Wheare v Police - [2023] SASCA 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
WHEARE v POLICE
[2023] SASCA 131
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Bleby)
30 November 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROOF AND EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - APPEALS
On 4 January 2022, the applicant, Mr Wheare, was convicted in the Magistrates Court for the following charges:
1.Failing to comply with reasonable directions when undergoing a breach analysis;
2.Driving whilst suspended from holding a licence;
3.Driving a vehicle contrary to the terms of the defect notice; and
4.Resisting police.

On 11 February 2022, the Magistrate imposed a fine of $1,100 on the first count and disqualified the applicant from driving for a period of 11 months. On the third count he was fined $200. The Magistrate sentenced the applicant to 14 days’ imprisonment on the fourth count and 10 days’ imprisonment to be served cumulatively on the second count. The imprisonment imposed on both counts was suspended on Mr Wheare entering into a good behaviour bond.
On 10 August 2022, the applicant filed a notice of appeal including an application for an extension of time within which to appeal. On 17 February 2023, a Judge of this Court dismissed the appeal. On 17 March 2023, the applicant instituted his appeal to this Court, out of time.
Held per Kourakis CJ (Lovell and Bleby JJA agreeing), dismissing the appeal:
1.Application for permission to appeal is refused.
2.The grounds of appeal are without merit.
3.The grounds of appeal fail to identify any express error made by the Judge in dismissing the appeal against sentence.

Motor Vehicles Act 1959 (SA) s 91(5); Road Traffic Act 1961 (SA) ss 47E(3), 145(6); Summary Offences Act 1953 (SA) s 6(2); Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Joint Criminal Rules 2022 (SA) r 196.2, referred to.

WHEARE v POLICE
[2023] SASCA 131
Court of Appeal – Criminal: Kourakis CJ, Lovell and Bleby JJA

KOURAKIS CJ: The applicant, Mr Wheare, seeks permission to appeal from a decision of a Judge of this Court (the Judge) dismissing his appeals against the convictions recorded, and the sentences imposed, in the Magistrates Court. Mr Wheare appeared without legal representation at his trial in the Magistrates Court. Mr Wheare appeared in person before the appeal Judge and on this application, but was legally represented in the sentencing hearing.
Factual and procedural history
On 4 January 2022, Mr Wheare was convicted in the Magistrates Court on the following charges:
1Failing to comply with reasonable directions when undergoing a breath analysis;[1]
2Driving whilst suspended from holding a licence;[2]
3Driving a vehicle contrary to the terms of the defect notice;[3] and
4Resisting police.[4]
[1] Contrary to s 47E(3) of the Road Traffic Act 1961 (SA).
[2] Contrary to s 91(5) of the Motor Vehicles Act 1959 (SA).
[3] Contrary to s 145(6) of the Road Traffic Act 1961 (SA).
[4] Contrary to s 6(2) of the Summary Offences Act 1953 (SA).
The Magistrate imposed a fine of $1,100 on the first count and disqualified Mr Wheare from driving for a period of 11 months. On the third count Mr Wheare was fined $200. The Magistrate sentenced Mr Wheare to 14 days’ imprisonment on the fourth count, resisting police, and 10 days’ imprisonment on the second count, driving whilst suspended from holding a driver’s licence, to be served cumulatively. The imprisonment imposed on both counts was suspended on Mr Wheare entering into a good behaviour bond.
On 10 August 2023, Mr Wheare instituted his appeal against his convictions and sentence more than six months out of time. Mr Wheare’s grounds of appeal are that:
1he had complied with the directions although he had been ‘given inadequate instructions by an incompetent, aggressive operator who assaulted him’;
2the police officer had defected his car without inspecting it;
3he drove whilst his licence was suspended because of the unreasonable actions of the police in making him walk from Aldinga to Seaford;
4he had not resisted the police; they had assaulted him;
5the suspended sentence had ‘ruined his life and career’; and
6his loss of demerit points precluded him from working as a truck driver, an occupation in which he had been employed for over 20 years.
