The rule in Browne v Dunn - Effect of failure by prosecution to raise Browne v Dunn point - Responsibility of magistrate - Effect of counsel's decision not to rely on evidence raised by accused in cross-examination but not put to prosecution witness - Effect of counsel taking responsibility for breach of rule in Browne v Dunn - Unsafe and unsatisfactory verdict

1 JOHNSON J: The appellant appeals against his conviction after trial in the Kalgoorlie Magistrates Court on 18 March 2008 for failing to wear a seat belt, contrary to s 232(1) of the Road Traffic Code 2000 (WA) (RTC). The charge alleged that on 2 May 2007 the appellant drove a motor vehicle on Eyre Highway whilst occupying a seat position with a seat belt fitted whilst that seat belt was not properly adjusted and securely fastened.

The magistrate erred in law and fact in convicting the appellant.

Particulars

1. The magistrate erred in law and fact in finding that the issues of whether or not counsel put to Constable Scott that:

(a) the appellant denied saying the seat belt did not fit;

(b) the appellant made a protest about the issue of an infringement.

could have amounted to Browne v Dunn points over which adverse inferences could have been drawn against the appellant.

1. The conviction was in any event unsafe because it could not be sustained to the necessary standard of persuasion having regard to:

(1) The matters in 1 above;

(2) Constable Scott never put it to the appellant that he was not wearing a seat belt at the time of driving;

(3) The appellant's response as alleged by Constable Scott was at its highest for the prosecution equivocal and could not support the inference requested by the prosecution to the necessary standard.

(4) There was no direct evidence of a failure to wear a seat belt at the time of driving; indeed when Constable Scott drove past the appellant he made no observation about any lack of seat belt.

(5) The evidence generally.

3 It can be seen that the grounds of appeal raise two issues:

1. Browne v Dunn (1893) 6 R 67 (HL) errors; and
2. That the verdict was, in any event, unsafe.

4 In delivering his reasons the magistrate noted that the evidence of the police officer and that of the appellant did not conflict except on one significant point. The magistrate summarised the evidence of both witnesses and there is no dispute as to the accuracy of the magistrate's account of the evidence.

5 Constable Davis said that he was on traffic patrol near Eucla when he stopped a Mack prime mover and trailer driven by the appellant (the appellant's vehicle). According to Constable Davis, it was a routine stop for the purpose of conducting licence and RBT checks. Once the appellant's vehicle had stopped, Constable Davis approached on foot and observed that the appellant was not wearing a seat belt. He asked the appellant why he was not wearing a seat belt and the appellant replied that 'it didn't fit, it was too tight'. Constable Davis then proceeded to issue an infringement notice to the appellant for failure to wear a seat belt. Constable Davis's evidence was that the appellant was entirely cooperative throughout the process of being stopped.

6 Constable Davis said that it was when he approached the appellant's vehicle that he observed that the appellant was not wearing a seat belt. This could be seen without the door being open because the seat belt was of the type worn over the shoulder. Constable Davis also said that he checked the seat belt to see if it was operational and found it to be operating correctly. He did this by checking that it retracted and that it was securely fastened into the receiver.

7 The infringement notice was an exhibit at trial. Constable Davis made notes on the infringement at the time of the incident and next to the heading 'Deft's Explanation' he wrote the comment made by the appellant:

8 Constable Davis' subsequently referred to this comment in his evidence. He also read to the court what he wrote in the part headed 'Notes':

Driver wearing grey T-shirt, shorts. Over shoulder seat belt not worn. Attached to seat and operational.

9 In cross-examination, Constable Davis accepted that he could not recall if the door was open or not when he first approached the appellant's vehicle and observed that the appellant did not have a seat belt on. He was asked whether he could have checked the belt to see whether it was in working order by asking the appellant to put the belt on again. Constable Davis conceded that he may have done that but it is clear from the balance of his evidence that he had no actual recollection of that happening.

10 It was put to Constable Davis that the discussion with the appellant regarding the tightness of the belt was about the ease with which the belt came out of the retractable mounting. Constable Davis said that it may have been. He added that it was up to the appellant to tell him whether he was talking about the tightness of it retracting. Constable Davis further said: 'They were his words, so I am not sure exactly what he was referring to.'

11 It was put to Constable Davis that he seemed a little bit vague about some matters. Constable Davis said that it was a year ago but he did not concede that he was vague. However, in his reasons, the magistrate stated that Constable Davis accepted that his recollection on certain matters might have been a bit hazy. The magistrate also stated that Constable Davis accepted he did not see whether or not the appellant was wearing a seat belt prior to the truck being stopped. Constable Davis was not asked that specific question. However, the response attributed to him is implicit in his statement that he first saw that the appellant was not wearing a seat belt when he approached the appellant's vehicle.

12 The appellant's evidence was that he was driving along Eyre Highway and was wearing a seat belt. It was only when he was pulled over that he undid his belt in order to reach across to the passenger's side to obtain his driver's licence and other papers. This was said to be why Constable Davis found that he was not wearing a seat belt when he approached the vehicle and spoke to him.

13 The following is the appellant's account of the conversation with Constable Davis with respect to the seat belt:

Then he said, 'Is there any reason why you're not wearing your seat belt?' I said, 'Well, you pulled me over'. Then he said, 'Can you put it on?' So I reached over and grabbed it and did clicky. I said, 'Oh, the bloody thing is too tight anyway', and put it in. It did work. There was no way I was going to say it didn't fit because I put it on.

14 The appellant was asked what his statement that it was too tight was in relation to. The appellant said that it was about pulling it down. He added: 'It is an uncomfortable thing, but I had it on'.

