AD (A Child) v The Director of Public Prosecutions - [2023] WASC 113

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   AD (A CHILD) -v- THE DIRECTOR OF PUBLIC PROSECUTIONS [2023] WASC 113
CORAM:   FORRESTER J
HEARD:   30 MARCH 2023
DELIVERED          :   11 APRIL 2023
FILE NO/S:   SJA 1081 of 2022
BETWEEN:   AD
Appellant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
For File No:   SJA 1081 of 2022
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE W HUGHES
File Number            :   PE 2840 OF 2021

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction - Whether defence of self-defence raised on evidence - Whether the prosecution negatived self-defence - Whether the magistrate erred in identifying the complainant's harmful act - s 317(1) Criminal Code

Legislation:

Children's Court of Western Australia Act 1988 (WA)

Criminal Appeals Act 2004 (WA)

Criminal Code

Result:

An extension of time in which to appeal is granted
Leave to appeal is granted
The appeal is allowed
The conviction of the appellant is set aside and in lieu thereof a judgment of acquittal is entered

Category: B

Representation:

Counsel:

Appellant	:	E R Zillessen
Respondent	:	R P Arndt

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

BSJ v The State of Western Australia [2023] WASCA 5
Higgins v The State of Western Australia [2016] WASCA 142
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Baden Clay [2016] HCA 35 [55]; (2016) 258 CLR 308
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27

FORRESTER J:

Introduction

On 18 May 2022 in the Perth Children's Court, the appellant was convicted of a charge that on 17 July 2021 he unlawfully assaulted Shane William Martindale Davidson (the complainant) and thereby did him bodily harm contrary to s 317(1) of the Criminal Code.
The appellant was sentenced to an Intensive Youth Supervision Order for a period of three months.
The appellant has appealed his conviction. An extension of time is required.
For the reasons which follow, the appeal should be allowed and a judgment of acquittal entered.

Leave to appeal - statutory framework

Pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act), a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
In exercising the jurisdiction conferred by s 19 of the Children's Court of Western Australia Act 1988 (WA), the Children's Court of Western Australia when constituted so as not to include a judge is a court of summary jurisdiction.
A decision to convict an accused after a trial is a decision which may be appealed.[1]
[1] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[2] meaning that the ground is required to have a rational and logical prospect of succeeding.[3] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[4]
[2] CA Act s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[4] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[5]
[5] CA Act s 14(2).

The trial

The trial took place on 10 May 2022 in the Children's Court. The principal issues at trial were:
(1)whether the appellant assaulted the complainant; and
(2)if so, whether the prosecution had proved that the appellant was not acting in self defence.

Admission

At the commencement of the trial, the appellant admitted that the injury suffered by the complainant constituted bodily harm.[6]

Evidence of the complainant

[6] Transcript, Christopher Hadley-Hawley v AD, Children's Court of Western Australia, 10 May 2022, 4 (Transcript 10 May 2022).

