Allbeury v WA Police - [2025] WASC 18

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   ALLBEURY -v- WA POLICE [2025] WASC 18
CORAM:   LEMONIS J
HEARD:   5 SEPTEMBER 2024
DELIVERED          :   28 JANUARY 2025
PUBLISHED           :   28 JANUARY 2025
FILE NO/S:   SJA 1013 of 2024
BETWEEN:   SIMON ALLBEURY
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1013 of 2024
Jurisdiction              :   PERTH MAGISTRATES COURT
Coram:   MAGISTRATE AYLING
File Number            :   PE 34491/2023 and PE 34492/2023

Catchwords:

Appellant convicted of two offences of unlawful assault arising out of an incident at a shopping centre – Appellant appeals against conviction and sentence – Appellant’s principal complaint is that the verdict of guilty was not capable of arising on the evidence and was unreasonable – Consideration of elements of the offences and applicable principles on appeal – Appeal against sentence contends that the learned magistrate improperly took into account the Appellant’s prior spent conviction – Consideration of whether sentence manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Magistrates Court Act 2004 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	C Madondo

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Charisteas v Charisteas [2021] HCA 29
Gartner v Brennan [2016] WASC 89
Hayman v Cartwright [2018] WASCA 116
Larussa v The State of Western Australia [2023] WASCA 62
Samuels v The State of Western Australia [2005] WASCA 193
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Olive [2011] WASCA 25
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

LEMONIS J:

Introduction

The appellant was convicted by the learned magistrate after trial of two counts of unlawful assault contrary to s 313(1)(b) of the Criminal Code (WA) (Code). The appellant was sentenced to a global fine of $500 for both offences and ordered to pay court costs of $264.30.
The incident the subject of the convictions took place at the Belmont Forum shopping centre.
Two security guards were walking together. The appellant was walking towards the security guards from the opposite direction. The prosecution case against the appellant was that he deliberately walked forcefully between both security guards and made contact with each of them. At trial, the prosecution relied on the evidence of the two security guards and CCTV footage of the incident. The appellant gave evidence at trial to the effect that he walked between the security guards and no contact was made. The learned magistrate rejected this evidence. The learned magistrate was satisfied beyond reasonable doubt on the whole of the evidence the appellant made contact with each guard and thus the appellant assaulted each guard. The learned magistrate was also satisfied beyond reasonable doubt that each assault was unlawful.
By notice of appeal the appellant seeks leave to appeal against conviction and also sentence. The ground of appeal identified is 'unlawful conviction in both fact and law, constitutional rights habeas corpus'. The appeal notice was filed within the time prescribed by the Criminal Appeals Act 2004 (WA) (CA Act).
The appellant represented himself on the appeal. He filed an eight page document called ‘application in an appeal’, which significantly expanded on the grounds of appeal. The appellant also filed an outline of submissions and submissions in response to the respondent's submissions. The appellant's documents raised a broad range of propositions. The appellant's oral submissions were far more confined. They were carefully prepared and delivered, and directed attention to the circumstances of the commission of the offences.
From having read the appellant's written submissions and considered his oral submissions on the appeal, in effect the appellant's grounds of appeal are:
1.there was a miscarriage of justice because the verdicts of guilty were unreasonable, or could not be supported by the evidence;
2.the learned magistrate made an error of law in finding that the appellant's conduct constituted an unlawful assault of each complainant under s 313(1)(b) of the Code;
3.the learned magistrate had predetermined the outcome of the trial and 'had no mind to accept anything [Mr Allbeury or his lawyer] had to say'.[1] This is an assertion of there being a reasonable apprehension of bias in the form of prejudgment by the learned magistrate.
[1] Application in an appeal, par 19 on page 6.
In respect of the appeal against sentence, the appellant's ground of appeal is that the learned magistrate incorrectly took into account the appellant’s spent conviction for a prior offence of common assault.

Applicable principles

CA Act

The appeal is brought pursuant to s 7(1) of the CA Act, the appellant being a person aggrieved by the decision of the learned magistrate to convict him. An appeal may be made on grounds that include:
1.the learned magistrate made an error of law or fact or of both law and fact: s 8(1)(a)(i); and
2.there has been a miscarriage of justice: s 8(1)(b).
Leave of this court is required for each ground of appeal. Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding,[2] which requires that the ground have a rational and logical prospect of succeeding.[3]
[2] CA Act, s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193 [56].
Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of the appellant, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[4]

The legal principles applicable to the grounds of appeal

[4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] ‑ [45].