Not surprisingly, the Judge concluded that the first four grounds did not constitute proper grounds of appeal. However, by reference to the orders sought in the notice of appeal, the Judge took the last two grounds to be a complaint that the penalties were manifestly excessive.
The Magistrate’s essential reasons were as follows. Relying on the video footage captured by the police officers’ body-worn cameras, the Magistrate found that the police officers were calm, patient and reasonable when dealing with Mr Wheare. On the other hand, the Magistrate found that Mr Wheare was difficult, did not appear to listen to police and refused to accept that he was required to go to the Aldinga Police Station for a breath‑analysis test. The Magistrate found that, notwithstanding the clear instructions given to Mr Wheare by police, Mr Wheare failed to place his mouth anywhere near the mouthpiece and that he became loud and argumentative. The Magistrate found that on Mr Wheare’s second attempt to comply with instructions to blow into the mouthpiece, he failed to seal his lips around it and stopped blowing prematurely.
In respect of the charge of driving whilst suspended, the Magistrate found that Mr Wheare had been served with a notice of suspension for failing to comply with the police directions in respect of the breath‑analysis test at 2:36 am, which suspension was effective forthwith. Police returned Mr Wheare to his car where, at 3:20 am, at which time they issued a defect notice in respect of the car which specified the following faults:
·engine leaks;
·a very loud exhaust;
·a faulty seatbelt; and
·head and tail lights which were not operational.
When the police officers saw Mr Wheare driving his car a little later they pulled him over and informed him that he was under arrest for driving while suspended and driving a defected car. The Magistrate found that Mr Wheare resisted the police officers’ attempts to handcuff him. The Magistrate again relied on footage taken by body-worn cameras. The Magistrate found that Mr Wheare tried to avoid being handcuffed and that he was warned on multiple occasions that he would be charged with resist arrest. Mr Wheare continued in his attempt to avoid being handcuffed and was ultimately capsicum spayed, handcuffed, and placed in the police van. Mr Wheare persisted. The police then announced in clear terms that he was under arrest. The Magistrate found that the police use of capsicum spray to restrain Mr Wheare was reasonable.
The Magistrate found that the police officers ‘gave their evidence in an honest and frank manner [which was] on all essential matters consistent with the [video footage]’, whereas Mr Wheare was a very poor witness.
On appeal to this Court, the Judge referred to the natural advantage of the Magistrate in assessing the testimony given on the trial. The Judge noted the absence of any ground on which he could properly make a different assessment of the credibility and reliability of the witnesses. Indeed, the Judge found that the body-worn camera vision directly supported the Magistrate’s findings.
For those reasons, the appeal Judge concluded:[5]
The applicant has not in his grounds of appeal nor in his written and oral submissions identified any error by the Magistrate. On my review of the evidence as a whole there has been no error on the factual basis of each of the four charges was proved at trial beyond reasonable doubt. The appeals against conviction are without merit.
[5] Wheare v Police; Wheare v Police [2023] SASC 23 at [20].
The appeal Judge refused to grant an extension of time in which to appeal and dismissed the appeal against conviction.
On the sentence appeal, the Judge concluded that the sentence imposed by the Magistrate was not manifestly excessive and indeed was well within the available range. As to Mr Wheare’s complaint that he had lost demerit points, the Judge noted that Mr Wheare’s counsel had not made an application, supported by evidence on oath, before the Magistrate for a reduction of points on the grounds that either of the driving offences were trifling or that other proper cause existed to reduce the demerit points. The appeal ground as to the loss of demerit points was therefore dismissed.
Appeal to this Court
Mr Wheare instituted his appeal to this Court on 17 March 2023, some four days after the time in which to commence an appeal expired. The respondent opposes the grant of an extension of time, not because of the delay, but because the appeal has no merit and is bound to fail.
Moreover, permission to appeal to this Court is necessary because the appeal is brought against a judgment given on an appeal from the Magistrates Court.[6] The primary considerations relevant to a grant of a permission to appeal are:
·whether it is arguable that the single judge made an error; or
·whether the case raises a point of law or principle of some general importance.
