Wright v Uzonovic
[2023] WASC 268
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WRIGHT -v- UZONOVIC [2023] WASC 268
CORAM: WHITBY J
HEARD: 26 JUNE 2023 AND WRITTEN SUBMISSIONS FILED 29 JUNE 2023 & 3 JULY 2023
DELIVERED : 21 JULY 2023
FILE NO/S: SJA 1018 of 2023
BETWEEN: RAYMOND PAUL WRIGHT
Appellant
AND
NESIB UZONOVIC
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE WATSON
File Number : MC PER 36313 of 2021
Catchwords:
Criminal law - Single judge appeal - Application for leave to appeal against conviction - Whether magistrate erred in allowing expert evidence as to police policy - Whether substantial miscarriage of justice - Appeal allowed
Evidence - Admissibility of expert opinion evidence as to police policy - Whether expert evidence required
Legislation:
Criminal Appeals Act 2004 (WA)
Evidence Act 1906 (WA)
Road Traffic Act 1974 (WA)
Result:
Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2 and 3
Appeal allowed
Conviction set aside
New trial ordered
Representation:
Counsel:
| Appellant | : | Mr P Tehan K C and Ms F Hugo |
| Respondent | : | Mr J F Bennett |
Solicitors:
| Appellant | : | Tehan Legal |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Browne v Dunn (1893) 6 R 67 HL
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Morgan v Cramer [2019] WASC 68
Samuels v The State of Western Australia [2005] WASCA 193
The State of Western Australia v BW [2021] WASC 326
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
WHITBY J:
Introduction
Raymond Paul Wright, the appellant, was a police officer. On the morning of 15 October 2020, he was on duty with Constable Chantal Bell. The appellant was driving a marked police car. Constable Bell was the passenger. The appellant engaged in a high-speed pursuit of a black Holden Commodore. The pursuit ended when the Holden Commodore collided with another car at the intersection of Balcatta and Erindale road. The pursuit took place between 10.52 am and 10.59 am.
The appellant was charged with reckless driving, contrary to s 60(1A)(b) of the Road Traffic Act 1974 (WA) (RTA).
The appellant stood trial in the Perth Magistrates Court on 15 ‑ 16 September 2022 and 1 and 7 December 2022. The appellant formally admitted all the elements of the offence. The appellant relied upon the defence available under s 61A of the RTA. Her Honour Magistrate Dawson allowed expert opinion evidence of Senior Sergeant Dawson (SS Dawson) to be adduced at the trial as to the meaning and operation of a police policy applicable to the pursuit.
On 3 February 2023, the learned magistrate entered a judgment of conviction against the appellant.
On 3 March 2023, the appellant was sentenced to a fine of $2,500 and a licence disqualification of 6 months. The learned magistrate made an order for a spent conviction.
The appellant appeals that conviction.
For the reasons that follow, I find that the learned magistrate erred in law in ruling that SS Dawson's opinion evidence as to the meaning and operation of the police policy was admissible. The error to admit the evidence of SS Dawson had a material effect on the learned magistrate's decision to convict the appellant. Further, the evidence properly admitted at trial does not lead to an inevitable conclusion of the appellant's guilt.
I am satisfied that there has been a substantial miscarriage of justice and that the conviction of the appellant should be set aside and a new trial ordered.
Legal principles relating to an appeal
Section 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against that decision. A 'decision' of a court of summary jurisdiction includes a decision to convict an accused of a charge.[1]
[1] CA Act s 6(c).
The grounds of an appeal pursuant to s 7(1) of the CA Act may be that the court of summary jurisdiction made an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice.[2]
[2] CA Act s 8(1)(a).
The appellant must obtain leave to appeal on each ground of appeal.[3] If leave to appeal is not granted on at least one ground, the appeal is taken to have been dismissed.[4] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193.
[3] CA Act s 9(1).
[4] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[5]
[5] CA Act s 14(2).
Grounds of Appeal
The appellant appeals his conviction on three grounds:
1.The magistrate erred in law in ruling that SS Dawson's opinion evidence of the interpretation and effect of WA Police policy and guidelines relating to emergency driving was admissible.
2.The magistrate erred in law and in fact in finding that the appellant had breached the WA policy and guidelines relating to emergency driving by not properly complying with provisions relating to reporting of information relating to a police evade incident without allegedly adverse matters being properly put to the appellant by the prosecution and without the magistrate taking this failure by the prosecution into account.
3.The magistrate erred in law and in fact in finding that the appellant should have terminated the pursuit from aspect 4 of the dash cam footage. As a result, the magistrate erred in law in finding that s 61A of the RTA had not been made out.
The trial
Issue at trial
The issue to be determined by the learned magistrate at trial was whether the appellant could establish on the balance of probabilities any statutory defence available to him under s 61A of the RTA.
Section 61A of the RTA provides:
61A.Defence for police officers driving in reckless manner in certain circumstances
(1)It is a defence to a prosecution for an offence against section 59(1)(b), 59A(1)(b), 60(1A) or 61(1) if the accused satisfies the court that, at the time of the alleged commission of the offence -
(a)the accused was on official duty as a police officer; and
(b)the driving was substantially in accordance with the Commissioner's policies and guidelines relating to driving, applicable at the time of the driving, and any direction given under such a policy or guideline; and
(c)having regard to all of the circumstances of the case, it was reasonable, and in the public interest, for the accused to have driven the motor vehicle in the manner that he or she did.
(2)Subsection (1) does not affect the application of any other defence the accused may have.
Admissions of the Appellant
The appellant made the following admissions pursuant to s 32 of the Evidence Act 1906 (WA)[6]:
[6] Exhibit 1, ts 34.
