM:   ALLANSON J

HEARD:   8 APRIL 2021

DELIVERED          :   22 APRIL 2021

FILE NO/S:   SJA 1057 of 2020

BETWEEN:   GLEN SIMON WEAVER

Appellant

AND

JASON LUNDY

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE P G MALONE

File Number            :   FR 10821 of 2019, FR 10822 of 2019

Catchwords:

Criminal law - Driving at reckless speed to escape pursuit - Failure to comply with a direction to escape pursuit - Leave to appeal - Where appellant requested to play recording of radio communications from police vehicle at trial - Whether recording admissible - Whether magistrate erred in not admitting recording - Whether error resulted in a miscarriage of justice - Whether no substantial miscarriage of justice - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)

Result:

Extension of time granted
Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

WS v Gardin [2015] WASC 97; (2015) 48 WAR 494

ALLANSON J:

Introduction

1. On 18 June 2020, the appellant, Glenn Simon Weaver, was convicted of the following offences, said to have been committed on 5 November 2019:

   (1)driving a motor vehicle at a reckless speed (45 km an hour or more above the speed limit) in a circumstance of aggravation, namely that he was driving to escape pursuit by a police officer;[1] and

   (2)failing to comply with a direction by a police officer to stop the vehicle in circumstances of aggravation, namely that, at the time the direction was given, he was driving so as to escape pursuit by a police officer.[2]

   [1] Prosecution notice FR 10821/2019.

   [2] Prosecution notice FR 10822/2019.

2. Mr Weaver was sentenced to immediate imprisonment for 7 months for the aggravated reckless driving, and imprisonment for 3 months, concurrent, on the failure to comply with a direction to stop.  Imprisonment was mandatory on the charge of driving at a reckless speed in the circumstance of aggravation alleged.

3. Mr Weaver was also charged, but found not guilty, on two drug possession charges.

4. On 21 August 2020, Mr Weaver filed a notice of appeal against those convictions on a single ground:

   There was a miscarriage of justice in that audio recordings of radio communications involving police allegedly chasing the appellant were not admitted into evidence.

The extension of time

1. Mr Weaver requires an extension of time.  The application for extension of time and for leave to appeal were ordered to be heard together.

2. The delay in filing the notice of appeal was not long.  In an affidavit filed in support of the application for an extension of time, Mr Weaver states that after conviction he went to Hakea Prison, and from there to Wooroloo Prison, where he applied for legal aid for an appeal.  Aid was granted on 21 July 2020.  Transcript was requested but by 10 August 2020 had not been received.

3. Mr Weaver applied for bail.  The application was not opposed and bail was granted on 31 August 2020.

4. I am satisfied in the circumstances that the delay is excusable, and would extend time.

The trial

1. Mr Weaver represented himself at trial.

2. He first raised whether the audio recordings would be played in the trial before any evidence was called.  Mr Weaver said he wanted it played.  The prosecutor said that he did not intend to play it, and it had no relevance.[3]  The magistrate told Mr Weaver (apparently without having heard the recording), 'it has no role for you and it's not evidence of what's going on'.[4]  Mr Weaver did not agree that the audio had no weight.  The question of playing the recording was put off to be revisited in cross examination.

   [3] ts 11.

   [4] ts 13 - 14.

3. The first prosecution witness was the driver of the police vehicle, Constable Lundy.  He gave evidence that he first saw Mr Weaver's motorcycle on Canning Highway in Applecross at about 1.35 am on 5 November 2019.  The motorcycle was travelling in the opposite direction to him at a speed he estimated to be 80 to 90 km an hour.  Constable Lundy decided to try to intercept the motorcycle, conducted a U-turn and followed the motorcycle from Canning Highway onto Kintail Road.  He followed the motorcycle for two or three hundred metres before it turned right onto Forbes Road.  Constable Lundy said at this time he was trying to get close enough to read the registration.  He followed the motorcycle along Forbes Road, onto Duncraig Road.  He was still unable to read the registration until towards the end of Duncraig Road, as the motorcycle approached a roundabout.  He then decided to conduct a traffic stop and activated the emergency lights and sirens on the police vehicle.  Constable Lundy was asked what happened once he'd activated the lights and sirens and replied:

   The rider who was controlling the motorcycle looked behind himself at us, then forward, and then accelerated away from us.[5]

   [5] ts 20.

4. Constable Lundy said the police vehicle followed the motorcycle onto Gairloch Road, and then onto Kintail Road again, driving at up to 140 km an hour with the motorcycle still getting away.  The motorcycle then slowed down, turned onto Forbes Road again, and slowed to a walking pace.  Constable Lundy then took the opportunity to block the path of the motorcycle with the police vehicle.

5. Constable Lundy gave further evidence regarding the drugs alleged to have been found in a backpack of the pillion passenger.  It is not necessary to consider that evidence further.

