Supreme Court of WA|2008-05-16|Before: Simmonds J, Magistrate P

IBRAHIM -v- HERRING [2008] WASC 91 (16 May 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : IBRAHIM -v- HERRING [2008] WASC 91

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

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

Criminal law - Conviction for failure to give way, entering choked intersection and failure to obey lane arrow

Criminal law - Appeal - Test for assessment of appeal - Assessment of credibility of central prosecution witness - Whether errors of fact, failure to allow questions to be asked of witnesses, failure to let in evidence, or failure to take account of contradictions between witnesses - Whether trial conducted in manner intimidating appellant and affecting his presentation of his case - Whether miscarriage of justice - Whether no substantial miscarriage of justice

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

Case remitted for re-trial before a different magistrate

1 This is the hearing of an appeal by leave from the conviction of the appellant on three charges. All of the charges were of contraventions of Road Traffic Code 2000 (WA) (RTC) as at 24 November 2006 and made under Road Traffic Act 1979 (WA) (RTA) s 111. All of the charges were of offences allegedly committed on that date at the intersection of Barrack and Wellington Streets in Perth.

2 One charge was of a contravention of RTC s 126(2) (the failure to give way charge). That provision read as follows:

A driver who is moving laterally from any single marked lane or line of traffic shall give way to any vehicle travelling in the same direction as the driver in the marked lane or line of traffic into which the driver is moving.

Points: 2 Modified penalty: 2 PU

Example 1

Giving way when moving from one marked lane to another marked lane

In this example, vehicle B must give way to vehicle A.

Example 2

Giving way when moving laterally from one line of traffic to another line of traffic (when the lines are not merging)

In this example, vehicle B must give way to vehicle A.

3 The failure to give way charge appears to have been of the type in Example 1.

4 Another of the charges was of a contravention of RTC s 111(1) (the choked intersection charge). That provision read as follows:

A driver shall not enter upon, or attempt to cross, an intersection, whether or not it is controlled by a traffic control signal, if the intersection or the carriageway beyond it is blocked.

Points: 2 Modified penalty: 1 PU

Examples

The intersection, or a carriageway beyond the intersection, may be blocked by congested traffic, a disabled vehicle, a collision between vehicles or between a vehicle and a pedestrian, or by a fallen load on the carriageway.

5 The choked intersection charge was of the first type given in the example, that is, an intersection or carriageway beyond the intersection blocked by congested traffic.

6 The third charge was of a contravention of RTC s 73 (the failure to obey arrow charge). That provision read as follows:

Traffic lane arrows

(1) Subject to subregulation (2), if a driver is driving in a marked lane at an intersection and there are traffic lane arrows applying to the lane, the driver shall -

(a) if the arrows indicate a single direction - drive in that direction; or

(b) if the arrows indicate 2 or more directions - drive in one of those directions.

Points: 3 Modified penalty: 2 PU

(2) Subregulation (1) does not apply to a driver if -

(a) the intersection is a roundabout; or

(b) traffic lane arrows indicate a direction to the right (whether or not they also indicate another direction) and the driver is making a U turn at the intersection.

Examples

Example 1

Traffic lane arrows on the surface of marked lanes

Example 2

Traffic lane arrows on a traffic sign

7 The failure to obey traffic arrows charge was of s 73(1)(a) and of the type in Example 1.

8 The accused pleaded not guilty to the three charges. On 13 September 2007 the accused represented himself at a trial on these charges before Magistrate Heaney. The transcript of the trial runs over 100 pages. The prosecution called two witnesses, being the two police officers to whom the appellant spoke at the scene and subsequently in a nearby police station. The appellant's only witness was himself. There were two exhibits, being infringement notices for the failure to give way charge and the choked intersection charge. There was no other evidence.

9 At the trial there was evidence given by both police officers that at about 1.20 pm on 24 November 2006 they were driving in an unmarked police vehicle along Wellington Street in an easterly direction. One of the police officers was Senior Constable Herring, who was driving the vehicle. The other police officer was Senior Constable Windsor. She was the only passenger in the vehicle.

10 It was not in dispute that there were three marked easterly lanes at the intersection of Wellington Street and Barrack Street, and no dispute as to the direction markings the lanes bore. The left most or kerb lane had an arrow or arrows indicating the lane was for traffic turning left into Barrack Street only. The centre lane had an arrow or arrows indicating the lane was both for traffic making that turn and for traffic continuing on Wellington Street. The right hand lane had an arrow or arrows indicating that the lane was for traffic continuing on Wellington Street only.

11 It was further not in dispute that there were three marked north bound lanes on Barrack Street immediately north of the intersection with Wellington Street.

12 Constables Herring and Windsor testified that, after stopping in the left-most lane at the traffic lights at the intersection, the driver, Constable Herring, drove the vehicle left on to Barrack Street into the left-most lane on the latter. Both police officers testified that the traffic at the intersection was heavy that day. Both police officers testified that traffic turning left from Wellington Street into Barrack Street had to wait one or more sequences of traffic lights to make the turn. Herring testified that, prior to making the turn in the police vehicle, he noticed the appellant's vehicle immediately behind a truck on Wellington Street in the centre lane. He also testified that, as he turned his vehicle, the truck also began to turn left into Barrack Street. He testified that at that time he noticed the appellant's vehicle pull out from behind the truck into the right-most lane on Wellington Street, and turn from that lane into Barrack Street, in front of the truck.

13 The appellant's case at trial was that the police vehicle had not been on Wellington Street at any material time, that the appellant's vehicle had turned into the left-most lane or Barrack Street from the left-most lane on Wellington Street and had then pulled into the centre lane on Barrack Street, in front of the truck. The appellant's case was further that Herring and Windsor had given false testimony about the incident.

14 At the end of the trial his Honour found the accused guilty of all three charges. On the failure to give way charge, the accused was fined $100 with costs of $105.70. On the choked intersection charge, the accused was fined $50. On the failure to obey traffic arrows charge, the accused was fined $100. There was also an order as to costs, of $105.70.

15 By appeal notice dated 9 October 2007 the accused sought leave to appeal against both his convictions and the sentences. This leave was sought under Criminal Appeals Act 2004 (WA) (CA Act) s 9. There were 11 numbered grounds of appeal.

16 On 9 November 2007 McKechnie J of this court gave leave to appeal on five of these grounds, and on part of a further ground, all in relation to the accused's convictions. Leave was refused on all of the remainder, including the ground of appeal against the accused's sentences. At the hearing only the appellant appeared. The court notified the respondent of the result of the hearing as early as 19 November 2007.

17 I had the transcript of his Honour's decision, but not of the hearing before him. Neither party had either of these transcripts at the hearing of the appeal, on 7 February 2008, before me. The lack of the transcript of the hearing before McKechnie J gave rise to some difficulties at the hearing on 7 February 2008.

18 The grounds for which leave to appeal was so granted are as follows (as they appear in the appellant's appeal notice):

Ground 2:

The magistrate refused to accept and allow some evidence from the appellant.

Ground 3:

The magistrate made an error of facts in his reason for the decision.