The complainant gave evidence that, on 17 July 2021, he was employed as a security guard at the Butler Central Shopping Centre. He was wearing his uniform which included a security logo on the shirt. At about 12:30 pm, he saw a male (who it was not disputed was the appellant) sitting on the floor, using a socket in the hallway of the shopping centre to charge his phone. The complainant approached the appellant and told him he was not allowed to charge his phone at that power point. The appellant mumbled something in reply and the complainant again told him he could not charge his phone there. The appellant ignored him so the complainant pulled the charger from the socket[7] and handed it to the appellant.[8]
[7] Transcript 10 May 2022, 8 - 9.
[8] Transcript 10 May 2022, 10.
The complainant said he then told the appellant to get up off the floor and pointed to some seating in the middle of the mall, telling him he could sit there.
The complainant said that the appellant then started to tell him he was racist, even though he hadn't said anything in relation to the appellant's skin colour. The appellant became agitated, with his voice getting louder. The complainant said he told the appellant if 'he did not like it he could leave the shopping centre'.[9]
[9] Transcript 10 May 2022, 9.
The complainant said he started walking away to avoid conflict, but the appellant started moving towards him and next to him and filming him with his phone, saying he didn't have to follow instructions. The complainant said he told the appellant to leave the premises, claiming he had authority to do so on the basis that the appellant was being 'antisocial' and 'not following instructions'.[10]
[10] Transcript 10 May 2022, 10.
The complainant said that they went up to the middle of the mall, at which point 'it started to get a bit more rowdy'. When asked what he meant by 'rowdy', he said that the appellant kept on saying the complainant was racist and that he (the appellant) did not have to follow instructions.[11]
[11] Transcript 10 May 2022, 11.
The complainant said he tried to usher the appellant to the side door and he ended up on the floor. He said he did not remember how he got onto the floor 'other than I think he tackled me'.[12]
[12] Transcript 10 May 2022, 10.
The complainant suffered two fractured ribs and two fractures in the tail bone. He was taken to hospital by ambulance.[13]
[13] Transcript 10 May 2022, 11.
The prosecution tendered:
(1)CCTV footage from the shopping centre - exhibit 1;
(2)CCTV footage from the BWS - exhibit 2;
(3) a bundle of 6 photographs (screenshots from the shopping centre CCTV footage) - exhibit 3;
(4)a bundle of 6 photographs (screenshots from the BWS CCTV footage) - exhibit 4;
(5)a bundle of 10 photographs (screenshots from the shopping centre CCTV footage) - exhibit 5;
The complainant identified the person with whom he had this altercation on exhibit 1. He identified himself calling the police in screenshot 1 of exhibit 3. In screenshot 6 of exhibit 3, he said that it showed the appellant holding up his right arm, holding a phone. The complainant said he was trying to block the phone because he didn't want the appellant to film him.[14]
[14] Transcript 10 May 2022, 15 - 16.
The complainant said that screenshot 1 in exhibit 4 again showed him using his left arm to attempt to block the appellant from filming him.[15] He did not recall having any contact with the appellant except when he put his hand on the appellant's shoulder.[16] He indicated that in screenshot two of exhibit 4, he had one hand on the appellant's shoulder and one on the appellant's arm and was using this contact to try to usher the appellant out the door.[17]
[15] Transcript 10 May 2022, 17.
[16] Transcript 10 May 2022, 17.
[17] Transcript 10 May 2022, 17.
The complainant acknowledged that in screenshot 3 of exhibit 4 he appeared to 'have his arm', meaning the appellant's arm, and said he was trying to usher him outside the door.[18] This was also shown in screenshot 7 from exhibit 5.[19] The complainant said that screenshots 10 to 16 of exhibit 5 showed the appellant bringing him to ground.
[18] Transcript 10 May 2022, 18.
[19] Transcript 10 May 2022, 19, 21.
In cross examination, the complainant denied being angry, annoyed or rough when he pulled the plug out of the wall. When asked whether he followed the appellant toward Woolworths, he said he was 'going up to Woolworths to just watch Woolworths' but denied following the appellant, saying they were just going in the same direction.[20]
[20] Transcript 10 May 2022, 24.
When asked if the appellant was laughing as they were walking towards the exit, the complainant said he was 'being silly'. He said he wouldn't call it laughing but that the appellant was 'agitated, being angry'. He said he couldn't remember if the appellant was laughing.
The complainant agreed he perceived the appellant was filming him and said he did not believe the appellant was taking a selfie, although he conceded that in screenshots 1 and 2 in exhibit 3 the phone was not directed at him.[21]
[21] Transcript 10 May 2022, 24 - 25.
The complainant was asked whether the following events occurred during the altercation outside of Woolworths:
(1)the appellant was laughing when walking towards the exit;[22]
(2)the complainant said, 'Do you want to take a photo? Take a photo' to the appellant;[23]
(3)the complainant called the appellant a 'ratbag', said to the appellant, 'keep going; I will smash the phone' and 'I don't care. What are you going to do? Hey, what are you going to do?';[24] and
(4)the appellant raised his hand and took steps away from the complainant.[25]
[22] Transcript 10 May 2022, 24.
[23] Transcript 10 May 2022, 25.
[24] Transcript 10 May 2022, 29.
[25] Transcript 10 May 2022, 36.
The complainant said he could not remember any of these events, but after being shown footage taken on the appellant's phone at the time of the incident, agreed that they did occur. He agreed that prior to the statement in (2), he could not be seen in the footage.[26]
[26] Transcript 10 May 2022, 27.
When asked whether he reached over the appellant's shoulder and tried to grab the phone, the complainant denied this, saying that he was trying to block being filmed.[27]
[27] Transcript 10 May 2022, 30.
The complainant acknowledged that the footage showed him grabbing the appellant's arm,[28] the appellant moving away from him and him moving towards the appellant.[29]
[28] Transcript 10 May 2022, 31.
[29] Transcript 10 May 2022, 35 - 38.
The defence tendered:
(1) the footage from the appellant's phone - exhibit 6; and
(2) a screenshot from the footage from the appellant's phone - exhibit 7.

Evidence of Ms Vanessa Rasanen

Ms Rasanen gave evidence that she was at the Butler Central Shopping Centre at the time of the incident, sitting on some chairs in the middle of the mall facing Woolworths.[30] She saw a security guard (who it was not in dispute was the complainant) following the appellant about a metre behind him. She described the complainant as 'pursuing' the appellant. He appeared to be trying to make him walk towards the exit, gesturing with his hands.[31]
[30] Transcript 10 May 2022, 40.
[31] Transcript 10 May 2022, 41 - 42.
She did not see any contact between them until they were right next to where she was sitting, at which point, the complainant placed his hand on the appellant's right shoulder and tried to turn the appellant to face him. She heard the complainant say something to the effect of 'look at me when I talk to you'. As the appellant turned around to face the complainant, the complainant took a step back, tripped over his own feet and fell backward. Ms Rasanen said the appellant did not touch the security guard.[32]
[32] Transcript 10 May 2022, 41 - 43.
Ms Rasanen identified herself as being shown in exhibit 5, screenshot 8.[33]
[33] Transcript 10 May 2022, 43.
In cross examination, Ms Rasanen described the complainant's demeanour as aggressive and authoritarian. She agreed the appellant was calm and was walking towards the exit without incident or drama. She saw the complainant grab the appellant's arm. She said she saw the appellant take several steps backwards, and that she saw the complainant advance towards the appellant. He didn't then have a hold of the appellant.[34]
[34] Transcript 10 May 2022, 45 - 46.
At some point in the altercation, she heard someone call out 'stop, leave me alone'.[35]

Evidence of Probationary Constable Christopher Desmond James Hawley

[35] Transcript 10 May 2022, 46.