15 In his evidence-in-chief, the appellant said that he was wearing a grey T-shirt and that the seat belt strap was grey. He answered a series of leading questions to the effect that the seat of the cab sits 1.5 m off the ground and a person standing beside the truck would not be able to see into the truck until they stepped up some steps. The magistrate made the comment that because of the leading nature of the questions the evidence had virtually no value whatsoever. The appellant then gave evidence that a person standing next to the door of the truck would not be able to see inside and would be looking at a closed door.

16 When asked in cross-examination about the initial conversation with police, the appellant agreed that he had said the seat belt was too tight. He maintained that he did not say that it did not fit. He then went on to say that when he was asked why he was not wearing a seat belt he had said: 'You've pulled me over. I'm on the side of the road, parked up'. This latter sentence was something that he had not referred to when first asked about the conversation.

17 In cross-examination the appellant was asked what he had said to the police officer when he was given the infringement notice. The appellant maintained that he said: 'Surely you are not going to give me a $500 infringement for something I wasn't doing'. According to the appellant, Constable Davis then said that his boss had told them to crack down on it and the appellant was going to receive a $500 fine.

18 After recounting Constable Davis's evidence, the magistrate observed that he found that his evidence was very straightforward, honest and given to the best of his recollection. The magistrate added that Constable Davis readily conceded when there were issues that he was not clear about, and readily conceded a number of issues put to him by counsel for the accused.

19 In relation to the appellant's evidence of his conversation with Constable Davis on being given the infringement notice, the magistrate clearly noted that Constable Davis had not been cross-examined regarding this conversation and had not been given a chance to respond to it. The magistrate said: 'One would have expected, if they had been the clear instructions by the accused to his counsel, that that conversation would have been put to constable although, as I said, it wasn't'.

20 The magistrate also observed that Constable Davis had not been challenged in regard to the comment that the seat belt did not fit. The magistrate referred to the submission of counsel for the appellant that the constable had been cross-examined on this evidence but concluded that the first part of the statement that the seat belt was too tight had been challenged but not what the magistrate described as the second and distinct part, that the seat belt did not fit.

21 In the course of his reasons, the magistrate made it clear that he considered that what the appellant said, when challenged about not wearing a seat belt, was crucial. He went on to find that the appellant had said: 'It was too tight. It didn't fit'. He made that finding on the basis that Constable Davis' evidence was clear. He had been asked what was said a number of times and on each occasion he made the same comment. The magistrate also noted that the comment was recorded on the infringement notice. The magistrate added that he found Constable Davis to be honest and straightforward in his evidence and that he was a witness of truth.

22 The magistrate noted that it had been put to Constable Davis that the first part of the statement referred to the retraction of the seat belt. However, the magistrate found that the second part was not challenged and further found that, contrary to the appellant's evidence, it was, in fact, said.

23 In his reasons, the magistrate further expressed the view that the appellant's evidence of what was said when he was given the infringement notice, was also crucial evidence in this case. The magistrate observed that there was no evidence from Constable Davis that there was any protest by the appellant when handed the infringement notice. He also commented that one would expect that, had the appellant been wearing a seat belt, then a protest would inevitably have followed.

24 The magistrate expressed the view that commonsense dictated that, when the allegation was first put to the appellant that he was not wearing a seat belt, if indeed he had been wearing a seat belt he would immediately have protested by saying that he had been wearing one but it was too tight and he had just taken it off. In noting that there was no evidence to this effect, the magistrate observed that the matter was not put to Constable Davis and that Constable Davis had said that the appellant was entirely cooperative. The magistrate found, having regard to Constable Davis's evidence, that there was no protestation made by the appellant in regard to the infringement notice. The magistrate made the express finding that he did not accept the appellant's evidence in regard to the protestation as being truthful and honest.

25 A submission was made to the magistrate by counsel for the appellant that he should find that the comment about the belt being too tight was a comment about the retraction mechanism rather than a reason for not wearing the seat belt. However, the magistrate found that there was nothing in the appellant's evidence to support his comment being about the retraction mechanism. The magistrate further found that the appellant's evidence led him to conclude that it was the seat belt which was too tight when it was done up on him and was, in fact, uncomfortable. In support of that conclusion, the magistrate referred to the appellant's statement when asked why he was not wearing a seat belt when approached by Constable Davis that 'the bloody thing's too tight'. The magistrate also referred to the appellant's further statement that the seat belt was 'an uncomfortable thing' and that it was 'simply too tight'. However, I note that the first comment referred to was made in relation to the closing mechanism.

26 The magistrate's conclusion that the only inference which could be drawn was that the appellant was not wearing a seat belt at the time he was driving was based on three factors. The first was the comment made to Constable Davis that the seat belt was too tight and did not fit. The second was that there was no protestation by the appellant when given the infringement notice. The third basis was the appellant's own comments about how uncomfortable it was to wear the seat belt.

27 For the purpose of clarity, the magistrate went on to state that he did not accept the appellant's evidence that he was wearing a seat belt at the time of driving and that it was inconsistent with the evidence of Constable Davis. He also found that there was no conversation in relation to the infringement notice as alleged by the appellant. The magistrate based that finding on the fact that Constable Davis had not referred to it and that it had never been put to him in cross-examination.

28 In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1, Hunt J noted that the so-called 'rules' in Browne v Dunn have been stated in various ways in the cases and by textbook writers and it is fair to say that there is some room for debate as to their correct formulation (18). However, Hunt J referred to the formulation of Newton J in Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 846 - 848. Newton J noted that the rule in Browne v Dunn has two aspects (846). His Honour observed that in its first aspect the rule in Browne v Dunn is a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties, whilst the second rule is a rule relating to weight or cogency of evidence (846). In identifying the first aspect of the rule, Newton J cited (847) the following words of Lord Herschell in Browne v Dunn:

[I]t seems to me to be absolutely essential to the proper conduct of a cause. Where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses (70 - 71).