(a)The [appellant] is a senior constable with the Western Australian police force;
(b)on 15 October 2020 between approximately 10.52 am to 10.59 am the [appellant]:
a.was on official duty;
b.was driving a marked class one police sedan ZO 109 with registration number 1EYZ 85 and was engaged in evade police intercept to apprehend the driver of a Holden Commodore sedan;
c.the dash cam footage from police sedan Z0109 depicts the driving; and
d.the driving was:
i. engaged in wilfully by the accused and;
ii. having regard to all the circumstances of the case dangerous to the public.
Exhibits and Agreed terminology
The following exhibits were tendered into evidence by consent:
(a)exhibit 2 - Dashcam footage of the pursuit;
(b)exhibit 3 - Emergency Driving Policy and Guidelines, number TR‑07.04 - 5 November 2019 to 7 July 2022 (Policy); and
(c)exhibit 4 - Training history of the appellant.
The prosecution, in opening, highlighted 15 'aspects' of the pursuit by reference to various points in time of the pursuit recorded in the dash cam footage.[7]
[7] ts 36 ‑ 38.
Throughout the evidence adduced at trial, the witnesses referred to situational reports or 'sitreps' to the WA Police Operations Centre (POC). POC was also interchangeably referred to as 'VKI'.
Prosecution case
Evidence of Senior Constable Alex Mears
SC Mears' statement was read into evidence.[8] SC Mears gave evidence that he was travelling on Eddington road in Warwick at approximately 10.50 am on 15 October 2020. He was in a marked police car with Constable Easther. he became aware of an event place incident that was happening in the Balcatta area and requested authority from the POC to attend the area to assist.
[8] ts 45.
SC Mears was in the front passenger seat of the police car and Constable Easther was driving. They drove along Wanneroo road in Balcatta with emergency lights and sirens activated. SC Mears could hear on the radio communications that the vehicle of interest was heading towards them. They turned right into Arkana road in an easterly direction and sighted the black Holden Commodore travelling at an excessive speed down the hill. It was followed by a marked police car.
SC Easther turned the police car around and turned right in a northerly direction on Wanneroo road. At the intersection of Balcatta road, the Holden Commodore turned left into the opposite side of the carriage way, with the police car in pursuit following behind. SC Easther continued driving the police car on the correct side of the carriage way towards the intersection of Erindale road, slowing down significantly for traffic build up due to road works in the westbound lanes.
As they approached the intersection of Balcatta road and Erindale road, SC Mears saw a crash had occurred involving several cars. He got out of the police car and approached the scene. He could see the black Holden Commodore in the middle of the intersection with extensive front end damage stop. He saw a Toyota Camry on the southern side of the intersection that also had significant damage.
Evidence of Senior Constable Reece Easther
SC Easther's statement was read into evidence.[9] SC Easther is the police officer who was driving the police car together with SC Mears on 15 October 2020. He is a pursuit qualified driver. At approximately 10.50 am, he and SC Mears were told by the POC to assist with an evade police incident that was underway with a black Holden Commodore. SC Easther was driving and SC Mears was the passenger.
[9] ts 46.
POC told them to deploy a tyre deflation device on the Holden Commodore. They drove north on Wanneroo road with their emergency lights and sirens activated. POC told them that the Holden Commodore was coming towards them so they turned right onto Arkana road and came to a stop approximately 100 to 200 metres along the road. SC Easther saw the Holden Commodore coming towards them travelling at excessive speed followed by a marked police car with its emergency lights and sirens activated.
As the Holden Commodore passed them on their right, they turned the car around and were granted permission by POC to engage in the evade police incident as a secondary car.
The Holden Commodore turned safely right onto Wanneroo road and preceded northbound followed by the other police car. SC Mears and SC Easther were a short distance behind.
At the intersection of Balcatta road, the Holden Commodore turned left onto the incorrect side of the road. The other police car followed the Holden Commodore onto the incorrect side of the road. SC Easther turned left onto Balcatta road and remained on the correct side of the road.
There was a medium amount of traffic. SC Easther estimated that the Holden Commodore reached a speed of in excess of 100 km per hour. SC Easther began to drop back and decreased his speed from the Holden Commodore due to the dangerous nature of its driving. He lost sight of the Holden Commodore as it went over a crest, still on the incorrect side of the road at high speed. He slowed down to below the posted speed limit as he went through some road works where traffic had built up. The other police car crossed back to the incorrect side of the road. SC Easther lost sight of the other police car. POC advised SC Easther that the Holden Commodore had been involved in a crash at the intersection of Balcatta road and Erindale road.
SC Easther, upon arriving at the intersection, saw that the Holden Commodore was stopped in the middle of the intersection with significant front end damage. A Toyota Camry also had significant damage.
Evidence of Senior Constable Emma Wright
SC Wright's statement was also read into evidence.[10] SC Wright is a senior constable working in the reconstruction section at major crash investigation in Midland. In November 2017, she successfully completed a level 4 course in forensic collision investigation with Accident Investigation Training Services at the De Montfort University of England.
[10] ts 49.
SC Wright is qualified to conduct analysis of CCTV footage in various formats. She completed an analysis of the dash cam footage of the police high speed pursuit. She produced a report titled 'Major crash investigation section forensic collision report'.[11]
Evidence of Deborah Louise Keens
[11] Exhibit 7.
Ms Keens is a Western Australian police force employee who works in the mapping unit. She prepared a map representing the speed limit on the roads travelled on in the police pursuit.[12]
Evidence of Constable Chantal Bell
[12] Exhibit 8.