Pursuant to s 31(1) of the Magistrates Court Act 2004 (WA), her Honour's reasons needed only identify the facts that her Honour accepted, and the law that her Honour applied, in coming to her decision and give the reasons for doing so.
As Pritchard J (as her Honour then was) observed in Gartner v Brennan:[5]
Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).
(footnotes omitted)
[5] Gartner v Brennan [2016] WASC 89 [58]; see also Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
The principles applicable to assessing whether a verdict is unreasonable or cannot be supported by the evidence have recently been summarised by the Court of Appeal in a joint judgment in Larussa v The State of Western Australia.[6] While that case concerned a trial by jury, the same principles apply by analogy to a trial before a magistrate.[7]
[6] Larussa v The State of Western Australia [2023] WASCA 62 (Larussa).
[7] The State of Western Australia v Olive [2011] WASCA 25 [40] ‑ [44].
In Larussa, their Honours said:[8]
[8] Larussa [50].
(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. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.
(5)The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6)A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7)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 appeal 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 appeal court must set aside the verdict.
(8)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 [CA Act] is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
In respect of the ground of apprehended bias, in Charisteas v Charisteas, the joint judgment of the High Court said:[9]
The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
(footnotes omitted)

The charges

[9] Charisteas v Charisteas [2021] HCA 29 [11].

The appellant was charged with two offences under s 313(1)(b) of the Code. The charged offences were that the appellant had unlawfully assaulted each of Mr Shafi and Mr Aryal, who were security guards working at the Belmont Forum.
In the circumstances of this case, in respect of each charge the prosecution needed to prove beyond reasonable doubt that:[10]
1.The appellant struck or touched the security guard the subject of the charge with a part of the appellant’s body.
2.The security guard did not consent to being struck or touched in that way.
3.The appellant's act of striking or touching the security guard was unlawful. For it to be unlawful, the prosecution needed to establish that the act of striking or touching was not authorised or justified or excused by law.
[10] Criminal Code (WA), s 222 and s 223.
It was not necessary for the prosecution to prove that the relevant security guard suffered any injury, pain or other harm. Such matters may however be relevant to an assessment of the credibility of each security guard's evidence. For example, in assessing credibility, it may be useful to assess whether a person's description of a particular physical act committed against them is consistent with their description of the harm caused by that act. The more extreme the act, the more likely it is that harm will be suffered.
In the joint judgment of the Court of Appeal in Hayman v Cartwright,[11] their Honours held that there is no element of intention in the case of an assault by actual application of force.[12] Thus, in this case, it was not necessary for the prosecution to prove that the appellant intended to strike or touch the relevant security guard.
[11] Hayman v Cartwright [2018] WASCA 116.
[12] Hayman [81].
However, while it is not necessary to prove intention, it is necessary to prove that the assault was unlawful and 'inadvertent contact' may not necessarily be unlawful. In Hayman v Cartwright, their Honours said:[13]
It seems to us that the application of s 23A(2), s 23B(2) and s 24 removes the spectre of everyday inadvertent contact, of a kind Parliament may be taken not to have intended to amount to an offence, constituting a criminal offence. One or more of them will apply in such cases of everyday inadvertent contact; which of them will apply depends on the facts and circumstances of a given case.
Section 23A and s 23B distinguish between unwilled physical acts (s 23A) and accidental outcomes of willed acts (s 23B).
The 'act' in s 23A refers to some physical action or movement, apart from its consequences. It is the 'bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or accompanying state of mind, entails criminal responsibility'.
Taking the respondent's hypothetical scenario, where a moving person (X) inadvertently bumps into, and thereby applies force to, another person (Y), there may be room for different characterisations of the relevant 'act' for the purposes of s 23A.
If the 'act' is characterised as the physical bodily movement and nothing more, the contact with and touching of Y would be an 'event' for the purposes of s 23B. On this analysis, the event will have occurred by accident, and entail no criminal responsibility, so long as X did not intend or foresee the contact and the contact was not reasonably foreseeable.
Alternatively, if the 'act' is characterised as encompassing the movement of X's body coupled with the contact with Y's body, X has not willed that inadvertent act and, therefore, is not criminally responsible for it.
Whichever way the 'act' is characterised, the inadvertent bumping will be, alternatively, an accident or an unwilled act.
(footnotes omitted)
[13] Hayman [69] - [75].
Thus, in this case, in considering whether the prosecution had proved beyond reasonable doubt that the appellant's striking or touching of the relevant security guard was unlawful, it was necessary for her Honour to consider whether the prosecution had disproved the application of s 23A, s 23B and s 24.
The appellant's outline of submissions raised an issue as to whether the security guards were public officers. However, the appellant was not charged with assaulting a public officer. It was therefore not necessary for the prosecution to prove that the security guards were public officers.

The trial

The trial took place over one day on 17 January 2024. The appellant was represented by counsel. The evidence and closing submissions were completed before the luncheon break. The learned magistrate then adjourned the trial to after the luncheon break for delivery of her Honour’s reasons.
The prosecution case against the appellant was opened as follows. The appellant had walked through the shopping centre and walked past the two security guards on a number of occasions. On two occasions he walked in between them. On the third occasion he had been walking in front of them, stopped, seen them behind him and turned around and walked back towards them. As he got close to them, he sped up and deliberately ‘shoulder barged’ between the two, striking both of them. The contact with each security guard's shoulder constituted an assault on each guard.[14]
[14] Trial, ts 3 - ts 4.
At trial, the appellant conceded 'identity'. That is, he conceded he was the person involved in the interaction with the security guards. The appellant also conceded the time and place of the incident.[15] The issue at trial was directed to what had happened, predominantly whether the appellant had made any contact with the guards.

