Supreme Court of WA|2010-07-28|Before: Jenkins J, Hall J

IBRAHIM -v- HERRING [2010] WASC 190 (28 July 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : IBRAHIM -v- HERRING [2010] WASC 190

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

File No : PE 27969 of 2007, PE 27970 of 2007, PE 27971 of 2007

Traffic offences - Whether magistrate failed to take relevant evidence into account - Whether magistrate failed to properly consider credibility of prosecution witness - Whether magistrate interrupted appellant

Road Traffic Code 2000 (WA), s 73, s 111(1), s 126(2)

De Vries v The Australian National Railways Commission (1993) 177 CLR 472

Ibrahim v Herring [2008] WASC 91

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

1 HALL J: On 6 August 2009 the appellant, Mr Ibrahim, was convicted in the Magistrates Court of two offences under the Road Traffic Code 2000 (WA). The convictions followed a hearing that occurred over two days, 16 and 30 July 2009. Mr Ibrahim has sought leave to appeal against those convictions.

2 The two charges arose from an incident that occurred at the intersection of Wellington and Barrack Streets on 24 November 2006. It was alleged that on that day Mr Ibrahim had driven east along Wellington Street and had stopped at the intersection in the middle lane behind a truck. Mr Ibrahim's intention was to turn left into Barrack Street onto the bridge over the railway. The prosecution case was that there were delays at the intersection and Mr Ibrahim had pulled out from behind the truck into the right hand lane, cut in front of the truck and turned left onto the bridge.

3 Three charges were laid against Mr Ibrahim in respect of this incident; failing to give way (to the truck): s 126(2), failing to obey a traffic lane arrow (the right hand lane was marked with a forward only arrow): s 73 and entering a choked intersection: s 111(1). The last charge was based on an allegation that the traffic on the bridge was backed up to the intersection. That charge was found not to be proven and was dismissed by the magistrate.

4 Mr Ibrahim claims that the magistrate failed to give consideration to some of the evidence. In particular, he refers to evidence relating to whether there was traffic congestion on Wellington Street and at the relevant intersection. He also claims that the magistrate erred in his assessment of the principal prosecution witness, Senior Constable Herring, by failing to take into account suggested inconsistencies in that evidence. He further claims that he was interrupted in his cross-examination of Senior Constable Herring by the magistrate and was thus denied a fair opportunity to present his case.

5 On 4 December 2009 Jenkins J ordered that the application for leave be heard at the same time as the appeal. Leave cannot be granted with respect to a ground of appeal unless the court is satisfied that it has a reasonable prospect of succeeding: s 9(2) Criminal Appeals Act 2004 (WA). This means that the ground is required to have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. In order to assess this question it is necessary to give consideration to the evidence where the grounds assert errors in respect of the consideration of the evidence or the application of the law to it. In the present case it is convenient to consider the merits of the grounds in substance before returning to the question of leave.

6 This appeal was listed to be heard on 16 April 2010. On that day Mr Ibrahim appeared and sought an adjournment. He said that he had been led to believe the matter would not proceed on that day because he had informed the central registry of his personal circumstances that prevented him from coming to court that day. He said that, for this reason, he had not prepared sufficiently to argue his case. It should be noted at this point that, at all times, Mr Ibrahim has represented himself. I granted an adjournment to 30 April 2010 and made orders regarding the filing of written submissions by Mr Ibrahim prior to the hearing. I made that order because Mr Ibrahim said that submissions filed by the respondent had misunderstood the purport of his grounds of appeal. Mr Ibrahim complied with that order.

7 The relevant events occurred over three and a half years ago. That delay is substantially accounted for by the fact that there was an earlier trial in the Magistrates Court which resulted in convictions that were subsequently appealed. That appeal was allowed, the convictions were quashed and the case was remitted for retrial before a different magistrate: Ibrahim v Herring [2008] WASC 91. The present appeal relates to that retrial. I refer to that history only because Mr Ibrahim made reference to evidence at the first trial in both his written and oral submissions. It is, of course, necessary when considering whether the magistrate at the retrial made any error, to bear in mind only that evidence that was before him at the time.

8 The grounds in respect of which Mr Ibrahim seeks leave to appeal are as follows:

1- The magistrate failed to take in [sic] consideration in his decision the following evidences [sic] before him in relation to the traffic congestion which was the bases to Herring story and allegedly why the appellant did all this acrobatic manoeuvres:

A- Evidences provided by Main Roads about the traffic statistic flow and Windsor's statement that the traffic moved and there were no hold ups verses Herring [sic] evidences [sic] of congestion and there are reasonable doubts on the story.

B- The magistrate did not take in [sic] consideration that the number of cars passed William/Willington [sic] streets intersection (which the only supply to the intersection where allegedly the case took place) did not exceed the number of cars passed [sic] the Willington/Barrack [sic] Streets intersection and therefore the claim of Herring of traffic congestion is not proven and there are reasonable doubts on the story of congestion.