On 15 October 2020 Constable Bell was the passenger in the police car being driven by the appellant. At that time she had been a police officer for approximately 3 years and had completed her probation approximately three to four months earlier. She was trained as a priority one driver, meaning that she was trained in emergency and intercept driving, but she was not trained as an evade intercept driver or priority pursuit driver.
On 15 October 2020 at around 10.52 am, Constable Bell said that she saw the Holden Commodore and said to SC Wright that she wanted to pull the car over.[13] The appellant activated the lights and sirens of the police car in order to pull the Holden Commodore over. The Holden Commodore failed to stop.
[13] ts 61.
Constable Bell immediately advised POC that the Holden Commodore was failing to stop, that they had engaged in a priority pursuit and provided the driver qualifications, the vehicle qualifications and the direction of travel.[14]
[14] ts 62.
Constable Bell gave evidence that she did not see the Holden Commodore move onto the incorrect side of the road rather she looked up and saw that it was on the incorrect side of the road. Constable Bell said that when the Holden Commodore was travelling on the wrong side of Wanneroo road she quietly said to the appellant, 'he's on the wrong side of the road. What do we - what are we doing?' She said that the appellant did not respond and that she did not know if the appellant heard her. In cross-examination Constable Bell said that she said 'Ray, what are you doing?' 'under her breath' which meant that she said it 'quieter than normal talking.'[15] Constable Bell gave evidence that she said those words because she was seeking the appellant's opinion as to whether they should abort the pursuit having regard to the Policy. Constable Bell said that she tried to transmit to VKI that the Holden Commodore was on the incorrect side of the road, but that she could only get a dial tone as the radio traffic was very busy. [16]
[15] ts 81.
[16] ts 65 ‑ 66.
Constable Bell said that the Holden Commodore then turned right into another road and that there was a park at the end of the road. She said that she advised VKI that the Holden Commodore was driving through the park. She estimated that they were travelling at about 80 km per hour as they were braking towards an intersection. Constable Bell conveyed to the POC that they were overtaking some cars. Constable Bell said that when they were following the Holden Commodore on Sylvia street, they received information from POC that the Holden Commodore was stolen.[17]
[17] ts 68.
Constable Bell gave evidence as to the streets that the Holden Commodore travelled on over the course of the pursuit. At one point she said they turned onto the incorrect side of Balcatta road and that the traffic was medium to heavy at that point.[18] She said that she began watching the intersections on either side of the road to make sure that there were no oncoming cars. She said that they travelled at speed on the incorrect side of the road for between 5 to 10 seconds. She said that they went back on the correct side of the road and the Holden Commodore stayed on the incorrect side. She said that she did not make any communications to the POC at that time. Constable Bell said that she was in the process of telling the VKI that they and the Commodore were on the incorrect side of the road, but before she could she heard the secondary police vehicle following them report that information to VKI.[19]
[18] ts 71.
[19] ts 72 ‑ 73.
She said at this time she asked the appellant 'Do you think we should call it?' She said that she was seeking his opinion on whether they should terminate the pursuit given it was on the wrong side of the road. She said she was not sure where they stood in terms of the risk to the public. She said that the appellant did not respond, that she thought he just said 'um'. She said she advised VKI that the Holden Commodore was back on the correct side of the road. Shortly after that, Constable Bell said the appellant told her that the Holden Commodore had crashed and she immediately advised VKI of that.[20]
[20] ts 72 ‑ 73.
Constable Bell said that she asked the appellant more than once for his opinion as to whether they should terminate the pursuit. She said that she felt, that because they were on the wrong side of the road, they should consider aborting the pursuit but that she asked the appellant because he was a priority driver and she was not.[21]
[21] ts 74.
In cross-examination, Constable Bell said that she did not give good situation reports. She said that did not include that the Holden Commodore was on the wrong side of the road because she could not transmit at that point. She admitted that it was her job to give the situation reports.[22]
[22] ts 78.
Constable Bell said that she did not say abort at any time but that if she did say abort then the appellant would have been required to abort the pursuit.[23]
Evidence of SS Dawson
[23] ts 85.
The prosecution sought to call SS Dawson as an expert to give opinion evidence in relation to the Policy. The appellant made an application to exclude the evidence of SS Dawson on two grounds. Firstly, as a matter of fairness to the appellant, due to late disclosure and forensic disadvantage to the appellant. Secondly, on the basis that the proposed evidence was not expert evidence.
SS Dawson's current role is the officer in charge of the Operational Skills, Safety, Coordination Unit based at the Police Academy under the professional development unit. His role and function is to manage the Policy for the WA police force and monitor incidents involving emergency driving, particularly evade police driving incidents.[24] He has held this role since October 2021.[25]
[24] ts 111 ‑ 112.
[25] ts 113.
The learned magistrate ruled that SS Dawson was an expert and could give opinion evidence as to the meaning and terms of the Policy including the meaning of the terms and the intent of those terms and give examples where there are terms that go to risks posed by the behaviour of the target driver.[26]
[26] ts 108 ‑ 109.
SS Dawson gave evidence that he had been involved in reviewing 735 evade police intercept driving incidents since October 2021 - the purpose of which was to identify whether there have been any breaches of police policy and guidelines.[27]
[27] ts 114 ‑ 115.
SS Dawson gave evidence that the purpose of the Policy is to provide minimum standards of risk management for police officers when they undertake any aspect of emergency driving and that all police officers are required to apply the Policy to their driving.[28]
[28] ts 119 ‑ 120.
SS Dawson gave evidence in relation to the intent and meaning of various portions of the Policy.[29] [Redacted].[30]
[29] ts 119 - 121, 125 - 126.