29 Newton J observed, in relation to the second aspect of the rule, that it is a rule relating to weight or cogency of evidence (848). His Honour stated that, in this aspect, the rule says no more than that if a witness is not cross-examined upon a particular matter upon which he has given evidence, then that circumstance will often be very good reason for accepting the witness's evidence upon that matter. Newton J considered this proposition to be no more than a matter of commonsense (848). However, Newton J added the following qualification:

I have used the word 'often' advisedly, because if a witness's evidence upon a particular matter appeared in his evidence-in-chief to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might, be of little importance in deciding whether to accept his evidence (848).

30 In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth), Hunt J gave consideration to the need for the rule in Browne v Dunn and to some of the situations in which it applies (22). Hunt J observed (22 - 23) that there are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. His Honour said that firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although, his Honour conceded, this may often be of little value. Secondly, and, according to Hunt J, far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. The third reason to which Hunt J referred was that it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.

31 In many cases, identifying the breach of the rule in Browne v Dunn poses no difficulty. It is the consequence of a breach of the rule upon which there is debate. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth), Hunt J applied the decision of the Court of Appeal in Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419, 426 - 427, that it would in many cases be wrong, unreasonable or even perverse for a tribunal of fact to reject evidence upon which there has been no relevant cross-examination (26). Hunt J expressed satisfaction with the description that it would usually be unfair to reject a witness's evidence where the rule in Browne v Dunn has not been complied with, and where the witness has not otherwise been given the opportunity to deal with a suggestion made for the first time in the final address: Bulstrode v Trimble (848).

32 In Heydon J D, Cross on Evidence (7th Aust ed, 2004) the learned author set out the second proposition in Browne v Dunn:

Secondly, if the witness has not been cross-examined on a particular matter that may be a very good reason for accepting that witness's evidence, particularly if it is uncontradicted by other evidence. But there is no requirement that the court must accept the evidence not the subject of cross-examination; this is so if the evidence is contradicted by other evidence (17,460).

Consistent with Newton J's statement of the second aspect of the rule, it seems from this passage that acceptance by the court of evidence which has not been the subject of cross-examination is not automatic. In Myers v Claudianos (1990) 100 FLR 362, Miles CJ, referring to the second aspect of the rule in Browne v Dunn, observed that it related to the consequences of a breach of the rule and held that 'the consequences of a breach of the rule will vary according to the circumstances' (11). In Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, 507, Samuels JA expressed the view that, while he did not think that it would be right to conclude that the absence of cross-examination entails the acceptance of the evidence given, it certainly enables that evidence to be regarded by any tribunal of fact with a greater degree of assurance than might otherwise have been the case (507). Further in R v Manunta (1990) 54 SASR 17, 23, King CJ expressed the view that there is a serious question as to how much weight should be attached to the omission to put the precise position to the witness. However, his Honour considered that the point was legitimately open for the consideration of the jury.

33 In Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 236, Mahoney JA observed that Browne v Dunn provides an illustration of one of the ways in which a trial may miscarry. His Honour noted that where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore, according to Mahoney JA, as was decided in Browne v Dunn, in such a case a party who has not cross-examined a witness will not normally be entitled to submit in address that the witness's evidence should not be accepted. His Honour added:

But the circumstances of the particular case may negative such an assumption. Whether it is right to make such an assumption will depend upon, for example, whether counsel has at the time, given an adequate reason for not cross-examining the witness or otherwise made it clear that it is not a proper case in which to make that assumption: ibid at 71 per Lord Herschell LC. It may be that the witnesses's evidence is fanciful or such as not to warrant cross-examination: ibid at 79 per Lord Morris; or that cross-examination is foregone for other adequate reasons, for example, delicacy: see Phipson on Evidence, 12th ed, (1976) par 1543 at 618-619 and Halsbury's Laws of England 4th ed, vol 17, par 278 at 194.

34 Mahoney J also noted that failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that the witness's evidence will be contested (236). His Honour added that the nature of the defendant's case and the particulars given, and otherwise the conduct of it, may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter (236). Ultimately, Mahoney J expressed the view that what is to be done will depend upon the circumstances of the case (237).

35 In Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, 372 (Gibbs J, Stephen & Murphy JJ concurring), Gibbs J concluded, in the circumstances of that case, that a jury, acting reasonably, was bound to accept the evidence of a witness which was uncontradicted and unchallenged in cross-examination (371). Precision Plastics Pty Ltd v Demir was a case concerning an employee who lost the use of her right hand in an accident caused by the negligence of her employer, and claimed damages. An important issue for the jury's consideration was how long the respondent would have been likely to remain in employment if she had not received her injuries. In her evidence-in-chief she had said that she intended to work until she was 55 years old. The respondent was not cross-examined on her answer. Gibbs J observed that, if it had been intended to suggest that she was not speaking the truth, she should have been cross-examined on this matter so that she might have had an opportunity of explanation (370 - 371). His Honour referred to the rule in Browne v Dunn in support of his conclusion.

36 Gibbs J noted that the respondent's evidence that she intended to work until she reached the age of 55 was not inherently incredible as she had, in fact, been engaged in employment for most of the time during which she had been in Australia before the accident (371). Gibbs J concluded that the jury, acting reasonably, was bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of 55 years. However, his Honour went on to observe that the jury were entitled to think that she might have changed her mind if her circumstances had altered, or that for one of many reasons she might have been unable to remain in employment for the whole of that period.

