Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Summary charges - Application for leave to appeal- Alleged lies by applicant's witness - Alleged reasonable apprehension of bias on the part of the magistrate - Refusal of adjournment to call witness

Criminal Appeals Act 2004 (WA), s 9

Road Traffic Act 1974 (WA), s 62A(a)

1 This is an application for leave to appeal the decisions of a magistrate sitting in the Magistrates Court at Mandurah on 20 March 2007. The application is for leave to appeal against the magistrate's decisions to convict the applicant on prosecution notices MH 985/07, being one count of driving a motor vehicle causing excessive noise, and MH 986/07, being one count of obstructing a police officer.

2 The applicant relies upon the following grounds of appeal against conviction:

1. Greg Clyde Murray lied about circumstances of alleged sale of vehicle which was something [the magistrate] relied on in his summary.
2. [The magistrate] was biased due to hearing previous criminal matters in Perth and a restraining order in Mandurah.
3. Donald Maxwell Wimbridge lied about his unavailability.
4. I was not allowed an adjournment to contact witness at Coventrys.

3 Prosecution notice MH985/07 alleged that on 28 December 2006 at Greenfields, contrary to the Road Traffic Act 1974 (WA) s 62A(a), the applicant:

Wilfully drove a motor vehicle, namely Falcon sedan registration number 1BFA 362 on a road namely Thornborough Road, causing excessive noise to be made with one or more of the vehicle's tyres.

4 Prosecution notice MH 986/07 alleged that on 28 December 2006 at Greenfields, contrary to the Criminal Code (WA) s 172(2), the applicant:

Obstructed Stephen John Scott a public officer, in the performance of the officer's function.

5 The applicant appeared before the magistrate at Mandurah on 2 January 2007. He was remanded on bail to appear in the same court on 16 January. On that date the applicant was represented by the duty lawyer who advised the magistrate that the applicant wished to enter not guilty pleas to both charges and to represent himself at trial. The charges were adjourned to 1 March for hearing. The magistrate advised the applicant that it was up to him to have his witnesses present in court at that date. The applicant told the magistrate that witness summonses had already been served. The magistrate, in turn, advised the applicant that he would have to issue further witness summonses presumably because the return date on the summonses was incorrect.

6 The following exchange then took place between the applicant and the magistrate:

SMART, MR: There is just one other thing, sir. I believe you've done a trial for me once before so I would ask that another magistrate does the trial.

HIS HONOUR: No, I don't see any reason for that. I am quite capable, as is every other magistrate in Western Australia and probably Australia, in dealing with people on a regular basis because that's what happens when you operate in relatively small communities so your request is denied, Mr Smart. There [sic] no reason whatsoever why I should not deal with this matter. You are remanded to 1 March.

7 On 1 March 2007, the applicant appeared before the magistrate and sought an adjournment. This was denied and the matters proceeded to hearing. Both charges arose out of the same set of facts and so they were heard together. The prosecution presented its case. The applicant then gave evidence. At the conclusion of his evidence the trial was adjourned to 20 March so that an attempt could be made to obtain the attendance of the applicant's two witnesses.

8 On 20 March 2007 one of the witnesses who the applicant wished to call gave evidence. Mandurah Taxis Pty Ltd had earlier advised the court that the second witness, Donald Maxwell Wimbridge, had retired and was travelling elsewhere and so was unavailable to attend court. There is no evidence before me that he was served with a summons to attend court on 20 March 2007.

9 At the conclusion of Mr Murray's evidence, the magistrate heard submissions from the prosecutor and the applicant. The magistrate then delivered his reasons for convicting the applicant of both charges. The magistrate imposed fines and orders for costs in respect to both convictions.

10 The Criminal Appeals Act 2004 (WA) s 9 provides that leave of the court is required for each ground of appeal. Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.

11 In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] - [61] the court said that the ground of appeal must have a real prospect of success, bearing in mind that the purpose of s 9 is to weed out unmeritorious appeals.