[30] ts [redacted].
SS Dawson had no direct involvement in training police officers and he had not participated in the evade police intercept driver training.[31]
Defence case
Evidence of the Appellant
[31] ts 122.
The appellant gave evidence as to his training and experience in pursuit driving. He said he was trained on how to drive on the opposite side of the road and this was something that he did quite often during emergency driving. [32]
[32] ts 135.
The appellant gave evidence that the Policy was covered during his initial training, his advanced driver training, his advanced car course training and is a document that he flicked through at least once a month as a reminder to himself of the Policy.[33]
[33] ts 136.
The appellant said that, during a police pursuit, there is an ongoing risk assessment and that the risk assessment is done in accordance with the POET principle. He gave evidence as to his understanding of assessments to be made in accordance with the POET principle.[34]
[34] ts 137 ‑ 138.
The appellant had installed his own dash cam which was not police issued. He said he did this for his own protection, that is he said he installed it to verify exactly what happens during a pursuit.[35]
[35] ts 139.
The appellant was then played the dashcam footage[36] and gave evidence as to his risk assessments and determinations by reference to a number of different points in time, or 'aspects', of the pursuit.[37]
[36] Exhibit 2.
[37] ts 143 ‑ 155, 158 ‑ 167.
The appellant gave evidence that when a car goes onto the incorrect side of the road, it requires a more in-depth risk assessment, including how the car is being driven. He said that his assessment of the risk when the Holden Commodore went onto the incorrect side of the road was that the risk was acceptable to continue after it.[38] The appellant said that the driver of the Holden Commodore slowed down at intersections indicating he was trying to preserve himself or his car and that this is a factor in assessing the risk to the public.[39]
[38] ts 145.
[39] ts 146.
The appellant gave evidence that he formed the opinion that the driver of the Holden Commodore was a very accomplished driver and that the driver was having regard to what was around him and was not using any members of the public to make things dangerous to cause the driver to abort the pursuit.[40]
[40] ts 149.
The appellant gave evidence that, when the Commodore moved onto the incorrect side of the road, there was a risk to the public of aborting because if the police car didn't continue in pursuit with its lights and sirens then there was no alert system towards other road users of an oncoming car.[41]
[41] ts 150.
In cross-examination, the appellant gave evidence that the driver of the Holden Commodore was the most controlled driver he has been behind in a pursuit.[42] The appellant said that he did not put anyone at risk, he was quite able to stop and was always under control.[43]
[42] ts 183.
[43] ts 190.
In cross-examination, the appellant gave evidence that, in his experience, offenders continue on at ridiculous speeds even after a pursuit is terminated.[44]
[44] ts 212.
Reasons for Decision
The learned magistrate correctly identified the issue for determination in the trial as being whether the defence for police officers driving in a reckless manner in certain circumstances pursuant to s 61A of the RTA had been proved by the appellant on the balance of probabilities.
Her Honour correctly said that the appellant must satisfy her on the balance of probabilities that firstly, the driving during the seven minute pursuit was substantially in accordance with the Policy and any direction given under the Policy and secondly, having regard to all the circumstances of the case, that it was reasonable and in the public interest for the appellant to have driven the police car in the manner that he did. Her Honour referred to these as the first and second limb of the defence respectively.
Her Honour determined that the words 'substantially in accordance with' means that the defence should be available where there has been substantial overall compliance with the policy and any directions under the Policy and also that, having regard to the circumstances of the case, it was objectively reasonable and in the public interest for the appellant to drive as he did.[45] Neither the appellant or respondent takes any issue with this finding.
[45] ts 3 February 2023 (Decision ts) 5.
Throughout the reasons, the learned magistrate referred to 'aspects' of the pursuit by reference to a number, for example 'Aspect 4'. This is a reference to a particular point in time in the pursuit as referred to by the prosecutor in her opening address.[46]
[46] ts 36 ‑ 38.
Her Honour assessed Constable Bell as a credible witness, although noted that Constable Bell's memory had been affected by the passage of time, which in turn had an impact upon the reliability of her evidence as to what she said to the appellant during the pursuit.[47]
[47] Decision ts 9.
Her Honour found that Constable Bell, on two occasions, said something to the appellant because she was unsure whether the pursuit should be terminated in accordance with the Policy and that, although she did not ask the appellant to abort the pursuit, she did ask his opinion on whether the pursuit should be terminated.[48]
[48] Decision ts 11.
Her Honour found that that there were multiple times that the Holden Commodore and the police car were driving contraflow to the traffic and that this was not conveyed by the appellant or Constable Bell to VKI. VKI were therefore, not aware of this risk during the pursuit and were only informed by a police officer from the secondary pursuit car during aspect 13 of the pursuit.[49]
[49] Decision ts 12.
Her Honour reminded herself that the defence was an objective test and was not to be determined by Constable Bell's subjective experience.
In relation to SS Dawson, her Honour only took into account his evidence about the meaning and operation of the Policy and put to one side any evidence that he gave about whether, in his opinion, the appellant was driving in accordance with the Policy and any comments he made about training.[50]
[50] Decision ts 13.
Her Honour found SS Dawson's evidence to be consistent, credible and reliable. Her Honour accepted his evidence as to the purpose and meaning of the Policy.[51]
[51] Decision ts 13 ‑ 15.
Her Honour assessed the appellant's demeanour as seeking to justify his actions, quickly dismissing matters put to him by the prosecution and having a sense of overarching confidence in his driving during the pursuit.[52]
[52] Decision ts 15.
Her Honour found that the appellant held a subjective belief that the pursuit was justified in the sense that both limbs of the defence available under s 61A of the RTA applied to him.[53]
[53] Decision ts 17.