The evidence

[15] Trial, ts 5 - ts 6.

The first witness called for the prosecution was Mr Aryal. He was one of the security guards.
He described that he was walking through the Belmont Forum shopping centre with another guard, Mr Shafi. He referred to earlier incidents involving the appellant, which it is not necessary to describe.
As to the incident the subject of the charges, Mr Aryal said the appellant bumped his left shoulder and Mr Shafi's right shoulder.[16]
[16] Trial, ts 7 - ts 8.
Mr Aryal said there was ‘no space’ between him and Mr Shafi when this occurred, describing it as a two-finger gap between then. Mr Aryal said he and Mr Shafi were walking in one direction, the appellant was going in the other direction and suddenly came back. He said there was ‘enough space to pass’ but the appellant bumped them.[17] I understand this evidence to mean there was enough space to pass around them.
[17] Trial, ts 7 - ts 8.
Mr Aryal said the appellant bumped into him impacting on the top of Mr Aryal’s left shoulder.
There was CCTV footage of the incident, which was played during Mr Aryal's evidence. There were two separate pieces of CCTV footage played, which became Exhibit 1 in the trial.
In respect of the first piece of footage, Mr Aryal said he was the person on the left‑hand side.[18] Defence counsel sought clarification of the answer. There was then the following exchange between the learned magistrate and Mr Aryal:[19]
The left side from the direction of the security officers or as we look at it on the screen? - - - if you look at the screen, that will be right - right - hand side is me.
[18] Trial, ts 9.
[19] Trial, ts 10.
Mr Aryal was cross-examined about the general process when security guards issue verbal warnings. He said that the Belmont Forum does not have a record of when a verbal warning has been issued.[20]
[20] Trial, ts 12.
It was put to Mr Aryal that the appellant walked between him and Mr Shafi without touching them.[21] He answered:
… so he touched - that's not touched. I - I would say it’s bumped and that's an assault from my side.
[21] Trial, ts 13.
He confirmed his evidence was that the appellant bumped into his left shoulder. He accepted that he was facing the appellant when this occurred. Mr Aryal said ‘the speed [the appellant] was coming there was no chance to give him way’.[22]
[22] Trial, ts 13.
It was put to Mr Aryal that he was walking towards the appellant and the appellant walked past Mr Aryal's right shoulder. Mr Aryal answered:[23]
No. I was walking towards office and he was - he was ahead at first, but he decided to turn (indistinct) again and bumped into us.
[23] Trial, ts 14.
It was put to Mr Aryal that he did not go to a doctor. He answered, 'There was only a bit of light pain. I didn't go to the doctor'.[24] It would also appear from the transcript as a whole that Mr Aryal accepted that he did not touch his shoulder or any other part of his body to indicate any discomfort. [25]
[24] Trial, ts 14.
[25] Trial, ts 14. While the answer is given as '(indistinct)', the follow up question is "And you didn't…' which suggests the answer to the earlier question is no.

Mr Aryal was cross-examined about a later incident with the appellant. Mr Aryal accepted that he grabbed the appellant's arm when the appellant tried to regain entry to the shopping centre.[26]
[26] Trial, ts 14.
Mr Aryal was then cross-examined about whether one of the security guards said to the appellant that if the appellant was to make a complaint about his treatment that evening, he would be banned from the centre. In answer to this question, Mr Aryal initially said no.[27] When the question was asked again, he said yes. The answers are somewhat confusing. It appears the second answer was directed to whether the appellant would be banned, as opposed to whether the appellant was told he would be banned.[28]
[27] Trial, ts 14.
[28] Trial, ts 15.
In re-examination Mr Aryal was asked about his evidence that the appellant bumped into him and there was a little bit of pain and he said, 'Yes. On my left shoulder'.[29] He also said when the appellant bumped into him ‘there was a bit of force'.[30]

Mr Shafi

[29] Trial, ts 15.

[30] Trial, ts 15.