Constable Hawley attended the shopping centre with First Class Constable Kelly Crowe. He took an account of what had occurred from the complainant, collected CCTV footage from the shopping centre and BWS. He also took an account from the appellant, which Constable Crowe recorded on her body worn camera.[36]
[36] Exhibit 8.
The appellant immediately showed the footage which became exhibit 6 to the officers, and told them that the complainant said he would smash his phone. The police said they had seen the footage, and then questioned him under caution. The appellant said that he was charging his phone and the complainant called him ratbag scum. He sat down and the complainant told him he couldn't sit there. He got up and moved and started recording. The complainant hit his back and shoulder. The complainant said he was going to smash the appellant's phone. The appellant said the complainant 'lost his footing, backwards'.
The appellant then demonstrated the complainant tried to put his 'hands around me', showing his own arm around his neck, and the appellant said he moved back. He then said the complainant lost his footing, and demonstrated a slipping motion. The police said the footage looked as if the appellant had 'tackled him' and the appellant asked if they meant when he moved his arms (in a manner he then demonstrated similar to that on the footage at the moment immediately before the complainant went to ground). The officer confirmed that was what she was referring to, and the appellant asked, 'Was that when I pushed back?' and motioned taking a big step backwards. He then said, 'self-defence [indistinct] my behalf.' The officer asked what his intentions were when he took the complainant's legs out from under him, and the appellant said 'self-defence, he put his arms on me…I wasn't trying to assault him, he was trying to assault me.' He said, 'He tried to put his hands on me, I pushed back'. He demonstrated being bent at the waist and moving backwards and the complainant then losing his footing, backwards.
On 27 July 2021, the appellant attended the police station and participated in an electronic record of interview.[37]
[37] Exhibit 9; Transcript 10 May 2022, 49 - 52.
When the appellant expressed a reluctance to participate in this record of interview, he was told that the interview was important, because what he said in his interview at the scene was inadmissible.[38] However, the appellant did not challenge the admissibility of the record of interview on this basis.
[38] Transcript, Electronic Record Of Interview, 27 July 2021, 12 (EROI transcript).
In the record of interview, the appellant claimed that the complainant was saying racist stuff. When later asked to say what that was, he said that the complainant said to him, 'If you were working at the Reject Shop, I'd tell them not to hire you.'[39] He also said that the complainant called him a ratbag. The appellant said that the complainant put his hands on him and he acted in self defence. He said:
I put him in like, a frontwards choke hold. A frontwards choke hold. I pushed back. Can I just demonstrate right now? So see the position I'm in right now? I'm in a frontwards choke hold, I pushed back, that's why I pushed back, on my instincts. That's what I did.[40]
[39] EROI transcript, 15.
[40] EROI transcript, 13.
As he said this, he demonstrated an arm hooked around his neck, and then bent down and pushed backwards. He claimed that the complainant was punching his back[41] and tried to take his phone and smash it.[42]
[41] EROI transcript, 15.
[42] EROI transcript, 15.
The appellant was asked if the complainant said, 'Yes you can record me?' The appellant answered 'Yes, you can record me, the guy?' but he was clearly repeating the question, not suggesting he had permission.[43]
[43] EROI transcript, 15.
The appellant said that he was filming because CCTV doesn't have sound. He said that he was standing in front of the complainant, he put the appellant in a choke hold, and he (the appellant) pushed back. He said he wasn't swearing, he wasn't angry, he was in a calm state.[44]

Prosecution submissions

[44] EROI transcript, 19.

The prosecutor relied on the CCTV footage of the incident and evidence of the complainant to establish that the appellant tackled the complainant by bending down, grabbing the complainant around the waist and legs, and driving him backwards towards the ground.[45]
[45] Transcript 10 May 2022, 56.
The prosecution submitted that self defence was negatived because there was no unlawful harmful act on the part of the complainant preceding that assault. Further, self defence was negatived because tackling the complainant to the ground was not a reasonable response in the circumstances as the appellant believed them to be.[46]
[46] Transcript 10 May 2022, 53.
The prosecution submitted that Ms Rasanen was plainly mistaken as to her observations, and her evidence should be regarded as unreliable.[47]
[47] Transcript 10 May 2022, 54.
The prosecutor submitted the appellant's credibility was impacted by the presence of lies in his video record of interview. The prosecutor particularised those lies as:
(1)he asserted he had consent to record the complainant;
(2)he said that he pushed the complainant and he fell over.[48]

Defence submissions

[48] Transcript 10 May 2022, 54 - 55.