Her Honour found that the appellant had not satisfied the court, on the balance of probabilities, of either of the limbs of the defence under s 61A of the RTA.
In relation to the first limb, that being whether the appellant's driving during the pursuit was substantially in accordance with the Policy and any direction given under the Policy, her Honour found that the appellant did not abide by requirement 14 (risk assessment conducted by the driver in accordance with the POET principle in the Policy) and requirement 15 of the Policy (termination of the pursuit when it exposes the public to an unacceptable risk, the identified risks outweigh the need to achieve the objective of the pursuit, the police radio communications are continually poor or fail). The requirements that her Honour referred to were identified in the defence aide memoire.
[Redacted].[54] Her Honour said:
In my view, the overarching effect of the policy is a balancing of risk and a proportionate response. In the current case, the unacceptable risks and the need to terminate began occurring from aspect 4. The driving continued for a number of minutes from that point, and the risks were unacceptable for much of that time and increased from aspect 10 and on. On many individual occasions during that time, the [appellant] as the driver should have terminated the pursuit.[55]
Viewed as a whole, the [appellant's] driving was not substantially in accordance with the policy and guidelines.
[54] Decision ts [redacted].
[55] Decision ts 23.
Aspect 4 is described as follows:
[A]fter turning onto Wanneroo Road, [the Commodore] swerved into the incorrect side of the road whilst passing through an intersection and travelled on the wrong side of the road and then down a grassed median strip in the centre of the road for approximately 46 seconds, reaching speeds of approximately 125 per hour in a 70 zone, and encountering 21 oncoming vehicles including a bus.[56]
[56] Decision ts 20.
In relation to the second limb, that is, having regard to all the circumstances of the case, whether it was reasonable and in the public interest for the appellant to have driven the police car in the manner that he did, her Honour found that this limb of the test was also not satisfied for the following reasons:
The second limb requires me to be satisfied on balance that, having regard to all the circumstances of the case, it was reasonable and in the public interest for the [appellant] to have driven in the manner that he did. That is an objective test. I do not intend repeating the risks that the pursuit and the [appellant's] driving caused to the public, the police and the occupants of the target vehicle.
In summary, the [appellant] drove on the incorrect side of the road at high speed towards oncoming traffic at very high speeds where the speed limit was 40 or 50 kilometres per hour, for example, including in suburban streets and including on the incorrect side of the road. He drove through red lights and where traffic was built up. He took risks to get past traffic. His continued driving also meant that the serious risks that the target vehicle was undertaking also continued and increased as time went on.
I accept that there may be circumstances where the [appellant's] driving would be objectively reasonable and in the public interest, but this is not one of them. If, for example, he was pursuing someone he was suspected was about to commit an act of terrorism, or if the driver of the target vehicle or suspected of driving with weapons in his car to attack his wife, if that pursuit was terminated by the police, lives would be at risk.
There are limitless scenarios. But the level of risk that was present in the current pursuit would require a very immediate need to apprehend the driver of the target vehicle in order for the [appellant's] driving to be objectively reasonable and in the public interest. There was no immediate need in the current case. On this occasion, the appellants or a black Holden Commodore and decided it needed a licence check and a breath test of the driver. The driver refused to stop and then evaded police.
During the pursuit the [appellant] discovered the car was stolen. But the target vehicle was driving in an inherently dangerous manner and that dangerousness increased as the pursuit continued. It was clear that the [appellant's] pursuit of the vehicle was not causing the vehicle to stop and that the risk posed by the target vehicle would continue as long as the [appellant] pursued him. The [appellant's] driving was also inherently dangerous itself, as he has admitted.
Such driving including the pursuit of the target vehicle that was clearly not going to stop whilst being pursued, was not reasonable or in the public interest when all of the circumstances of the case are taken into account.[57]
[57] Decision ts 23 ‑ 24.
Therefore, her Honour was not satisfied that either of the first or second limbs of the defence pursuant to s 61A of the RTA had been made out by the appellant.
Ground 1
Appellant's Submissions
The appellant submitted that the evidence of SS Dawson was not admissible as expert opinion evidence for the following reasons:
(a)expert evidence was not required in order to understand the terms of the Policy;
(b)there was no evidence that the meaning and interpretation of police policies is an organised body of knowledge and experience; and
(c)SS Dawson could not give expert evidence as to whether the appellant's conduct complied with the Policy because that would require a determination of lawfulness.
The appellant relied upon the case of The State of Western Australia v BW [2021] WASC 326 (BW). In BW, a police officer was charged with murder during the course of his duty. The defence sought to lead evidence from an expert, Mr Chris Markham, as to his opinion in relation to the meaning and effect of the WA Police Use of Force Policy.
Like as in this case, in BW the admissibility of the terms of the Use of Force Policy, and the evidence of its contents, was not in issue. Mr Markham was responsible for training police officers and developing policies in relation to the use of force by police officers. It was accepted by the prosecution that Mr Markham could give evidence as to the content of the Use of Force Policy and the training provided to the accused.[58] What was in issue was whether the accused in BW could lead evidence from Mr Markham, in the form of expert opinion evidence, as to the interpretation and application of the Use of Force Policy to the circumstances of the case. The accused sought to lead evidence as to whether actions in particular circumstances by a police officer were consistent with the Use of Force Policy, or police training, or both.[59]
[58] BW [12].
[59] BW [16].