37 I have on other occasions expressed the view that the decision of Gibbs J is not authority for the proposition that, in all circumstances, the evidence of a witness on a particular matter must be accepted if the witness was not cross-examined on that matter. Gibbs J expressly recognised inherently implausibility as a basis for declining to accept uncontradicted and unchallenged evidence (371). Further, his Honour considered that the tribunal of fact was entitled to draw a conclusion contrary to the view expressed by the witness on the basis that the witness may have changed her mind about working until 55 years of age, or her circumstances may have altered. In my opinion, it is clear from the decision of Gibbs J in Precision Plastics Pty Ltd v Demir that, ultimately, the question of whether the evidence is to be accepted is for the tribunal of fact and certain factors or circumstances may allow the tribunal of fact to reach a contrary conclusion, notwithstanding the absence of cross-examination.

38 As this is an appeal against a decision of a magistrate, it is necessary to establish the extent to which the rule applies in a court of summary jurisdiction. In Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, Pidgeon J (239 - 240) (with whom Wallwork and Owen JJ agreed), held that the first aspect of the rule applied. Pidgeon J noted (241) that if it is proposed to call evidence to contradict a prosecution witness, then the obligation remains to put to that witness the substance of the evidence to be called where it is anticipated that the defence witness will be called.

39 It was the second aspect of the rule in Browne v Dunn, the consequences of a breach of the first aspect of the rule, with which Pidgeon J expressed concerns. His Honour concluded that the proposition that evidence on a particular matter is accepted in its entirety where no questions are asked has very limited application in a Court of Petty Sessions (241). Pidgeon J considered that the second aspect of the rule did not apply in the following circumstances (241):

(i) if the evidence is seeking to prove an element of the offence, then the plea of not guilty, itself, is notice that the evidence is in contest and it cannot be said that the evidence is being accepted in the event of questions not being asked;

(ii) when the evidence is seeking to prove a fact that is an indispensable intermediate step towards the inference of guilt; and

(iii) matters of which the defendant or proposed defence witnesses have no knowledge or which are not relevant to the facts to be proved.

Ground 1 - the application of the rule in Browne v Dunn

40 Counsel for the appellant submitted that the magistrate took a particularly zealous approach to the rule. The basis for this allegation was the following conduct on the part of the magistrate:

1. The fact that the magistrate paused to take a note of the appellant's answer to a question in cross-examination about whether or not he complained about the infringement;
2. The fact that the magistrate wrongly claimed to the appellant's counsel that she had never asked Constable Davis whether he fitted and attached the seat belt around the appellant;
3. The fact that the magistrate said that it was not put to Constable Davis that the appellant did not say that the seat belt did not fit;
4. The fact that the magistrate claimed that the appellant's counsel did not challenge Constable Davis on his evidence that the appellant's response to being asked why he was not wearing a seat belt was that it did not fit and was told that the error was that of counsel; and
5. The magistrate made the incorrect comment that Constable Davis' evidence that the appellant said 'it didn't fit' was uncontested.

41 In my view, the first allegation is of no significance. Taking a careful note of something said by an accused to have occurred, but which does not appear to have been put to the prosecution witness, is something which could be expected of any magistrate and is something which would be wise to do, either in expectation of a Browne v Dunn point being taken by the prosecution or in order for the magistrate to raise such a point.

42 The second proposition is badly worded. In the course of her closing submissions, counsel for the appellant submitted to the magistrate that Constable Davis did not dispute or refute the suggestion that he asked the appellant, whilst he was seated in the driver's seat, to try to put the seat belt on to see that it fitted and was operational. The magistrate put to counsel that there was no evidence that the seat belt was fitted on to and around the appellant in the presence of Constable Davis. The magistrate then said that Constable Davis was never asked that question: 'Did you fit and attach the seat belt around Mr Anderson?'. Counsel for the appellant advised the magistrate that she had specifically asked Constable Davis if he had the appellant put on the seat belt whilst he was seated in the driver's seat; which is not the same thing. The magistrate then indicated that Constable Davis had conceded that he could have done that. Constable Davis' precise evidence was: 'Yeah, we may have done that as well'.

43 It is clear that, having raised the issue, and notwithstanding some confusion about exactly what had been put to Constable Davis, the magistrate accepted that counsel was correct in her recollection and, having been reminded, then remembered the witnesses' response. It is also the case that the magistrate made no reference to this issue in his reasons for decision. Consequently, it cannot be said that the issue played any part in the magistrate's decision to convict the appellant. Neither can it be said that the exchange to which I have referred evidences a zealous approach to the rule in Browne v Dunn.

44 As to the remaining three propositions, it is correct to say that it was not put to Constable Davis that the appellant did not say that the seat belt did not fit. Indeed, at no time did counsel put to Constable Davis the account given by the appellant, other than to suggest that the statement that the seat belt was too tight was said in the context of testing the retractable part of the seat belt. Counsel for the appellant advised the magistrate that it was her error because she believed that she was challenging Constable Davis' evidence. In my view, counsel did challenge Constable Davis' evidence as to the appellant's response to his question concerning not wearing a seat belt. In order to comply with the rule in Browne v Dunn it was not necessary for her to put every part of the appellant's response to Constable Davis and suggest it was not said. However, in the course of a trial, even one of short duration, it is difficult for any judge or magistrate to recall every question asked by each counsel and every piece of evidence given by each witness. A magistrate can easily have an incorrect recollection and, if that recollection is raised with counsel, it is counsel's obligation to alert the magistrate to the correct position. In my view, incorrectly recalling evidence or the issues raised by counsel is not evidence that the magistrate is being overly zealous. In this case, it does not indicate that the magistrate was doing anything more than properly applying his mind to whether there were Browne v Dunn issues to consider.