C- That there were no evidences [sic] before the court of road works near the Willington/Barrack [sic] Streets or Roe/Barrack Streets intersection or any other reason for traffic congestion/hold ups therefore there are reasonable doubts on the story.

D- The claim of 'the traffic on the right lane of the bridge was not moving fast' was proven wrong as there were no reason and Herring's statement that the pedestrian crossing is the reason was defeated therefore the bases [sic] of the necessity to move lanes is unfounded and there are reasonable doubts of the story.

E- The video evidence of the appellant before the court and the car count on the 19th of March would prove how much error in the car count Main Road account has.

2- The magistrate erred on arriving to conclusion and assuming the traffic lights' numbers Herring believed the traffic did not pass and stated in his reason for the decision it is '.... _may be officer Herring was not sure of the number of lights he did not pas_s' as there are no may be in Criminal Proceedings and the magistrate hypothesis is an error because the appellant asked Herring about the traffic lights' numbers he waited for and it was confirmed to be three and that was the bases [sic] of the alleged story because of the number of times the traffic did not move the appellant moved to the right lane other wise there are no bases to the account.

3- The magistrate used the above issue of the number of green light [sic] to defeat the Main Road statistic numbers by adopting Herring [sic] claim and therefore the magistrate erred.

4- The magistrate erred and totally neglected to mention in his reason for the decision that the two witnesses reporting of where about (allegedly) the appellant car changed lanes over the bridge are in conflict, one claim it is on the end of the bridge right near the intersection the other is near the blue cat or 25 metre from roe street intersection, the differences between the two stories is at least 35 meters in length if we take where about the blue cat is and about 50 meter if we look at it from the 25 meter space between the appellant car and Roe Street intersection claim and that could not have happened because the appellant car could not possibly moved in tow [sic] different locations over the bridge.

5- The magistrate erred in facts and law not taking Herring's credibility in consideration where he was untruthful on the following issues among others:

A- If he could see this car turning right from his position behind the truck. Herring could not clearly respond when the appellant show him the location picture and the obscurity of the traffic to this alleged car position.

B- The infringement notices E225181 and E225 182, which [he] claimed was marked were not.

C- The other infringement notices he claimed he issued to the appellant inside the police station was no were [sic] to be found after the appellant summon the police commissioner and perhaps not existed [sic] and

D- if they exist they would prove that the officer was trying to falsify other charges.

E- The story of entering the chocked [sic] intersection was proven to be false and if the officer really saw the appellant entering a chocked [sic] intersection he would not have reported a gap over the bridge in the same time, which conclude that he did not see it at all or invented the story because the two situations can not be exist in the same time which was the bases [sic] of dropping the entering chock [sic] intersection.

F- Herring insisted even after the appellant made his question about the above point that this is the way he saw it at the time and he did not lie to the court.

G- Herring failed during cross examination to give reasons why the infringements were not in sequences and why it took him 5 months to come up with what would be the first traffic violation.

H- Herring drew the appellant car position when moved to the middle lane over the bridge as the last car in the lane because as he stated it moved from the chocked [sic] intersection to there in the same time he draw the appellant car taking the last position in the right lane the appellant can not possibly be in the last positions over the bridge in two lanes because cars can not move parallel it has to move froward [sic] to move lanes.

I- Herring claim [sic] in court that the address on the appellant licence on that day was his address in Kensington and the address in the system was the address in Jolimont which [was] impossible to happen. Then he claimed he asked him to change his address and got him to fill the form but the address on the 1/12/06 was changed back to Jolimont so how [could] that happen

J- Herring refusal to admit he lied under oath to the court in this trial or the previous trial even the evidence proved that.

6- The magistrate interrupted the appellant in [sic] two occasions and interrupted his sought [sic] and the line of questions once near the end of the day while he questioning Herring and another while he was questioning Windsor about the location of the alleged change of lane over the bridge and the intersection and the distances between them.

7- The magistrate made errors of law and facts convicting the appellant without reasonable doubts based on the all of the above grounds.

9 The prosecution called two witnesses, Senior Constable Herring and Constable Windsor. Senior Constable Herring said that he and Constable Windsor were driving in an unmarked police car on Wellington Street at approximately 1.20 pm on 24 November 2006. He was the driver. The police car was being driven in an easterly direction on Wellington Street in the left hand lane. The police car stopped at the intersection and was the second car from the traffic lights. The lights were red and the traffic was very heavy.

10 Senior Constable Herring said that the lane configuration at the intersection was that there were three east-bound lanes on Wellington Street. The left hand lane had an arrow indicating that traffic in that lane could only turn left. The middle lane also had an arrow indicating that left hand turns were permissible from that lane. The right hand lane had an arrow indicating that traffic in that lane could only proceed straight ahead.

11 Senior Constable Herring observed Mr Ibrahim in a white Nissan directly behind a truck in the middle lane. He said that when the lights first turned to green the traffic in the middle and left hand lanes did not move as the lanes on Barrack Street on the bridge to the left were backed up to the intersection.