Defence counsel submitted that the complainant was an unreliable witness. She relied upon the footage which formed exhibit 6 as to the behaviour of the appellant and the complainant. She submitted that the complainant committed at least five harmful acts, namely:
(1)threatening to smash the appellant's phone;
(2)saying, 'I don't care. What are you going to do? Hey, what are you going to do?' which was capable of being perceived as a challenge;[49]
(3)reaching over the appellant's back to try and grab the appellant's phone;
(4)grabbing the appellant's arm, despite the appellant moving away; and
(5)trying to grab the appellant's other arm.[50]
[49] Transcript 10 May 2022, 57.
[50] Transcript 10 May 2022, 58.
Counsel argued that the prosecution had particularised the assault as the appellant grabbing the complainant's legs and sweeping them out from underneath him, and that the evidence did not support such a finding, or that the appellant intentionally engaged in such conduct.
In the alternative, defence counsel submitted that the prosecution had not disproved self-defence, because the complainant's conduct towards the appellant was unlawful.[51] Further, she argued that the prosecution had not proved that the appellant's conduct was not reasonable in the circumstances as the appellant believed them to be.[52]

Reasons for decision

[51] Transcript 10 May 2022, 61 - 62.

[52] Transcript 10 May 2022, 62 - 63.

Her Honour handed down her decision on 18 May 2022, finding the appellant guilty of the offence charged.
Having given herself the standard directions,[53] the learned magistrate found that exhibit 1 showed the complainant and the appellant walking towards the Woolworths. The complainant was walking behind the appellant, standing very closely to him. They appeared to be talking. As they got to the middle of the mall, the complainant reached his hand across the appellant's shoulder. While she was unable to say for certain whether the complainant was trying to grab the phone or stop the appellant filming, it appeared he was trying to grab the phone.[54]
[53] Transcript, Christopher Hadley-Hawley v AD, Children's Court of Western Australia, 18 May 2022, 4 - 6 (Transcript 18 May 2022).
[54] Transcript 18 May 2022, 10.

The learned magistrate found that exhibit 2 showed the appellant taking three steps backwards as the complainant held his right forearm. The appellant bent down and, holding the appellant's right knee with his left hand, they both fell, with the appellant landing on the complainant.
Her Honour directed herself as to self-defence in an orthodox manner.[55]
[55] Transcript 18 May 2022, 11 - 12.
Her Honour found that aspects of the appellant's account to police were untruthful, such as the appellant's claims in his interview that the complainant was saying racist things, that the complainant had him in a choke hold, and that while the complainant had him in the choke hold, he stepped backwards.[56] Accordingly, the magistrate only accepted the parts of his account which were consistent with the CCTV footage.[57]
[56] Transcript 18 May 2022, 13.
[57] Transcript 18 May 2022, 13.
Turning to the remainder of the evidence, her Honour found the complainant to be a poor witness in terms of reliability and honesty. By his own admission, he could not recall a lot of the details of the incident and was reluctant to concede certain things even when presented with evidence of them. While her Honour accepted the basic parts of the complainant's evidence as to their interaction, she preferred the evidence of the CCTV footage about what happened.[58]
[58] Transcript 18 May 2022, 14.
The learned magistrate considered Ms Rasanen's evidence to conflict with what could be seen in the CCTV footage, and found her evidence to have been generally unreliable. Accordingly, her Honour put Ms Rasanen's evidence to one side, except for her observations that the appellant was calm, and that the complainant was closely following the appellant.[59]
[59] Transcript 18 May 2022, 14.
Her Honour determined that the appellant was not aggressive or 'rowdy' but that his behaviour might have been found by the complainant to be annoying and disrespectful. The complainant was walking unnecessarily close to the appellant. Outside Woolworths, the complainant swiped at the appellant's phone. The complainant then came around the appellant and held first his right arm and then both arms. The learned magistrate was unable to determine the purpose of him holding the appellant.[60]
[60] Transcript 18 May 2022, 15.
There was a struggle, during which the appellant took three steps backwards. He then bent down, grabbed the complainant's knees, pulled them backwards and drove forward causing the complainant to fall forward.[61]
[61] Transcript 18 May 2022, 15.
The learned magistrate determined that there was no evidence that the 'arm grabs' by the complainant were lawful.[62] Even if the complainant was using that hold to escort the appellant out of the building, it was excessive to the threat posed by the appellant at that stage.[63]
[62] Transcript 18 May 2022, 15.
[63] Transcript 18 May 2022, 15 - 16.
In her reasons the magistrate found:
[The appellant] does not really say in his interview why he believed it was necessary to do what he did, because at times, he denies deliberately driving [the complainant] to the ground; however, even if I was satisfied that [the appellant] subjectively believed that driving [the complainant] to the ground was necessary, and that he believed it to be reasonable because of [the complainant's] behaviour towards [the appellant], I'm not satisfy (sic) that, objectively, there are reasonable grounds for [the appellant]'s belief that driving [the complainant] to the ground was necessary to defend the arm hold, nor am I satisfied that, objectively, there are grounds for [the appellant]'s belief as to those circumstances.
Driving [the complainant] to the ground was a deliberate act by [the appellant]. I find that it was not a reasonable response. [The appellant] could have put his phone away. He could have stopped resisting. In assessing the objective reasonableness, I have specifically taken into account and (sic) just reasonableness by a person of the same age, background and level of education as [the appellant], who was familiar with all the circumstances that were known by him at the relevant time; therefore, I find that the prosecution have negated self-defence, and I find [the appellant] guilty on the basis of excessive self-defence.[64]
[64] Transcript 18 May 2022, 16.