The second witness called for the prosecution was Mr Shafi, who was the security guard working together with Mr Aryal that day.
Mr Shafi described two incidents involving the appellant prior to the incident the subject of the charges.
Mr Shafi said the appellant had come up behind him and Mr Aryal and on a second occasion 'did a zigzag in between us' saying they were ‘like, two to three foot - footsteps away from each other’.[31]
[31] Trial, ts 16.
In respect of the incident the subject of the charges, Mr Shafi gave evidence that:[32]
It was all good. We were coming back and that same gentleman was going towards Kmart. When he saw us coming towards the Kmart, he just turned around and then just walking towards - started walking towards us where he just forcefully bumped into us and that - I kind of hurt my shoulder - my left shoulder. It was sore for the whole night, but I didn't go and see the doctor as it was better the next day. And then we have asked him right away, "Is there any problem?"
[32] Trial, ts 17.
Mr Shafi then described in greater detail the first two interactions with the appellant. It is not necessary for the purpose of this appeal to set that detail out.
He then gave further evidence regarding the incident the subject of the charges:[33]
We were going to Coles and this gentleman was coming to - going towards the Kmart from the Coffee Club. He was (indistinct) from there he saw us standing at the front of Coles. In the meantime, everything was clear at Coles. We started going to the customer service desk. We were on our way and he just turned around and started walking towards us. There was no public - no one around us and he just bumped us into forcefully. He just bent down a little bit and just bumped in between us.
All right?‑‑‑There was no customer or even a single person around us at that time except the lady at the customer service desk.
All right?‑‑‑And then - yes.
You said you bent down - you bent your body forward?‑‑‑I mean that gentleman bent his body and then just forcefully pressured himself to bump into us as seen in the footage. Yes.
Now, you say he bumped into you?‑‑‑Yes.
Where did he make contact with you?‑‑‑When he bumped into us I was totally shocked. I wasn't expecting that. We were just talking to each other. We were not expecting him to bump into us, like, for no reason without any - like, nothing happened between us before.
[33] Trial, ts 18.
Mr Shafi was then asked whether the appellant touched any part of his body. His answer was:[34]
Yes. He - so that was me on the right side and my colleague was on the left. He bumped into us - like, it was my left shoulder and my colleague's right shoulder. He tried to walk in between us while there was no space between us. We both were already walking together.
Right. You say you were walking together. How close to each other were you?‑‑‑Like, really close. Like, two person, very close. There was no space in between at all to just, like, go from between.
All right. And you said that he made contact with your shoulder?‑‑‑Yes. With my left shoulder.
Can you tell the court what you felt?‑‑‑Just on the left shoulder it was - I mean, it was a bit of (indistinct) problem.
[34] Trial, ts 18 - 19.
During cross-examination, Mr Shafi was asked whether the centre keeps a record of verbal warnings. He said that if they do not have time to issue a written notice, they give a verbal notice and record it on body worn camera.[35]
[35] Trial, ts 19.
It was put to Mr Shafi that as the appellant walked in between him and Mr Aryal, Mr Shafi turned to face the appellant because Mr Shafi was on the right. Mr Shafi answered yes and then said, 'First I got hit by him and then I turned back to him to ask if there is any problem'. He also said, 'That was after getting hit by him'.[36]
[36] Trial, ts 20.
It was put to Mr Shafi that he did not actually make any contact with the appellant at that stage. He said, 'Yes I did'. He said the appellant touched his shoulder and also described the appellant as having 'bumped into us, he touched us'.[37]
[37] Trial, ts 21.
Mr Shafi accepted that after he turned around, he did not touch his shoulder to indicate that there was any discomfort. He also accepted he did not go to a doctor after the incident.[38]
[38] Trial, ts 21.
Mr Shafi accepted the appellant said he was going to make a complaint about how he was treated that night.[39] He also accepted that the appellant did make a complaint. It was then put to Mr Shafi that he or one of the other security guards told the appellant that if he was to make a complaint he would be banned from the centre. He answered by saying 'we already banned him before that verbally and that was on the body cam'.[40]
[39] Trial, ts 21.
[40] Trial, ts 21.
There was no re-examination.