His Honour Justice Mitchell (as he then was), held that the opinion evidence of Mr Markham was inadmissible for the following reasons:
(a)it was not relevant to a fact in issue (the fact in issue being whether the accused held a subjective belief that the use of force was reasonably necessary to defend against the victim harming someone);[60]
(b)there was nothing in the Use of Force Policy which a jury required expert evidence to properly understand. A person of ordinary experience can form a sound judgment on the meaning and effect of the Use of Force Policy without the assistance of expert evidence;[61]
(c)there was no evidence before his Honour that established that the interpretation of the meaning and effect of police policies is an organised body of knowledge and experience which is sufficiently reliable to allow for expert opinion evidence to be given on that topic.[62]
Respondent's Submissions
[60] BW [52].
[61] BW [54].
[62] BW [59].
The respondent says that, at the trial, counsel for the appellant made it clear that he did not have an issue with SS Dawson giving evidence about the meaning and operation of the Policy.[63]
[63] ts 108.
The respondent submits that ground 1 of the appeal should be dismissed for the following reasons:
(a)BW is distinguishable from this case as the matters in issue in BW involved assessing subjective and objective reasonableness;
(b)the decision of the learned magistrate to admit evidence of SS Dawson as to the meaning and operation of the Policy must be viewed in context of the acceptance of the appellant to this evidence being led. Therefore, ground 1 raises issues not raised at trial. If these objections had been raised at trial, then the respondent could have met them; and
(c)the learned magistrate ruled that SS Dawson could not give evidence as to whether the appellant's driving was in accordance with the Policy and expressly stated that, to the extent SS Dawson gave such evidence, her Honour put it to one side.[64]
Ground 1 - Disposition
[64] Decision ts 13.
The conditions for the admission of expert opinion evidence were summarised by the Court of Appeal in Liyanage v The State of Western Australia: [65]
An affirmative answer must be given to at least the following four questions before 'expert' opinion evidence on a scientific subject matter will be admissible:
1.Is the opinion relevant; i.e. could the evidence rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings?
2.Is a person of ordinary experience unable to form a sound judgment on the subject matter without the assistance of an 'expert' witness with special knowledge or experience in the area?
3.Is the subject matter part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience?
4.Has the witness acquired, by study or experience, sufficient knowledge of the subject to render her opinion of value in resolving the issues before the court?
[65] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [122].
It is the second of these questions with which I begin, as it is the answer to this question which causes me to conclude that the evidence of SS Dawson as to the meaning and operation of the Policy was inadmissible.
[Redacted]:
[Redacted].[66]
[66] Exhibit [redacted].
[Redacted]:
[Redacted].[67]
[67] Exhibit [redacted].
[Redacted]:[68]
[Redacted].
[68] Exhibit [redacted].
[Redacted].[69]
[69] Exhibit [redacted].
[Redacted]:
[Redacted].[70]
[70] Exhibit [redacted].
In my view, the learned magistrate did not require expert evidence from SS Dawson to properly understand the meaning of the Policy. The learned magistrate was able to form a view on the meaning and operation of the Policy without the assistance of specialist knowledge or expertise.
The evidence of SS Dawson, save for his evidence as to the content of the Policy (which was admitted by consent), was inadmissible.
The respondent submits that the appellant did not object to SS Dawson's evidence as to the meaning and operation of the Policy being adduced. This is not accepted by the appellant. The appellant says that counsel applied to exclude the entirety of SS Dawson's evidence on the basis that it was not expert evidence.[71]
[71] ts 5.
I do not accept that the prosecution could have established at trial that expert evidence was required - the terms of the Policy are clear on their face and no expert evidence is required to understand them.
Counsel for the appellant did object to the evidence of SS Dawson on the basis that his evidence was not expert evidence.[72] Counsel for the appellant also referred the learned magistrate to BW and submitted that, as in BW, expert evidence was not required in order to understand the Policy.[73] The learned magistrate had clearly been referred to, and had regard to, BW in ruling the extent to which the evidence of SS Dawson was admissible. Irrespective of what the respondent submits was a concession of counsel for the appellant as to the admissibility of SS Dawson's evidence, that evidence was not admissible.
[72] ts 5.
[73] ts 101.
As a matter of law, it was for the magistrate to determine the meaning and operation of the Policy and whether the appellant had substantially complied with it. Any erroneous concession by counsel for the appellant as to its admissibility would not cure this error of law in admitting and having regard to the evidence of SS Dawson as to the meaning and operation of the Policy. The learned magistrate erred in law in ruling that SS Dawson's evidence was admissible as to the meaning and operation of the Policy.
Leave to appeal on ground 1 is granted and the appeal on ground 1 is allowed.
Ground 2
Appellant's submissions
The appellant submits that the learned magistrate erred in law in finding that requirement 12 of the Policy had been breached when these matters were not put to the appellant in cross-examination.
Requirement 12 of the Policy requires that situation reports or sitreps to the POC must be timely and accurate. Requirement 15 of the Policy provides that if the sitreps were 'continually poor or fail', then the pursuit ought to be terminated.
The prosecution submitted in closing, that the sitreps made by Constable Bell were poor or failing and, as a result, invited the learned magistrate to find that the defence was not available under s 61A of the RTA.[74] Counsel for the appellant, following the close of the prosecution case, submitted to the learned magistrate that this finding was not available and the compliance with sitreps was not put to the appellant in cross-examination. The remedy that the appellant sought was that the prosecution be prohibited from relying on any such failure in closing.
[74] ts 225 ‑ 226.
The appellant submits that, this having been raised as a 'Browne v Dunn issue'[75] by counsel for the appellant after the prosecution closing, the learned magistrate failed to address the remedy sought by the appellant in her reasons for decision.
Respondent's submissions
[75] Browne v Dunn (1893) 6 R 67 HL.
