Criminal law - Appeal against conviction - Road traffic offence - Riding a bicycle without wearing a helmet - Meaning of riding - Exception for religious headdress - Turns on own facts

Criminal Procedure Act 2004 (WA), s 78

Evidence Act 1906 (WA), s 27A, s 79C

Interpretation Act 1984 (WA), s 9

Road Traffic Act 1974 (WA), s 5

1 ALLANSON J: On 18 February 2013 Mr Thomas was issued with a traffic infringement notice for the offence of failing to wear a protective helmet while riding a bicycle on a footpath. He contested the infringement notice and the matter went to trial. Mr Thomas was convicted. He now seeks leave to appeal the conviction.

2 The offence is created by reg 222 of the Road Traffic Code 2000 (WA), which provides:

protective helmet means a helmet that is, or is of a standard or type that is, approved by the Director General, for the purposes of this regulation, by notice in the Government Gazette.

(2) Except as provided in this regulation, a person shall not ride a bicycle on a road or any path unless

(a) that person is wearing a protective helmet securely fastened on his or her head; and

(b) where any other person is being carried on that bicycle, that other person is wearing a protective helmet securely fastened on his or her head.

(3) Subregulation (2) does not apply to a person who

(a) is a member of a religious or cultural group and who is wearing a headdress customarily worn by members of that group, if the wearing of that headdress makes it impractical for a person to wear a protective helmet; or

(b) has been exempted in writing by the Director General from wearing a protective helmet for medical reasons, and is complying with any terms and conditions of that exemption.

3 Mr Thomas applies for leave to appeal on a notice of appeal containing nine grounds, which are essentially about three issues: did the magistrate err in accepting the evidence of the police as to his conduct; on the findings of fact made, was he riding the bicycle; and should the magistrate have found that reg 222(2) did not apply to Mr Thomas. There is no dispute that he was not wearing a helmet.

4 In logical order, the first issue is the findings made by the magistrate, the subject of appeal grounds 6, 7, 8, and 9. Mr Thomas asserts that the magistrate erred in three respects:

1. He refused to allow him to refresh his memory from a document and submit it into evidence: grounds 6 and 7.
2. He made a finding of fact based on inadmissible testimony by a prosecution witness that he had carried out his own experiments to determine whether it was possible to ride a bicycle in the manner alleged: ground 8.
3. His findings were inconsistent with the evidence: ground 9.

5 The document complained about was a diagram prepared by Mr Thomas, in which he had set out where the various people were, and where the police vehicle was parked. In cross examining the two prosecution witnesses, he had challenged their evidence about where they were, and what opportunity they had to observe him. The diagram was attached to a photograph of the area on Barrack Street where the events occurred. The magistrate accepted the tender of the photograph (over objection) but ruled that the diagram was inadmissible.

6 In his grounds of appeal, Mr Thomas suggests that the magistrate excluded the document on the basis of the rule in Browne v Dunn (1893) 6 R 67. That was the basis upon which the prosecution objected to the tender of both the map and the diagram. The magistrate held that the rule in Browne v Dunn was not relevant to whether they were admissible and was no ground to exclude them. The reason he gave for excluding the diagram was that it was prepared 'in anticipation of giving evidence'.

7 The respondent submitted the magistrate may have applied s 27A of the Evidence Act 1906 (WA) which provides that evidence may be given in the form of a chart, summary or other explanatory document 'if it appears to the court that the document would be likely to aid comprehension of other evidence that has been given or is to be given'. I am not satisfied that s 27A would justify exclusion, or that it is why the magistrate ruled the diagram inadmissible. At the stage of the trial when the diagram was tendered, Mr Thomas had only just begun his evidence. It could not be said, at that stage, that he would not have given oral evidence to prove what was summarised in the document.

8 The magistrate may have been referring to s 79C(4)(c) of the Evidence Act. Section 79C generally provides that where direct oral evidence of a fact or opinion would be admissible, any statement in a document tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion. Section 79C(4), however, provides that in any criminal proceedings a statement in a document which was made in the course of, or for the purposes of the preparation of a defence to a charge, shall not be rendered admissible as evidence by the section. Mr Thomas, however, was not relying on s 79C to make the diagram admissible. He introduced it as part of his own oral testimony, much in the same way as a witness may be called upon to draw a map or diagram, or mark positions on a plan.

9 Nothing, however, has been said on the appeal to suggest that the diagram, if admitted, would have made any difference to the result. Mr Thomas gave evidence about where various people were on the day. At one point, the magistrate suggested to Mr Thomas that he might use the photograph, if he wanted to, in order to illustrate what he was saying. He did so. That, as I understand it, was the intended use of the diagram. Even if there was an error in excluding the diagram, it has not been shown to have affected the result.