12 On the next change of lights Senior Constable Herring moved off to drive towards the base line at the traffic lights. At this point he observed Mr Ibrahim's vehicle change lanes from the middle lane to the right hand lane to go around the truck. He said that Mr Ibrahim drove into the lane marked for traffic travelling straight ahead only and then turned left into the intersection in front of the truck. He said that after he moved the police vehicle around the corner into Barrack Street he saw Mr Ibrahim's vehicle in the right hand lane on Barrack Street. Mr Ibrahim then proceeded to change lanes abruptly in front of the truck. He said the truck sounded its horn and Mr Ibrahim then stepped out of his vehicle, walked towards the truck and shouted at the driver. Mr Ibrahim then got back into his car and, as the traffic cleared, drove off towards Roe Street.

13 Senior Constable Herring engaged the emergency flashing lights of his vehicle and stopped Mr Ibrahim on Beaufort Street a short distance away. Senior Constable Herring was extensively cross-examined by Mr Ibrahim but did not resile from any significant aspect of his evidence in regard to the events of 24 November 2006.

14 The prosecution also called Constable Lydia Windsor. She was a passenger in the vehicle with Constable Herring. She confirmed that the police vehicle had travelled east on Wellington Street and stopped at the intersection of Barrack Street in the left hand lane behind two other cars. She testified that there was a truck in the centre lane and forward of the police vehicle. Behind the truck was a white vehicle. She said that when the traffic lights turned green the police vehicle was unable to move immediately because of the traffic. She noticed Senior Constable Herring looking over his right shoulder. When the police vehicle was able to turn left onto the bridge, she saw the white car pull in front of the truck which had turned into the centre lane on the bridge. She then saw Mr Ibrahim get out of the white car and approach the truck, shouting at the driver. Constable Windsor was also cross-examined at length but did not change her evidence in any material respect.

15 Mr Ibrahim gave evidence in his defence. His version of what occurred was remarkably and irreconcilably different from that of the police officers. He said that as he approached the Barrack Street intersection he was in the left hand lane and the truck was immediately in front of him in the same lane. He said that the truck was stopped behind a yellow car and a red car. When the lights turned green, the yellow and red cars moved quickly around the corner. He said that the truck had also moved off very quickly but stopped suddenly after turning onto the bridge. He said that he turned behind the truck onto the bridge and had cleared the intersection but felt nervous and anxious about his position. He said that he then indicated to move to the centre lane on the bridge. He moved slowly to the centre lane and as he was passing the truck, saw a gap between the truck and the red car that was in front of it. He said he pointed his finger to the truck driver to indicate that he wished to move into the gap and that he then heard the truck sounding its horn. He said he continued to move forward in the centre lane and noticed the truck move into the centre lane behind him and again sounded its horn. He said that at no stage did he move in front of the truck.

16 Mr Ibrahim said the truck driver then left his truck and started to walk towards him. He then took his seatbelt off, put his car into neutral and stepped outside his car as he thought that the truck may have hit his car. He said he then noticed the truck driver staring to the left and then returned to his truck. Mr Ibrahim said he looked to the left and saw a blue car in which Senior Constable Herring and Constable Windsor were sitting. Their car was in front of the red and yellow cars in the left hand lane on the bridge. He said he tried to draw the attention of the police officers to the truck driver. When he pulled over in James Street, he told the police officers to stop the truck but they did not do so and the truck drove away.

17 Mr Ibrahim also called Mr Martin Woolley, a traffic systems operations officer from the Operations Centre of Main Roads Western Australia (Main Roads). Mr Woolley gave evidence that metal detection wires under the bitumen at each sets of traffic lights record the volume of vehicles passing. He produced records relating to the Wellington/Barrack Street intersection. Those records recorded activations in 15 minute intervals.

18 There was some confusion in the questioning as to whether the figures provided were those that related to Barrack Street or Wellington Street. Mr Ibrahim's question related to Barrack Street but referred to heading east which would more logically refer to Wellington Street. The significance of this is that if the figures were counted in Barrack Street it would include not only vehicles turning left from Wellington Street onto Barrack Street but also all vehicles feeding onto the Barrack Street bridge from other sources. If, however, the figures measured only those vehicles turning left from Wellington Street it would give some indication of the volume of traffic that passed around the corner from Wellington Street to Barrack Street in the relevant 15 minute interval.

19 Mr Ibrahim proceeded upon the latter assumption and for the sake of this appeal I will do likewise. On that basis there were 34 activations in the left lane, 78 activations in the middle lane and 51 activations in the right lane, between 1.15 pm and 1.30 pm on Friday 24 November 2006.

20 The relevance of this evidence was that Mr Ibrahim argued that the number of cars passing around the corner onto the bridge in that 15 minute interval was inconsistent with the police officers' evidence that the intersection was choked. In particular, Mr Ibrahim relied upon this evidence to show that it was unlikely that Senior Constable Herring's evidence that the traffic in Wellington Street was unable to turn left for two or three changes of lights was correct. This conclusion relies upon not only the accuracy of the figures provided by Main Roads and the assumption that I have referred to, but also an assumption that no traffic in the centre lane of Wellington Street travelled straight ahead.

