SAID -v- WATSON [2018] WASC 181 | Case summary

Supreme Court of WA|2018-06-20|Before: Smith AJ

For the reasons given, there is no merit in any of the appellant's proposed grounds of appeal. Given the lack of merit in any of the grounds, an extension of time to institute an appeal should be refused and leave to appeal on all grounds should be refused and the appeal be dismissed.
I will hear the parties as to the orders that should be made and as to costs.

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

[1] The general traffic infringement notice issued to the appellant states 'lights both working, constant red before crossing'.

[2] JS v The State of Western Australia [2014] WASCA 177 [4] (McLure P, Buss & Mazza JJA agreeing).

[3] Dean v Legal Practice Board [2013] WASC 155.

[4] Dean v Legal Practice Board [2013] WASC 155 [18] [19].

[5] The State of Western Australia v Burke [No 2] [2010] WASC 74 [9] [10]; The State of Western Australia v Christie [2005] WASC 214 [22]; R v Salmat Document Management Solutions Pty Ltd [2005] WASC 232 [36].

[6] NSW Commissioner of Police v Tuxford [2002] NSWCA 139 [22]; R v Saleam (1989) 16 NSWLR 14, 18.

[7] Criminal Procedure Act 2004 (WA) s 163(3)(a).

[12] Pah v The State of Western Australia [2015] WASCA 159 [136] (Buss JA, McLure P & Hall J agreeing).

[13] Pah v The State of Western Australia [2015] WASCA 159 [138] (Buss JA, McLure P & Hall J agreeing).

[14] Vo v The State of Western Australia [2012] WASCA 6 [32] [33]; see also the observations made in The State of Western Australia v JWRL (a child) [2010] WASCA 179 [59] [61] (Martin CJ), [153] (McLure P), [155] (Buss JA).

[15] Tey v Carpenter [2011] WASC 263 [15].

[16] Tey v Carpenter [2011] WASC 263 [20], citing Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593.

[18] ts 21 August 2017, pages 43, 92 and 98.

[19] ts 17 May 2018, pages 29, 35, 48, 51, 54, 114 115.

[22] ts 17 May 2018, pages 33, 34 and 54.

[24] ts 21 August 2017, pages 67, 70 72.

[25] ts 17 May 2018, pages 35, 64, 66 67, 74, 96, 100.

[26] Nafranec v Nicol [2012] WASC 436 [10] [14].

[27] See the observations made by Jenkins J in Copeland v Watson [2017] WASC 261 [58].

[28] Michael v The State of Western Australia [2007] WASCA 100 [65] (Steytler P, McLure JA & Miller AJA agreeing); De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [71] (McLure P, Buss & Mazza JA agreeing).

[30] See for example, ts 21 August 2017, page 70.

[31] Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521.

[32] Hodder v Ball [2013] WASCA 65 [64] [67] (McLure P & Mazza JA agreeing).

[33] Fradale v Zonic [2016] WASC 114 [22].

[34] Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147 [76]; R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 [31] applied in Tey v Plotz [No 2] [2011] WASC 34 [36](7) (Jenkins J).

[35] Tey v Plotz [No 2] [2011] WASC 34 [36](7) (Jenkins J).

Criminal Procedure Act 2004(WA)s 163(3)(a).

Criminal Appeals Act 2004(WA)

Criminal Investigation Act 2006

The right to appeal to this court from a decision of a magistrate arises from s 7 of the Criminal Appeals Act 2004 (WA) (CAA). Appeals are entirely creatures of statute and the rights of appeal must be determined by the words of the CAA: See Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 and Mansell v MignaccaRandazzo [2013] WASC 66 [32].

Section 7 of the CAA provides that 'a person who is aggrieved by a decision of a magistrate may appeal to the Supreme Court'. The word 'decision' as used in s 7 is defined in s 6 of the CAA. The types of decisions referred to include a permanent stay, a conviction or an acquittal. They are decisions with a final character. There is very good reason for this. It prevents the disruption of criminal proceedings by appeals of rulings and interlocutory decisions. That is not to say such rulings can never be raised in an appeal; they can, but only in the context of an appeal from a final decision.

The question of relevancy, for the purposes of s 61(5) and s 42(1) of the Criminal Procedure Act, is not to be narrowly approached and should be viewed from the perspective of what is relevant or could be potentially relevant: see The State of Western Australia v JWRL (a child) [2010] WASCA 179 [59] - [61].

Where it is contended that a trial has been unfair by reason of the conduct of the presiding judicial officer the test to be applied is whether the impugned behaviour has created a real danger that the trial was unfair: Michael v The State of Western Australia [2007] WASCA 100 [63] (Steytler P). That question depends principally on whether the appellant had a proper opportunity to advance his or her defence to the charges: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 11 (Gaudron ACJ, Gummow, Kirby & Hayne JJ).

Where it is alleged that a trial judge or magistrate has excessively interfered with the conduct of the case, the appropriate test is whether there has been 'such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice': R v Mawson [1967] VicRp 23; [1967] VR 205, 207 (Winneke CJ, Adam & Barber JJ). Examples of interference that may result in a miscarriage are where a party is prevented from putting their case properly, where a witness is prevented from giving a full account of the facts or where the opposing party is given an unfair advantage.

It is not improper for a judge or magistrate to put questions to witnesses with a view to clarifying an answer, where it appears that a witness has misunderstood a question put by counsel or where he or she considers that an issue has not been sufficiently cleared up: Yuill v Yuill (1945) 1 All ER 183, 185 (Lord Green MR); Rowland v The Police (2001) 79 SASR 569 [60] (Perry J). There is greater latitude for questioning by a judge or magistrate who is acting as the finder of fact.

Whether interruptions by a magistrate have resulted in the trial being unfair will be a question of fact and degree. It will be necessary to consider the number of interruptions, the nature of them, the point in the proceedings at which they occurred and the context of them in the trial as a whole. The context is significant because it is necessary to consider whether interruptions have had the effect of so distorting the trial process as to bring about a miscarriage of justice: R v Davies , 575 (Street CJ).

In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said:

See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.

In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 55, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

However, this court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].

SAID -v- WATSON [2018] WASC 181 (20 June 2018)

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