10 The prosecution case was that Mr Thomas was not astride his bicycle, but next to it. He had his left foot on the right pedal of his bicycle, had both feet off the ground, and was coasting or 'scooting' down the slope of Barrack Street. Ground 8 alleges that the magistrate made a finding based on the evidence of the prosecution witness, Sergeant Steven Michael Kent, that it was possible for Mr Thomas to have been riding the bicycle in that manner. Mr Thomas submits the evidence was inadmissible.

11 The magistrate generally accepted the evidence of the police officers as to what they had seen Mr Thomas doing. He did not refer to the challenged evidence in his reasons, although I am prepared to assume that it might have influenced that finding.

12 I am not satisfied that Mr Thomas has shown error. First, the evidence was not adduced by the prosecution but was given in answer to a question by Mr Thomas in crossexamination. Second, the evidence was not expert opinion for which the witness was required to be qualified. Mr Thomas put to Sergeant Kent that there was no way that a person could actually maintain balance and travel on a bicycle in the manner alleged. Sergeant Kent responded that he had done it himself the day before, and not fallen off. Although he also said that a child could do it, the significant part of the reply was a statement of fact, and not opinion.

13 Ground 9 is more general, alleging that the magistrate made findings in the face of inconsistent evidence, and that the defence evidence showed the evidence of the two police officers to be highly improbable.

14 The magistrate made these general comments about the witnesses:

1. Sergeant Kent was occasionally argumentative in crossexamination, tending to want to engage in why he was correct rather than to respond directly to questions.
2. Sergeant Halligan was particularly impressive. He was willing to concede that he was unable to see Mr Thomas for the whole of the time it was alleged he was on his bicycle, but he was clear about what he did see.
3. Mr Thomas also gave cogent and consistent evidence although there was a question regarding the plausibility of his explanation for why he jumped onto the pedal of his bicycle.

15 The magistrate accepted the evidence of the police officers, and in particular the evidence of Sergeant Halligan. This followed from his findings regarding the credibility of the witness. Mr Thomas has not demonstrated any reason why, on appeal, the court should interfere with those findings.

16 Mr Thomas referred to particular matters that, he submitted, should have led the magistrate to reject the police evidence. First, he submitted that Sergeant Halligan could not have been in a position to see him travel for more than 3 m. In crossexamination, Mr Thomas first suggested to Sergeant Halligan that if he had been speaking to another cyclist, as he said, that took place behind a bus shelter. The officer could not have seen Mr Thomas approaching. He then suggested to the officer that he had been inside the police car, which was stopped on the side of the road, and it was Sergeant Kent who had been speaking to the other cyclist. Sergeant Halligan did not accept either of those propositions and repeated that he would have first seen Mr Thomas when he was about 20 m away. Mr Thomas identified nothing in the evidence that shows that the magistrate erred in believing the police officer.

17 Second, Mr Thomas submitted that Sergeant Kent should not have been believed. He submitted that the officer had given inconsistent evidence by first saying that he asked Mr Thomas why he was not wearing a helmet and then admitting that a helmet was never mentioned in the conversation. The submission is not supported by the transcript. The same can be said about a further submission that Sergeant Kent had said he was on a regular patrol targeting cyclists, but had only spoken to one (Mr Thomas) in three months. That was not the evidence.

18 The balance of the written submission on this ground was expressed intemperately, but lacked substance.

19 Ultimately, his Honour was satisfied that Mr Thomas did place his left foot on the right pedal of the bicycle, and his right foot was off the ground. In that manner he proceeded down the footpath of Barrack Street for at least 10 m, at faster than a walking pace, before he brought the bicycle to a halt. He was satisfied of those matters because he believed the evidence of officers Kent and Halligan. Mr Thomas has not shown that the magistrate was wrong in accepting the evidence of the police officers.

20 On the basis of those findings, the magistrate said there were four significant things that pointed to the 'coasting' being riding. First, the distance travelled was about 10 m. Second, the nature of the movement over that distance involved the use of the wheels of the bicycle as a means of travelling; Mr Thomas was not walking alongside or leading the bicycle. Third, the bicycle was travelling at faster than a walking pace. Fourth, Mr Thomas used the handlebars to control the direction in which the bicycle was moving. Those elements combined satisfied the magistrate that the conduct amounted to riding.