Application for extension of time

The appeal was filed 5 months out of time. The delay has not been satisfactorily explained, but the affidavit filed in support of the application for an extension of time indicates that the appellant first sought funding for an appeal on 7 July 2022.
As such, the delay is not attributable to the appellant. In those circumstances, I will determine the application for an extension of time depending on the merits of the appeal.

Grounds of Appeal

The appellant appeals his conviction on two grounds:
(1)Having regard to the evidence the verdict of the learned Magistrate is unreasonable or cannot be supported.
Particulars
(i)The evidence does not support a finding beyond reasonable doubt that the harmful act of the appellant was not an objectively reasonable response to the harmful act of the complainant in the circumstances as the appellant subjectively believed them to be; and
(ii)The evidence does not support a finding beyond reasonable doubt that there were not reasonable grounds for the relevant subjective beliefs of the appellant; and
(iii)The finding of the learned Magistrate that the appellant could have put his phone away or stopped resisting in response to the harmful act of the complainant was unreasonable.
(2)The learned Magistrate erred in fact and in law by identifying the harmful act of the complainant as "the arm hold" and by failing to properly identify the harmful acts of the complainant towards the appellant that occurred prior to the harmful act of the appellant.

Ground 1

The principles which apply to a ground that a verdict is unreasonable and cannot be supported having regard to the evidence are well settled. In Wells v The State of Western Australia,[65] the Court of Appeal summarised those principles, derived from the decision of the High Court in M v The Queen:[66]
(1) the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[65] Wells v The State of Western Australia [2017] WASCA 27 [13] - [14].
[66] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 495.
The same principles apply by analogy to a trial before a magistrate.[67]
[67] The State of Western Australia v Olive [2011] WASCA 25 [44].
The appellant submitted that:
It was not open for her Honour to find that the appellant deliberately drove the complainant to the ground, given that the complainant maintained his hold on the appellant during his fall, and given the State did not allege in their opening that the appellant drove the complainant to the ground, but opened on the basis the appellant had pulled the complainant's legs out from under him and later described this as 'tackling him to the ground' in their closing.[68]
[68] Appellant's Outline of Submissions filed 17 February 2023 [67(v)] (Appellant's submissions).
The appellant conceded this is one possible explanation for the way in which the complainant came to be on the ground, but the struggle was taking place in a 'dynamic context' and it was not clear from the evidence that the appellant intentionally pushed the complainant to the ground.[69]
[69] Appellant's submissions [67(vi)].
The appellant argued that it was not open for the learned magistrate to be satisfied beyond reasonable doubt that the actions of the appellant constituted an unreasonable response, particularly considering the appellant's age, or that there were not reasonable grounds for the subjective belief of the appellant that his act was necessary to defend himself.[70]
[70] Appellant's submissions [66].
The respondent conceded that there was no evidence that the complainant's grabbing of the appellant's arm/s was lawful.[71] It submitted that, on the evidence most favourable to the appellant, his harmful act was pulling the complainant up by the knee or knees, that the appellant lost his balance as the complainant was falling backwards, and as a result the appellant fell on top of the complainant.[72] This was contrary to the account the appellant gave in his electronic record of interview and the CCTV. As a result, the respondent submitted, her Honour was entitled to reject the appellant's account.[73]
[71] Respondent's Outline of Submissions filed 13 March 2023 [11] (Respondent's submissions).
[72] Respondent's submissions [18].
[73] Respondent's submissions [21].
The respondent argued that it was implicit in the learned magistrate's decision that the appellant had not discharged the evidentiary onus to raise self defence.[74] Relying on R v Baden Clay (Baden Clay)[75] and BSJ v The State of Western Australia[76], the respondent submitted that, in the absence of any evidence that the appellant believed that the harmful act that he in fact did was necessary in order to defend himself, this finding was correct. As such, the respondent submitted that the verdict was not only reasonable, but was the only conclusion open.[77]
[74] Respondent's submissions [16].
[75] R v Baden Clay [2016] HCA 35 [55]; (2016) 258 CLR 308, 326.
[76] BSJ v The State of Western Australia [2023] WASCA 5.
[77] Respondent's submissions [27] - [32].
In my view, this is a matter in which, even if the appellant's own account did not raise the issue of self-defence, the totality of the evidence did, and the learned magistrate formed the same view, demonstrated by her Honour's finding:
[The appellant] has raised self-defence on the evidence. It is, therefore, for the State to negative the defence by excluding at least one of its elements beyond reasonable doubt.[78]
[78] Transcript 18 May 2022, 12.
Unlike in Baden Clay, the appellant did not deny that an incident occurred at all. He gave an account at the scene, and a further account in his record of interview, in which he claimed he was acting in self‑defence.
The learned magistrate rejected the appellant's account insofar as it was inconsistent with the CCTV footage, on the basis that some aspects of his account were untruthful. Similarly, she was not prepared to rely on aspects of the evidence of either the complainant or Ms Rasanen where it conflicted with the CCTV evidence.
However, that did not mean that there was no evidentiary basis for self-defence. At all material times, the appellant claimed to be acting in self-defence; that the complainant put his hands on him and he defended himself. The learned magistrate's rejection of the appellant's account insofar as it was inconsistent with the CCTV footage did not detract from this claim; it simply meant that there were some factual differences as to what physical actions occurred. Further, as the State conceded at the hearing of the appeal, in many respects, the appellant's account was consistent with the CCTV footage, and the footage contained in exhibit 6.
As the court recognised in Higgins v The State of Western Australia,[79] there are cases in which, even where an accused gives an account inconsistent with a defence, the leaving of that defence is not necessarily precluded. The test is whether there is evidence which, when taken at its highest in favour of the accused, could lead a tribunal of fact to have a reasonable doubt on the basis of that defence.[80] In my view, even if all of the appellant's account was properly rejected, there was an evidentiary foundation on the basis of the CCTV which required the prosecution to negate self-defence.