21 Mr Woolley also produced traffic figures for the intersection of Wellington and William Streets. The purpose of this was to show the number of vehicles that entered that part of Wellington Street immediately preceding the intersection with Barrack Street. Two lanes from Wellington Street proceeded straight ahead from the William Street intersection. The readings from one of those lanes showed 118 activations in the 1.15 pm - 1.30 pm period. The other lane showed zero activations. Mr Woolley testified that the most likely reason for this was that the detection device was damaged due to road works in that area. For this reason he did not accept that the total number of vehicles passing along Wellington Street from the William Street intersection was 118 because the cars travelling in the second lane were not counted. The other source of traffic that entered into this part of Wellington Street is those vehicles turning left from the Horseshoe Bridge. Mr Woolley said that the detection device at that point was also damaged and thus there were no figures in that regard.

22 Mr Ibrahim contends that the magistrate failed to take into consideration a number of aspects of the evidence in relation to the traffic congestion. The first of these is the evidence relating to the traffic flow at the Wellington/Barrack Street intersection. In fact, his Honour referred specifically to this evidence. He said in regard to the evidence of Mr Woolley:

He said that in respect to the three eastbound lanes on Wellington Street and at the intersection of Wellington Street Barrack Street, records revealed that for the 15 minutes from 1.15 to 1.30 on the day in question, 34 cars passed through the left-hand lane, 78 from the centre lane and 51 the right-hand land. He said that the numbers were calculated based upon metal passing over a loop under the road and that it is possible that the records are not absolutely accurate. For example a bicycle could be recorded or a truck may be recorded twice because of its length (ts 11).

23 The relevance of this evidence appears to have been two-fold. First, to suggest that the intersection was not choked. In that regard, the relevant charge was dismissed for other reasons in any event. Second, as a reflection upon the credibility of the evidence given by Senior Constable Herring. In that regard, his Honour said:

Much has been made by the accused of the traffic count on Wellington Street between 1.15 and 1.30. I don't accept such evidence means the evidence of the police officers is unreliable. All it means, putting the evidence at its highest, is that Constable Herring was wrong as to how long he waits at the Wellington Street lights before he turns left into Barrack Street. This is very much, in my view, a collateral issue (ts 15).

24 This ground also refers to the evidence of Constable Windsor insofar as she said that there was a delay of one change of lights before the traffic moved whereas Senior Constable Herring referred to the traffic not moving until a third change of lights. Whilst the magistrate did not refer specifically to any inconsistency, it should be noted that it is not necessary for a magistrate to summarise every piece of evidence: s 31(1)(c) Magistrates Court Act 2004 (WA). His Honour did specifically consider the reliability of Senior Constable Herring's evidence in regard to the length of time that the police car waited at the Wellington/Barrack Street intersection before turning left. As the previous quote illustrates his Honour was of the view that even if Senior Constable Herring was wrong in regard to the length of time that he waited, this was not a factor which significantly undermined the officers' evidence with respect to the critical issues.

25 A trial judge is not obliged to make findings about inconsistencies in evidence in respect of peripheral matters which throw no light on the real issues in the case: Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23, 27 (McHugh J); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. Even if a finding had been made that Constable Windsor was correct and Senior Constable Herring was wrong in regard to the length of time they waited at the lights, such a finding could not have made a difference to the outcome given that the magistrate had already found this to be a collateral issue. Of greater significance was that, in other respects, the evidence of the police officers was the same. In particular, as regards the location, movement of the police car and the position of Mr Ibrahim's car before and after the incident.

26 Ground 1B refers to the evidence regarding the number of cars that passed the Wellington/William Street intersection. The ground states that since the number of cars passing through the William Street intersection was less than those passing through the Barrack Street intersection, the evidence of Senior Constable Herring regarding traffic congestion was not reliable. This ground proceeds upon a misstatement of the evidence. The evidence of Mr Woolley was that the detection devices at the Wellington/William Street intersection were not all operating and thus the figures in regard to that intersection did not reflect the total number of cars that entered Wellington Street.

27 Ground 1C refers to there being no evidence before the court of road works or any other reason for traffic congestion. The absence of evidence is not evidence of absence. It is unsurprising that police officers who are caught in traffic may be unaware of the reasons for the traffic congestion. In fact, a possible reason for congestion was suggested by Mr Woolley. He said that a car park on Roe Street that was full could occasionally result in a line of cars backing up into Barrack Street on the bridge. What was relevant was whether or not the evidence of the police officers as to what Mr Ibrahim did was accepted to the relevant standard. To the extent that there was congestion on Barrack Street, that was part of the context and his Honour did consider that specifically. In any event, insofar as this evidence was relevant to the question of whether the intersection was choked his Honour found that, notwithstanding the illegality of turning left from the right hand lane on Wellington Street, there was room on the bridge in the right hand lane such that he had a reasonable doubt that Mr Ibrahim had been unable to clear the intersection.