6. The magistrate explained to Mr Weaver that he could cross‑examine and that it was important to put areas of disagreement to the witness.[6]  The magistrate specifically referred to what Mr Weaver had said before evidence about wanting to listen to audio recordings which had been disclosed to him.  Mr Weaver put the following question:

   Now, on that audio that ‑ you provided me with a copy of the ‑ that audio of it.  One of them clearly states that you're still unaware of the registration and you were trying to read it, and then it clearly states, within seconds after that, 'Wait.  The rider is pulling over.  He has come to a stop.'[7]

   [6] See Magistrates Court Act 2004 (WA) s 30.

   [7] ts 29.

7. Constable Lundy replied that he did not remember that, as he was not on the radio, he was driving.  Constable Lundy agreed that he activated the lights on the police vehicle after getting the registration on the motorcycle.  He disagreed it was just after obtaining the registration that he noticed the rider pulling over and coming to a stop.  He also disagreed that Mr Weaver had pulled over and come to a stop, not that he was cut off by the police vehicle.  He said that Mr Weaver's motorcycle rolled into the police vehicle at low speed.[8]

   [8] ts 31.

8. Constable Lundy did not agree with questions put by Mr Weaver to the effect that Mr Weaver's motorcycle had come to a stop and was in neutral and the police car 'rammed' into him.[9]

   [9] ts 32.

9. Constable Lundy responded to questions about what was said on the radio by saying that it was his partner, Constable Lill, who was speaking on the radio.

10. Constable Lill also gave evidence.  He gave evidence, similar to Constable Lundy, that he was able to get the registration of the motorcycle as the vehicle slowed approaching a roundabout on Duncraig Road.[10]  Constable Lill said he ran the vehicle's registration through the on-board computer system.  Constable Lill said that shortly after he had looked at the registration, he started communicating to the police.[11]  He said that once he had got the registration of the vehicle, he activated the emergency lights and sirens shortly after they proceeded through the roundabout on Duncraig Road.

    [10] ts 37.

    [11] ts 37.

11. Constable Lill said he saw the driver of the motorcycle glance backwards, and then accelerate away.  He said that when the motorcycle turned onto Forbes Road it slowed to a speed where the police vehicle was able to be manoeuvred in front of the motorcycle.[12] 

    [12] ts 39.

12. Mr Weaver also cross-examined Constable Lill.  He attempted to put to Constable Lill what was said on the audio of the police communications.  Constable Lill said he could not recall exactly what was on the audio.  Mr Weaver specifically put that the communications included Constable Lill saying that the motorcycle had slowed down and come to a stop.[13]

    [13] ts 41.

13. The magistrate did not, when Mr Weaver was putting questions about the audio recording, revisit the issue of playing it.

14. Two other police officers gave evidence.  They were not involved in the pursuit of Mr Weaver's motorcycle.

15. At the conclusion of the police evidence the magistrate advised Mr Weaver that he could give evidence, and that if he chose only to give a closing statement that would not be evidence.

16. Mr Weaver again told the magistrate that he wanted to have the audio recording that had been provided to him played.  The magistrate said to him that the audio would be something going to the accuracy or credibility of what the police officers had said and added:

    Now, the reality is that by and large you didn't actually question the accuracy of either officer as to the actual facts of the actual reckless driving by speed.[14]

    [14] ts 54.

17. His Honour further said that the recording 'doesn't leap out to me as something that is going to assist me with deciding the matter'.[15]  He told Mr Weaver he did not think he would get much assistance from the audio.

    [15] ts 55.

18. Mr Weaver did not give evidence.  He called Ms Leigh Rowell, who had been the pillion passenger on the motorcycle.  Ms Rowell said that they were riding and listening to music through Bluetooth in their helmets.  She said, 'we pulled into a street in Applecross and then a police car was following us and they ‑ then we got rammed into ‑ when we went to pull over on the side of the road'.[16]

    [16] ts 66, 67.

19. Mr Weaver made a short final address in which he again said that he had wanted the audio recording played and that it contradicted a lot of the police accusations.[17]

    [17] ts 80.

The magistrate's decision

1. The magistrate gave oral reasons immediately following the lunch adjournment.  Relevantly to the appeal ground, his Honour found that he had no concerns about the credibility of the evidence of either police officer about Mr Weaver's behaviour and the speed of the police vehicle in pursuing him.

2. His Honour found that the 'behaviour of Mr Weaver's motorcycle speeding along Duncraig, Gairloch and then Kintail Road is, to my way of thinking, entirely consistent with the motorcycle speeding away from police rather than any other explanation'.[18]  Mr Weaver had not given evidence, and did not explain the route he took.  His Honour further accepted the police evidence that Mr Weaver did turn and see them.[19]

   [18] ts 88.

   [19] ts 89.

Some procedural history

1. The appeal notice was prepared by a lawyer.  Mr Weaver has represented himself since then, causing delays in getting this matter to a hearing.  By orders made on 21 December 2020, Mr Weaver was required to file and serve a written outline of submissions by 5 February 2021.  He did not comply with that order.  When this matter first came before me on 5 March 2021, it was clear that Mr Weaver had not understood what he was required to do.  On that occasion, I made orders permitting Mr Weaver to provide, by email, a summary of his argument.  I also made orders, with the agreement of counsel for the respondent, for the audio recording of the radio communications to be available to the court on the appeal.