[79] Higgins v The State of Western Australia [2016] WASCA 142.
[80] Higgins v The State of Western Australia [2016] WASCA 142 [24].
Accordingly, contrary to the State's submissions, in deciding ground 1 it is incumbent on me to consider the evidence in relation to self-defence and whether it was open to the learned magistrate to find that it had been negated.
In my view, given the availability of the CCTV footage, exhibit 6, and the issues which were ultimately to be determined, this is not a case in which the learned magistrate's opportunity of hearing and seeing the witnesses provided her Honour with a significant advantage over an appellate court tasked with reviewing the evidence.
This is because the complainant did not claim to know how he came to be on the ground, and exhibit 6 showed most of his conduct leading up to that point. Further, the evidence of Ms Rasanen was so at odds with what was shown on the CCTV that her evidence was of no probative value in relation to the issues of what occurred or self‑defence. The accused's accounts were given solely by way of audio visually recorded interviews. In short, matters of credibility arising during the evidence of witnesses had little bearing on the determination of the facts in issue.
In my view, the accounts given by the appellant in both the body worn camera interview and the electronic record of interview on 27 July 2021 were consistent with each other. Further, in my view, they were not wholly inconsistent with the CCTV footage.
The critical parts of the CCTV footage showed the complainant to reach over the appellant's shoulder. The appellant turned to face the complainant. The complainant reached for and grabbed the appellant's arm, and the appellant backed away, still being held by the arm by the complainant, who in turn continued to reach in the direction of the appellant's phone. The appellant then bent at the waist and reached so that at least one of his arms was around the complainant's legs at knee level. At the same time, the complainant's arms appeared to be at, and to some extent around, the appellant's shoulders or neck.[81] The two then fell to the ground; the complainant backwards, and the appellant forward on top of the complainant.
[81] Exhibit 2, 12:36:06.
Towards the end of his electronic record of interview, the appellant was shown one section of CCTV footage. He asked if there was another angle and he was told that there was not at that time. It was put to him that the complainant cannot be seen to put the appellant in a headlock. The appellant was asked what his purpose was in grabbing the complainant's legs and responded:
I already explained this bit. He put his hands in front of my head and from the position the camera was facing this way, the camera's there, he put his hand - I don't know how to say it, front choke - I don't want to speak to you now because you guys think I'm lying.[82]
[82] EROI transcript, 30.
Since then, the second piece of CCTV footage has been obtained. However, due to the distance the appellant and complainant were from the camera, the camera angles, and the dark clothing of the two, it is not possible to determine in either section of footage whether the complainant's arms came into contact with the appellant's upper body/neck area and, if so, exactly when. However, it is not possible to exclude such contact either.
To that extent, therefore, the appellant's account of being placed in a forward choke hold cannot be excluded, although he was plainly wrong when he told the police that he was standing when the complainant put him in a forward choke hold.
It is important to acknowledge the speed at which events unfolded, and the fact that the appellant's demonstration of what occurred was necessarily affected by the fact that he was demonstrating it on himself. Further, even when the appellant was shown the footage, there was a lack of precision in the questioning, and the account elicited from the appellant.
In my view, having regard to those factors, there is no basis for drawing the inference that the discrepancies between the appellant's accounts and the CCTV footage were as a result of the appellant being untruthful, as opposed to being the product of mistaken recollection.
The learned magistrate also took into account, adversely to the credit of the appellant, that the appellant had been unable to identify what the complainant had said to him that was 'racist'. However, in his interview, he explained that his assertion that the complainant was 'saying racist stuff'[83] was based on the complainant's statement, 'If you were working at the Reject Shop, I'd tell them not to hire you' and the fact that the complainant called the appellant a 'ratbag' but then he said, 'but I wouldn't say racist is like that.'[84] He wasn't asked to explain that statement, but when he was asked if he would deem those things racist, he said 'Oh, at first, yeah.'[85]
[83] EROI transcript, 11.
[84] EROI transcript, 15, 19.
[85] EROI transcript, 19.
In my view it is not open to make an adverse finding as to the appellant's credit based on his allegation. Had the appellant been trying to embellish his account, or improperly accuse the complainant, he could easily have alleged a more explicit statement on the part of the complainant. On the other hand, there are many factors which might explain why the appellant perceived the complainant's conduct towards him as he said he did. The fact that, as a 15 year-old, and with limited opportunity to do so, he was unable to articulate those reasons more clearly is unsurprising.
The learned magistrate stated that her decision to reject the appellant's account insofar as it was inconsistent with the CCTV footage was due to the adverse inferences she had drawn as to his credit. However, it was inevitable, regardless of any credit findings, that her Honour would prefer what was shown on the CCTV footage to any differing witness account.
What does follow from a finding that adverse credit findings in relation to the appellant are not open on the evidence is that the appellant's account, where it does not conflict with the CCTV footage, is not to be rejected. Importantly, it is part of the evidence which can be considered in the interpretation of parts of the CCTV footage which are unclear.
As the learned magistrate correctly stated, in order to disprove self-defence, the State was required to prove one of the following:
(1)that the appellant did not believe, subjectively, that his harmful act was necessary to defend himself from the complainant's harmful act;
(2)that the appellant's harmful act was, objectively, not a reasonable response to the circumstances as believed by the appellant;
(3)that there were no reasonable grounds for the appellant's belief that his harmful act was necessary to defend himself; or
(4)that there were no reasonable grounds for the appellant's belief as to the circumstances.