The respondent submits that ground 2 is misconceived because the learned magistrate did not attribute Constable Bell's inadequate sitreps to the appellant and did not rely upon this finding in determining that the appellant did not substantially comply with the Policy.
Determination - ground 2
After hearing counsel for the appellant's submissions on the Browne v Dunn issue, the learned magistrate indicated that she would take into account those submissions and would indicate in her reasons whether or not she had relied upon the prosecution submission as to the poor or failing sitreps.
Her Honour said the following:
In relation to what the defence have called requirement 12, subsequent sitreps to POC, I am not satisfied that the sitreps were accurate and that they gave the status of traffic control lights and signs encountered and that any further information that impacts on the risk assessment was given in a timely and accurate manner. Constable Bell admitted her sitreps were not good. I have listened to them. She did not inform POC that the target vehicle was going through red lights or that it was travelling towards oncoming vehicles on more than one occasion.
That policy was not complied with. However, it is not clear whether the [appellant] was aware during the pursuit that Constable Bell did not advise VKI that the target vehicle was driving into oncoming traffic or contravening red traffic control lights.[76]
[76] Decision ts 18.
Her Honour did not find that the pursuit ought to have been terminated at any point in time because of poor or failing sitreps. Given that her Honour did not make an adverse finding against the appellant in relation to the sitreps, there was no Browne v Dunn issue that her Honour was required to consider.
Ground 2 has no reasonable prospect of success. Leave to appeal on ground 2 is refused.
Ground 3
Appellant's submissions
The appellant submits that the learned magistrate erred in law and in fact in finding that the appellant should have terminated the pursuit from aspect 4 of the dash cam footage and that the learned magistrate erred in law in finding that s 61A of the RTA had not been made out.
The appellant submits that it was not open to the learned magistrate to make the factual findings that she did, having regard to the detailed evidence given by the appellant as to the risk assessments that he undertook at every aspect of the pursuit and the actions that he took in response to the risks that he perceived.
Respondent's submissions
The respondent submits that ground 3 erroneously conflates the two limbs of the defence in s 61A of the RTA. The respondent says that the learned magistrate was only required to determine whether the appellant's driving was substantially within the Policy when considering the first limb of the defence under s 61A(1)(b) and that whether the appellant should have terminated the pursuit according to the Policy was irrelevant to the second limb of the defence under s 61A(1)(c) of the RTA.
The respondent submits that her Honour engaged in an objective consideration of the second limb and determined that the appellant's manner of driving in the pursuit was not reasonable or in the public interest. The respondent says that while the considerations under the second limb may have been similar to those under the first limb, it does not follow that the learned magistrate determined the second limb was not made out by reference to a finding that the appellant failed to substantially comply with the Policy.
Determination - ground 3
Although her Honour found that the pursuit ought to have been terminated from aspect 4, her Honour also found that the pursuit ought to have been terminated on many occasions thereafter.[77] The premise of ground 3, so far it relates to aspect 4 only, is therefore, an incorrect one.
[77] Decision ts 21 ‑ 23.
In any event, her Honour correctly applied the law in that she engaged in an objective assessment of the first and second limbs of the s 61A of the RTA defence. In conducting that objective assessment, her Honour was required to and did take into account the subjective views of the appellant. Her Honour said:
I have carefully considered the [appellant's] evidence about the pursuit on the day. I find that he held, and still holds, a subjective belief that the pursuit was justified in the sense that both limbs of the defence apply to him. In my view, because of that subjective belief, in his evidence he downplayed the inherent serious risk of the driving of the target vehicle, both in what he said and how he said it, that is, in his demeanour.[78]
[78] Decision ts 17.
I therefore, find that it was open to her Honour, having considered the appellant's subjective assessment of the risks involved during the pursuit, to find that both the first and second limbs of the defence under s 61A of the RTA was not made out on the balance of probabilities.
Ground 3 has no prospect of success. Leave to appeal on ground 3 is refused.
Has a substantial miscarriage of justice occurred?
The success of a ground of appeal does not necessarily result in the setting aside of a conviction. Section 14(2) of the CA Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
Therefore, having found that ground 1 of the appeal is made out, I must consider whether a substantial miscarriage of justice has occurred.
No substantial miscarriage of justice will have occurred if either:
(a)the error had no material effect on the decision; or
(b)the court is satisfied, on a review of the evidence, that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt.[79]
Did the error (to admit the evidence of SS Dawson) have a material effect on the decision?
[79] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44].
Where a magistrate provides detailed reasons for their decision, whether or not a substantial miscarriage has occurred can be determined by considering whether the error did in fact have a material effect on the decision, as opposed to a jury verdict where the consideration is whether the error had the potential to have such an effect.[80]
[80] Morgan v Cramer [2019] WASC 68 [45].
The respondent submits that the appeal should be dismissed as no substantial miscarriage of justice has occurred because the error did not have a material effect on the learned magistrate's decision. The respondent says that the evidence of SS Dawson was only relevant to, and was only considered by the learned magistrate in relation to, the first limb of the defence under s 61A of the RTA.
The defence relied upon by the appellant requires proof of both the first and second limbs of s 61A of the RTA. The respondent says that, given the learned magistrate found that the second limb of the defence was not made out, the evidence of SS Dawson had no material effect on her Honour's decision to convict the appellant. In other words, the respondent submits that the appellant's guilt was still proved to the requisite standard because the error to admit the evidence of SS Dawson did not infect her Honour's assessment of the second limb of the defence under s 61A(1)(c) of the RTA.