The appeal
[6] Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Joint Criminal Rules 2022 (SA) r 196.2.
Ground 1
Mr Wheare’s first ground reads:
At first, my appeal was accepted, which is in writing, then in the outcome he rejected it. He seemed to my reason for it being late, and that I had to represent myself, then said it was too late.
The Judge did not at any time during the course of argument grant Mr Wheare an extension of time in which to bring his appeal. Mr Wheare’s misapprehension in that respect may have arisen because argument was heard concurrently on the merits of the appeal and the extension of time, but there can be no objection to that course. Mr Wheare’s complaint arises from his failure to understand the distinction between refusing an extension of time on the ground of delay alone and dismissing the appeal by reason of both delay and futility. The Judge concluded that the grounds, both as to conviction and sentence, were without merit and that an extension of time within which to appeal would, therefore, be futile. It was for that reason that his Honour refused the extension of time sought and dismissed the appeal.
Ground 1 is not arguable. I would refuse permission to appeal on that ground.
Grounds 2, 4 and 5
Ground 2 of the notice of appeal complains:
Failed to hold [Counsel for the Commissioner] in contempt of court for not following Judge’s orders. He said that I am entitled to all the evidence to present my case.
Ground 2 is related to grounds 4 and 5 of the notice of appeal.
Ground 4 reads:
Plus getting advice from Legal Service Conduct Commission which he had also never heard of. He asked me why I did this. I replied because rather than [Counsel for the Commissioner] doing what you ask, instead she sent me an email returning the Road Traffic Act 1961. Section 173, which states in 3(a) and (b) of licence restrictions being dismissed which I sent them both. I was advised by her to seek legal advice. The Judge replied ‘you didn’t did you [Counsel for the Commissioner]’.
The reference to the Legal Services Conduct Commission is probably a reference to the Legal Services Commission. This ground, on its face, complains that Mr Wheare did not receive any assistance from counsel for the Commissioner in pursuing his application for an interim restoration of his licence pending the appeal. However, as is obvious on the face of ground 4, counsel for the Commissioner did provide some assistance to Mr Wheare to understand the relevant statutory provisions empowering a Judge hearing an appeal to restore an appellant’s licence pending the determination of the appeal. There is no utility in entertaining this ground, which attacks an interlocutory order, when the subject matter of the order has been overtaken by the final orders disposing of the matter. Even if the notice of appeal had impugned the interlocutory order made by the Judge, permission to appeal would not be granted.
Be that as it may, the Judge did consider the statutory discretion to restore Mr Wheare’s licence pending the determination of the appeal. The Judge refused to exercise the power to restore a suspended licence for the following reasons, given during the hearing of the appeal:
HIS HONOUR:    Can I tell you this: your main concern is that your licence be reinstated, not your main concern but your urgent concern is that your licence be reinstated.
APPELLANT:    Yes, that’s one of the concerns.
HIS HONOUR:    I was in error on the last occasion when I said it was nothing to do with me. I understand and I hadn’t familiarised myself with that section that you’ve been referring to and that [Counsel for the Commissioner] has referred to, and that says that when there is an ongoing appeal the Supreme Court can make an order allowing you to have your licence back pending the appeal. I’m not going to make that order because on the information I have at the moment I think your chances of succeeding with the appeal are very low. I haven’t heard from you and I haven’t heard from [Counsel for the Commissioner], I need to hear what further what you have to say, but I’ve read all your written material. If I thought there was a reasonable prospect that you might succeed on that point of the appeal, that is breaching the police instructions with respect to the breathalyser equipment, if I thought there was a reasonable prospect of that then I might consider allowing you to have your licence back pending my determination but, one, I don’t think there is a good prospect, I think it’s low at best and, secondly, it’s only for another two months. In those circumstances, rather than suspending it and then imposing it again and starting the time running again you’re better off just letting it run. So in those circumstances I’m not prepared to make an order suspending the suspension, as it were. With that information, do you want to go ahead with the appeal now or do you want to take another adjournment to be able to go to the registry and look at the footage?