45 In support of the submission that the magistrate took a particularly zealous approach to the rule, counsel for the appellant relied on the fact that the prosecution never made any Browne v Dunn points. It is the role of the magistrate to ensure that the charge against the appellant is determined according to law with all relevant legal principles being properly applied so that a fair trial takes place. Matters may arise in the course of a trial where counsel's attitude determines the position taken by the magistrate but, in my opinion, that cannot be so where the matter is one with which the magistrate must deal but which is not addressed by counsel. As I have noted above, the second rule in Browne v Dunn is a rule relating to the weight or cogency of evidence. It is the magistrate's responsibility to determine the weight or cogency of evidence which may, in turn, determine the outcome of a trial. To ignore a principle which affects the weight or cogency of evidence would manifest error on the part of the magistrate. In my view, whether the prosecutor raised Browne v Dunn points is of no relevance in circumstances where a breach of the rule has occurred. The magistrate is required to consider the impact of that breach on the relevant evidence. Consequently, the reference to the magistrate bringing up 'his own Browne v Dunn point' is inapt.

46 Counsel for the appellant further submitted the magistrate misunderstood and misapplied the rule when he concluded that Constable Davis had not been cross-examined on the appellant's allegation that when he was given the infringement notice he said: 'Surely you are not going to give me a $500 infringement for something I wasn't doing'. The appellant said that Constable Davis' response was: 'The bosses have told us to crack down'. It is the case that it was not put to Constable Davis that such had been the appellant's response when handed the infringement notice. The magistrate noted in his reasons that there was no evidence from Constable Davis that there was any protest when the infringement notice was put to him. Constable Davis had said that the appellant was entirely cooperative.

47 Counsel for the appellant submitted that this was not a Browne v Dunn point and no adverse point should have been made by the magistrate. The basis of counsel's position was that the point arose in cross-examination of the appellant by the prosecutor in an endeavour to obtain some favourable evidence for the prosecution. It was said that the evidence was not something that the appellant ever proposed to rely on in contradiction of the evidence of Constable Davis. It was further said that counsel may have thought that the evidence was inadmissible, irrelevant or lacked probative value.

48 One cannot avoid the consequences of failing to give a witness the opportunity to respond to such a statement by suggesting that the appellant never proposed to rely on it or that counsel may have though it inappropriate to lead it. Further, it certainly could not be said that the evidence was inadmissible, irrelevant or lacked probative value. Neither do I see any relevance to the proposition that the point arose in cross-examination of the appellant by the prosecutor, nor to counsel's elaboration on the prosecutor's task that he was endeavouring 'to obtain some favourable evidence for the prosecution'. No doubt the prosecutor was testing the evidence of the appellant as he was entitled to do. However, if the appellant was giving his account of the event, as opposed to inventing responses to difficult questions, then it is to be expected that this account would have been given to his counsel and the relevant prosecution witnesses cross-examined on it. That was not the case here.

49 In R v Manunta King CJ made the following observation in relation to the statement of an appellant that the notes referred to by the detectives were not the notes made by the detective on the day, something which had not been put to any of the detectives in cross-examination (22):

It seems to me that the failure of counsel to cross-examine the police officers on the topic left open the inference that the challenge to the notes was an afterthought on the part of the appellant and was simply a lie told in cross-examination because he thought it would serve his interests.

50 King CJ went on to note that, in the particular circumstances of that case, the cogency of such an inference might be open to question. However, there are no equivalent circumstances in this case which would detract from the cogency of the inference.

51 Strictly speaking, the magistrate did not simply apply the rule in Browne v Dunn, and accept Constable Davis' account of handing the appellant the infringement notice because he had not been cross-examined on this point. This was a case where the failure to put the appellant's account to Constable Davis led to the conclusion that the appellant's account was a recent invention and further led to his evidence being disbelieved. As the magistrate observed:

One would have expected, if they had been the clear instructions by Mr Anderson to his counsel, that the conversation would have been put to Constable Davis, although, as I said, it wasn't.

52 As I have noted above, the magistrate considered that the appellant's evidence of what was said when he was given the infringement notice was crucial evidence in that one would expect that, had the appellant been wearing a seat belt, then a protest would inevitably have followed. In my view, the magistrate was correct in his categorisation of the evidence and the stated basis for it.

53 Consequently, I accept the submission of counsel for the respondent that the magistrate did not prefer the evidence of the prosecution witness solely on the basis of the application of the rule in Browne v Dunn. It was said by counsel that the magistrate compared the evidence of Constable Davis and the appellant and noted that the evidence of the prosecution witness was 'very straightforward, honest and given to the best of his recollection'. The magistrate also noted that Constable Davis readily conceded when there were issues that he was not clear about, and readily conceded a number of issues put to him by counsel for the accused.

54 Clearly, the magistrate found Constable Davis to be a witness of truth and, for that reason, accepted his evidence that there was no protestation made by the appellant in regard to the infringement notice. Further, the magistrate made the express finding that he did not accept the appellant's evidence in regard to the protestation as being truthful and honest and found that there was no conversation in relation to the infringement notice as alleged by the appellant. In my view, that conclusion was open to the magistrate on the evidence and was soundly based.