28 Ground 1D then refers to evidence relating to traffic in the right hand lane on the bridge not moving quickly. This was an entirely peripheral issue. The speed of traffic in that lane had nothing to do with the charges before the court except insofar as it might be relevant to whether there was room in that lane for Mr Ibrahim to clear the intersection. Given that Senior Constable Herring's evidence, in any event, was that Mr Ibrahim initially moved into that lane before turning in front of the truck, it is difficult to see how this can be said to be a matter of any significance.

29 Ground 1E refers to video evidence produced by the appellant. In fact his Honour specifically referred to this evidence:

He played to the court a video of the intersection, which was watched by the court. He said that the light sequence on Wellington Street was 30 seconds red, 35 seconds green and four to five seconds amber and there would have been seven green lights in the 15 minutes between 1.15 and 1.30 and therefore based on the traffic flow record, which eventually became exhibit 11, he made various calculations, suggesting that it was impossible for the police car to have taken two to three changes of lights to get through the intersection (ts 10 -11).

31 In essence this ground asserts that the magistrate was obliged to reach a finding beyond reasonable doubt as to the number of changes of lights that occurred before the police car turned left onto Barrack Street. Mr Ibrahim submits that if there was some possibility that Senior Constable Herring was wrong in his evidence that there were two or three changes of lights before he was able to turn left, then the charge would be unproven. There is very little that can be said about this ground. The simple fact is that the length of time that the police car was delayed at the intersection was not an element of the offence and therefore did not have to be proven beyond reasonable doubt. To the extent it was relevant at all, it was a matter that went to the credibility of Senior Constable Herring. In that regard the magistrate properly took it into account. He concluded that even if Senior Constable Herring was wrong in this respect, it did not lead him to conclude that his evidence must be rejected in regard to the critical issues. That was a conclusion properly open to the magistrate and discloses no error. Accordingly this ground cannot succeed.

32 In Mr Ibrahim's written submissions he contends that the magistrate made an error by not giving greater weight to the traffic statistics provided by Main Roads. He said that even taking into account a maximum error rate of 10%, the evidence regarding the number of cars that turned left from William Street onto Barrack Street is inconsistent with the evidence of Senior Constable Herring regarding the delay that he encountered at those lights. This is simply a reiteration of ground 1A. It does not accurately state the evidence. In any event, as I have already pointed out, the magistrate accepted the possibility that Constable Herring might have been wrong as to the length of time he waited at the Wellington Street lights before turning left onto Barrack Street. Accordingly, this ground must fail.

Ground 4 - position of police car after the incident

33 This ground relates to an alleged inconsistency between the evidence of Senior Constable Herring and that of Constable Windsor regarding where the police car was stopped on the bridge at the time the police officers say they observed Mr Ibrahim change lanes. Senior Constable Herring's evidence was that the police car was one car length over the bridge near the intersection of Wellington Street. Constable Windsor said that when she observed Mr Ibrahim's car change lanes the police car was next to the Blue Cat bus station which is approximately halfway across the bridge. Despite the exhaustive cross-examination of the witnesses by Mr Ibrahim on this issue it could only fairly be described as minor in significance. The difference, if there be one, is a matter of a few car lengths and does not detract from the evidence otherwise given by the police officers. In my view, for reasons I have referred to earlier, this was not an inconsistency that the magistrate was obliged to refer to and no error is established. This ground, too, must fail.

Ground 5 - credibility of Senior Constable Herring

34 In essence, this ground asserts that the magistrate erred by not giving adequate consideration to the issue of Senior Constable Herring's credibility. The ground particularises a number of aspects of evidence in respect of which it is said that Senior Constable Herring's evidence was untrue.

35 The first of these relates to Senior Constable Herring's evidence that from his position behind the truck, he could see a car on the opposite side of the Wellington/Barrack Street intersection that was in the intersection indicating to turn right onto the bridge. In cross-examination, Mr Ibrahim produced a number of photographs and suggested to Senior Constable Herring that it was impossible for him to have seen that car from the position in which the police car was stopped because his view would have been obstructed by the truck.

36 Senior Constable Herring did not accept this proposition and maintained that he saw the car. Furthermore, Senior Constable Herring did not accept that the photographs that were produced accurately depicted the view that he had of the intersection. In particular, he noted that the photographs appeared to have been taken from a further distance away from the intersection than the police car had been located. The magistrate referred to this cross-examination in his reasons for decision:

The accused was shown photographs of the intersection and it was put to him that from his position in the left-hand lane in Wellington Street, he could not have seen a vehicle facing west on Wellington Street and attempting to turn right into Barrack Street. The witness was adamant that he could see the vehicle (ts 5).

37 The second matter raised in this ground of appeal is that it was asserted that Senior Constable Herring had claimed that two infringement notices had been marked. Mr Ibrahim's contention was that when he sought an explanation from Senior Constable Herring as to why he had been given infringement notices that were not sequentially numbered Senior Constable Herring had given as an explanation that the notices between those two had been marked and were therefore unusable. Mr Ibrahim said that an examination of those notices when produced to the court had not shown any markings and that this therefore proved that the witness' evidence was untrue. This is a misstatement of the evidence.