The Judge’s decision was plainly right and took into account all relevant considerations. Mr Wheare could not have been prejudiced by any omission of counsel appearing for the Commissioner.
By ground 5, Mr Wheare complains that counsel for the Commissioner failed to provide him with a copy of the video footage taken by the police, and failed to assist him to make an application for an interim stay of the Magistrate’s order of licence disqualification pending the outcome of the appeal.
Attached to Mr Wheare’s notice of appeal are additional, but unnumbered, grounds of appeal, which are also founded on the conduct of counsel for the Commissioner. The remaining complaints made in the attachment are to the effect that Mr Wheare did not have access to a copy of the video exhibits containing footage from the police body-worn cameras for the purposes of the hearing before the Judge. Counsel for the Commissioner informed the Judge that digital copies of the exhibits would be provided to Mr Wheare, but there was no order of the Court that she do so.
I set out below the transcript of the exchange between Mr Wheare, counsel for the Commissioner and the Judge:
HIS HONOUR:           You’re entitled to see the exhibits on the file.
WHEARE:Yeah, they won’t do it.
HIS HONOUR:           Which includes the footage?
MR WHEARE:           Correct, they won’t allow that.
HIS HONOUR:           And you’re entitled to see the transcript been prepared.
MR WHEARE:           Yes.
HIS HONOUR:           Have you got copies of that material, [Counsel for the Commissioner]?
[COUNSEL FOR THE COMMISSIONER]: I do, and I understand that they form part of the court’s file on appeal.
HIS HONOUR:           They do, yes.
MR WHEARE:           And they’ve refused to give it to me and, actually, give me an impolite letter saying ‘You will not be receiving these, they will not be released’.
HIS HONOUR:           How many copies of the footage do you have?
[COUNSEL FOR THE COMMISSIONER]: I don’t have anything on me at the moment but I’m sure that we can arrange for a disk to be provided or, alternatively, he could perhaps view the footage at registry from the court’s file.
MR WHEARE:           I do have the evidence here to say how they’ve declined it.
HIS HONOUR:           Yes, don’t worry about that.
MR WHEARE:           And it will not be released.
HIS HONOUR:           – that’s water under the bridge.
MR WHEARE:           Okay.
HIS HONOUR:           I’m told we can’t make copies of the exhibits, you’d have to get the police to do it, but you’re certainly entitled to those disks.
MR WHEARE:           Thank you, your Honour.
HIS HONOUR:           Can you arrange that?
[COUNSEL FOR THE COMMISSIONER]: I can arrange that your Honour.
After the hearing was adjourned, Mr Wheare was asked to provide an undertaking that he would not make any improper use of the digital copies of the exhibits, but he refused to do so. In the absence of that undertaking, the Commissioner did not provide Mr Wheare with the digital copies.
Consequently, the hearing of the appeal was again adjourned to allow Mr Wheare access to the exhibits in the Registry of this Court but he declined to avail himself of that opportunity. On the resumption of the hearing, Mr Wheare agreed to proceed with his appeal without viewing the footage.
Grounds 2, 4, 5 and the associated unnumbered grounds, are without merit. I would refuse permission to appeal.
Ground 3
Ground 3 reads:
I stated that Freedom of Information denied me evidence, Judge Nicholson said he had never heard of it.
This ground refers to a complaint made by Mr Wheare to the Judge that he had not been given timely access to the transcript and audio-tape of the Magistrates Court trial. The exchanges with the Judge were as follows:
HIS HONOUR:     Do you want a copy of the transcript?
MR WHEARE:     Of what happened in the court?
HIS HONOUR:     Yes.
MR WHEARE:     Yes.
HIS HONOUR:     Do you have the disks of the footage?
MR WHEARE:     I’ve asked for that as well. They’ve denied it – I have the notes here.
HIS HONOUR:     Who’s ‘They’?
MR WHEARE:     I’ve asked freedom of information, Kelly’s –
HIS HONOUR:     Sorry, I don’t know who freedom of information is.
MR WHEARE:     I’ve asked – there is a lady called Kelly Sargent, who rang me up and said she would help me out, and she’s actually denied and said ‘We will not be releasing these’ and I have the documents here.
