B v Coan - [2021] WASC 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   B -v- COAN [2021] WASC 127
CORAM:   SMITH J
HEARD:   15 MARCH 2021
DELIVERED          :   30 APRIL 2021
FILE NO/S:   SJA 1071 of 2019
BETWEEN:   B
Appellant
AND
ALISON COAN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E DE VRIES
File Number            :   PE 66709 of 2018

Catchwords:

Criminal law - Appeal against conviction - Assault causing bodily harm - Whether magistrate erred in law in failing to take into account inconsistencies in the evidence of the complainant - Whether verdict of guilty unreasonable or unable to be supported

Criminal law - Conduct of a fair trial - The right of an accused to make a closing address pursuant to s 145 of the Criminal Procedure Act 2004 (WA) - Whether substantial miscarriage of justice arose because of failure to comply with s 145

Criminal law - Procedural fairness - Apprehended bias - Pre-judgment

Criminal law - Procedural fairness - Whether self-represented appellant denied opportunity to make sentencing submissions

Criminal law - Appeal against sentence - Whether preconditions are met for a spent conviction - No new principle

Legislation:

Criminal Appeals Act 2004 (WA), s 7(1), s 9(1), s 9(2), s 14(1)(b), s 14(2)
Criminal Code (WA), s 222, s 245, s 248, s 371
Criminal Procedure Act 2004 (WA), s 145
Magistrates Court Act 2004 (WA), s 30
Road Traffic Code 2000 (WA), reg 292A
Sentencing Act 1995 (WA), s 45(1)
Spent Convictions Act 1988 (WA), s 14(2)(b), s 25(1)

Result:

Leave to appeal out of time granted
Leave to appeal on ground 2 allowed
Leave to appeal on grounds 1, 3, 4, 5 and 6 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Ascic v Bedworth [2013] WASCA 174
Bennett v Carruthers [2010] WASCA 131
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Brooks v Drysdale [2020] WASC 466
Browne v Dunn (1893) 6 R 67
Crocker v Vinicombe [2019] WASC 416
De Pledge v The State of Western Australia [2021] WASCA 1
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Dunn v The Queen [2015] WASCA 126
Fantakis v NSW Commissioner of Police [2013] NSWSC 1333
Farkas v Thomason [2020] WASC 67
GNR v The State of Western Australia [2015] WASCA 5
Hawker v Coulthard [2011] WASC 139
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349
Konings v Commonwealth Bank of Australia [2016] WASCA 122
Lee Suarez v Cutler [2012] WASC 171
Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289
LTC v The State of Western Australia [2021] WASCA 60
M v O'Neill [2013] WASC 187
McGuinness v Heffernan [2017] WASC 40
McGuinness v Heffernan [2017] WASCA 194
McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575
MEN v The State of Western Australia [2020] WASCA 118
Morgan v Kramer [2019] WASC 68
Morrison v Chiera [No 2] [2020] WASC 253
Ng v Cooper [2005] WASC 233
O'Neill v The State of Western Australia [2013] WASCA 158
Presilski v Shepherd [2021] WASC 100
R v Kelly; Ex parte Hoang Van Duong (1981) 28 SASR 271
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Sharpe v Vinning [2020] WASCA 79
Sprlyan v Wyborn [2019] WASC 227
Stead v State Government Insurance Commission [1986] HCA 54; (1996) 161 CLR 141
The State of Western Australia v Olive [2011] WASCA 25
The State of Western Australia v Rayney [2013] WASCA 219
Tomcsanyi v Yuswak [2015] WASC 111
Vakauta v Kelly (1988) 13 NSWLR 502
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Van der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113
VJS v The State of Western Australia [2017] WASCA 172
Y v X [2020] WASCA 104

SMITH J:

1.0 The appeal, the grounds of appeal and the result

The appellant[1] seeks leave to appeal, out of time, the conviction and sentence imposed, on 1 May 2019, by a magistrate sitting in the Magistrates Court at Perth, for one count of unlawful assault causing bodily harm.
[1] The name of the appellant in these reasons for decision has been anonymised because, in considering grounds 4, 5 and 6 of the appeal, it is necessary to have regard to the fact that the appellant has been convicted of offences in the past in respect of which spent conviction orders have been made. Section 14(3) of the Spent Convictions Act 1988 (WA) requires a court, tribunal or judge that receives evidence of a spent conviction to take such steps as are reasonably available to avoid or minimise publication of that evidence.
On 10 January 2019, the appellant entered a plea of not guilty to the charge, and the matter was set down for trial. Following a trial before Magistrate De Vries on 1 May 2019, the appellant was convicted of the offence. After the conviction was entered, the appellant was fined $1,500, and ordered to pay costs of $205.30.
The appellant requires an extension of time within which to appeal.
Leave of the court is required for each ground of appeal.[2] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[3]
[2] Criminal Appeals Act 2004 (WA) s 9(1).
[3] Criminal Appeals Act 2004 (WA) s 9(2).
The amended grounds of appeal are outlined in a document filed by the appellant on 4 October 2019, which are largely in the nature of submissions, and address some matters that are complaints about matters that cannot properly be raised in this appeal, as an appealable decision pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA).
Making allowance for the fact that the amended grounds have not been drafted by a legal practitioner, the grounds of appeal that are open to be made, pursuant to s 7(1) of the Criminal Appeals Act, are as follows.
(1)The conduct of the trial by the magistrate was unfair because the appellant was self‑represented, and was placed at a significant disadvantage vis‑a‑vis the prosecution, resulting in a miscarriage of justice, on grounds that (ground 1):
(a)the appellant was a vulnerable adult because, during the course of the trial, he was self-represented having been refused Legal Aid, and he suffers from a mental cognitive disorder (bipolar type 2);
(b)the magistrate prevented the appellant from giving certain evidence;
(c)the magistrate granted the prosecution an adjournment to seek legal advice;
(d)the prosecutor was able to use an iPhone and an iPad during the trial;
(e)there were two prosecutors; and
(f)the magistrate pre-judged the appellant's guilt.
(2)The magistrate erred in law by failing to allow the appellant to make a closing address (ground 2).
(3)The magistrate's verdict was, having regard to the whole of the evidence, unreasonable or unable to be supported (ground 3).
(4)The magistrate refused to allow the appellant to make a plea in mitigation, denying him procedural fairness, resulting in a miscarriage of justice (ground 4).
(5)A miscarriage of justice was occasioned by the magistrate being provided with, and taking into account for the purposes of sentencing, a criminal history pertaining to the appellant that was factually incorrect and/or inaccurate (ground 5).
(6)The magistrate erred in law in failing to allow the appellant's application for a spent conviction order (ground 6).
For reasons that follow, I am of the opinion that the application for an extension of time should be allowed, leave to appeal on amended ground 2 allowed, and leave to appeal on amended grounds 1, 3, 4, 5 and 6 of the appeal be refused.
The reason why I have formed the opinion that leave to appeal on grounds 1, 3, 4, 5 and 6 of the amended grounds of appeal should be refused is that none of these grounds have a reasonable prospect of success.
Although leave to appeal on ground 2 of the appeal should be allowed, I am not satisfied that the appeal should be allowed. This is because, although I am satisfied that an error of law is made out, I consider that no substantial miscarriage of justice has arisen by the magistrate failing to allow the appellant to make submissions on the evidence and matters of law in a closing address.
The reason I have found that no substantial miscarriage of justice has arisen is because I am not satisfied that any submissions the appellant could make would have resulted in a different outcome in the decision to convict the appellant of the offence.
The following reasons set out why I have found the appeal should be dismissed.

2.0 Background and the evidence

2.1 The matters of trial procedure explained by the magistrate prior to the prosecutor opening the prosecution case

At the commencement of proceedings, his Honour enquired of the appellant whether he maintained his plea of not guilty to the charge that on 27 October 2018 at East Perth he unlawfully assaulted Geoffrey John Douglas and thereby did him bodily harm.
His Honour then explained at some length the presumption of innocence, the standard of proof and the burden of proof that the prosecution bears, the right to silence of every accused, the procedures that apply to all criminal trials and the rules that apply to the cross‑examination of a witness.[4]
[4] ts, 1 May 2019, 3 ‑ 4.
His Honour then asked the appellant whether he had any questions, to which the appellant said 'no'. The appellant was asked whether he had paper and a pen, to which the appellant said 'yes' and confirmed that he was ready to proceed.[5]
[5] ts, 1 May 2019, 5.
The prosecutor then made an opening address and informed the court that the prosecution intended to call Mr Douglas, Mr Daryn Astridge, who was a roadworks supervisor, and the appellant's partner, Ms Janette Cooke. The prosecutor stated that although Ms Cooke had come to court that morning with the appellant because she had made a statement to the police, it was fair that the prosecution call her to give evidence.
The prosecutor also stated that two police officers were available to give evidence if they were required. His Honour informed the appellant that if they were not required they would be excused. The appellant informed his Honour that he did not see any need for the officers (to give evidence).
After informing his Honour that he wished to make an opening address, the appellant stated that his defences to the charge (of unlawful assault causing bodily harm) would be self-defence, provocation and consent.[6]