The appellant's evidence

The appellant elected to give evidence in his defence.
The appellant explained that he had gone to the Belmont Forum at about 8.15 pm to buy a blanket for his sick dog but ended up buying a heater.[41] The appellant explained that when he was leaving a store where he had purchased certain items, there was an incident with different security guards because the security tags had not been removed from those items. The appellant said this made him a little bit anxious.[42]
[41] Trial, ts 23.
[42] Trial, ts 24.
In relation to the incident the subject of the charges, the appellant said he was walking towards Kmart, got to the corner and when he turned the corner, he thought ‘there was something else that I had to go and get or wanted to go and look at, so I turned around and started walking back’.[43]
[43] Trial, ts 24.
The appellant then gave quite detailed evidence about the incident itself, which I will set out in full:[44]
[44] Trial, ts 24 - ts 25.
And so while you - as you turned the corner, you turned back and then what happened after that?---Then I saw the two guards there right in front of me and I was - I certainly believed I was walking with purpose and I saw the two guards there and they were moving in and out with their pattern of stride and I - I saw that they opened up again and I thought should - I will just walk through the middle.
Yes?---And so I walked through the middle.
And when you - you made some gestures with your hands. So at the point where you walked through the middle of the two security guards. How far away were they from each other?---They were easily wider than my shoulders - - -
And - - -?--- - - - and I remember - - -
- - - just for the - - -?---Yes.
- - - record, is that a metre or - - -?---I - I think they're about a metre apart. Yes. At that time.
Okay. And did you make any movements while you were walking through - - -?---Yes, I did.
- - - that point?---I - I leaned forward and moved my shoulders in because I'm a fairly big sort of fellow. I leaned forward and moved my shoulders in because I knew that if, you know, there was any contact I would be, you know, you know, not (indistinct)
Yes. And so after you walked through the security guards, what happened then?---One of the guards turned around and said to me, "You just assaulted us," like - like both of them, "You assaulted us."
Yes. And then ‑ ‑ ‑?---And - - -
- - - what did you say?---I just laughed. I thought how ridiculous. I ‑ I didn't touch either of them.
The appellant said he told the guards that he was going to make a complaint and was going to talk to their supervisors. The appellant said a third guard who had arrived by then said to him, 'If you make a complaint, we're going to ban you from the store'.[45]
[45] Trial, ts 25.
The appellant's counsel showed him still pictures taken from the CCTV footage which showed the moment where the appellant walked between the two security guards. In respect of one of those photographs,[46] the appellant said:[47]
The guards appear to be intractable and not giving me any room at all and I had to squeeze my shoulders in and duck down to move through.
[46] Exhibit 2, picture 3.
[47] Trial, ts 26.
The appellant's counsel asked him what he was thinking as he walked towards the two security guards. The appellant said he had on his mind his dog's suffering and that she was near death. The appellant also said he was thinking about how he had been treated earlier in the evening when he had left the store from which he had bought certain items. He said he was thinking about how he had been harassed and attacked.[48]
[48] Trial, ts 28.
At the conclusion of his evidence-in-chief, the appellant answered, 'No' when he was asked, 'Did you at any point come into contact with either security guard?'.
In cross-examination, it was put to the appellant that the security guards[49] were side-by-side almost ‘at touching point’ immediately before the incident. The appellant said, 'that's incorrect'.[50]
[49] The prosecutor used the phrases ‘security guards’ and ‘security officers’ interchangeably in cross-examination. I have used the phrase ‘security guards’ for ease of reference.
[50] Trial, ts 29.
It was put to the appellant that he was angry at security because of what had happened earlier in the evening, and he denied that was the case.[51] It was put to him that as he turned the corner he looked to his left and saw the security guards, which he denied.[52] It was also put to him that he walked towards the security guards and sped up as he was doing so. He said no to both of these propositions.[53] He also denied dropping his left shoulder, deliberately and forcefully bumping into the security guards and making contact with the security guards’ shoulders.[54] The appellant denied being confrontational with the security guards.[55] The appellant denied that the security guards said that he had to leave. He said when the third guard spoke to him, the third guard said, 'We will ban you if you make a complaint'.[56]
[51] Trial, ts 29 - ts 30.
[52] Trial, ts 30.
[53] Trial, ts 30.
[54] Trial, ts 31.
[55] Trial, ts 31.
[56] Trial, ts 31.
There was no re-examination.

Initial observations on the evidence

Having regard to the evidence, the critical issue before her Honour was whether or not her Honour was satisfied beyond reasonable doubt there had been physical contact initiated by the appellant with the shoulders of each of the security guards, and whether any such contact was unlawful.
There was no suggestion on the evidence that either Mr Aryal or Mr Shafi had consented to any such contact. Thus, if her Honour found contact had been made, that would constitute an assault.

Closing addresses

The closing addresses were very brief as would be expected in a trial such as this.
The prosecutor said that Mr Aryal and Mr Shafi were clear in their evidence that the appellant made contact with their shoulders and this is consistent with the CCTV footage. Further, the prosecutor said that the CCTV footage showed how close Mr Aryal and Mr Shafi were to each other, which was consistent with Mr Aryal's evidence that there was a gap of two fingers between them.
The defence counsel said that the CCTV footage showed that when the security guards did their patrol that evening, they had varying distances between them and the footage reflects an instance where the guards let people pass through them. Defence counsel said that it was clear Mr Shafi had turned around at the moment the appellant was passing through. I understand these submissions to convey that the appellant passed between Mr Aryal and Mr Shafi without any contact being made.
Defence counsel said that the appellant gave clear and cogent evidence that he did not touch either security guard. Defence counsel also pointed out that both Mr Aryal and Mr Shafi gave evidence that the appellant made contact with their left shoulders, which did not make sense if the appellant had walked in between them. Defence counsel described this as an important inconsistency which supported the submission that the learned magistrate could not be satisfied beyond reasonable doubt that contact had been made.
Defence counsel also referred to the CCTV footage showing that after the incident the appellant was followed by three security guards, one of whom was aggressive towards the appellant, which counsel asserted was contrary to the suggestion that the appellant was aggressive towards the security guards. Defence counsel summarised the evidence by saying that the appellant saw an opening to walk through, he hunched himself up and walked past the security guards. Defence counsel concluded by saying that the prosecution had not proved beyond reasonable doubt that contact had been made with each of Mr Aryal and Mr Shafi.
Neither counsel raised the application of s 23A, s 23B or s 24 of the Code. The learned magistrate raised these provisions with counsel after defence counsel had concluded her closing address.