12 At trial, the prosecution called two witnesses being:

1. Senior Constable Stephen John Scott; and
2. Constable Matthew Sinclair Rogers.

13 Senior Constable Scott gave evidence that at about 10.15 am on 28 December 2006 he was working, on his own, conducting speed detection duties near the intersection of Thornborough Road and Gordon Road in Greenfields. His attention was drawn to his right by a loud screeching noise. He observed a white Ford Falcon registration number 1BFA 362 travel east, turn right into Thornborough Road and travel in a southerly direction. He was approximately seven to eight metres away from the vehicle when he first heard the screeching. Constable Scott watched the car continue along Thornborough Road. He noted that it was fishtailing from side to side and appeared to be losing traction. He watched the vehicle until it was out of sight. He ran to his car and drove after the Falcon. He sighted the Falcon again travelling south on Thornborough Road negotiating a roundabout. He followed the vehicle until he saw it turning right at the end of Thornborough Road into a driveway. He followed the Falcon down to the end of the driveway. It was the driveway to the Mandurah Taxi Depot.

14 Constable Scott then saw the applicant alight from the vehicle. Constable Scott said to him 'nice burnout. Why are you driving like that?' The applicant replied, 'I don't know what you're talking about'. The applicant then grabbed his backpack and went to walk into a building. Constable Scott called out to the applicant. Constable Scott stated that he required a sample of the applicant's breath and to come back. The applicant stopped, turned, and just 'glared' at Constable Scott. Constable Scott repeated his request. The applicant said nothing but continued to stare at him. Constable Scott walked up to the applicant and said 'I'm not playing this game. You're under arrest in relation to your manner of driving'. Constable Scott then walked the applicant back to the police vehicle. As he did so the applicant started calling out to a person or persons for assistance. Constable Scott placed the applicant in the front passenger seat of his police vehicle. The applicant said to him 'I'm going to make your life a living hell. You've just made a big mistake'. Constable Scott replied 'Is that right? Just do as you're told'. The applicant then got out of the passenger seat of the car and stood face to face with Constable Scott. Constable Scott reminded him that he was under arrest and to get back into the car. The applicant refused, and Constable Scott put his arms on the applicant's shoulders and tried to push him back into the car. The applicant resisted and Constable Scott was unable to get him back into the car. Constable Scott stepped to his right and to the back of the applicant. He used his instep on the back of the applicant's leg to push his knee so that he could get him back into the car. The applicant then threatened to kick Constable Scott in the head. Another person, who Constable Scott identified as Greg Murray, then appeared and asked what was going on. Constable Scott asked Mr Murray to stay where he was and explained what had happened. Constable Scott then called for backup and a Sergeant White arrived shortly thereafter. A police van from the Mandurah Police Station also attended. The applicant was handed over to the other officers and Constable Scott prepared paperwork for the seizing of the Falcon under the Road Traffic Act.

15 In respect to the excessive noise, the officer said that the first thing he heard was a loud screeching. When he turned he saw the Falcon fishtailing and sliding around under heavy acceleration. He said that he did not see a plume of smoke. In his view, the vehicle was obviously under heavy acceleration, it had definitely lost traction and was fishtailing from side to side. Constable Scott said he observed the vehicle for about 40 or 50 metres until it was out of sight.

16 Under cross-examination, Constable Scott said that it took him about 10 seconds to pack up his speed detection equipment and put it in his car before following the applicant. He said that there was no traffic impeding him and he was able to drive straight out onto Thornborough Road.

17 Constable Scott acknowledged that he had told the applicant that he was confiscating the vehicle. He denied that the applicant had then started to remove personal effects from it. Constable Scott said that once he had been arrested, he recalled the applicant asking for bird seed or something else to be taken out of the boot of the Falcon. However, he said that he did not immediately advise the applicant that the car was being seized. He said that the applicant handed him his driver's licence and then grabbed his bag and went to walk off. That was when Constable Scott asked him to come back so he could conduct a preliminary breath test. He did not recall where the applicant's bag had ended up. He did not think that he had asked the applicant to put his bag on the roof of the vehicle.

18 Constable Scott said that he was satisfied that the applicant heard and understood his direction to return to the car for the preliminary breath test. Constable Scott was of the view that the applicant was failing to comply with his directions. In his terms, the applicant was 'standing me up'. Constable Scott did not believe that there was noise going on that would stop the applicant from hearing him.

19 Constable Scott said that at the time he asked the applicant to return to him, the applicant had walked perhaps 4 - 5 metres away from him towards the front entrance of the taxi building. Constable Scott said that he walked up to the applicant, took him by the arm and walked him back to the police car. The applicant walked with him and sat in the police car. Constable Scott said that he did not handcuff the applicant until after the second occasion the applicant got out of the car. Constable Scott said that he did not notice Greg Murray until he had put the applicant in the car on the second occasion.