2.2 The prosecution evidence

2.2.1 The complainant's evidence ‑ Mr Douglas

[6] ts, 1 May 2019, 7.

The first witness to give evidence on behalf of the prosecution was Geoffrey John Douglas. At the time of giving evidence, Mr Douglas was aged 57 and employed as a traffic controller, and had worked as a traffic controller for a total period of about eight or nine years.
Mr Douglas' evidence was as follows.
On Saturday evening, 27 October 2018, he was assigned to control traffic on Wellington Street, near the intersection of Bennett Street, in East Perth. He was required to restrict traffic travelling east along Wellington Street because roadworks (which involved ripping up a part of Wellington Street) were occurring eastbound on Wellington Street.
Mr Douglas had been assigned to restrict traffic from travelling eastbound on Wellington Street by only letting vehicles through who lived in the block between where Mr Douglas was stationed and the next street up from where he was located. Consequently, his role was to allow local residents to use that short stretch of Wellington Street to access their homes, and prevent regular traffic from approaching the roadworks.[7]
[7] ts, 1 May 2019, 8.
At about 10.00 pm, Mr Douglas was leaning against his vehicle waiting for traffic turning off Bennett Street into Wellington Street when he saw a vehicle travelling on Bennett Street southbound and into Wellington Street where he was standing. Mr Douglas moved a cone on the road and walked towards the vehicle. As he did so, he could hear two people in the vehicle yelling at him. When asked what was the type of vehicle that he approached, he said it was a Toyota Camry, and he thought it was blue in colour.
As he approached the vehicle, he could hear a man and woman (the appellant and Ms Cooke)[8] in the vehicle irately complaining that they had no warning of the roadworks, and they wanted to speak to whoever was in charge.
[8] Although Mr Douglas referred to the appellant and Ms Cooke in his evidence as 'the man', (or 'the driver') and 'the woman', respectively, in the remainder of the summary of Mr Douglas' evidence in these reasons they are referred to as 'the appellant' and 'Ms Cooke'.
Mr Douglas walked to the passenger's side of the vehicle to speak to the occupants because it was his job to let them know that the next street up was being ripped up. He was going to tell them that they could not get through, but if they live in the next section they could go up Wellington Street.
Mr Douglas did not get an opportunity to tell them that, they yelled abuse at him along the lines of, 'Who's responsible?', and, 'Why wasn't I informed?'.
When cross-examined, Mr Douglas was asked to elaborate upon the nature of the abusive comments that the appellant had made towards him while seated in his vehicle. In response, Mr Douglas said that:
(a)the appellant called him names, and swore at him saying 'fucking' a lot; and
(b)the appellant insinuated that he was low, was not worthy of holding a decent job, and that being a traffic controller was the only job he could get.
As a result of being abused, Mr Douglas moved about two to three yards away from the vehicle. As he moved away, he told the occupants of the car that he did not have to take this abuse, and he swore at the appellant, telling him to 'fuck off'.
Mr Douglas then used his two-way radio to ask for assistance as he 'had trouble'.
After he used the two-way radio, he closed the lane because he needed to stop any other cars at the lights (on Wellington Street). At that point in time, the appellant got out of the vehicle, and moved towards him aggressively. When cross-examined, Mr Douglas was asked to describe what he meant when he said that the appellant was moving towards him aggressively, and he said, 'Throwing the door open, storming out, leaping aggressively out of the car and walking towards me aggressively'.[9]
[9] ts, 1 May 2019, 29.
Ms Cooke then got out of the passenger seat and moved in quickly between Mr Douglas and the appellant.
When questioned about whether he said anything to the man and woman when they got out of the car, Mr Douglas said he was not certain but he may have said something to them like, 'Get back in your car', and he might have said something along the lines of, 'You're refusing to obey a legal instruction from a traffic control officer', as he would usually do when such a situation arose.[10]
[10] ts, 1 May 2019, 15, 25 and 26.