Consideration and result

1. Mr Weaver's primary argument is that the evidence of the police witnesses that he was aware that they were in pursuit and was deliberately evading them is inconsistent with the audio recording.  He said that the recording shows that they were only able to identify his numberplate shortly before he stopped on Forbes Road.  If they only activated the lights and sirens after reading his number plate, the audio shows he was already stopping.  Mr Weaver further submitted that the recordings are inconsistent with the police evidence at trial that he was stopped due to the police vehicle intercepting his motorcycle, and instead show that he stopped the motorcycle.

2. Mr Weaver also put forward a series of arguments on the facts:

   (1)he  contended that the evidence of Constable Lundy that Mr Weaver turned around and made eye contact before accelerating away must be false, both because he was wearing a dark visor, and because he could not turn his head like that while riding;[20]

   (2)he said that the police rammed his motorcycle when he was already stopped.[21]  

   [20] Appeal ts 44.

   [21] Appeal ts 22.

3. Those arguments cannot succeed.  First, Constable Lundy did not testify that Mr Weaver turned and made eye contact with them.  His evidence was that Mr Weaver looked behind over his left shoulder, but he said nothing about eye contact.  Second, and more generally, Mr Weaver wished to contradict the police on the facts, but had given no evidence at trial.  The trial magistrate had explained to him, before Mr Weaver chose not to give evidence, that he could comment on the evidence in a final address but that if he wanted to give his version of events it needed to be in the witness box.  Third, those arguments fall outside the sole ground of appeal.

4. The argument regarding the admissibility of the audio recording does, however, identify an error at trial.  The respondent accepted that the audio recording was admissible evidence, at least as to the credibility of the police officers' evidence.  The audio recording contained statements by Constable Lill as to what he saw and did, made contemporaneously with the events.  In my opinion, they were admissible under the doctrine of res gestae.  Alternatively, assuming they were not consistent with the evidence of Constable Lill at trial, they could have been introduced as prior inconsistent statements.  As a litigant in person, Mr Weaver could not be expected to know of the doctrine of res gestae, nor how to put a prior statement that was inconsistent with the evidence being given.   

5. In my opinion, the magistrate erred in his approach to the evidence.  If the statements on the recording were to the effect Mr Weaver was asserting, they could not be dismissed as matters that would not assist.

6. To make out the ground of appeal, however, Mr Weaver must also show that there has been a miscarriage of justice as a result of the failure to admit the audio recordings into evidence.   

7. Further, under s 14(2) of the Criminal Appeals Act 2004 (WA), even if a ground of appeal might be decided in his favour, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

8. The court must have regard to the particular statute and the context in which s 14(2) operates.[22]  The issue of miscarriage arises in an appeal from a magistrate who is required to give reasons for their decision.  The disadvantages of deciding an appeal on the record of the trial are, to that extent, alleviated. 

   [22] See WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [219] - [242] (Mitchell J).

9. There are many possible kinds of miscarriage, and there can be no single test for when a miscarriage has occurred.  In Baini v The Queen, the majority identified some kinds of cases where a miscarriage will be found to have occurred, including 'where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial'.[23] 

   [23] Baini v The Queen[2012] HCA 59; (2012) 246 CLR 469 [26].

10. In the present case, the error is as to admissibility of evidence.  It is not one that would constitute a substantial miscarriage of justice, even if the court considers that conviction was inevitable. 

11. The court is concerned with a variation of the 'negative proposition' stated by the High Court in Weiss v The Queen.[24]  Here, the issue is not whether the court is persuaded the evidence properly admitted at trial proved, beyond reasonable doubt, Mr Weaver's guilt of the offence.  There was sufficient admissible evidence to prove each charge.  The question is whether the error by the magistrate resulted in evidence not being admitted which could raise a reasonable doubt about Mr Weaver's guilt.

    [24] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44].

12. Listening to the recordings establishes the following.  The police sirens are audible on the first radio transmission, when Constable Lill stated that there was a vehicle failing to stop on Duncraig Road off Kintail Road.  The sirens can also be heard when Constable Lill later said the vehicle was heading east on Kintail Road.

13. Mr Weaver relied on the next exchange, when the operator asked Constable Lill: 'Can you get a rego or anything?'  Constable Lill replied, 'No, vehicle's turned left onto Forbes, rego is 1BP666.  Vehicle is stopping'. 

14. The last exchange is capable of being understood as inconsistent with the police evidence that they only activated the lights and sirens after they obtained the registration number of Mr Weaver's motorcycle.  But it must be seen in the context of the whole recording which reveals that the sirens had been activated well before then ‑ either before or at the same time as the first radio transmission.  The evidence does not raise a possibility that the sirens were only activated shortly before or at the same time that Mr Weaver began to stop.

15. The exclusion of the recordings from the evidence at trial could not, on all of the evidence, have resulted in a miscarriage of justice.  The audio recordings could not, on the whole of the evidence, raise a reasonable doubt that the appellant drove at a reckless speed, and did not stop, to escape pursuit.

16. The ground of appeal has not been established. 

17. I would grant Mr Weaver leave to appeal on the sole ground raised, but dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MG

Associate to the Honourable Justice Allanson

22 APRIL 2021