38 It was put to Senior Constable Herring that at the first trial, he had said one of the infringement notices was marked and could not be used. The witness accepted this but could not recall which infringement notice in particular was marked. However, he then was asked:

You just made a statement today that you didn't go the sequence because one of the infringements was marked. Can you show us in the book?---No, I made a general statement in the first trial that that is a possibility that happens during a course of duty.

Ok. Can you show us why you - - -?---I didn't specifically say that the infringement was marked. I said that if that occurs, then our procedure is to proceed with the next infringement and write 'Cancelled' across the infringement (ts 54).

39 In fact when shown the book, it became apparent that at least one of the intervening notices had been written out to another person. Senior Constable Herring said that all of the notices were written out together in his office and delivered to the people. He also said Mr Ibrahim had refused to accept two original infringement notices at the police station on 24 November 2006 and that he had subsequently written out new notices with a date of 4 December in order to allow for the 28 day compliance period. There was, therefore, no significance in the fact that the infringement notices did not have sequential numbers.

40 The next matter raised in this ground is that it is said that the original infringement notices were nowhere to be found. Again, this is a misstatement of the evidence. Senior Constable Herring's evidence in this regard was as follows:

You said you wrote it later in the office?---Well, because the dating had to be different, the infringement came out of a separate book and was issued separately. The original infringements would have been dated the same day, because I was going to give them to you, and the two that were sent to you in your mailbox were written separately.

Later on?---Later on.

Where's the other ones that you wrote and you didn't - you gave me and I throw away? Do you still have them in your possession?---No, I don't. I don't have any reason to keep them (ts 64 - 65).

41 Senior Constable Herring was then asked by the magistrate whether the original infringement book would still exist:

HIS HONOUR: Can you get the other infringement book?---I'd have to search for it, sir, and it's not actually issued to me in person. It's a station book or a vehicle book. I'd have to search the whole archives.

All right?---I'm not really sure exactly where it is.

I will make a decision about that when he has finished his evidence?---It's my understanding, sir, that once the summons is issued, the infringements are no longer valid (ts 66).

42 Mr Ibrahim sought that Senior Constable Herring produce the original infringement book at the next hearing date. At the conclusion of the hearing on 16 July 2009, the magistrate made a ruling in this regard. His Honour said:

In relation to the issue of the other infringement notices, I have decided that the issue of the other infringement notices is a collateral issue and it seems to me that in the circumstances, I am not requiring the officer to undertake any more searches in respect to that and his evidence is now at an end and he is free to go (ts 72).

43 Accordingly, the suggestion in this ground that the officer's inability to locate the earlier infringement notices was somehow relevant to an effort on behalf of the police to falsify charges is without any foundation.

44 The next matter referred to in the ground is that it is suggested that the evidence of Senior Constable Herring was inconsistent in that he asserted that the appellant entered a choked intersection but gave evidence that there was a gap into which Mr Ibrahim's car drove. This is not an accurate summary of Senior Constable Herring's evidence. His evidence was that there was a space in the right hand lane on Barrack Street but Mr Ibrahim's car had turned into the intersection and paused before turning into the right hand lane. As his Honour recognised, the right hand lane was not one that was available to traffic turning left from Wellington Street in any event. However, the turn was covered by another charge. A view could be taken that an intersection is choked if there is no free space beyond it into which a car can lawfully move. His Honour did not take this view. He took the more pragmatic view that it was possible for Mr Ibrahim's car to clear the intersection by turning into the right hand lane. This may well have been a beneficial view in regards to Mr Ibrahim but it does not reflect adversely on the evidence of Senior Constable Herring.

45 The next matter referred to in the ground is that it is asserted that during the cross-examination, Senior Constable Herring failed to give a reason as to the non-sequential numbering of the infringement notices and the five-month delay in preferring a third charge. Again, this is not an accurate summary of the evidence. Whilst Senior Constable Herring could not explain why the two infringement notices were not in sequence, he noted that they had been written in his office during a half hour break and that there was no requirement for such notices to be sequential. As regards the additional charge, Senior Constable Herring said that when the infringement notices were not paid, he was obliged to prepare a brief of evidence and a summons. At that stage he considered the relevant alleged facts and ensured that all relevant charges arising out of them were preferred. He said that it was his understanding that a summons superseded any infringement notices and that there was no requirement to first issue an infringement notice. In any event, his Honour referred to these issues in his reasons:

The officer was further cross-examined in relation to what happened at the police station. The officer said that he wrote out two infringements at the police station and tried to give them to the accused, but the accused refused to take them and shouted and threw them on the ground. The accused was then escorted out [of] the police station. Officer Herring agreed that 10 days after this, he delivered to the accused's address two infringements, being infringement 225180 and 225183, and that those infringements were dated 4 December 2006, and I note that the date upon which the incident is said to have occurred was 24 November 2006.