In finding that the second limb of the defence was not satisfied, the learned magistrate said:
The reason I am not satisfied of the second limb is as follows. The second limb requires me to be satisfied on balance that, having regard to all the circumstances of the case, it was reasonable and in the public interest for the [appellant] to have driven the motor vehicle in the manner that he did. That is an objective test. I do not intend repeating the risks that the pursuit and the [appellant's] driving caused to the public, the police and the occupants of the target vehicle.[81] (emphasis added)
[81] Decision ts 23.
Although her Honour did not refer to the Policy when considering the second limb of the defence, it is clear from this finding that the factors which led her Honour to conclude that the first limb of the defence was not made out on the balance of probabilities, were the same factors that led her Honour to conclude that the second limb of the defence was not made out.
The learned magistrate found SS Dawson to be 'considered, careful with his answers … consistent, credible and reliable'.[82] Although her Honour stated that only SS Dawson's evidence in relation to the meaning and operation of the Policy was taken into account, and that any evidence he gave about whether, in his opinion, the appellant was driving in accordance with the Policy was put to one side, it is not clear from the reasons for decision exactly which, if any, parts of SS Dawson's evidence were put to one side.
[82] Decision ts 13.
For example, when asked if he could give examples of where a risk is elevated due to the environment in which the pursuit is taking place, SS Dawson said:
Parks, roadways, suburban areas with restricted speeds, smaller carriageways, and more compact roadways, through those suburban areas, areas which may feature a higher risk due to the population of people.[83]
[83] ts 127.
Further, when asked for examples of target considerations, SS Dawson said:
[D]isregard for road traffic control signals and signs, for example red traffic lights, stop signs, give ways, roundabouts and travelling contra to the flow of other traffic, in this instance, members of the public, primarily by going wrong side of the road[84]
[84] ts 128.
These parts of SS Dawson's evidence do not appear to be in the nature of opinion evidence as to whether the appellant's driving substantially complied with the Policy and therefore, on face value, the learned magistrate took this evidence into account. These are not exhaustive examples of SS Dawson's evidence of this kind.
This evidence was inadmissible for the reasons I have outlined. It was evidence that went directly to the meaning of the Policy. It was not evidence that merely recited the terms of the Policy.
The risks identified by SS Dawson are examples of matters that affected her Honour's identification of risks relevant to her consideration of both the first and second limbs of the defence under s 61A of the RTA.
In my view, the evidence of SS Dawson did materially affect the decision of the learned magistrate in finding that not only the first limb of the defence under s 61A was not made out, but also the second limb.
I therefore, find that a substantial miscarriage of justice has occurred as a result of the inadmissible evidence of SS Dawson being adduced.
Is the court satisfied, on a review of the evidence, that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt?
When the learned magistrate's reasons show the error to admit the evidence of SS Dawson to be material to the decision to convict, then this will ordinarily constitute a substantial miscarriage of justice unless I am satisfied, upon a review of the evidence properly admitted at trial, that the appellant's conviction was inevitable.
The respondent submits that the evidence properly admitted at trial proved the appellant's guilt beyond a reasonable doubt. The respondent says that, after putting SS Dawson's evidence to one side, the court has all of the evidence led at trial before it and is in as good a position as the learned magistrate to decide whether the appellant is guilty of the offence beyond reasonable doubt.
While it remained open to the learned magistrate who heard and observed all of the evidence to be satisfied beyond a reasonable doubt of the appellant's guilt, I am not able to reach the same level of satisfaction on the basis of the evidence before me.
The learned magistrate had regard to the appellant's demeanour in finding that he downplayed the inherent serious risk of the driving of the target vehicle and to the fact that he exhibited confidence when giving evidence as to his driving during the pursuit.[85] Her Honour also had regard to the credibility and reliability of Constable Bell. Although her Honour correctly identified that the test under each limb of the defence under s 61A of the RTA was an objective test[86], her Honour also correctly took into account the appellant's evidence about his experience, his training, what he considered during the pursuit and his assessment of the driving of the Holden Commodore.[87]
[85] Decision ts 15, 17.
[86] Decision ts 13.
[87] Decision ts 17.
The evidence of SS Dawson was capable of affecting the learned magistrate's assessment of the reliability and credibility of the appellant's evidence given at trial. The appellant's evidence in turn was capable of affecting the learned magistrate's consideration of whether the appellant had proved, on the balance of probabilities that his driving was substantially in accordance with the Policy and whether, having regard to all of the circumstances of the case, it was reasonable, and in the public interest, for the appellant to have driven in the manner that he did.
I have had the benefit of reviewing the dash cam footage of the pursuit and reading the transcript of the evidence given by the witnesses at the trial. However, it would be dangerous for me to rely exclusively on this dash cam footage and the transcript of the evidence without having the benefit of assessing the demeanour, credibility and reliability of the evidence of the appellant and Constable Bell.
While I find that it was open to the learned magistrate, on the basis of the evidence properly admitted at trial, to find that the defence under s 61A did not apply, I am not satisfied, on a review of the evidence, that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt.
Determination - substantial miscarriage of justice
I am satisfied that there has been a substantial miscarriage of justice in the present circumstances. The error to admit the evidence of SS Dawson had a material effect on the learned magistrate's decision to convict the appellant and the evidence properly admitted at trial does not lead to an inevitable conclusion of the appellant's guilt.
Orders
The following orders are appropriate:
1.Leave to appeal is granted on ground 1.
2.Leave to appeal is refused on grounds 2 and 3.
3.The appeal is allowed on ground 1.
4.The conviction recorded against the appellant is set aside.
5.The charge against the appellant be tried again by the Magistrates Court constituted by a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
21 JULY 2023
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