55 The final issue for consideration is the submission of counsel for the appellant that the magistrate should have accepted that the appellant's trial counsel put to Constable David the substance of the appellant's evidence on his response to being asked why he was not wearing a seat belt. Alternatively, counsel submitted that the magistrate should have accepted without hesitation that it was counsel's error, when so advised by counsel. It was further submitted that the magistrate made another error when he claimed that Constable Davis' evidence that the appellant said, 'it doesn't fit' was uncontested, when it was contested by the appellant.

56 The respondent's response to this issue is that there was nothing said by the magistrate to suggest that he drew an adverse inference against the appellant on the basis of his counsel's failure to challenge the prosecution's evidence in cross-examination that the appellant said, 'It doesn't fit'. It was submitted that the magistrate merely preferred the evidence of Constable Davis.

57 I have already noted that, in my view, Constable Davis' evidence was tested concerning the appellant's response to the question of why he was not wearing a seat belt. The appellant's evidence was that Constable Davis said, 'Is there any reason why you're not wearing your seat belt?'. The appellant said, 'Well, you pulled me over.' According to the appellant, Constable Davis asked him to put the seat belt on, which he did. As he did, the appellant said, 'Oh, the bloody thing is too tight anyway' and clicked the belt into place. The appellant denied that he said, 'It did not fit', although he did say shortly after that, 'It is an uncomfortable thing, but I had it on'. In cross-examination, the appellant admitted that he told the police officer the seat belt was too tight and that this was true. He again denied that he said it did not fit.

58 Constable Davis' evidence was that when he asked the appellant why he was not wearing a seat belt his response was that it was too tight and it did not fit. The seat belt was then checked to make sure it was operational, which it was. In cross-examination it was put to Constable Davis that the discussion about the tightness of the seat belt was about 'the retractable bit'. Constable Davis said that it may have been, but he added that it was up to the appellant to tell him whether he was talking about the tightness of retracting the seat belt. As I have mentioned, it was not put to Constable Davis that the appellant did not say, 'It didn't fit'. Nevertheless, it was clear that his evidence as to the appellant's response to his question was in dispute.

59 In reaching his decision, the magistrate did refer to the failure to challenge Constable Davis concerning the comment that the seat belt did not fit. As I have noted, the magistrate was correct insofar as it was not suggested to Constable Davis that this particular comment was not said. However, I consider that Constable Davis' evidence of the appellant's response was challenged. The magistrate did state that the second part of the statement was not challenged and further found that, contrary to the appellant's evidence, it was, in fact, said.

60 Nevertheless, I share the view of counsel for the respondent that this was not the basis of the magistrate's finding. I have already referred to the statements made by the magistrate in relation to Constable Davis' credibility. The magistrate did observe that he considered that what the appellant said, when challenged about not wearing a seat belt, was crucial. However, in my view, that was said with respect to the importance of the first response to that question rather than to the importance of any Browne v Dunn issue about the response.

61 The magistrate found, as a fact, that the appellant had said, 'It was too tight. It didn't fit'. As I have noted above, the magistrate made that finding on the basis that Constable Davis' evidence was clear and he had been asked what was said a number of times and on each occasion he made the same comment. Further, the magistrate emphasised that the comment was recorded on the infringement notice, which was written at the time. The magistrate added that he found Constable Davis to be honest and straightforward in his evidence and that he was a witness of truth.

62 A submission was made to the magistrate by counsel for the appellant that he should find that the comment about the belt being too tight was a comment about the retraction mechanism rather than a reason for not wearing the seat belt. However, the magistrate found that there was nothing in the appellant's evidence to support his comment being about the retraction mechanism. More significantly, the magistrate further found, based on the appellant's own evidence, that it was the seat belt which was too tight when it was done up on him and was, in fact, uncomfortable. The magistrate also referred to the appellant's statements that 'The bloody thing's too tight', the statement that the seat belt was 'an uncomfortable thing' and that it was 'simply too tight'.

63 In my view, the magistrate's findings were substantially based on credibility issues which he addressed precisely and clearly in his reasons and which he was, without doubt, in the best position to determine.

64 I am not persuaded that there is any substance to this ground of appeal.

65 In addition to the matters set out in the ground of appeal, at the hearing counsel for the appellant raised other matters in support of the submission that the verdict was unsafe and also amplified some of those raised in the ground of appeal. The following is a complete list of all the matters relied upon in relation to this ground of appeal:

(1) The matters relied upon in relation to the first ground of appeal;

(2) The magistrate acted unfairly in relation to the second Browne v Dunn point;

(3) Taking into account (1) and (2) and the fact that the Browne v Dunn points were not submissions from the prosecutor, the magistrate gave the impression of adopting a prosecutorial role;

(4) Two police officers drove past the appellant while his truck was travelling west and never noticed any non wearing of the seat belt;

(5) There was no direct evidence of a failure to wear a seat belt at the time of driving, indeed when Constable Davis drove past the appellant he made no observation about any lack of seat belt;

(6) It was quite plausible and logical for the appellant to take off his seat belt when stopped in order to get his licence papers. The police were in fact interested in licence papers;

(7) The question as to why the appellant was not wearing a seat belt was not cast at the time of driving; it logically referred to the time the appellant was seated in the stationary vehicle;

(8) It was conceded by Constable Davis that the comment of 'too tight' or 'too tight, doesn't fit' occurred in the context of testing the seat belt;

(9) Notwithstanding the allegation that 'it doesn't fit', the testing revealed it did fit in that it 'fastened into the receiver';

(10) The appellant's response, as alleged by Constable Davis, was, at its highest, equivocal, and could not support the inference requested by the prosecution to the necessary standard.