HIS HONOUR:     Who is she?
MR WHEARE:     It’s Kelly Sargent – she was a police officer for freedom of information.
HIS HONOUR:     When did you ask her for the material?
MR WHEARE:     This was about a month and a half ago, and I
HIS HONOUR:     Did you go to the Magistrates Court and try and get the copy material from them?
MR WHEARE:     I sent the emails. They told me to send emails in and I’ve sent – I’ve sent the evidence to you saying they have denied me the right to that, so I can’t get any DVD footage. All I’ve got is a USB that happened in the police station at the start when he said ‘No more than 10 kilometres away’, but the rest they won’t give to me.

The transcript of the trial in the Magistrates Court was later made available to Mr Wheare before the conclusion of the hearing. It is not correct to assert that the Judge ‘had never heard of freedom of information’. The Judge was simply requesting Mr Wheare to identify to whom he spoke.
This ground too is, therefore, without merit. I would refuse permission to appeal.
Ground 6
Ground 6 reads:
Was bias from the start as he said in court ‘I don’t see how you can win’.
There is no material at all which could sustain an allegation of actual bias against the Judge.
Counsel for the Commissioner identified, as a possible source of Mr Wheare’s complaint, the following exchange between Mr Wheare and the Judge:
MR WHEARE:       Look, I think I might get an adjournment for a lawyer please, if it please your Honour.
HIS HONOUR:       Consider this Mr Wheare, the appeal you have raised is a difficult one.
MR WHEARE:       Yeah.
HIS HONOUR:       And if you’ve got any – if you can succeed at all, you might be better served with a lawyer. I’m not saying that you can’t present it.
MR WHEARE:       Okay.
HIS HONOUR:       But a lawyer might find things that you can’t see, that’s how.
The Judge did no more than observe that Mr Wheare’s prospects of success were not strong. So much was plain on the face of the appeal grounds, which failed to articulate any comprehensible basis on which the convictions could be set aside. Nonetheless, the Judge made it clear that his assessment was a preliminary one which was subject to hearing argument. The Judge’s observation was calculated to encourage Mr Wheare to seek legal advice. The fair-minded observer, who must be taken to understand from the ordinary meaning of the Judge’s words the purpose of, and caveats attached to his Honour’s comments, could not possibly apprehend that the Judge would not bring an impartial mind to the appeal hearing and to the evaluation of the submissions which would be made in due course. Permission of this ground must be refused.
Grounds 7, 8 and 18
These grounds are related and challenge the Magistrate’s finding in respect of the charge of driving contrary to the defect notice and in particular the oil leak. Many of the attached additional grounds of appeal also relate to this issue.
Ground 7 reads:
Did not accept my Statutory Declaration, which is an official Legal piece of evidence.
The statutory declaration referred to in ground 7 was declared on 4 March 2022 by Kathleen Somerville and deposed that she was present in the courtroom in which Mr Wheare’s trial was proceeding on 9 December 2021. She stated that Senior Constable Royans, one of the police officers who defected Mr Wheare’s car, gave evidence to the effect that he did not get under the car to check for oil leaks but merely assumed that a car that old would have leaks. The Judge marked the statutory declaration for identification in order to rule on its admissibility at a later time.
Senior Constable Royans gave his evidence on 10 November 2021 and not on 9 December. An audio record of the testimony given in the Magistrates Court proceeding was recorded as it was given but was not transcribed until 30 September 2022. There is no testimony, to the effect of that alleged by Ms Somerville, on the audio-tape of Senior Constable Royans’ evidence. Nor is there any such statement recorded on the transcript.
The Magistrates Court is a court of record. There is no statutory provision defining what is, or is not, a record of the Magistrates Court. This Court can take judicial notice of the practices and procedures governing the recording of the testimony given by witnesses in the Magistrates Court. A digital audio recording of the testimony given by witnesses is made by the Audio Transcription Service of the Courts Administration Authority. The digital audio files are made available to Magistrates for the purposes of reaching their decisions and delivering judgment. On occasions, a transcript of the audio file is produced for the Magistrate and is generally produced for this Court for the purposes of hearing and determining an appeal against conviction. Both the digital audio file and any transcript are therefore records of the proceedings of the Magistrates Court. This Court cannot go behind the records of the Magistrates Court proceedings which have been transmitted to it for the purposes of the appeal.