Ground 4:

The magistrate wrongly stopped one of the prosecutor witnesses of reviling [sic] relevant information.

Ground 5:

The magistrate refused to take in consideration the fact that the prosecutor two witness's evidence contradicted each other.

Ground 7 (in part):

The magistrate refused to allow the appellant witnesses to give evidence.

Ground 10:

The magistrate became angary [sic] with the appellant on several occasions which was intimidating to the appellant and effected his presentation of his case.

19 The part of ground 7 in respect of which McKechnie J indicated leave to appeal was given is indicated by the following passage from his Honour's reasons (9 November 2007, ts 2):

In relation to ground 7, while I do not consider that the witnesses the appellant would have called were arguably relevant, nevertheless I consider there is an arguable ground to grant leave on this ground in relation to the infringement notice book and the two infringement notices which were in the middle of two issued to the applicant; that that arguably was relevant evidence in relation to the case which the applicant wished to present.

20 As part of the programming orders made by McKechnie J for the hearing of the appeal (and, so far as appears to me, not extracted), the parties were ordered to comply with Practice Direction No 5 of 1997. In the event, on 23 January 2008 an outline of submissions and list of authorities was filed for the respondent. There was no such document filed for the appellant and as will become apparent its absence gave rise to some difficulty at the hearing.

21 In the intervening period the appellant sought a number of items by process issued out of the court.

22 By witness summons under Criminal Procedure Rules 2005 r 38(1)(b) the appellant sought both 'the originals and copies' of certain infringement notices and 'the whole infringement book' in which those notices were contained. The infringement notices sought were those numbered E225 179; E225 181; E225 182; and E225 184. The infringement notices for the failure to give way charge and the choked intersection charge were, respectively, E225 180 and E225 183. The specific infringement notices sought were those either side of those two.

23 At a hearing on 7 January 2008 before Hasluck J of this court, his Honour heard the application of the respondent to discharge the summons in respect of the 'whole infringement book'. There was no dispute as to the application for the specific infringement notices. His Honour in a decision delivered that day refused the application to discharge the summons in any respect. He referred to the power of the court hearing an appeal to admit evidence under CA Act s 40(1)(e), and to the passage from McKechnie J's decision granting leave to appeal which I quoted above.

24 At a further hearing on 11 January 2008 Hasluck J heard an application by the appellant dated 3 January 2008 for 'a witness summons to be issued for the appellant records with the Police Department'. By consent, orders were made for leave to the appellant to issue a witness summons to the Commissioner of Police to produce certain of the documents covered by the summons. There is no record on the file of those orders being extracted or any such witness summons being issued. At the hearing before me on 7 February 2008 the parties made it clear to me that the orders made were in fact restricted to three only of the six categories of documents that were referred to in the minute of orders prepared by the respondent and listed in the associate's record of the orders made. The appellant indicated he had not understood he needed to have a witness summons issued. The respondent at the hearing on 29 January 2008 before me had indicated he had the three categories of documents in court, but would only produce them against a summons or an order. The respondent agreed I could order the production under CA Act s 40(1)(a), and on that date I so ordered. I adjourned the hearing for about 45 minutes to permit the appellant to inspect the documents, allowing the respondent to black out identifying details of persons investigations by police of complaints by the appellant had established as persons of interest. I indicated that once the appellant had had that opportunity to inspect the documents he could address me further both on any relevance of the details blacked out and on the implications of the documents for the remainder of the hearing of the appeal.

25 In the event the appellant at the completion of the inspection indicated he was in a position to proceed to the hearing of the appeal so far as those documents were concerned.

26 However, there were two further preliminary matters raised before me prior to the hearing of the appeal.

27 One was first raised at the hearing before Hasluck J on 11 January 2008. Hasluck J was told that the appellant had made an application dated 10 January 2008 for orders in respect of the infringement notices. Those orders were for Constable Herring and the Commissioner of Police be charged for contempt of court under Rules of the Supreme Court 1971 (WA) O 55 for failure to comply with the summons to produce evidence and their failure to notify the court at the hearing before Hasluck J on 7 January 2008 of their non-compliance; for the two to provide the original infringement notice E225 181 by no later than 15 January 2008; and for Herring 'not to handle any of this matter records and any other records relating to the applicant or ask any other officer on his behave [sic] to access my records'.

28 At the hearing on 11 January 2008 Hasluck J adjourned the application dated 10 January 2008 to the hearing before me. As shown by the transcript of his Honour's remarks at the hearing (ts 26), he indicated that the application was 'best canvassed then, when the judge in charge of the hearing knows exactly what all the issues are concerning those infringement notices'.

29 Subsequently to the hearing of 11 January 2008, and by application dated 15 January 2008, the appellant applied for 'authorization from the court to investigate some information about infringement number E225 182'. A letter dated 15 January 2008 attached to the file copy of the application from the appellant to 'the Supreme Court judge of case 1082/07' sets out the matters in respect of infringement notice E225 182 information as to which was being sought. They were:

It appears to be written to an owner of a Nissan car. I would like to find out if the owner have a Nissan car or not (please not [sic] that my car is a Nissan as well).
I would like to find out if the infringement was truly issued or not. (I have a reason to believe that it was not issued)
If infringement E225 182 was not issued have [sic] the man named in the infringement been issued with any other infringement or not.
The date and time of the other infringement (if there is any) in addition to the infringement number.

30 At a hearing before me on 29 January 2008 for reasons given then I made orders relating to 2 in the exercise of my jurisdiction under CA Act s 40(1)(a) and (b), but determined that no orders should be made relating to 1, 3 or 4.

31 Accordingly, before me on 7 February 2008 were both the appeal itself, and the application dated 10 January 2008. In addition, I had before me certain information the result of the orders I made on 29 January 2008.

32 At the end of the hearing on 7 February 2008, for reasons I gave extemporaneously then (7 February 2008, ts 220 - 223) I dismissed the application by summons dated 10 January 2008 save as to one matter in relation to which I indicated there had been compliance. I made no order as to the costs of the summons, there having been no filing fees incurred by the appellant in relation to it.

33 Finally, I note that on 13 March 2008 I heard an application from the appellant for leave to make further submissions in the appeal. At that hearing, it became evident the appellant wished to read out in full portions of his notes for the hearing on 7 February 2007 which he considered he had had to abbreviate for reasons of time. However, during the course of the hearing he indicated that he would not press his application, and I permitted him to withdraw it.

34 The appellant at some points in his argument appeared to take the position that it was the role of the appeal court to determine beyond a reasonable doubt whether or not the alleged offences had taken place That is not, of course, the proper approach.

35 Rather, the CA Act s 8(1) limits the grounds upon which an appeal by leave may be taken to the following:

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;

(b) that there has been a miscarriage of justice.