66 With respect to the first three matters, I have already determined in relation to the first ground of appeal that there was no substance to the allegations based on the rules in Browne v Dunn. Further, I have specifically found that the fact that it was the magistrate rather than the prosecutor who raised the Browne v Dunn points is of no relevance in circumstances where a breach of the rule has occurred. Nor, in my view, does it justify the allegation that the magistrate gave the impression of adopting a prosecutorial role. I consider that the magistrate was doing no more than determining the weight or cogency of evidence and ensuring that the charge against the appellant was determined according to law.

67 Matters (4) and (5) address the fact that the appellant was not actually seen by the police to be driving without a seat belt. The only evidence before the court was the evidence of Constable Davis who said in examination-in-chief that the appellant's truck had been travelling west as the police vehicle was travelling east on the same road. Constable Davis said:

So, we would have come past it. Then usually we go back behind, for safety reasons, to park behind.

68 Constable Davis' evidence was that, when he approached the vehicle, he saw that the appellant was not wearing a seat belt. There was also evidence that it was a routine stop for a driver's licence check and a random breath test. There was no evidence that Constable Davis looked at the cab of the vehicle before signalling for it to stop. Neither was there any evidence as to whether it was even possible for the officers to observe, whilst driving, if the appellant was or was not wearing a seat belt. Indeed, the evidence of the appellant was that the appellant's trailer did not have a number plate and he thought this was the reason he had been pulled over by the police.

69 In establishing the charge, the prosecution at all times relied on the appellant's response to the question of why he was not wearing a seat belt. In his reasons, the magistrate expressly referred to the fact that the appellant had not been seen driving whilst not wearing a seat belt. He accepted Constable Davis' evidence of the appellant's response to his question and, in concluding that the prosecution had established the charge beyond a reasonable doubt, relied on that evidence together with the evidence that the appellant made no comment on being handed an infringement notice. A prosecution case based on inference can be as strong as a case based on direct evidence. Looking at these matters separately from the balance of the matters raised, the fact that Constable Davis had not actually seen the appellant driving without a seat belt does not, of itself, suggest that the verdict was unsafe.

70 As to the sixth matter, it is certainly a plausible explanation that, after he had stopped, the appellant took off his seat belt for the purpose of retrieving the vehicle licence papers from the console. However, the fact that there exists a plausible explanation inconsistent with guilt does not, of itself, indicate that the verdict of guilty is unsafe. Again, it depends upon the strength of the evidence in support of the charge.

71 As to matter (7), I do not accept the proposition that the question asked by Constable Davis logically referred to the time the appellant was seated in the stationary vehicle because it was not cast as at the time of driving. It is well known that the police role is to enforce the law. Driving without a seat belt is an offence. Sitting in a stationary vehicle without a seat belt is not. These facts can be expected to be known by all people who hold a driver's licence, as in the case of the appellant. When a police officer stops a vehicle and asks the driver, 'Why weren't you wearing a seat belt?', it is only whether the driver was wearing it at the time of driving that could be of any interest to the officer. Otherwise there would be no purpose to the inquiry. Any different interpretation offends commonsense. Therefore, the only reasonable inference to be drawn is that the appellant was referring to why he had not been wearing a seat belt when he was driving.

72 The eighth matter raised by counsel for the appellant is that it was conceded by Constable Davis that the comment of 'too tight' or 'too tight, doesn't fit' occurred in the context of testing the seat belt. That is not an entirely accurate account of his evidence. The only concession that was made was that the statement 'may have been' said in that context. It is useful to consider the context in which that concession was made, which was as follows:

'...Can I suggest to you that the discussion about the tightness of the seat belt was about the retractable bit? You know how sometimes - I know I've got one in one of my vehicles - it just, you know, is a little bit stubborn sometimes about coming out of its locking mechanism. Do you not recall that particular conversation you had with Mr Anderson?---It may have been. It may have been in the conversation, however, at the end of the day it was working and plugged in, so - - -

Yes, yes. But I think you were saying something about it being too tight, but that was about the tightness or the - of the - the ease, if you like, with which it came out of its retractable mounting. You wouldn't dispute that that might have been the case?---If that is what Mr Anderson said, then - I mean, it's up to him to tell me whether he was talking about the tightness of its retracting, or - - -

Yes?---They were his words, so I am not sure exactly what he was referring to, but - - -

73 It is clear to me from this exchange that the only concession made by Constable Davis was that the appellant may have been referring to the retracting mechanism when he said 'It's too tight', but the officer maintained that the response to his question was as he had indicated in his evidence. That is, Constable Davis was prepared to concede that, in explaining that the seat belt was too tight, the appellant may have been referring to the retracting mechanism, but he was still responding to the question of why he had not been wearing a seat belt.

74 The ninth matter raised was that, notwithstanding the allegation that the appellant said the seat belt 'didn't fit', the testing revealed it did fit, in that it fastened into the receiver. In view of the comments I have made in relation to the previous matter, this observation has no significance. However, it should be observed that the phrase 'it doesn't fit' does not necessarily mean that it does not fit at all. Indeed, the response given in evidence by Constable Davis was: 'It doesn't fit, it's too tight'. Therefore, the fact that the seat belt could be done up is neither here nor there if, in saying that it did not fit, the appellant meant that it was too tight. In any event, counsel for the appellant has entirely overlooked one possible explanation for any difference between the appellant's statement and the fact that the seat belt did fasten into the receiver; that he was not being truthful in his response to the police officer. That mere possibility indicates that the fact that seat belt could be done up, does not support the submission that the verdict was unsafe. That is particularly so where the magistrate has made adverse findings against the appellant with respect to his credibility.

75 With respect to the tenth matter, for the reasons to which I have referred in addressing the seventh matter, I do not accept the proposition that the response was equivocal. In my view, in the circumstances of driving a vehicle on a road and being stopped by a police officer, the response clearly supported the inference found by the magistrate.