It was put by the accused to the officer that therefore those two infringements could not have been written out by the police officer and given to the accused at the police station on the day in question. It was put to him that he was lying about the issue of the infringements. It was also pointed out to the officer that between infringements 225180 and 225183 are two further infringements, one of which became exhibit 5, which infringement was not issued to the accused, but somebody else.

The witness was also cross-examined about his evidence on 13 September 2007 before the Perth Court of Petty Sessions in relation to the issuing of the infringements and the fact that in his evidence, he stated that he had given the infringements to the accused in the interview room at the police station on 24 November 2006. I would have to say that the witness's evidence in relation to the issuing of the infringements and how they came to be dated 4 December was far from convincing.

However, in fairness to the witness, he did say that Mr Ibrahim was being most uncooperative whilst at the police station and he wanted to get him out of the police station as soon as possible (ts 6 - 7).

Whilst the evidence of Senior Constable Herring was unsatisfactory in relation to how the infringement notice was issued to the accused, this is a collateral issue which goes to credit value (ts 13).

47 It is therefore wrong to say that his Honour failed to give consideration to this issue. Nor do I consider that his Honour was wrong in reaching the conclusion that he did as to the significance of it in the larger scheme of things.

48 The next matter referred to in the ground is that it is asserted that Senior Constable Herring falsely claimed that the address on Mr Ibrahim's licence on that day was an address in Kensington whereas the address on the police system was one in Jolimont. In fact, the evidence of Senior Constable Herring was that as a result of other enquiries he had made regarding an unrelated incident, he had reason to believe that the address of Mr Ibrahim was in Jolimont. This, he said was inconsistent with the address shown on Mr Ibrahim's licence when it was produced by him after he was pulled up on James Street.

49 A letter from the Department of Planning and Infrastructure produced by Mr Ibrahim and marked as exhibit 8 appears to confirm that he did indeed formerly live at an address in Jolimont. That letter states that according to the licensing services computer system, the address shown for Mr Ibrahim was in Jolimont from 9 March 2004 - 16 June 2006, Kensington from 16 June 2006 - 1 December 2006, Jolimont from 1 December 2006 - 18 December 2007, then Kensington again from 8 December 2007 to the date of the letter, being 23 July 2009.

50 Mr Ibrahim argues that since the licensing computer system showed a Kensington address as at 24 November 2006, it would have conformed with the address on his licence and, accordingly, Senior Constable Herring's evidence must be wrong insofar as he suggested that there was a discrepancy. However, as I have endeavoured to point out, Senior Constable Herring's evidence was not based simply upon the computer system (which in any event had recorded the Jolimont address until June 2006) but upon enquiries that he had personally undertaken.

51 I should note at this stage, that insofar as it has been suggested that Senior Constable Herring was motivated by some bias against Mr Ibrahim because of his earlier investigations into an alleged road rage incident, it should be noted that it was common ground that he had never met Mr Ibrahim prior to 24 November 2006. Despite having made enquiries, Senior Constable Herring had been unable to make contact with Mr Ibrahim. In any event, his Honour did make reference to the issue regarding the discrepancy in Mr Ibrahim's address, although the transcript appears to be incomplete at this point due to a fault in the tape recording. Nonetheless it is sufficiently clear that his Honour did have proper regard to the matter.

52 The next matter referred to in this ground is the appellant's suggestion that Senior Constable Herring refused to admit to lying under oath in the trial. Mr Ibrahim submitted that the transcript from the first trial established that such lies had occurred. Only one portion of the transcript from the first trial being pages 23 - 26 was tendered. In those pages, Senior Constable Herring gave evidence that he had served Mr Ibrahim with infringement notices in the interview room. The transcript then reveals an exchange between Mr Ibrahim and the magistrate whereby Mr Ibrahim asserted that the witness was lying because the infringement notices were delivered to his letter box and not served to him in the interview room as claimed. His Honour noted that no such inconsistency was clearly identified (ts 48). I have read the transcript carefully and it is not apparent that there is any inconsistency in the evidence given by Senior Constable Herring on the two occasions.

53 In summary, it is clear that the magistrate carefully considered issues of credibility in relation to the evidence before him. The stark inconsistency between the evidence of the police officers and that of Mr Ibrahim was readily apparent. His Honour's reasons reveal a keen appreciation that credibility was a central issue. In my view, his Honour properly weighed the credibility of the prosecution witnesses, bearing in mind the requirement that the prosecution prove its case beyond reasonable doubt. His conclusion that the evidence of the police officers was both credible and reliable with respect to the critical issues, was arrived at as a result of an entirely proper and fair weighing of the evidence. Similarly, the magistrate's conclusion that Mr Ibrahim's evidence was both inconsistent and unreliable was the result of an entirely fair and proper analysis.

54 This ground asserts that the magistrate had interrupted Mr Ibrahim on three occasions during the course of the hearing. The occasions are not identified in the ground. However, in his written submissions, Mr Ibrahim referred to pages 62 and 63 of the transcript. Those pages relate to Mr Ibrahim's cross-examination of Senior Constable Herring. After Senior Constable Herring gave evidence that the truck was moving at the time the police car was turning the corner, the following exchange occurred:

I just can't deal with this amount of lies, your Honour. I just can't deal with it.