36 On the authority of Smith v The Queen (1992) 7 WAR 527, there must, however, be a link between any error of the sort in CA Act s 8(1)(a)(i) and the conviction, as explained in Rozario v Rollinson [2006] WASC 181, [69] (Jenkins J), as follows:

An appeal from a decision of a Magistrate may be allowed if an error of fact and/or law has been made by the Magistrate: Criminal Appeals Act 2004 (WA), s 8(1). This recent provision does not alter the general principle which has been applied for many years to appeals from the decisions of Magistrates which is that such an appeal will not be allowed unless an error has been made by the Magistrate that is such as to demonstrate that a miscarriage of justice has occurred, or, that the proceedings were fundamentally flawed: Smith v R (1992) 7 WAR 527.

See also Illich v Woodburn [2004] WASCA 148 [15] (Jenkins J).

37 It would seem that of the six grounds of appeal in this case, five relate to CA Act s 8(1)(a)(i) (grounds 2, 3, 4, 5 and 7 (part)) while the sixth (ground 10) relates to s 8(1)(b).

38 In relation to appeals on any of the grounds in this case, I must also note CA Act s 14(2), which in relation to the power of the court in s 14(1)(b), to decide an appeal by allowing it, states:

Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

39 There are two matters in relation to s 14(2) I should note, from 'AK' v The State of Western Australia [2006] WASCA 245, on the corresponding provision for appeals to the Court of Appeal, in CA Act s 30(4).

40 The first of these goes to when on an assessment of the evidence the conclusion will be reached the proviso applies, and is from the judgment of Buss JA, at [72], referring to Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300:

In Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated, at 454 [39], three fundamental propositions in relation to the proviso to section 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4 ) of the Criminal Appeals Act) which, their Honours said, must not be obscured:

'First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Third, the standard of proof of criminal guilt is beyond reasonable doubt.'

Later, at 454 - 455 [41], their Honours summarised the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:

'That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.'

Their Honours acknowledged, at 455 [44], that no single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. They added, however, that one negative proposition may safely be offered:

'It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.'

Also see Darkan v The Queen [2006] HCA 34; (2006) 80 ALJR 1250 at 1267 - 1268 [84], 1269 [94] - [96].

41 The second is in what circumstances the proviso might not be capable of application because of the circumstances of the trial, and is from the judgment of Pullin JA in 'AK' at [55]:

In Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, which was referred to in Weiss, Brennan, Dawson and Toohey JJ said that the proviso (ie s 30(4 )) has no application where an irregularity 'goes to the root of the proceedings' so that the accused has not had a proper trial. In other words, the error is so radical or fundamental that they 'exclude the application of the proviso', or that the trial had so far miscarried as hardly to be a trial at all: Darkan [94].

42 For reasons which will become apparent, I do not consider I need to reach the question whether those circumstances were to be found in this case. However, on my consideration of ground 10, which in my view raises issues of that sort, I am not persuaded such circumstances are to be so found.

Ground 2: the magistrate refused to accept and allow some evidence from the appellant

43 The ground as formulated is not clear as to what evidence was not accepted or allowed in. No particulars are provided. At the hearing before me the matter was explained, without objection from the respondent.

44 That explanation was in terms of a number of matters that went to the case the appellant was seeking to make to the magistrate.

45 The first was that the magistrate did not allow the appellant to question Herring as to what he knew of construction work on Wellington Street. That construction was before the intersection with Barrack Street. The case the appellant was seeking to make was that Herring had not travelled down Wellington Street past that construction to the intersection. On that case, he had been on Barrack Street north of the intersection at all material times, and so was not in a position to observe matters at the intersection about which he testified. I was directed to the following exchange in the cross examination of Herring (ts 28 - 29):

Sorry, from where?---Where you travel from Thomas Road, as far I can think - remember.

All right, so you came all the way in Wellington Street?---That's right.

What is the construction work on Wellington Street on the day?---There was - - -

HIS HONOUR: Look, stupid question. Stupid question. The construction work on Wellington Street, nothing to do with what happened at the corner of Wellington Street - - -

IBRAHIM, MR: It is, your Honour, because - - -

HIS HONOUR: I'm telling you it's got nothing - what construction sites were in place in Wellington Street on that day have got nothing to do with this - the only construction site that may be relevant was any construction site on the corner of Wellington Street and Barrack Street, which there wasn't?---That's correct, the intersection was actually in good condition and the lights working normally.

IBRAHIM, MR: Your Honour, the officer was never in Wellington Street on the day.

HIS HONOUR: Where was he then?

IBRAHIM, MR: He was on Barrack - on the Barrack bridge. When any of this happened - if any of this happened, he was on Barrack bridge. He never saw my car, he never saw what Wellington Street was like on that day.

HIS HONOUR: Well, hang on, he gave his evidence that he did.

IBRAHIM, MR: Yes, and I'm disputing that evidence. And if he can't tell me what construction work was happening on Wellington Street, which I went to the City of Perth - - -

HIS HONOUR: That is - look, hang on, keep asking questions, because I'm not going to sit here listening to this stupidity any longer. If he can't tell you what construction work was on in Wellington Street, that doesn't prove whether he was in his Wellington Street or Barrack Street, that proves nothing. His evidence is that he - - -

IBRAHIM, MR: Well, if he isn't aware of what's happening in Wellington Street, he was not travelling on the day on Wellington Street, your Honour. Which would dispute his story.

HIS HONOUR: It will not. It will not dispute his story, because if he can't remember - Wellington Street is a long street, and to suggest that if he can't remember all the construction that was going on in Wellington Street that day I should reject his evidence is a patent absurdity.

46 I note that there is a reference in the later testimony of Constable Windsor to 'some road works' being 'just before where we were, around the pedestrian crossing on Wellington Street', with the result 'it was quite congested, there was quite a lot of traffic around' (examination-in chief, ts 59). The appellant appears not to have asked her any questions about this evidence. That would be understandable on the quoted exchange.

47 It appears to me that the magistrate was in error in not permitting the question sought to be asked of Constable Herring. The question was relevant to Herring's credit. It also, it seems to me, went to the matter of his 'lack of opportunity or capacity to perceive the events about which the witness testifies', about which other evidence could be given for the purpose of contradicting his answer: Heydon J D, Cross on Evidence (7th Aust ed, 2004) [17590] (source of quotation).

48 The second matter put to me by the appellant as related to the case he was seeking to make was represented by a body of evidence from Constable Herring concerning a vehicle in the right-most lane on Wellington Street heading west. The evidence was that when the appellant's vehicle was turning left into Barrack Street that other vehicle was waiting in the centre of the intersection to turn right. The appellant in his cross-examination of Constable Herring was asking him questions with a view to establishing, by reason of propositions put to Constable Herring about the light sequence for vehicles in that vehicle's lane, that the vehicle could not have been in that position and thus Constable Herring was not telling the truth (ts 34 - 38).

49 The magistrate appears to me to have understood the purpose of the questions (ts 37). However, he appears to have indicated to the appellant that he would not permit the matter to be further explored, in the following passage (ts 38):

HIS HONOUR: No, that car's got nothing to do with it. The choked intersection that he's talking about is the one which was over the bridge, that was choked?---On a normal intersection, if it was a four way intersection like that, there would be a solid white line on each corner, and if a vehicle is here, and if there's another vehicle blocking the path there, you must be able to clear that intersection to that side of the road without stopping in this area.