The learned magistrate's findings

The learned magistrate explained that the appellant was presumed innocent, and the burden was on the prosecution to prove the elements of each charge to the standard of beyond reasonable doubt.
In respect of the appellant's evidence regarding the incident, the learned magistrate said that if her Honour believed the appellant’s account, or considered that it might be true, then the appellant 'is entitled to the benefit of the doubt which then leads to an acquittal'.[57]
[57] Trial, ts 37.
Her Honour explained that if she positively rejected the appellant's evidence, she must put it to one side and refer to the prosecution evidence in assessing whether the charges had been proved beyond reasonable doubt.[58]
[58] Trial, ts 37.
Her Honour identified the elements of the offence consistently with how I have set them out at [17] above.[59]
[59] Trial, ts 37 - ts 38.
Her Honour raised the need to consider s 23A, s 23B and s 24 in assessing whether the appellant's act of striking, if proven, was unlawful.[60]
[60] Trial, ts 38.
Her Honour rejected the appellant's evidence and was satisfied that contact had occurred as alleged by the prosecution. The key aspects of her Honour's reasons are as follows:[61]
I note that the accused's position is that there was no application of force at all. Having reviewed the accused's evidence, I'm not inclined to accept his evidence on that front. It does not, in my view, make sense in view of the remainder of his evidence that he needed to squeeze his shoulders in and from a review of the footage and stills, I don't consider that his explanation on that front makes much sense. The footage at 20:37:43 has him walking back in the direction of the officers. They are wearing yellow hi-visibility vests. There was no one else in the vicinity in a large area of open mall space.
As Mr Allbeury was, as he characterises it, indeed, walking with purpose, he was observed by me on the footage to be walking in his own stride, pace and path without deviation. As he conceded … in his evidence, he determined to take the path between the officers. It was a deliberate action on his part. I don't accept his evidence that there was no contact. At the point of apparent contact one of the security guards, which I determined to be Mr Shafi by his height, moves his head and the accused is seen to stumble slightly in a fashion that his stride has been affected and the only reasonable inference, in my view, is that contact occurred at that point.
I note also that Mr Shafi claimed his shoulder was immediately sore, but it rectified itself by the next morning. I'm satisfied beyond reasonable doubt that on a view of the whole of the evidence there was contact as alleged and therefore an assault as defined in section 222.
[61] Trial, ts 39.
At the conclusion of this passage, her Honour stated she was satisfied beyond reasonable doubt that on the whole of the evidence there was contact by the appellant with Mr Aryal and Mr Shafi and thus an assault against each.
In making this finding, her Honour principally relied on her assessment of the CCTV footage. In particular, that as the appellant moved between the two officers, Mr Shafi moved his head and the appellant 'stumbled slightly in a fashion that his stride has been affected'.[62] Her Honour also relied on Mr Shafi's evidence that his shoulder was immediately sore. While her Honour used the phrase, 'I note also that Mr Shafi claimed his shoulder was sore', her Honour plainly accepted that evidence.
[62] Trial, ts 39.
Her Honour also found that the appellant's movement was a 'deliberate action'. That finding is to the effect that the appellant's conduct was a willed physical movement, and that s 23A therefore did not apply.
Her Honour went on to consider the potential application of s 24 and s 23B.[63]
[63] Trial, ts 39 - ts 41.
In respect of s 24, her Honour considered whether the appellant acted under an honest and reasonable, but mistaken, belief that there was a sufficient gap between the security guards through which he could pass without making contact with them.
Her Honour was satisfied beyond reasonable doubt that the appellant did not hold such an honest and reasonable but mistaken belief, predominantly for two reasons. First, the appellant's credit and reliability were impacted by the reasons her Honour had given for rejecting the appellant's version of the incident. Second, her Honour did not accept the appellant's evidence that there was a path for him to take between the officers and did not accept that was the only option available to him. In particular, her Honour referred to the CCTV footage showing there were other options available to the appellant rather than walking between the security guards. Her Honour found that the inference available from the footage was the appellant expected the security guards to move. Her Honour based this finding on the appellant’s pace, stride and path as reflected by the CCTV footage. [64]
[64] Trial, ts 40.
Further, her Honour had regard to Mr Aryal’s evidence that there was a small space of two fingers between him and Mr Shafi.
For these reasons, her Honour was satisfied beyond reasonable doubt that the appellant did not have an honest and reasonable, but mistaken, belief that there was a sufficient gap between the security guards for him to pass through.
In respect of whether the appellant was not criminally responsible under s 23B for the event of his contact with Mr Aryal and Mr Shafi, her Honour observed that the appellant in his evidence did not explain why it was necessary for him to go between Mr Aryal and Mr Shafi. In assessing the application of s 23B, her Honour took account of the following factors:[65]
1.the appellant's pace, stride and path as demonstrated by the CCTV footage shows that he was focused on his own journey;
2.at the point in time that the appellant 'squeezed his shoulders in' he should have stopped;
3.a reasonable person would have expected there was an obstruction in their path and either stopped or diverted;
4.instead the appellant put his head down and shoulder down and strode on; and
5.in these circumstances it was reasonably foreseeable that contact would be made.
[65] Trial, ts 40 - ts 41.

Therefore, her Honour was satisfied beyond reasonable doubt that the event of the appellant's contact with the security guards did not occur by accident, and s 23B therefore did not apply.
Her Honour was therefore satisfied that the assault as found was unlawful and entered a judgment of conviction on each charge.