21 The trial proceeded on the basis that the term riding was not defined in either the Road Traffic Act 1974 (WA) or in the Road Traffic Code. There are other definitions which are directly relevant and which, in my opinion, show that the approach of the magistrate was correct.

22 Section 5 of the Road Traffic Act has definitions of drive and driver:

(a) in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle;

(b) in relation to an animal, to be in control of the animal,

regardless of whether the vehicle or animal is usually referred to as being ridden rather than driven;

driver means any person driving a vehicle or animal.

23 Vehicle is also defined in very broad terms. There can be no doubt that a bicycle is a vehicle.

24 The Road Traffic Code at the relevant time defined rider to mean

the driver of, or person riding, a motor cycle, bicycle, animal or animal drawn vehicle, but does not include a passenger or a person walking beside and wheeling a bicycle.

25 Under s 9 of the Interpretation Act 1984 (WA), where a word or phrase is defined in a written law, other parts of speech and grammatical forms of that word or phrase have corresponding meanings. The definition of drive, driver and rider furnish the meaning of ride.

26 Reading those definitions together, the rider of a bicycle would include a person who has control over the steering, movement or propulsion of the bicycle, but not a person walking beside the bicycle and wheeling it. Although the magistrate did not refer to these definitions, his approach is consistent with them. Mr Thomas was, on the magistrate's findings, propelling his bicycle over a distance of at least 10 m, at a pace greater than walking pace, while steering it with the handlebars. He had control over its steering, movement and propulsion. He was not walking beside and wheeling it. The conclusion that he was riding was correct.

27 Grounds 1 to 4 of the proposed appeal challenge the magistrate's finding on the statutory meaning of riding. Mr Thomas challenges the magistrate's reference to United Kingdom authority. He also criticises giving such a broad meaning to the word riding that would effectively criminalise mounting and dismounting a bicycle.

28 First, the magistrate's reference to United Kingdom authority was for a very limited purpose. His Honour was not attempting to define riding in any exhaustive way, but to determine whether what he found Mr Thomas to have been doing came within a normal understanding of riding. His Honour referred to the decision of Coates v Crown Prosecution Service [2011] EWHC 2032, and said that case makes clear that it is necessary to look at all the surrounding circumstances to determine whether or not a person can be said to be engaged in riding. The conclusion that the magistrate drew from Coates is unremarkable. Had he directed himself to the definitions of drive, driver and rider he must inevitably have reached the same result.

29 Second, the magistrate's conclusion was based upon Mr Thomas propelling and steering his bicycle, at greater than walking pace, over a distance. He was not attempting a definition, and there is no substance to the contention that his conclusion would criminalise putting one's foot on the pedal to mount a bicycle.

31 The last issue arises out of the application of reg 222 when Mr Thomas was wearing headdress customarily worn by members of a religious or cultural group.

32 Mr Thomas gave evidence at trial that some weeks after he received the infringement notice he realised that the date on it was the date of his birthday. It then occurred to him that the reason he had not been wearing a helmet was because he would have been wearing a kippah, or Jewish skullcap. Mr Thomas said that he wore a kippah on three occasions in a year, including on his birthday. He would not wear his helmet when he was wearing a kippah, although he also said he would 'not generally' or 'not necessarily' wear it. That, however, was the extent of the evidence.

33 The magistrate found that there was a reasonable possibility that Mr Thomas was wearing a skullcap. He correctly identified the elements of reg 222(3), and proceeded on the basis that it was for the prosecution to negative those elements. The magistrate referred to the evidence of Mr Thomas that his habit was not to wear a helmet with the skullcap.

The prosecution have satisfied me that it was not impractical for him to wear a protective helmet and a skullcap. There is very little evidence about the size there is no evidence about the size of the skullcap, or about its capacity to be - impact upon things like a protective helmet ... In the end, the words of the Road Traffic Code speak about the exemption applying if it is 'impractical' and although there may be religious reasons for not placing anything over the top of the skullcap, in the end the prosecution have satisfied me that it was not impractical for Mr Thomas to wear the skullcap and the helmet.

35 Those findings were, to an extent, generous to Mr Thomas. He had said nothing in evidence (and there was no other evidence) about any religious reason for not placing anything over the top of the skullcap. There was no evidence that wearing it made wearing a helmet impractical. In the absence of any evidence raising the issue, the magistrate was correct to conclude that the charge had been proved.

36 His Honour also briefly adverted to s 78 of the Criminal Procedure Act 2004 (WA) and whether reg 222(3) was an exception, so that Mr Thomas had the burden of proof of that exception on the balance of probabilities. It is unnecessary to decide whether s 78 applies, as that was not the basis upon which his Honour decided.