20 Constable Scott remembered the applicant telling him that the Falcon was not capable of doing a burnout and that it operated on LPG. Constable Scott denied that the applicant had told him (after the Constable accused him of doing a burnout) that the Falcon had a faulty gearbox. Constable Scott said that he would have remembered that because he asked the applicant why he was driving in that manner.

21 The following exchange then took place between the applicant and Constable Scott:

SMART, MR: I would suggest that you saw this vehicle downshift into second extremely hard, which locked - and possibly even selected two gears at once because of the faulty gearbox which locked the back wheels, caused them to lose traction and kick the back end of the vehicle out, which was recovered, and then it was driven down the road?

CONSTABLE SCOTT: No. That's definitely not what I've seen.

Constable Scott said that whilst the vehicle was impounded for 48 hours no tests were conducted on it.

22 The magistrate attempted to clarify the issue which the applicant was putting to the police officer. The magistrate asked the applicant whether he conceded that there was engine noise above normal engine noise. The following exchanges then took place between the applicant, the magistrate and Constable Scott:

SMART, MR: I admit that the vehicle revved up as a result of being thrown back into second, or selecting two gears at once, and the engine effectively going into neutral.

HIS HONOUR: Okay.

SMART, MR: I don't know which exactly, because I never had time to fully sort this vehicle out.

HIS HONOUR: The witness also says the vehicle's tyres - there was a screeching sound. Do you admit or dispute that?

SMART, MR: I admit there was a small amount of screeching, but nothing like what he alleged happened.

HIS HONOUR: What do you say to that?---No, sir. Just as I described. The screeching - when I looked to my right, the screeching was as the vehicle was accelerating away.

SMART, MR: Do you have any photos of any marks on the road after this alleged burnout?---No.

Was there any marks on the road?---I didn't go back and look, Mr Smart.

Don't you think that would have been important as to establishing whether or not I had in fact done a burnout and backing yourself up?---Well, I didn't see smoke. All I heard was screeching, so no.

HIS HONOUR: The witness also says the vehicle was fishtailing. Are you disputing that?

SMART, MR: Certainly.

HIS HONOUR: Well, in what way? For example, how many times do you say the rear of the vehicle moved, and in what fashion?---At least five or six times, your Worship, and it moved left to right as it was travelling south, the rear end moving around.

Again, did - - -

SMART, MR: Did it not in fact - the rear end of the vehicle slide to the left for a short distance? The vehicle was straight, but due to being a high-mileage ex-taxi with worn-out shock absorbers, it continued to oscillate left to right but travelled in a straight line?---No. I saw the vehicle fishtail to the left, then back to the right, continue to do so on five or six occasions as it travelled south until it was out of my sight under heavy acceleration.

23 Constable Rogers gave evidence that he attended the Mandurah Taxi Depot on 28 December. He observed the applicant being 'very aggressive' towards Constable Scott. He said that when the tow truck arrived the applicant was intimidating and aggressive towards the driver, and that the applicant threatened to make his life a living hell. The applicant was then placed into the police van.

24 Under cross-examination, Constable Rogers said that he did not recall any police officer searching the applicant's bag.

25 The applicant, as I have said, gave evidence in his own defence. He said that at the time of being charged he was employed as a mechanic at the Mandurah Taxi business. He said that in early December he had been given the Falcon by the operators of Mandurah Taxis as a work vehicle. He said that it was a retired taxi and that it had been sitting around for some time. He said that the business could not sell it because of the faults with it. He said that he started the process of repairing the Falcon whilst he was driving it everyday. He said that a lot of the faults with the vehicle were very intermittent.

26 The applicant testified that the vehicle had an intermittent gearbox problem which had also been observed by Mr Donald Wimbridge in late November or the beginning of December. The applicant testified that at the time Mr Wimbridge had been trying to sell the vehicle but he could not start it. The applicant had jump started it after checking all the fluid levels. Mr Wimbridge had then sat in the back seat of the vehicle whilst a young couple test drove it. Not long after leaving they had returned into the workshop. They claimed that there was a problem with the vehicle. The applicant had then driven it but it drove perfectly.

27 The applicant said that the vehicle would very occasionally display very strange behaviour when shifting in or out of second gear. He said that this would cause the tyres to squeal or lock up and would 'throw' the back end of the car. The applicant said that it was not a big problem for him because he had driven higher performance vehicles that were a lot harder to drive.

28 The applicant said that the week he was arrested he had tried to fix the fault. He said that Greg Murray, the new owner of Mandurah Taxis Pty Ltd, had asked him why he was doing that. The applicant had shown him the gearbox and what he was doing with it.