Disposition

Apprehended bias

I need to consider first the ground of reasonable apprehension of bias by way of prejudgment.
I have reviewed the transcript of the hearing. Her Honour's interruptions during the giving of evidence were very limited. Her Honour did not unfairly constrain the manner in which the defence case was presented.
One of the principal matters raised by defence counsel in her closing address was that the security guards' evidence was unreliable because each had said contact was made with their left shoulder, which did not make sense given they were walking side by side in the same direction and the appellant walked between them.[66] Her Honour clarified whether defence counsel was submitting that both witnesses were unreliable 'because they've mixed up which shoulder was hit'. Her Honour was correct to seek clarification in this respect. The mistake as to which shoulder was hit could only have been made by Mr Aryal (who was on the left), and her Honour was in effect testing whether such a mistake meant that the evidence of both Mr Aryal and Mr Shafi was unreliable.
[66] Trial, ts 33.
As I describe above, her Honour also raised with both counsel the potential application of s 23A, s 23B and s 24 of the Code. Their application had not been raised by defence counsel and could have afforded a basis upon which the appellant might be found not guilty.
There is nothing in the manner in which her Honour conducted the trial which suggests any degree of prejudgment. Also, as I explain below, her Honour's reasons correctly and fairly identified the applicable legal principles.
Accordingly, I am not satisfied that there was a reasonable apprehension of bias in accordance with the test enunciated in Charisteas. This ground therefore fails. I do not consider this ground had a reasonable prospect of success and I decline to grant leave in respect of it.

Did the learned magistrate make an error of law?

In concluding that the appellant was guilty of each offence, the learned magistrate:
1 correctly identified that the appellant was presumed innocent, and the burden was on the prosecution to prove each charge to the standard of beyond reasonable doubt.
2 correctly identified that if her Honour believed the appellant's account of the incident or considered that it might be true, her Honour must find the appellant not guilty. Her Honour also correctly identified in the circumstances of this case, that if she rejected the appellant's evidence, she must put the rejected evidence to one side and refer to the prosecution evidence in assessing whether the charges had been proved beyond reasonable doubt.
3correctly identified the elements of the offence of unlawful assault under s 313(1)(b) of the Code.
4correctly had regard to s 23A, s 23B and s 24 of the Code in assessing whether the assault was unlawful.
Further, it was not necessary for the prosecution to prove that the security guards were public officers, or that the security guards suffered any physical harm as a result of the assault. It also was not necessary for the prosecution to prove that the appellant intentionally struck either Mr Aryal or Mr Shafi.
Accordingly, I am satisfied that her Honour correctly applied the law. Therefore, this ground does not succeed. I do not consider this ground had a reasonable prospect of success and I decline to grant leave in respect of it.

Whether the verdicts of guilty are unreasonable or cannot be supported by the evidence