37 Accordingly, in my opinion, his Honour could properly find that Mr Thomas was travelling in the manner alleged. On that finding, his conduct was riding within the meaning of the Road Traffic Code. There was no evidence to raise the issue of whether the wearing of a skullcap made wearing a helmet impractical, and his Honour correctly held that the charge was proved.

38 I would grant leave on grounds 6 and 7, where I have found that the magistrate may have wrongly excluded evidence of the diagram. But I am satisfied that his Honour's conclusion was correct, and there was no substantial miscarriage of justice. The excluded evidence would not have made any difference. Leave is refused on all other grounds and the appeal is dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THOMAS -v- KENT [2014] WASC 23 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Practice and procedure - Costs - Criminal Appeals Act 2004 (WA) - Public interest factors - Appeal against offence of a regulatory character - Discretion - Turns on own facts

Criminal Appeals Act 2004 (WA), s 14(1)(h)

Appellant to pay respondent's costs fixed in the amount of $1,896

1 ALLANSON J: On 4 February 2014, I dismissed Mr Thomas' appeal against a conviction for riding a bicycle when not wearing a protective helmet: Thomas v Kent [2014] WASC 23. The respondent asked for an order that Mr Thomas pay his costs of the appeal. Because Mr Thomas could not be present at the handing down of the decision, I adjourned the question of costs and invited the parties to make short written submissions.

2 Under s 14(1)(h) of the Criminal Appeals Act 2004 (WA), the court may make an order as to the costs of the appeal. The respondent submitted that the discretion to make an order under s 14(1)(h) is not constrained, but is to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest: see Wilson v McDonald [2009] WASCA 39 (S) [5]. The respondent relied essentially on the consideration that the appellant instituted the appeal, and the respondent was required to respond and incurred costs that would otherwise be met by the public. The respondent referred also to the number of grounds, raising a wide range of issues. That is a matter which goes more to the amount of costs, than whether Mr Thomas should be required to pay them.

3 The respondent also provided a draft bill, inviting the court to fix costs.

4 Mr Thomas relied essentially on public interest factors. He submitted that he had raised important questions about the drafting and interpretation of the Road Traffic Code 2000 (WA), and the appeal had served the public good. He further submitted that in criminal proceedings, where the person accused has no possibility to negotiate or mediate an out of court outcome, it is proper for the State to bear the costs. He submitted that it is against the public interest to award costs in criminal matters, except in exceptional circumstances.

5 Mr Thomas also said that an award of costs might impose hardship. There is, however, no evidence that an award in the sum asked would be an unreasonable burden.

6 The decision in Wilson v McDonald affirms that the ordinary rule that costs follow the event does not apply in criminal proceedings. Martin CJ noted the distinction between appeals regarding the enforcement of the criminal law, and appeals regarding offences that have a regulatory character and may be more analogous to civil proceedings. But I did not understand his Honour to suggest that the 'ordinary rule' applies in appeals on regulatory offences. At [8], Martin CJ discussed the supervisory character of the appellate jurisdiction from magistrates, and the importance of clarification and elucidation of the law a factor present in both 'regulatory' and 'criminal' matters.

7 I have, accordingly, approached this question on the basis that there is no ordinary rule, and have had regard to the following matters. First, Mr Thomas instituted the appeal, and has not succeeded. Second, the appeal involved questions of fact and also two issues of law regarding the Road Traffic Code. Third, I do not agree that there were important questions about the drafting and interpretation of the Road Traffic Code. Essentially, it was a question of the application of the regulations to the facts. In my opinion, there was no matter of particular public importance.

8 In my opinion, this is a proper case for the costs to follow the event and Mr Thomas should pay the respondent's costs.

9 The respondent asks the court to fix costs, and has submitted a draft bill, based on six hours' work, including all preparation, drafting of submissions, and appearance at the hearing. The rate claimed is for a junior practitioner.

10 The power to award a fixed sum avoids the expense and delay of a taxation, but should only be exercised when the court considers that it can determine the amount of the costs fairly. That means the court must have available to it sufficient material that it is confident it can arrive at an appropriate sum: see Brookvista Pty Ltd v Meloni [2009] WASCA 180 [26] [27]; Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 [22]. In a matter like the present, the judge who heard the appeal will often be in a good position to make an assessment of the kind required. I am satisfied that I can.

11 There were nine grounds of appeal, some raising questions of fact. The respondent needed to address each of them. The time claimed by the respondent is reasonable, and the rate appropriate.

The appellant pay the respondent's costs of the appeal, fixed in the amount of $1,896.