At the hearing of the appeal, the State conceded that, in the event that the appellant was found to have discharged the evidentiary onus to raise self-defence, the only one of the four elements of self-defence the evidence was capable of proving beyond reasonable doubt was that the appellant's harmful act was not a reasonable response to the circumstances as the appellant believed them to be.
The State has conceded that, on the evidence most favourable to the appellant, his harmful act was pulling the complainant up by the knee or knees, that the appellant lost his balance as the complainant was falling backwards, and as a result the appellant fell on top of the complainant.[86]
[86] Respondent's submissions [18].
As was accepted by the State, this is necessarily a concession that there was an alternative inference reasonably open which was contrary to the finding of the learned magistrate that the appellant deliberately drove the complainant into the ground. In my view, in light of the CCTV footage and the appellant's explanation, that concession was properly made.
It is possible that the appellant did deliberately drive the complainant to the ground. However, it is also possible that the appellant was pushing back against the force being used by the complainant, who had been pushing him towards the exit. Even in circumstances in which the learned magistrate had rejected the appellant's account, there was no basis for choosing one interpretation over the other, because apart from the appellant's evidence, there was no other witness account which dealt with this part of the incident. The appellant said he 'pushed back' and 'moved backwards' while he was being held.[87]
[87] EROI transcript, 13.
If the appellant's account is not rejected it simply adds support to the inference more favourable to him.
In those circumstances, it is appropriate to proceed on the basis that the appellant's harmful act was pulling the complainant's knees up while pushing back against the complainant.
The appellant admitted engaging in that conduct. He told the police in the body worn camera interview, demonstrating the same motion which can be seen on the CCTV, that he was defending himself. He did not say why he thought that conduct was necessary to defend himself, but he was not asked that question at any point. He said in his record of interview that it was 'instinct'[88] and insisted that he grabbed the complainant's legs because the complainant had him in a 'front choke'. The clear import of his accounts was that he was trying to get the complainant off him.
[88] EROI transcript, 13.
The elapsed time from the moment the complainant first reached out towards the appellant's phone, to the moment the two fell to the ground was no more than 10 seconds. Those events occurred in the context of the complainant having followed the appellant for some time, and behaving in what can only be described as a threatening manner towards the appellant, who at that point had done nothing more than use a power point to charge his phone and, the complainant wrongly thought, was filming him with his phone. The appellant was entitled to believe that the complainant's physical conduct was being carried out in order to carry out the threats. Further, even when the appellant tried to move away, the complainant held onto his arm and moved towards him.
In those circumstances, it is not to be expected that a person, particularly a 15 year old in the appellant's position, would be in a position to finely dissect how to deal with the situation. The appellant explained that he acted the way he did in response to the complainant's actions. There is no evidence which establishes that he did not believe that to be necessary to deal with the complainant's harmful acts and accordingly, the evidence was incapable of establishing that the appellant did not subjectively believe that his harmful act was necessary to defend himself from the complainant's harmful act.
It is also not to be expected that a young person in the position of the appellant in the circumstances he outlined would be able to finely assess what would constitute a reasonable response. There is no one reasonable response in such a situation. Importantly, the fact that there might have been other options open to the appellant which did not constitute a harmful act does not necessarily mean that his harmful act was not a reasonable response.
The learned magistrate suggested that the appellant could have 'put his phone away' or 'stopped resisting'. Neither of those responses would have constituted a reasonable act in self-defence; they would have been capitulation on the part of the appellant to the harmful acts of the complainant.
At the hearing of the appeal, the State was unable to identify another, less forceful harmful act which would have been a reasonable response on the part of the appellant to the circumstances in which he found himself.
Prior to the physical altercation, the appellant had walked away from the complainant, but the complainant had followed him, closely at times, threatening to smash the appellant's phone and abusing the appellant. When the complainant reached for his phone, the appellant moved his phone away, and turned his body. The complainant then grabbed the appellant's arm. The appellant again tried to move away, but the complainant held him. The complainant tried to grab the appellant's other arm, or at least his phone. The complainant again tried to move away. It was only after this that the appellant engaged in the harmful act.
In assessing whether a harmful act is not a reasonable response, it is necessary to consider all of the circumstances in which it occurred. In this case, the appellant had tried numerous other less violent means of stopping the complainant's conduct prior to engaging in the harmful act that he did. None of them had worked. The complainant was perhaps shorter than the appellant, but of a significantly larger build. The complainant had hold of one of the appellant's arms and in his other hand the appellant held his phone. This limited what actions the appellant could take. In the body worn camera interview, the appellant told the police that he hadn't punched the complainant,[89] suggesting that he considered that what he had done was less than a punch.
[89] Exhibit 8, 05:24:34.
Having failed to extricate himself from the complainant's grasp, and still being pursued by the complainant, the appellant chose not to punch or kick the complainant, but to bring him to ground. The appellant plainly regarded that option as a less violent option than punching or kicking, which each carried their own considerable risks.
While the appellant's conduct was somewhat unorthodox as a response to the harmful acts of the complainant, having considered all of the circumstances, I do not consider the evidence to be capable of establishing to the requisite standard that the appellant's harmful act was not a reasonable response on the part of the appellant to the harmful acts of the complainant.
The State did not argue that the evidence was capable of disproving any other element of self-defence. In my view, the evidence was incapable of establishing that there were no reasonable grounds for the appellant's belief that his harmful act was necessary to defend himself; and was equally incapable of establishing that there were no reasonable grounds for the appellant's belief as to the circumstances requiring his response.
In circumstances in which the evidence was incapable of negating self-defence, the verdict of guilty on the charge was not open on the evidence.
Ground 1 succeeds.