29 The applicant testified that on 28 December he did not have far to drive to work and the car had initially, driven normally. He said that if the gearbox was going to play up, it usually played up on the first gearshift out of the driveway in the morning. The applicant said that he was not expecting any problems. He slowed down to turn into Thornborough Road off Gordon Road and then something went 'seriously wrong'. The applicant said that he remembered the back end either going very hard down into second gear, or the back wheels locking up or something definitely occurring when there was a screech of the tyres. However, he said that it was not an extended or prolonged screech. He said that it was very short, 'less than half a second' and it threw the back end of the vehicle as he turned the corner. The applicant said that the vehicle did not fishtail. However, he said that it continued to 'oscillate from side to side through the spring motion of the suspension'. The applicant admitted that the car did 'rock', but said that the vehicle tracked perfectly straight down the road.

30 The applicant said that he continued driving, and parked the Falcon at his place of employment. As he was unloading things from the car, a police vehicle arrived and the police officer accused him of doing a burnout. The applicant testified that he said 'I don't know what you're talking about. I definitely didn't do a burnout in the car'. The applicant explained to the officer that it was not possible for the Falcon to do a burnout because it ran on LPG which restricted the power of the engine. He said that the police officer started to get angry and told him that he was confiscating the vehicle. The applicant told him that confiscating the car would not bother him because he would get another one. He said he continued to unload his things out of the vehicle, put his bag over his shoulder and called out to the manager to come down from the office because he was concerned about the police officer's behaviour. The police officer then ordered the applicant to get back over to his vehicle. The applicant said that he just looked at the Constable, as if to say 'what's going on?' The officer then accused him of playing games or something. The officer grabbed the applicant, twisted his arm up behind his back and shoved him hard into the rear quarter panel of the police vehicle. The applicant said he was then handcuffed. The applicant then asked him what was going on and told the officer that he was not resisting him in any way. He said the officer then placed him into the front seat of the police vehicle. It was then that Greg Murray appeared. The applicant tried to stand up to talk to Mr Murray, so that Mr Murray could explain to the officer that there was a mechanical fault with the vehicle. The applicant said that the police officer started to repeatedly kick his leg. He said that even after he had sat back into the car, the police officer continued to kick his leg. The applicant said that he said to Constable Scott 'that if he kicked him in the leg again he would kick him in the head'.

31 The applicant denied speaking to the tow truck driver in the manner alleged by the police officer. He denied that he had been asked to undergo a preliminary breath test at the taxi depot. He said that when he finally undertook a preliminary breath test at the police station he blew 'zero'.

32 Under cross-examination the applicant said that he was a qualified automotive mechanic. He confirmed his evidence that he was aware that the Falcon had a fault in the gearbox. He also confirmed that there was nothing wrong with the vehicle when he first started to drive it on the morning of 28 December. He said that if the gearbox was going to play up it usually 'chirped' the wheels on the change out of first gear into second gear, first thing in the morning. He denied that he accelerated heavily as he turned right into Thornborough Road off Gordon Road. He denied that the car lost traction for more than half a second. He again denied that the car fishtailed up the road. He said that he felt the car go to the left once, which he recovered. He acknowledged that the car continued to rock from side to side because of the worn shock absorbers and the spring action of the suspension.

33 The applicant confirmed his evidence-in-chief, to the effect that upon the officer telling him that his car was being seized he commenced to unload his personal effects from it. He denied that he had been asked to participate in a preliminary breath test. The applicant acknowledged that after he put his bag on his shoulder he started to walk off. It was then that the officer told him to stop, to come back and to put his bag on the roof. He said that he put the bag on the roof of the car and stood at the back of the car waiting for the police officer's next instructions. He said it was then that the police officer suddenly grabbed hold of him. He said that at that point he had done what was instructed, he had returned to the back of his car and put his bag on the roof. He said that after being placed in the police car he tried to stand up to talk to Mr Murray. He said that he was told to get back into the vehicle by Constable Scott but that was at the same time he was kicked by Constable Scott. He said he had not been given time to comply with the directions. He further said that it was only when he was being assaulted that he threatened to kick Constable Scott in the head. The applicant denied that he was still yelling when the other police officers arrived.

34 Mr Murray gave evidence that he is the director of Mandurah Taxis Pty Ltd. He knew the applicant as a mechanic for that company. He said that he took over directorship on 8 December 2006. The applicant was already employed with the company but Mr Murray terminated the applicant's employment on 29 December 2006.