76 Having considered each of the matters raised, I am not persuaded that, either individually or collectively, these matters support a conclusion that the verdict was unsafe.

77 The final matter raised on behalf of the appellant in relation to this ground of appeal was that, when one considers the evidence generally, the verdict was unsafe.

78 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 the majority (Mason CJ, Deane, Dawson and Toohey JJ) made the following statement of principle in relation to the proposition that a verdict is unsafe or unsatisfactory:

When asked to conclude whether a decision is unsafe or unsatisfactory, the question which a court must ask itself is whether it thinks that upon the whole of the evidence, it was open to the decision maker of fact to be satisfied beyond a reasonable doubt that the accused was guilty. In answering the question, the court must give consideration to the fact that the decision maker has had the benefit of seeing and hearing the witnesses.

79 This principle has been held to apply to the decision of a magistrate in a summary court: Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nicol [2001] WASCA 180 [25].

80 As to the requirement for the appellate court to give consideration to the fact that the decision maker has had the benefit of seeing and hearing the witnesses, it is well established that an appellate court's role is limited where findings of fact are based on the credibility of a witness. The authorities make it clear that a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against that finding. The finding must stand unless it can be shown that the judge has failed to use, or has palpably misused, his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: DeVries v Australian National Railways Commission and Anor (1993) 177 CLR 472 per Deane and Dawson JJ 479 and per Brennan, Gaudron and McHugh JJ 479; Vrisakis v Australian Securities Commission (1993) 9 WAR 395 448 per Ipp J; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306,307, Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 448

81 As counsel for the respondent submitted, the magistrate clearly applied the right test in reaching his conclusion. He accepted the evidence of the prosecution that the appellant said, 'It doesn't fit, it's too tight', in preference to the appellant's evidence. He stated that if he had accepted the appellant's evidence that would have been the end of the matter. He also stated that, even if he rejected the appellant's evidence, in order to convict he would need to accept the truth of the prosecution witness's evidence and be satisfied that the charge was proved beyond a reasonable doubt . The magistrate further stated that he would need to reach the conclusion that the only reasonable inference open was that the appellant was not wearing a seat belt. In my view, no error has been established in the approach the magistrate took in reaching the conclusion that he did.

82 Most significantly, the conclusion reached by the magistrate was substantially based on his findings of credibility. The magistrate rejected the appellant's explanation that the response 'It's too tight, it doesn't fit' was made in the context of the testing of the seat belt's retraction mechanism rather than with respect to the question of why he was not wearing a seat belt. The magistrate accepted the evidence of Constable Davis as to the response to his question. Constable Davis' evidence was said to be clear, very straightforward, honest and given to the best of his recollection.

83 It is also the case that the magistrate rejected the appellant's evidence that he had complained when given the infringement notice. As I have concluded above, in circumstances where the alleged complaint had not been put to Constable Davis in cross-examination, it was open to the magistrate to conclude that it was a recent invention on the appellant's part. The magistrate preferred the evidence of Constable Davis, which was that the appellant had been entirely cooperative throughout.

84 The magistrate was entitled to make the findings that he did based solely on his view of Constable Davis's credibility. However, this was not the only factor upon which the magistrate relied. As to the issue of the appellant's initial response to the question of the police officer, the magistrate took into account the fact that the response was also recorded in the infringement notice at the time of the offence. Further, as I have noted above, in relation to the first ground of appeal, the magistrate considered that a number of statements made by the appellant, in particular the statement that the seat belt was uncomfortable, led the magistrate to conclude that the seat belt was, indeed, too tight on the appellant when it was done up. These factors supported Constable Davis' version of the conversation.

85 As to the issue of the complaint on receiving the infringement notice, the magistrate noted that neither the fact of the complaint nor the wording of the complaint were put to Constable Davis in cross-examination. In my view, this undermines the appellant's credibility on the issue and supports a conclusion that the evidence was a recent invention.

86 No matter has been put before me which would justify any interference with the magistrate's findings of credibility and, hence, his findings of fact. Therefore, whether the verdict is unsafe must be considered on the basis of those findings of fact. There is then a situation where a police officer stops the appellant's vehicle and asks him why he is not wearing a seat belt and the appellant replies, 'It doesn't fit, it's too tight'. It is also the case that the appellant admits that the seat belt is uncomfortable on him when it is done up and the seat belt is indeed tight. Further, when handed an infringement notice, the appellant makes no complaint and, in fact, is cooperative right throughout his dealing with the police officer.

87 In my view, in those circumstances it simply cannot be said that the verdict of guilty is unsafe. As the magistrate observed:

Indeed, commonsense dictates that when the allegation was first put to Mr Anderson that he wasn't wearing a seat belt, one would have expected Mr Anderson, if indeed he was wearing a seat belt, to immediately protest and to say, 'Well, I was wearing a seat belt but it's too tight and I've just taken it off.' There is no such evidence that Mr Anderson explained to Constable Davis that he was, in fact, wearing a seat belt at the time of driving.

88 In my view, based on the findings of fact made by the magistrate which, in my view, are unaffected by any error on his part, the only reasonable inference which could be drawn from the response made by the appellant, his own evidence that it was uncomfortable, and his failure to make any complaint when being handed an infringement notice, was that he had been driving his vehicle without wearing a seat belt shortly before being stopped by police. In fact, counsel for the appellant conceded that, if the appellant's evidence were rejected, as indeed it was, that inference was one that would be drawn.

89 For these reasons I find no merit in this ground of appeal and would dismiss the appeal.