Yes. And your evidence was he couldn't do that when he went into that outside lane?---Again this diagram, there was a vehicle parked there which you couldn't make that space, that's right.

Yes. So the other car up there has got nothing to do with it?---The turning car, no nothing to do with this incident.

50 Not without some difficulty, I have concluded that the present line of questioning was of the same kind as the previous line.

51 The third and fourth matters the appellant put to me as related to the case he was seeking to make are ones that, unlike the previous matters, I can put aside.

52 The third matter was what was said to be Herring's failure to answer the question of the magistrate (ts 14) as to the lane on Barrack Street into which the appellant had turned his vehicle. It appears this was put to me as matter to which the magistrate should have had regard as tending to show Herring could not have observed what he said he did. Evaluating the matter is made more difficult because of the references in the ensuing evidence from the witness with respect to positions of the vehicle by reference to locations on a diagram which are not described in words. However, there appears ultimately to be a clear answer to the magistrate's question (ts 17), in the terms that initially the appellant's vehicle went into the right most of the three north bound lanes on Barrack Street, before moving left from that lane into the centre lane of those three, thereby preventing the truck from entering the centre lane.

53 The fourth matter the appellant put to me as related to the case he was seeking to make was that the magistrate refused to permit him to ask questions which would have shown a contradiction between what Constable Herring had said in a prior statement and his testimony. He had said in a prior statement, which the appellant read out to him in cross examination and which he accepted having made (ts 40), that

[t]here was a large truck in the centre lane at the white line and the Nissan was directly behind. The light changed to green, but the traffic did not move. There were other cars blocking the lanes ahead.

54 Constable Herring had previously testified that after the lights changed the truck began to move, and at that point the appellant's vehicle moved out into the right most lane heading east on Wellington Street (examination-in-chief, ts 11), which he repeated at a number of points in his cross-examination before his witness statement was read to him (cross-examination, ts 31 - 32, 39 and 40). On the objection of the prosecutor, the magistrate did not permit further questions on the matter of when the truck moved in relation to the appellant's vehicle moving (ts 41). The magistrate indicated he did not consider a contradiction had been shown, and that further questioning on the same topic would not be permitted. It seems to me that the matter of contradiction was indeed squarely before the magistrate, and in my view the appellant made it clear to him that the matter was directed to the case the appellant was seeking to make (ts 43). It seems to me that the matter did not call for further development except by way of submission, which the magistrate had in effect permitted the appellant to enter into at that point. It was not made apparent to me that there were any other submissions that could usefully have been made than those in fact made.

55 The fifth matter the appellant put to me as related to the case he was seeking to make was that the magistrate refused to permit him to produce and to cross-examine Constable Herring in relation to photographs of the intersection. The appellant explained to me, as he had to the magistrate (ts 33), that this had to do with Herring's ability to see a vehicle on the opposite side of the intersection which was waiting to make a turn into Barrack Street from a westerly direction along Wellington Street. He had previously testified that he had seen that vehicle so waiting (examination-in-chief, ts 15; and cross-examination, ts 31 and 32 - 33).

56 The appellant was not at that point permitted to put in photographs of the intersection. The magistrate explained this refusal on the basis that whether Herring could 'see that other car over there or not', apparently pointing to the diagram I earlier referred to, 'has got absolutely nothing to do with it' (ts 33). However, the appellant was permitted to cross-examine Herring about his ability to see over the truck notwithstanding what was put to him, which the appellant referred to as appearing from a photograph the appellant had, as that the road was 'sloping upward' (ts 33). Herring's response was that the truck was a flat bed one with no load.

57 The magistrate's refusal appears to have been based on the charges against the appellant, none of which related to his conduct in relation to the other vehicle, rather than a refusal to permit questions going to Herring's credit. However, Herring had previously testified as to the other vehicle, and the appellant was it seems to me entitled to pursue the matter of whether or not Herring's testimony should be accepted as tending to indicate he was present at the intersection as he contended. That is, it seems to me the appellant was entitled to treat Herring's answer as one in relation to which the accused was, on the law to which I have previously referred, entitled to adduce further evidence relevant to the witness's 'lack of opportunity or capacity to perceive the events about which the witness testifies': Cross on Evidence [17590]. Whether or not the photographs the appellant wished to have admitted were admissible evidence in relation to the matter (and I incline to the view that they were admissible) it seems to me the magistrate had ruled that any evidence in relation to the matter would not be permitted, and was in error in so doing.

58 The sixth matter the appellant put to me as related to the case he was seeking to make was that the magistrate refused to permit him to have a police officer Flood testify as to a drawing he had done of the scene on the information provided at the time of the incidents by the appellant. The appellant also referred to the magistrate's refusal to permit that drawing, and drawings done by the appellant at about the same time, to be tendered into evidence.

59 The magistrate's refusal (see ts 9) to allow evidence of this kind in appears to me to have been correct. The evidence was in the form of consistent statements by the appellant as to what occurred in the incident. It does not seem to me that that evidence could have been admitted under any of the recognised exceptions to the prohibition on its reception: see Cross on Evidence [17250].

60 Further, I note that despite this the magistrate permitted the appellant to put drawings he said he had done at the time of the incidents to Constable Windsor (cross-examination ts 68).

61 It follows that I have found error by the magistrate under the present ground but only in some of the respects put forward, being the first, second and fifth matters above.

62 The next question is as to the link between those respects and the conviction. It appears to me that that link lies in what the magistrate stated, correctly in my view, was the central issue facing him. That issue was whether or not the evidence of the two prosecution witnesses, Constables Windsor and Herring, was 'a correct account'. If so, 'then each element of these three charges has been proven' (ts 100). The error went to the assessment of the credibility of one of them, Constable Herring. Constable Herring was the only one of the two officers who in the view of the magistrate could testify as to all the material matters - 'Constable Windsor did not see what happened - she did not notice Mr Ibrahim turning - pulling into the right hand lane, she did not notice him turning left' (ts 100). It was the path the appellant followed turning left which was at the heart of all three charges.

63 It seems to me that from their nature the respects in which the present error is made out are of some significance to the assessment of the credibility of Constable Herring on the factual issues in the case.

Ground 3: the magistrate made an error of facts in his reasons for the decision

64 The ground as formulated is not clear as to what is relied upon as the error of facts. Again, no particulars are provided. Again, at the hearing before me the matter was explained, without objection from the respondent. From that explanation it became evident that the appellant's contention was, with one exception, not that the magistrate had mistakenly described particular evidence before him. Rather the appellant's contention was that the evidence before the magistrate was false (in the sense of being fabricated) or at least incorrect, or that he had erred in failing to make reference to certain evidence.

66 The first 'error' concerned the following evidence of Constable Herring (examination-in-chief, ts 19):

So the truck is still waiting to turn?--- The left hand lane on Barrack Street has a more clear run because it has diverting to the left traffic.

Yes? --- But the right hand lane has a turning right lane as well, so that's a slower lane.