35 Mr Murray said that the Ford Falcon 1BFA 362 was a former taxi. He said that he first became aware of the incident with the applicant and Constable Scott when he heard 'howling'. He said that the howling was echoing through the empty depot, and he went down to investigate. He said that he saw the applicant and the police officer. Mr Murray said that the applicant was handcuffed and the officer was 'pretty much reading him the riot act'. He said that the police officer was telling the applicant to behave and calm down. Mr Murray was then informed that the vehicle was being impounded. The police officer asked him to go away and not interfere. Mr Murray said that he first observed one officer, who he believed was Constable Scott. Shortly after, he observed a senior officer and a paddy wagon arrive.

36 Mr Murray said that the applicant had asked him to get his rucksack out of the back of the car and to look after it. He said that he proceeded to do that but the police officer told him not to interfere and took the bag away. Mr Murray said that he saw a lack of compliance on behalf of the applicant. He saw the applicant get out of the car a couple of times after being repeatedly asked to sit down and not to get up. He said that at that stage the applicant was 'actually handcuffed'.

37 In respect to the mechanical history of the vehicle, Mr Murray said that he knew that it had done 860,000 kilometres and it was a tired vehicle. He said that the applicant had pointed out to him that there was a problem with the transmission. He said that after he terminated the applicant's employment, the applicant reminded him of the problem. However, Mr Murray said that he was not a mechanic, nor was he mechanically minded.

38 Mr Murray said that four weeks prior to that date the vehicle had been sold and was being driven around Mandurah. He said that he had advertised it for sale and he sold it for a small amount of money. He said that the purchasers had possession of it for about a week before they paid the purchase price. Mr Murray said that the prospective purchasers had not made any complaint about faults in the vehicle during the time that they had the car. Mr Murray said that the vehicle was advertised for $2,000, but the proposed purchasers negotiated with him and it was ultimately sold for $1,750. He said that there were no mechanical repairs undertaken between 28 December and the sale of the vehicle.

39 Mr Murray said that when he arrived at the back door, he thought that the applicant was standing up with his hands behind his back being handcuffed, and was escorted to the front of the police car. Mr Murray said that he saw the applicant sitting in the front seat of the traffic control car. He said that he did not see the police officer kick the applicant when he was trying to stand up. He said that the applicant's backpack could have been on the roof of the car.

40 Mr Murray was aware that there had been an advertisement on the staff noticeboard for the vehicle. He did not know of any people who had test driven the car and then refused to buy it.

41 Under cross-examination, Mr Murray said that the applicant may have made a comment to him prior to the incident with the police about the transmission being a little bit funny. Mr Murray said that he had not seen the vehicle on the hoist prior to the incident with the police. He did see the applicant with the vehicle with its bonnet up. He recalled the applicant telling him that he was doing some 'preventative maintenance'.

42 After hearing submissions, the magistrate gave his reasons for convicting the applicant of both charges. He referred to the onus and standard of proof. He noted that with respect to the excessive noise charge the prosecution must prove beyond reasonable doubt that the accused wilfully drove his motor vehicle with an intention to make excessive noise or with an awareness of the likely occurrence of excessive noise. In respect to the obstruction charge, the magistrate read a quote from Butterworths text on criminal law in respect to the Criminal Code s 172.

43 The magistrate then summarised Constable Scott's evidence. He also summarised the applicant's evidence.

44 After considering some credibility issues the magistrate said:

At the end of the day, having assessed the witnesses, I am satisfied with the account given by Scott represents the truth of the situation and when the vehicle turned the corner it was being driven by the accused and it was driven in such a way that the tyres emitted excessive noise and it was that noise which brought the vehicle to the attention of the police.

45 In respect to the obstruction charge, the magistrate found:

I am satisfied, applying the test to which I have referred earlier, that the accused's failure to comply with the directions given to him by Scott, his attempts to get out of the police vehicle having been placed there, are sufficient to amount to obstruction and I am satisfied therefore on the evidence before me that each of those charges is proven beyond reasonable doubt.

46 There is no evidence before me that Mr Murray lied about the circumstances of the sale of the vehicle. The only evidence before the magistrate concerning the sale of the motor vehicle was given by Mr Murray. There was no competing version of the sale for the magistrate to take into account.

47 The applicant submits that the Falcon had been advertised for sale for approximately $3,000 but had ultimately sold for only $1,750. This, the applicant says is proof that the vehicle's transmission was defective, and the defect caused the car to behave in the manner he alleged.