HIS HONOUR: Well, you either ask him questions or you don't. If you don't want to ask him any further questions, that's fine.

IBRAHIM, MR: Never came across a liar like you ever in my entire life.

HIS HONOUR: Mr Ibrahim, you either ask a question - - -

IBRAHIM, MR: Yes, your Honour.

HIS HONOUR: - - - or you sit down.

IBRAHIM, MR: Yes, your Honour.

HIS HONOUR: And if you have any more outbursts like that, you are not doing your cause any good at all. This court has a process. You either abide by the process or you don't.

IBRAHIM, MR: Your Honour, I've been two and a half years in this, two and a half years for something I didn't - - -

HIS HONOUR: Mr Ibrahim, listen to me. I have told you I will give you every assistance this morning and I am not appreciative of the outburst. Do you understand that?

IBRAHIM, MR: Yes.

HIS HONOUR: Have you got any more questions for this witness?

IBRAHIM, MR: Yes, your Honour (ts 62)

55 Then on pages 63 - 64 the following exchange occurred in respect of the infringement notices:

No, you said there's an error. I didn't make the claim. You show me where is that. I'm asking you a question. You answer clearly, please?---The next infringement is not written by me. It's written by another police officer.

Yes. Where is the error on that? There is an error on that? No answer?---And the following one is mine. So this one in the middle here - - -

PROSECUTOR: I question the relevance of that, sir, in relation to someone else's infringement.

HIS HONOUR: Yes. What's the point of all this? You have made the point about the infringements?

IBRAHIM, MR: Yes, your Honour. I'm trying to establish - - -

HIS HONOUR: We had left the infringement books. We are dealing with the charges on the bridge. You then made an outburst about lying and you have gone back to the infringement book. What - - -

IBRAHIM, MR: Before the break, I recall quite well that when I ask him about this, he went around on a tour like usual and he didn't give clear answer about where is the error.

HIS HONOUR: Well, what is your question?

IBRAHIM, MR: My question is - he claims there was an error in the infringement book. That's why he jumped from - - -

HIS HONOUR: All right. Let me ask this. Did you claim there was an error in the infringement book?---I was explaining the procedure and the usual thing that happens as a general course, not specifically to this incident.

Yes.

IBRAHIM, MR: But there wasn't an error on the infringement book. You admit to that?---The question was asked, why was it not you, and because it's a carbon copy, quite often if you handle it or if you put pressure on it, the impressions go on to the carbon copy page.

56 In his oral submissions Mr Ibrahim referred to the following pages of the relevant transcript: pages 24 - 27 of 30 July 2009 and pages 64 and 70 of 16 July 2009. It is not necessary to quote from those pages. I have examined them and it is apparent that insofar as there were interruptions from the magistrate, they were made in order to clarify the evidence and were entirely unexceptional.

57 I have read carefully all of the transcript of this hearing and conclude that the suggestion that the magistrate had in any way unduly interfered with Mr Ibrahim's presentation of his case is entirely without merit. Indeed, it is clear that the magistrate showed considerable patience and indulgence with Mr Ibrahim. He sought to assist Mr Ibrahim with framing his questions in a proper manner and in explaining the process. As might be expected with an unrepresented litigant, Mr Ibrahim appeared to require some assistance in this regard and acknowledged that assistance at the hearing. Far from being deflected from his course, Mr Ibrahim showed singular determination to pursue his cross-examination. Even where the questioning became confusing, convoluted or repetitive, he was permitted to proceed. On the occasions where the magistrate sought to clarify the questions, it appears to me that his intervention was only to the benefit of Mr Ibrahim.

58 This ground simply asserts that the magistrate erred by finding the appellant guilty. In his written submissions Mr Ibrahim set out extensive arguments relating to the evidence and the reasons why it was not open to conclude that the charges had been proven beyond reasonable doubt. These submissions are simply a re-argument of the case and they fail to convince me that it was not open to the magistrate to reach the conclusion that the two charges had been proven beyond reasonable doubt. The findings his Honour made in respect of the evidence were plainly open.

59 The grounds advanced by Mr Ibrahim seek that this court find one version of the events more credible than the other. This was the role of the magistrate which he performed without error. If a trial judge's finding depends to any substantial degree on the credibility of witnesses, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable': De Vries v The Australian National Railways Commission (1993) 177 CLR 472, 479; Fox v Percy (153 - 154).

60 In the present case I am unable to conclude that the magistrate either misused his advantage in assessing credibility or made findings that were contrary to incontrovertible evidence. The magistrate's reasons reveal an entirely fair, thorough and balanced approach.

61 In my view, none of the grounds was arguable in the sense of having any real prospect of success. In these circumstances, leave to appeal in respect of each of the grounds must be refused. Even if it was open to grant leave, each of the grounds would fail for the reasons I have given.

De Vries v The Australian National Railways Commission

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Judgment (92 paragraphs)

IBRAHIM -v- HERRING [2010] WASC 190 (28 July 2010)

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