67 The appellant put to me that as Beaufort Street was at the material time and at the material location one way in the direction of travel of his vehicle, the right hand lane could not have been slower than the left hand lane. I took from this that no traffic in either would have been turning across oncoming traffic.

68 The magistrate made no reference to this evidence. The closest he appears to have come was where he said (ts 100) in relation to the choked intersection charge:

And that charge relates to the prosecution's suggestion that he went into the right hand lane, turned left into Barrack Street, and when he was there he discovered that the street was blocked by other traffic, and that is why he was forced to then change lanes to get into the other lane so that he was able to avoid the situation where he went into an intersection where the traffic was blocked.

69 The appellant appeared to put to me that the error in the testimony from Herring in turn affected the magistrate's assessment of the plausibility of the account Herring provided in his testimony. As I have already indicated, it was central to the magistrate's determination of the prosecution of the appellant that he accepted the evidence of Herring, supported by that of Windsor, and rejected that of the appellant.

70 However, the appellant conceded there was no other evidence before the magistrate as to the present matters. I am therefore unable to conclude there was an error of fact made by the magistrate in that respect.

71 The second 'error' concerned the evidence of Constable Windsor that she saw there was only one other car apart from that of the appellant in the middle lane on the Barrack Street bridge, with a 'big gap' between the two (cross-examination, ts 71).

72 The appellant put to me that this was evidence, supported by his own, that the intersection of the Wellington Street and Barrack Street was not blocked. It was also inconsistent with the evidence of Constable Herring that the intersection was 'blocked' (examination-in-chief, ts 13, 14, 15).

73 The magistrate made no reference to Constable Windsor's evidence in the respect indicated.

74 However, it seems to me there was no error in the magistrate failing to refer to this evidence. Nor was there a contradiction between the evidence of Constables Windsor and Herring in the respect indicated. I say both for the following reasons.

75 Constable Windsor had in effect testified there was space in the middle lane on the Barrack Street bridge into which it would have been possible for a vehicle to go and into which the appellant's vehicle went, thereby denying that space to the truck; that was also the evidence of Constable Herring (examination-in-chief, ts 16, 17, 18).

76 Further, the magistrate appears to have recognised that effect of the evidence, in the passage from his reasons last quoted above.

77 I am therefore unable to conclude there was an error of fact made by the magistrate in the present respect.

78 I note in passing in the present connection that the appellant also made reference to the failure of the magistrate to refer to a contradiction between the evidence of the two police officers, one of whom testified that traffic on Barrack Street was trapped at the intersection with Roe Street, while the other testified the traffic moved 'all the way' once the green light went on at Roe Street. I was not provided with transcript references for this evidence.

79 However, I took it the appellant was referring me to the cross-examination of Constable Herring (ts 47) as to the lights on Roe Street being green and the traffic having moved off in front of the police vehicle when he saw the appellant's vehicle stopped in the centre lane. His testimony to that effect was apparently elicited to show that the Barrack Street bridge would not have been blocked for any length of time. Constable Windsor, however, testified in her cross-examination that when the police vehicle was stopped on the Barrack Street bridge, the lights on Roe were red, although she shortly thereafter appeared to indicate this was an inference from the fact the vehicles in the central lane were stationary as she had not seen the lights as red (ts 67).

80 However, it is not clear to me that evidence is indeed contradictory, in light of the last aspect of Constable Windsor's evidence. Nor does the evidence it seems to me clearly go to establishing the intersection was not blocked at the material time. Accordingly, I consider that the matter is a peripheral one in the sense I identify in respect of the third 'error', the one I next reach.

81 The third 'error' was not made altogether clear to me. However, I gathered it concerned the evidence as to where the police vehicle stopped on the Barrack Street bridge after it turned from Wellington Street.

82 Constable Windsor testified that (examination-in-chief, ts 59)

[w]e'd stopped alongside a bus stop, which is right there - there's a bus stop here, and we were pretty much dead in line with that and there was a couple of cars ahead of us.

83 She later testified that the bus stop was 'almost in the middle of the bridge' (cross-examination ts 67).

84 Constable Herring had previously testified that (examination-in-chief, ts 13)

I then made the left hand corner and there was traffic built up in front of me, so I only made it one car length past the intersection around the corner.

85 It is indeed difficult to reconcile these two bodies of evidence. The magistrate made no reference to either of them.

86 However, I am not satisfied the magistrate made any error in failing to note them or the apparent contradiction between them. It is not apparent to me that the matter of where the police vehicle stopped on the Barrack Street bridge is other than a peripheral matter which threw no light on the real issues in the case. There was no dispute that the vehicle of the appellant did indeed assume a position on the Barrack Street bridge ahead of the truck. See Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23, 27 (McHugh J, Deane, Dawson and Toohey JJ agreeing); and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126. How it got there was of course the issue. The position of the police vehicle when it had stopped on Barrack Street in my view is not shown to have been material to that issue.

87 The fourth 'error' concerned the following evidence of Constable Windsor (examination-in-chief ts 58) relating to what she saw from the police car when it had turned on to Barrack Street from Wellington Street:

Now, I kept looking around to see what Senior Constable Herring was looking at and I couldn't see, but did then notice a car here, a white car, which was driven by the accused, Mohamed Tarek Ibrahim.... And that's when I first noticed the accused's vehicle.

88 The appellant put to me that this was evidence from her that she first saw the appellant on the Barrack Street bridge. This evidence he put to me was contradicted by later evidence of hers as follows (examination-in-chief ts 60)

Did you see the accused's vehicle prior to him being parked Barrack Street getting out? --- Yes, I remember - because I look around at the other cars, I remembered having seen him before, I wondered how he got to be where he was, because ---

Why did you wonder that? --- Well, because he couldn't have got into our lane and he couldn't have - I mean, he was behind the truck, so I didn't ---

All right. The first time you saw him was in the centre lane behind the truck?---Yes, but I didn't realise that until after I saw him positioned alongside us.

Okay? --- Because I remembered seeing him earlier at that intersection, so - and I just didn't think anything of it. But ---

Do you recall seeing him in the left hand lane or the right hand lane or just the centre lane? --- Just the centre lane.

Okay? --- Because I couldn't see in this lane here because there was a car in the way and I couldn't see what was happening in the right most lane.

Yes. But definitely in the centre lane?--- Yes.

89 In his reasons for decision the magistrate appeared to refer at least to the latter evidence as follows (ts 100):

But she did say that she was - she confirmed the account given by the initial constable, that Mr Ibrahim was in the middle lane, in the lane that allowed him to turn left, but then - and he was behind the truck.

The next time she saw him he was in front of the truck. Now, that account, whilst it does not give all the detail that Constable Herring was able to give, it confirms Constable Herring's account. Because it accounts for the fact that Mr Ibrahim was behind the truck and then a short time later it was in front of the truck. And the only way it could have done that was to go into the straight on lane. That was the evidence of the two prosecution witnesses, the two policemen. And if their account is a correct account, then each element of these three charges has been proven.