Ground 2

While it is not strictly necessary to determine ground 2, it can be shortly dealt with.
The appellant submitted that the learned magistrate erred in identifying the complainant's harmful act as the 'arm hold' and by failing to properly identify the complainant's harmful acts towards the respondent.[90]
[90] Appellant's submissions [68] - [75].
The respondent conceded that the learned magistrate had erred in her identification of the complainant's harmful act, but submitted that, in circumstances in which the appellant had failed to discharge the evidentiary onus to raise self-defence, the error was not material to her Honour's decision and there has therefore been no substantial miscarriage of justice.[91] However, the respondent also conceded that, in the event that the evidentiary onus was found to be satisfied, the error would be a material one, and ground 2 would be made out.
[91] Respondent's submissions [33].
In my view, the State's concession that the learned magistrate incorrectly identified the complainant's harmful act should be accepted. The harmful act of the complainant was not simply grabbing or holding the appellant's arms. The harmful act was the combination of conduct at least from the point at which the complainant first grabbed at the appellant's phone, to grabbing the appellant's arm, pushing him backwards while holding the appellant, and reaching for the appellant's phone again. It also included preventing the appellant breaking the complainant's hold.
I have already determined that the evidentiary onus to raise self-defence was satisfied by the appellant.
The learned magistrate's misidentification of the harmful act was an error which was material to the outcome of the trial. The correct identification of the harmful act is a necessary prerequisite to a proper consideration of whether the State has disproved one or more of the elements of self-defence. For example, the fact that the complainant's harmful act was more serious than the learned magistrate determined inevitably impacts on the issue of whether the appellant's response was proved not to have been a reasonable one in all the circumstances as the appellant believed them to be.
Accordingly, it could not be said that there was no miscarriage of justice as a result of the misdirection. Ground 2 must also be allowed.
In light of the decision on ground 1, the appellant's conviction must be set aside and a judgment of acquittal entered.

Orders

An extension of the time in which to appeal is granted.
Leave to appeal is granted.
The appeal is allowed.
The conviction of the appellant is set aside and in lieu thereof a judgment of acquittal is entered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
11 APRIL 2023