I acknowledge that Mr Wheare’s assertion that Senior Constable Royans admitted that he did not actually check for oil leaks is not a recent invention. In the course of his cross-examination in the Magistrates Court, he twice asserted that Senior Constable Royans had conceded that the defect notice was issued on nothing more than an assumption that Mr Wheare’s car was leaking oil. I set out both passages:
In regards to the contrary to defect, he admitted he never looked under my car for oil leaks, which he defected my car for oil leaks, so unfortunately I’ve found that’s actually unlawful defect because he admitted he never looked under my car for any oil leaks and my car doesn’t have any oil leaks and it got defected for it. I would ask for the defect to be lifted because, again when he says one thing and under oath here he actually admits no, he never looked under it, that’s false defect, I’ve been informed.
…
I feel that’s like armed robbery because there’s no reason for them to disqualify and defect my car when he said here on the stand that no, he did not get under my car to look, he just assumed and yet my car has no oil leaks, so I was hoping I would have the defect lifted …
However, the relevant part of Senior Constable Royans’ evidence is transcribed as follows:
Q.But what probable cause did you have to search the car, you’d already inspected it and you’ve said here, oil leaks and everything else, it’s like dark how would you see an oil leak.
A.If things are able to be sighted from outside of the vehicle inside the vehicle then we are able to utilise s. 68 of the Summary Offences Act.
Q.You would have to go under the car to see the oil leaks and there are none.
HIS HONOUR: Mr Wheare I think the other –
XXN
Q.So, the question is I’m asking is that you – I think he abused his power your Honour.
HIS HONOUR: The other issue is he has power under the Road Traffic Act s. 40R as I read it to search vehicles. So there are several, several legislative Acts that give him power to search a vehicle. What turns on that in relation to the element of the offences?
DEFENDANT: It’s like – well there was no call in saying this guy is on the road quick all police come in it was fact that I think they were actually bored that night and I was a scapegoat because what happened that night has been held to me. I have been in and out of hospital because of this. It has destroyed me. I have PTSD. Doctor’s diagnosis. I suffer from shortness of breath, anxiety and depression which is why I could not fully blow as much as I wanted to. I can’t even blow up a balloon and here we are now.
After listening to the audio-tape of Senior Constable Royans’ testimony, the Judge declined to receive the statutory declaration. I too have listened to the relevant parts of the digital audio file. I am satisfied that Senior Constable Royans did not concede that he did not look under the car.
The Judge declined to receive the statutory declaration for an additional reason. His Honour held that in the absence of a challenge to the other grounds on which the defect notice was issued, the conviction for driving the vehicle contrary to the defect notice could not be impeached.
The Judge’s reasons for not receiving the statutory declaration were plainly correct.
Mr Wheare submitted on this appeal that Senior Constable Royans could not have looked under the bonnet because Senior Constable Royans had testified that he placed the defect notice on the outside of the car because it was locked. That is so. However, Senior Constable Royans also testified that when he first arrived, Mr Wheare was standing at the front of his car with the bonnet raised.
On this appeal, Mr Wheare also submitted that Senior Constable Royan’s conceded in his evidence that he did not have a torch. The transcript does not record any such admission nor, indeed, any questioning about a torch. I have listened to the digital audio file of Senior Constable Royan’s testimony at points at which he is questioned about the defect notice. There is no mention of a torch.
Ground 7 is without merit. I would refuse permission to appeal.
Ground 8 complains that:
Did not allow my witness to come in and give evidence, when she was waiting outside ready to do so.
On the appeal before the Judge, Mr Wheare told his Honour that the declarant, Ms Somerville, was in the precincts of the Court. However, Mr Wheare did not make an application that Ms Somerville be called on the appeal hearing. Moreover, Ms Somerville’s testimony was subject to the same objections which precluded the admission of her statutory declaration. Ground 8 too is without any merit. Permission to appeal must be refused.