90 However, it does not seem to me there was a contradiction in the evidence. Constable Windsor had earlier testified (examination-in-chief ts 57) that while the police vehicle was waiting at the intersection of Wellington Street and Barrack Street she was looking at other vehicles around her as was her 'habit', checking for drivers on mobile telephones or unregistered vehicles. She testified she did not see anything of that sort. It seems to me that it was open to the magistrate to conclude that that explained her use of 'noticed', as indicating that was the first time she took note of the appellant's vehicle, rather than the first time she saw it.

91 Further in my view she testified to the same effect when in cross-examination the following exchange occurred (ts 72):

Did you see me crossing the white line? --- I didn't see your car until - I didn't register your car until you were on the bridge and you stopped your car there.

But you said you noticed my car first briefly --- ? --- Yes.

--- but it didn't register with you, and then you noticed me talking to --- ? --- It wasn't until after I saw your car later on that I remembered that I'd seen your car earlier on Wellington Street.

92 I also note the exchange in cross-examination at ts 65.

93 Further, the magistrate had the benefit of being present when this testimony was given, and I am not satisfied that that advantage was not sufficient to explain or justify his conclusion: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178 (McHugh J); and Fox 146 - 147, [88] - [93] (McHugh J).

94 The fifth 'error' concerned the evidence of Constable Windsor at a number of points that she 'couldn't see' certain matters. Those matters were what was going on 'in this lane here' (examination-in-chief ts 57), what Constable Herring was 'distracted' by to his right as the police vehicle turned into Barrack Street (examination-in-chief ts 58), and what happened as Constable Herring walked towards the truck from the police vehicle (examination-in-chief ts 58).

95 However, it seems to me that the magistrate does indeed take account of the second of these items of this evidence when he says in his reasons (ts 100) that 'Constable Windsor did not see what happened - she did not notice Mr Ibrahim turning - pulling into the right hand lane, she did not notice him turning left'. While he does not refer or clearly refer to the other items of evidence she gave as to what she was unable to see, I do not consider that his failure to do so was an error, given the peripheral character of that evidence in the third respect (see Jones 27 and Fox 125 - 126, [23] (Gleeson CJ, Gummow and Kirby JJ)) and as to the first item the larger context of her evidence. That larger context was her statement shortly after saying she 'couldn't see what was going on in this lane here' that she was able to 'make observations' of the vehicles around where the police vehicle was stopped at the lights on Wellington Street prior to turning into Barrack Street (examination-in-chief ts 57). I have already referred to that evidence under the fourth 'error' above.

96 The sixth 'error' appears to have been related to the terms in which Constable Herring gave his evidence. The appellant referred me to various passages in the transcript of the proceedings before the magistrate where Constable Herring used words such as 'realised' (that the appellant's vehicle 'interfered' with the truck's line of travel into Barrack Street) (examination-in-chief, ts 15 - 16) and 'think' (that the appellant's vehicle 'went from the intersection to the centre lane') (examination-in-chief, ts 19). The appellant put to me as I understood him that language of that sort, which also was used elsewhere in the officer's testimony, indicated uncertainty of which the magistrate failed to take account in assessing the officer's credibility.

97 I do not agree. The language does not it seems to me lead necessarily to the conclusion the appellant contended for. Further, I must take account of the advantage of the magistrate in hearing and observing the testimony of Constable Herring (Abalos 178; Fox 146 - 147, [88] - [93]).

98 The seventh 'error' referred to relates to evidence of Constable Herring which appears to concern the vehicle travelling west on Wellington Street which was waiting to turn right into Barrack Street. This is evidence to which I previously referred in less detail in a different connection. The evidence was as follows (cross-examination, ts 31):

There's any cars in the middle of the intersection?---Here?

Yes?---My view of that was - the truck was there, I didn't - I could see that there was a car here, and that's the perimeter of the intersection there.

So the cars were just right in the end of the bridge, is that correct?---They were there, yes. This vehicle was waiting to turn into that space, and to my view if there was a space there that car would have easily travelled into it. There was no other cars coming this way at the time, so this lane was free.

So what you - are you saying that the two left lanes in Wellington Street was quite busy and occupied and heavy traffic like you mentioned in your statement?---Yes.

And that all the lanes on Barrack Street was heavy traffic and full, the only lane that was vacant was the right lane?---This lane was vacant, that's right.

The lane was completely vacant?---Yes.

99 The magistrate failed to make any reference to this evidence in his reasons. As I have previously indicated, he appeared to treat the presence of the vehicle as irrelevant to whether or not the intersection was choked. However, the appellant focussed my attention on the other part just referred to of the evidence as to that vehicle, a part which he said went directly to whether or not the intersection was choked. That aspect was the vacancy in the right hand lane.

100 However, it seems to me the line of questioning was correctly understood by the magistrate not to be directed to whether or not the intersection with Barrack Street was choked, but to whether or not there was a vehicle waiting to turn right from Wellington Street into the 'vacant' right lane on Barrack Street, as well as to whether or not there was an obstruction to travelling east across the intersection along Wellington Street. The latter was not, as I understand the evidence in the case, at any stage in issue.

101 The purpose for the questioning just described appears from the immediately following exchange (cross-examination ts 31 - 32);

There was no cars coming, there was no car waiting for the light to turn green? --- There was a car waiting for the light to turn green there.

No, no, I'm talking about the direction going east? --- Here?

Yes? --- You can't turn right at this intersection, so this lane is only a straight through ---

Not there, I'm asking if there was no cars --- ? --- So as the lights go green there's no obstruction to keep going forward.

102 In those circumstances I do not consider that the error contended for is made out.

103 The eighth error was indeed one made by the magistrate in relation to the evidence before him. In the cross-examination of Constable Herring he acknowledged that when the appellant was stopped just after the incidents in question he explained that he was 'late to go to the mosque' (ts 50). In his reasons for judgment, the magistrate, in indicating why he rejected the appellant's evidence, noted as part of the appellant's case that the charges were laid 'so as to prevent Mr Ibrahim from attending his church meeting at the mosque'. He characterised that as an 'absurd proposition', apparently because 'neither of the constables would even be aware that Mr Ibrahim was a Muslim, they would have no idea that he was attending the mosque' (ts 101).

104 The magistrate's last reference clearly fails to take account of Constable Herring's evidence. However, the matter of whether or not Constable Herring laid the charges to so as to prevent Mr Ibrahim from attending his mosque, or whether or not the officer had a prejudice against Muslims, was not put to him in cross-examination, as it could have been. It seems to me then that it has not been shown that if the error had not been made the conclusion might have been any different. That is, in the absence of such a question, it is not apparent to me that the error was one that should be seen to have produced a miscarriage.

105 As I have not found any of the errors put forward to have been made out, or to have produced a miscarriage, I do not uphold the present ground.

Ground 4: the magistrate wrongly stopped one of the prosecution witnesses revealing relevant information

106 The ground as formulated is not clear as what incident at the hearing before the magistrate is being referred to. Again, no particulars are provided. Again, at the hearing before me the matter was explained, without objection from the respondent.

107 The matter concerned Constable Windsor's acknowledgement in the following exchange in the cross-examination of her (ts 73):

May I ask - you mentioned one thing, you mentioned that Officer Herring came along my name previous to this incident --- Yes.