As the respondent’s counsel points out, an appeal is not a re-trial. Rather, the appellant must establish that the verdict of guilty on each charge cannot be supported by the evidence, or was unreasonable.
The evidence at trial consisted of the evidence of Mr Aryal, Mr Shafi and the appellant, the CCTV footage (Exhibit 1) and the stills from the CCTV footage (Exhibit 2).
Part of the appellant’s submissions on the appeal sought to explain what he did that day. I explained to the appellant during the hearing that the appeal must be assessed against the evidence at trial.
As to the evidence, the appellant highlighted the following contentions:
1.Mr Aryal's evidence was that the appellant struck Mr Aryal on his left shoulder. However, the appellant points out this could not have occurred given that Mr Aryal was positioned on the left and the appellant walked between Mr Aryal and Mr Shafi. The appellant emphasised that Mr Aryal said multiple times that the appellant struck Mr Aryal on his left shoulder.
2.The CCTV footage showed there was no contact. The appellant said that while it might appear to some that there was contact, the CCTV footage showed there was no contact.
3.Mr Aryal gave evidence that there was only a two‑finger gap between him and Mr Shafi. The appellant says if that were the case, there would be no room at all for him to walk between them. The appellant also referred to Mr Shafi's evidence that he and Mr Aryal were really close and there was no space to go between them.
4.The CCTV footage showed an approximate 500 mm gap between Mr Aryal and Mr Shafi and that they are not directly in line with each other.
5.It would be a reasonable requirement for Mr Aryal and Mr Shafi to allow room or space for people to move between them.
6.The body position of Mr Aryal and Mr Shafi would have been different if the appellant had made contact with them while walking between them. In particular, the appellant says there was no movement of their head or spine. The appellant also says that when Mr Shafi twisted as can be seen in the CCTV footage, he moved that way of his own volition.
7.Mr Aryal's evidence was that he did not touch his shoulder or any part of his body to indicate any discomfort. The appellant says that would be unlikely if the event took place as Mr Aryal and Mr Shafi described it. The appellant made the same submission in respect of Mr Aryal's evidence that there was only a bit of light pain and he did not go to the doctor, and in respect of Mr Shafi's evidence that his shoulder was a bit sore for a night and then the next day was totally fine.
The focus of the appellant's submissions on the appeal was that the evidence was not capable of demonstrating that he made contact with Mr Aryal and Mr Shafi as alleged.
In considering that submission, I have carefully viewed the CCTV footage. In my view, it demonstrates that contact was made with each of Mr Aryal and Mr Shafi. The footage shows there was little distance between them. The force of the contact was such that Mr Shafi was spun to his side and needed to take a step backwards to retain his balance. Further, as the learned magistrate observed, the appellant stumbled slightly as though his stride was affected.
Moreover, Mr Aryal and Mr Shafi both gave evidence that contact was made. Their evidence, broadly speaking, was consistent with the CCTV footage. Mr Aryal’s mistaken evidence that the appellant made contact with his left shoulder was not of such significance that her Honour could not otherwise rely on Mr Aryal’s evidence.
Further, that neither Mr Aryal nor Mr Shafi gave evidence that they suffered any significant injury was a relevant factor for her Honour to take into account. However, it was in no way determinative of the charges. As I remarked to the respondent's counsel during submissions, sometimes contact can cause injury when you do not expect it to, and does not cause injury when you might expect it to. In this case, there was no evidence before her Honour that suggested the type of contact described in evidence would, or might, have resulted in greater injury than that described by Mr Aryal and Mr Shafi in their evidence.
In my view, when regard is had to all of the evidence, in particular the CCTV footage and the evidence of Mr Aryal and Mr Shafi, it was plainly open for the learned magistrate to reject the appellant's version of events and to find that contact had been made with each of Mr Aryal and Mr Shafi as alleged in the prosecution case. It was therefore open to her Honour to find beyond reasonable doubt that the events occurred as described by Mr Aryal and Mr Shafi, putting to one side Mr Aryal's evidence that contact was made with his left shoulder.
While on the appeal the appellant did not address the application of s 23A, s 23B and s 24, I will do so briefly.
In respect of s 23A, it is clear from the CCTV footage that the appellant walked purposefully and deliberately through Mr Aryal and Mr Shafi, and there was therefore no scope for the application of s 23A.
In respect of s 24, I have set out above the learned magistrate's reasons for being satisfied beyond reasonable doubt that the appellant did not have an honest and reasonable, but mistaken, belief that the gap between Mr Aryal and Mr Shafi was sufficient for him to pass through. I will not repeat those reasons. In my view, her Honour’s conclusions are well capable of arising from the evidence given at trial.
Finally, in respect of s 23B, I have set out at [87] above the learned magistrate's reasons for being satisfied beyond reasonable doubt that the event of the appellant making contact with each of Mr Aryal and Mr Shafi contact did not occur by accident.
In a case such as this, an event occurs by accident and entails no criminal responsibility if the relevant accused did not intend or foresee the contact and the contact was not reasonably foreseeable.[67]
[67] See the extract from the decision in Hayman set out at [20] above.
The learned magistrate was correct to conclude that the event of the appellant making contact with each of Mr Aryal and Mr Shafi did not occur by accident. In particular, the event was plainly reasonably foreseeable in the circumstances as found by her Honour.
Accordingly, in my view, this ground is not made out. I accept the respondent's submission that the prosecution case against the appellant was a compelling case. I do not grant leave in respect of this ground as I do not consider it has a reasonable prospect of success.

Appeal against sentence

The maximum penalty for each offence was imprisonment for 18 months or a fine of $18,000 or both.
The appellant contended that the learned magistrate improperly took into account the appellant's spent conviction in sentencing him.
In that respect, during sentencing submissions, the prosecutor told the learned magistrate that the appellant had a prior offence of a single common assault for which there was a spent conviction and a fine of $500. Defence counsel accepted that was the case. The learned magistrate said that was 'still relevant'.
Defence counsel submitted that a fine was appropriate.[68] The learned magistrate considered the appellant's ability to pay a fine. The learned magistrate imposed a global fine of $500.
[68] Trial, ts 42.
In her Honour’s sentencing remarks, her Honour summarised her findings of fact by saying, 'there has been a shoulder bump in the shopping centre'. Her Honour also said 'it warrants a modest fine in totality'.
The learned magistrate made no reference to the spent conviction in her Honour's sentencing remarks. After imposing the fine, her Honour said, ‘I take it given what has been conceded, there’s no further application?’, to which defence counsel said no. The only application that could have arisen at that point in time was an application for a spent conviction.
As I understand the sentencing remarks, her Honour took the spent conviction into account in deciding that it was not appropriate to grant a spent conviction for the offences the subject of this appeal.
On the appeal the appellant said that:[69]
I actually think the way that she sentenced was very fair and reasonable in that sense, because she certainly tried to do the best she could to go to the lowest end, given the circumstances I've been in.
[69] Appeal hearing, ts 27.
I am not satisfied that the appellant's spent conviction played any material role in the sentencing disposition apart from her Honour’s implicit decision to not grant a spent conviction. It is therefore not necessary to consider the extent to which a spent conviction may be taken into account in deciding the appropriate sentence. In any event, the global fine imposed was an appropriate sentencing disposition. It certainly was not so unreasonable or plainly unjust that error can be inferred.
Accordingly, I am not satisfied there was either express or implied error in the sentencing disposition and I decline to grant leave in respect of the appeal against sentence.

Conclusion

For these reasons, I decline to grant leave to appeal and the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
28 JANUARY 2025