48 One of the difficulties with this submission is that the magistrate found that he preferred the evidence of Constable Scott to that of Mr Smart as to how the vehicle was driven on the day in question. The manner in which Constable Scott said that the Falcon was driven was inconsistent with the vehicle fault of which Mr Smart gave evidence. That is, Mr Smart gave evidence that the Falcon had a fault which caused the car to drive in a manner that was quite different from the manner which the police officer said he saw on the day in question. Mr Smart's evidence was that the fault caused the vehicle to slam into second gear so hard it caused the tyres to 'churn'. On this occasion he said that the back of the vehicle went to the left once and then recovered to the centre of the road. The applicant also stated that although the car rocked somewhat, the vehicle did not fishtail. This was quite different to the version of events given by the police officer. Consequently, whether or not the car sold for less because of the fault which Mr Smart identified was not relevant to the magistrate's decision. There is also the possibility that the Falcon sold for a reduced price for reasons entirely unconnected with any alleged fault.

49 In my view this ground has no reasonable prospect of success and I would not give leave to appeal in respect to it.

50 There is no evidence before me in respect to the matter or matters related to the applicant which the magistrate had previously presided over. There is reference in the transcript to there being such a matter, or matters and the magistrate did not deny it. I have already referred to the exchange between the magistrate and the applicant on 16 January 2007. On 20 March 2007 the applicant also accused the magistrate of being biased against him as he had been in the past.

51 In Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 at 345 the majority of the High Court explained that there were two steps in the application of principles relating to apprehension of bias on behalf of a decision maker. The first step is the identification of what it is that might lead a judicial officer to decide a case other than on its legal and factual merits. The second step is to identify the logical connection between that matter and the risk of the judicial officer deciding the case other than on its merits. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] the High Court said:

It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

52 In Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 300 the High Court said:

It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about either a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if a particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.

53 Turning to the first step, the fact that the magistrate had previously heard cases involving the applicant was identified as a possible factor that could lead the magistrate to decide the present case other than on its legal and factual merits. The details of those cases, the evidence called in them and what the magistrate said or did not say about the credibility of the applicant is not in evidence. The second step is to identify the logical connection between the fact that the magistrate had heard other matters involving the applicant and the risk that the magistrate would pre-judge the matter. The difficulty for the applicant is that the mere fact that the magistrate had heard other matters involving the applicant is not sufficient to lead a fair open-minded lay observer to reasonably apprehend that the magistrate might not bring an impartial and unprejudiced mind to the resolution of the issues in this case. There must be something more. As there is no evidence of pre-judgment before me, there is insufficient evidence to enable any judge to find this ground of appeal proven. It has no reasonable prospect of success and I would not give leave to appeal in respect to it.

54 There is no evidence before me that Mr Wimbridge lied about being unavailable to give evidence.

55 In any event, Mr Wimbridge was not present when the alleged incident occurred on 28 December. He could not give any direct evidence as to how the vehicle behaved on that date.

56 Consequently, this ground has no reasonable prospect of success and I would not give leave to appeal in respect to it.

57 The applicant's desire to call a witness from Coventrys, which is apparently a business close to the corner of Thornborough and Gordon Roads where the incident occurred, apparently came part way through the trial. I come to this conclusion because a witness from Coventrys was not one of the two witnesses the applicant initially told the magistrate he wished to call. The two initial witnesses were Mr Murray and Mr Wimbridge. It was only after the evidence had closed and during addresses that the applicant mentioned that he would like to call a witness from Coventrys to give evidence that he had never heard or saw the applicant do a burnout on the corner where it is said that the incident occurred. It was, and still is, apparent that the applicant does not know whether any such witness exists or what they would say if called to give evidence. The applicant has not obtained a witness statement from any particular person who could give evidence in this regard. The magistrate found that such evidence would be irrelevant and that the applicant had plenty of time to prepare his case. No formal application was made to adjourn the trial for the purpose of calling such a witness. By implication, the magistrate made it clear that he would not have allowed an adjournment should it have been made.

58 In my opinion, the magistrate was plainly correct in his view. The mere fact that a witness might be available to say that he or she worked at Coventrys on 28 December and did not hear or see the applicant drive a vehicle in an inappropriate manner near the business, would not be significantly probative evidence of any issue in the trial.

59 For this reason I would not grant leave to appeal in respect to this ground.

60 For the foregoing reasons I refuse the applicant leave to appeal on each of the proposed grounds of appeal.