108 The reference to the prior mention appears to have been to the evidence of Constable Windsor concerning what she saw after the appellant's vehicle was stopped past the intersection of Barrack Street and Roe Street as follows (examination-in-chief, ts 60 - 61) :

Senior Constable Herring asked several times for the accused to state his name, and the accused I remember did not - refused to quite a few times. Eventually the accused did present his driver's licence. And for some reason my partner - after all this had happened I knew that my partner had been aware of the accused before prior to this in another unrelated case a few months ago, and my partner had reason to believe that the accused's address on his driver's licence, or the address that he was giving us was incorrect.

109 The appellant then asked the magistrate whether or not he could pursue the matter further with her, and the magistrate replied he could not. This, the magistrate said, was 'for your protection' as 'you don't want this Court to know that you've been involved with police before' (ts 73). The appellant responded he had 'nothing to hide', but the magistrate did not permit the matter to be further explored (ts 73). While it is true the appellant did not press the point, I consider that understandable, in view of the position the magistrate had clearly taken.

110 The appellant put to me that this prevented him questioning Constable Windsor concerning what she could recall of Constable Herring's motives in relation to the accused arising out of his involvement in the other case. The appellant indicated he was now aware that that case related to allegations of the appellant's involvement in a road rage incident. He had not been aware of the case which Constable Windsor acknowledged prior to her testimony. Constable Herring had testified before Constable Windsor. Thus the appellant had not asked any questions of Constable Herring directed to that case.

111 There is an exception to the rule restricting calling evidence to rebut answers given to questions going to credit for evidence going to show bias against a party: Cross on Evidence [19035]. In the circumstances of this case, it seems to me the magistrate was thus in error in not permitting the appellant to pursue the matter with Constable Windsor. It is not clear to me that the relevance of the questioning to the issue of bias was outweighed by its potential prejudicial effect, which appears to have been the matter to which the magistrate's concern for the protection of the appellant was directed. My conclusion is arrived at on the position the appellant was taking before the magistrate, and the nature of the matter as indicated by the earlier testimony of Constable Windsor.

112 I also consider that there is a connection between the error I have found and the conviction in the same way I found such a connection for the error I found shown under ground 2. That connection is the relationship between that error and the assessment of the credibility of the single most important witness in this case, Constable Herring.

Ground 5: the magistrate refused to take into consideration the fact that the prosecutor two witness's evidence contradicted each other

113 The ground as formulated is not clear as to what contradiction is being referred to. Again, no particulars are provided. Again, at the hearing before me the matter was explained, without objection from the respondent.

114 The matter goes to the contradiction between the evidence of Constable Windsor and Constable Herring concerning the position which the police vehicle came to occupy on the Barrack Street bridge when it stopped after making its left hand turn from Wellington Street. I have already considered this evidence in the present respect, as the third 'error' assigned under ground 3. For the reasons given there, I would not uphold the present ground.

Ground 7: the magistrate refused to allow the appellant witnesses to give evidence (part)

115 I have previously indicated in which part leave to appeal was granted.

116 The appellant's ground in that part went to what he said was the magistrate's treatment of questions the appellant sought to ask of Constable Herring as to certain matters in relation to the two infringement notices. Those notices, E225 180 and E225 183, were for what became respectively the choked intersection charge and the failure to give way charge. They were made exhibits (examination-in-chief, ts 24).

117 Constable Herring had testified he had prepared those infringement notices and given them to the appellant in the interview room in the police station at Curtin House to which Herring had taken the appellant immediately after speaking with him at the scene just after the alleged incidents (examination-in-chief, ts 21). The numbering of the two notices was out of sequence because they were written not from his own book of notice forms but that of some one else. Some one had written on the next notice form, and there was 'an error written across the next infringement' (examination-in-chief, ts 24).

118 When the appellant in his cross-examination of Herring indicated he did not understand the matter of the marks on the intervening infringement notices the magistrate said 'Yes. Well, it doesn't matter does it?' (ts 25). When the appellant indicated he had looked at the 'other two', the magistrate asked 'do you have them here?' The appellant responded he did not, to which the magistrate replied 'it doesn't matter' (ts 25).

119 However, the magistrate permitted the appellant to pursue in cross-examination the matter of how the infringement notices were served, whether on the day of the alleged incidents in the interview room, or by dropping a notice or notices in his letter box. Constable Herring gave evidence that the appellant was 'very agitated in the interview room' and 'refused to accept anything or talk to me' (cross-examination, ts 27) which appears to be in some tension with his earlier evidence as to how the two exhibited infringement notices were provided to the appellant. The magistrate also permitted the appellant to pursue in cross-examination the matter of what had become of the two infringement notices whose numbers fell between the two exhibited notices.

120 At the same time, at the end of these lines of cross-examination, the magistrate said, referring to Constable Herring's answers to the second line (ts 28):

No, well, that's what he said, that was his evidence, and we've just wasted 10 minutes now talking about that issue. So can you ask him questions relating to the incident on the corner of Wellington Street and Barrack Street? Any other complaints you've got, take somewhere else.

121 It seems to me that the magistrate had by that last passage indicated that he would not permit further questions addressed to what he considered - correctly, in my view - matters relevant only to Herring's credit. I have already referred to the rule by which the cross-examiner is bound by the answers to such questions. However, the cross-examiner is entitled to ask such questions, subject to the controls over them in the Evidence Act 1906 (WA) s 25 and s 26 and at common law, on which see Cross on Evidence [17495]. It was not suggested to me that any of those controls applied in this case.

122 The appellant as I understood him put to me he was denied the opportunity to ask questions of Constable Herring to pursue the matters of firstly when he served the two exhibited infringement notices, secondly the explanation for the apparent difference in the dates of issue of the two exhibited infringement notices, thirdly why one of the two infringement notices between the two exhibited infringement notices bore an issue date more than four months after the later of the two exhibited infringement notices, and fourthly about the apparent lack of marks on either of the infringement notices between the two exhibited infringement notices.

123 I have already referred to the evidence in respect of the first matter, of the service of the two exhibited infringement notices. It seems to me that the appellant was indeed denied the opportunity to bring home to the magistrate the tension in Herring's evidence referred to.

124 In respect of the matter of the dates of issue of the two exhibited infringement notices, the two exhibited infringement notices bear the same date, 4 December 2006, which is itself notable on the account of the issue of the two that appears in Herring's evidence. However, in the infringement notice book the copy of the infringement notice E225 180 bears a date 24 November 2006 while the copy of E225 183 bears the date 4 December 2006. It seems to me the appellant was denied an opportunity to ask questions of Constable Herring about either of those features.

125 The remaining two matters in respect of the infringement notice lying between the two exhibited infringement notices also appear - at least at first glance at the copies of those intervening infringement notices in the infringement notice book - to be matters which the appellant was also denied an opportunity to pursue with Constable Herring.

126 It appears to me that the appellant has indeed shown that the magistrate erred in his approach to questioning by the appellant in a way which deprived him of the opportunity to ask questions of Herring which it was open to him to ask.