Ground 18 complains:
In their Affidavit it states he checked the car for further defects. Their report does not match.
Ground 18 refers to the affidavits of the police officers filed in the Magistrates Court to discharge the prosecution’s disclosure obligations. The affidavits were neither put into evidence nor cross-examined on. Permission to appeal on this ground too must, therefore, be refused.
Ground 9
Ground 9 states:
When I said the Magistrates Court had my plea down as ‘guilty’ when I only pleaded ‘not guilty’, he ‘… typos happen’. Is this possible four times. Yet he said some of my documents were incorrect.
This ground appears to allege that the certificate of record in the Magistrates Court incorrectly records Mr Wheare’s plea as guilty. An error in a record of outcome of proceedings can of course be corrected by filing an application in the appropriate form. However, it is sufficient to dispose of this ground of appeal to observe that the Information laid against Mr Wheare was heard and determined as it would be in the ordinary course on a plea of not guilty. Witnesses were called and cross-examined, documents received and submissions were made on a trial. Mr Wheare was convicted not on a plea of guilty, but upon the findings of guilt made by the Magistrate for the reasons given in the judgment which he delivered. This ground is without any merit. Permission to appeal must be refused.
An application to adduce further evidence
Ground 17 reads:
When I said I had some video footage, he said there is nothing in the report about this, which further tells me of the Officers testimony being incorrect and misleading.
On this application, Mr Wheare sought to put into evidence a video clip taken on his mobile telephone which he claimed showed that he complied with the directions given to him in respect of furnishing a breath sample for analysis.
On 7 September 2023, after the hearing of the application for permission to appeal was adjourned, Mr Wheare handed a USB to counsel for the Commissioner. The USB contained a video file entitled ‘Aldinga USB’. The video file runs for a duration of 12 minutes and 54 seconds and shows part of Mr Wheare’s interaction with Senior Constable Starkey and Senior Constable Royans at the Aldinga police station.
After viewing the video file, counsel for the Commissioner made this written submission about its content:
The video footage on the USB is inconsistent with the assertions made during the Court of Appeal hearing. The Applicant asserted that the video footage shows him complying with what he was asked to do, and shows him trying to blow but running out of breath. However, the video footage on the USB only captures the Applicant’s final attempt to blow into the breath analysis instrument, and at the time the attempt was made the Applicant’s camera was pointed down towards the table and not towards the Applicant nor the breath analysis device. As the attempt to blow occurs off-screen, the footage does not assist the Court in determining whether the Applicant complied with the directions of the police officer. The USB video footage does not support the assertions made by the Applicant that he complied with the request to blow into the breath analysis instrument.
I and the other members of the Court have viewed the video file. The submission of the Commissioner is correct. That is reason enough to deny Mr Wheare’s application to adduce the USB as further evidence. Moreover, plainly enough, the video footage has been available to Mr Wheare from the moment he took it. The only explanation for Mr Wheare’s failure to adduce it on his trial in the Magistrates Court is that it does not, in any way, support his defence that he complied with the instructions he was given.
Appeal against sentence
The grounds of appeal to this Court fail to identify any express error made by the Judge in dismissing the appeal against sentence. It is not arguable that the sentences were manifestly excessive.
Conclusion
There is no utility in granting Mr Wheare an extension of time in which to bring this application. All of the grounds of appeal are without merit and no point of general importance is raised by any of them. The grounds are difficult to comprehend and do not on their terms identify error. The grounds are peculiar to Mr Wheare’s proceedings and arise out of his confused appreciation of the issues and his mistaken understanding of the evidence, and the observations made by the Judge.
I would refuse the application for permission to appeal and dismiss the appeal.
LOVELL JA: I would refuse the application for permission to appeal and dismiss the appeal. I agree with the reasons of the Chief Justice.
BLEBY JA: I would refuse the application for permission to appeal and dismiss the appeal. I agree with the reasons of the Chief Justice.