127 It also appears to me that that there is a connection between the error I have found and the conviction in the same way I found such a connection for the error I found shown under ground 2. That connection is the relationship between that error and the assessment of the credibility of the single most important witness in this case, Constable Herring.

128 The respondent put to me that the matter should not be seen as having a significant bearing on credibility as the matter of credibility in question was not as to a factual issue in the case. I would agree with that characterisation of the matter. In this respect the matter the subject of the present ground is distinguishable from that which I consider to have been made out in respect of at least ground 2 above. However, it does not seem to me that the matter under the present ground had no significance for a determination of the witness's credibility as to those factual issues.

Ground 10: the magistrate became angry with the appellant on several occasions which was intimidating to the appellant and affected his presentation of his case

129 At the hearing before me the appellant indicated, without objection from the respondent, those occasions on which he said the magistrate is shown to have become angry with the appellant. They fall into seven distinct groups of occasions or type of occasion.

130 The first group of occasions or type of occasion comprises the magistrate's indications at the outset of the hearing of the need to hear the evidence as to the incidents the subject of the charges. This was in response to the indications the appellant gave to the magistrate that the charges were religiously or racially motivated: see ts 5, 7 and 8. The magistrate in the course of so indicating ruled that he would not allow for summonses to issue in relation to Constable Herring's police record (ts 6) and summonses to have witnesses attend to testify as to complaints the appellant had made to the police about his treatment by the police officers who spoke with him about the incidents (ts 7).

131 In relation to those indications I note that they do not appear to have prevented the appellant exploring the matters of his treatment by Constable Herring and the latter's knowledge of the appellant's religious background in cross-examination: see ts 49 - 51. Whether or not I should conclude from the record that the magistrate's indications were 'angry', I would not conclude from that material that the appellant was intimidated by them in a way that affected his presentation of his case. The correctness of particular determinations by the magistrate, made after those indications were given, that certain evidence the appellant might have wished to present was admissible raises different considerations, under other grounds of appeal.

132 The second group of occasions or type of occasion referred to by the appellant comprises occasions during the course of the evidence in which the magistrate stopped further questions by the appellant in relation to matters to which I have previously referred under ground 2.

133 The first such occasion was in respect of the questions as to whether or not Constable Herring could recall construction on Wellington Street. This was a line of questioning which I considered under ground 2 above. In stopping the appellant from pursuing that line the magistrate used the language (at ts 28) 'stupid question. Stupid question.', and (at ts 29) 'I'm not going to sit here listening to this stupidity any longer'.

134 The second such occasion was in respect of the questions as to whether or not Constable Herring could have had a clear view of the matters to which he testified. This was a line of questioning which I also considered under ground 2 above. In stopping that line of questioning the magistrate said (ts 33) 'Hang on, hang on. Look, we're not going to get side tracked.'

135 The third such occasion was in respect of the questions the appellant was asking of Constable Herring intended to show the contradiction between his earlier statement and his testimony as to when the truck moved in relation to the appellant's vehicle. This was a line of questioning which I also considered under ground 2 above. In the course of the exchange with the magistrate in which his Honour had indicated to the appellant he did not consider the two sets of answers 'contradictive' the following exchange occurred (ts 43):

IBRAHIM, MR: What do you consider a contradiction?

HIS HONOUR: Look just ask another question. I'm not answering questions from you. His evidence is not contradictory.

IBRAHIM, MR: Your Honour, how am I going to get a fair trial before you - - -

HIS HONOUR: Well, don't worry about that, just let's get the trial. If you reckon you're not getting a fair trial, you can appeal. But we're just going to concentrate on this trial now. So ask some sensible questions and we'll - - -

IBRAHIM, MR: Well, that's my sensible - that's a very sensible question.

HIS HONOUR: Well, it's not a sensible question, it's a - - -

IBRAHIM, MR: He's saying two different stories.

HIS HONOUR: He's not saying two different stories.

136 Shortly afterwards (ts 43) the magistrate added 'As [sic Ask] the man a question or I won't allow you to ask any more questions.'

137 It seems to me that the language, at least on the first such occasion, was unfortunate. However, it was not made apparent to me how the language on any of these occasions affected the appellant's presentation of his case except as to the prevention of the pursuit of the lines of questioning or further submissions on contradiction referred to. I have already dealt with those matters.

138 The third group of occasions or type of occasion the subject of the present ground comprises one in which the magistrate told the appellant that matters he wished to address to the magistrate were ones that should not be so addressed but made the subject of evidence by the appellant. Those matters were as to where on the appellant's account the truck was positioned at various times in relation to the appellant's vehicle (during the cross-examination of Constable Herring, ts 44 - 45). The passage to which my attention was particularly drawn was as follows (ts 45):

HIS HONOUR: Hang on, hang on, you'll get get your turn in the witness box on oath.

IBRAHIM, MR: Okay.

139 It was not made clear to me from this material either that the exchange was an angry one or that, if it was, that the appellant was affected in the presentation of his case.

140 The fourth group of occasions or type of occasion the subject of the present ground comprises one where the magistrate stopped the appellant asking Constable Herring questions about how if at all the truck started to move when the light changed at the intersection of Wellington and Barrack Streets (ts 41). In this context I note that prior to being stopped in that way the appellant had asked several questions of Constable Herring on that topic (see ts 39, 40). It seems to me that whether or not I should conclude that the magistrate's tone was angry, the appellant had not been prevented from presenting the case he wished to present.

141 The fifth group of occasions or type of occasion the subject of the present ground relates to a line of questioning of Constable Herring directed to whether or not he had threatened the appellant during the interview of him in the police station after the incidents in question. The relevant exchange was said to be the following (during the cross-examination of Constable Herring, ts 53):

IBRAHIM, MR: He admitted that he threatened me in the station that he was going to throw me in the lock up.

HIS HONOUR: He didn't say that at all. I mean, we all just heard what he said. He didn't say he threatened to throw you in the lock up, he said if you didn't behave yourself he'd lock you in the - put you in the lock up. That's not a threat, that's what happens to people who misbehave in police stations, they get put in the lock up until they settle down. He said that. But the objection raised by the prosecutor is correct, we're a long long way away from the incident.

142 It is not apparent to me that the magistrate did not accurately describe the effect of Constable Herring's previous responses to the cross-examiner's questions (see ts 51). Further, it not apparent to me that the magistrate's response was an angry one or that, if it was, what further questioning in relation to the matter was thereby prevented.

143 The sixth group of occasions or type of occasion concerned that in which, just after Constable Windsor had been re-sworn, the appellant had drawn to the magistrate's attention that he had seen the two police officers, Windsor and Herring, during the luncheon adjournment leave the court building together. The appellant added that he was 'not making any allegations to them', but 'just making a statement' (ts 63). The magistrate responded by indicating 'that obviously contains allegations' which he found 'very offensive' (ts 63).

IBRAHIM -v- HERRING [2008] WASC 91 (16 May 2008)

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IBRAHIM -v- HERRING [2008] WASC 91 (16 May 2008)

Legislation Cited (3)

Cases Cited (8)