When Ms Cooke got between him and the appellant, Ms Cooke said to Mr Douglas, 'Back off, get back', and pushed against his chest with her hands. Mr Douglas described this action as preventing him from moving forward, as opposed to pushing him backwards. He did not form an opinion that she was about to attack him. When Ms Cooke did this, he did not try to move forward but stood still and did not do anything.
At that point, the appellant moved behind Ms Cooke, leaned towards her, and swung his leg around from the side of Ms Cooke and kicked Mr Douglas hard in the shin. The appellant then leaned back into a 'ninja' pose[11] and he might have said something like, 'Come on'.
[11] ts, 1 May 2019, 13. When it was put to Mr Douglas in cross‑examination that the pose he described would not be referred to as a ninja pose or stance, Mr Douglas said the pose looked to him like some kind of martial arts pose; ts, 1 May 2019, 31.
When the appellant leaned back, Mr Douglas was still being pushed in the chest by Ms Cooke so he backed off, did not say anything and went to his two-way radio, used it and said, 'I've been assaulted, can you get somebody down here'. However, when he was re‑examined, he qualified his evidence on this point and said that after he was kicked, his initial reaction was angry, and he might have taken a step towards the appellant before retreating.[12] He also said that immediately after being kicked he saw his supervisor coming down the road and decided to back off and leave it to supervisor to deal with the appellant and Ms Cooke.
[12] ts, 1 May 2019, 35.
When Mr Astridge and his supervisor arrived, his supervisor told him to back off and go and sit on the kerb. Whilst he was sitting on the kerb, he heard the appellant saying that it was his fault and so he called out that the appellant was a 'fucking liar'. He conceded when cross‑examined that his supervisor told him to shut up because he was not helping the situation, and told him to sit down twice, and he did so.[13]
[13] ts, 1 May 2019, 33.
The kick to Mr Douglas' knee drew blood, and hyperextended his knee.[14]
[14] ts, 1 May 2019, exhibit 1 and exhibit 2, 14.
When cross-examined, Mr Douglas was asked whether he had earlier received a two-way radio call from another traffic officer telling him that someone was trying to get into the area. In response, Mr Douglas said that about 10 minutes before (the incident) he had received a radio call from another Geoff who had told him that there was a 'guy' who would be looking to get in and could not find a way. Geoff asked whether Mr Douglas could, 'Let him in down the bottom', to which Mr Douglas had said, 'Sure. No problem'.
It was also put to Mr Douglas in cross-examination that when he approached the appellant's vehicle he had asked the appellant for his driver's licence, and asked the appellant where he lived. Mr Douglas denied he had done so.
The appellant also put to Mr Douglas that he had first approached the driver's side of the appellant's vehicle. Mr Douglas denied that he had done so, and said it would be dangerous to stand on the road because he could be hit by vehicle.
When Mr Douglas was asked in cross‑examination whether he said to the appellant and Ms Cooke, 'I'm not letting you through. Fuck off', Mr Douglas said he did not say that, and that it was not his job to stop the appellant from travelling to his home, it was his job to facilitate the appellant getting to his place of work or home as fast as possible to stop traffic from backing up, which was not in his interest.[15]
[15] ts, 1 May 2019, 24.
It was also put to Mr Douglas in cross-examination that immediately prior to being kicked he had dropped his shoulder and formed a fist and pushed forward (towards the appellant), which Mr Douglas denied.

2.2.2 Ms Cooke's evidence ‑ the passenger in the vehicle

2.2.2.1 Ms Cooke's evidence‑in‑chief

The second witness to give evidence was Ms Cooke. Ms Cooke was the appellant's partner. She was with the appellant on the evening of 27 October 2018. He was driving his car, a gold‑coloured Renault.[16] They were on Plain Street trying to get to Wellington Street and they spoke to two groups of road workers on two different junctions on Plain Street. The second set of road workers told them to drive around to the intersection of Bennett Street and Wellington Street, and that the appellant's car registration would be radioed through to 'Geoffrey' who was working on that intersection.
[16] Ms Cooke later conceded that she knew the car was a Renault, but could not recall the model; ts, 1 May 2019, 58. Mr B contends his car is a beige Renault Laguna; ts, 1 May 2019, 33 ‑ 34.
They drove to the intersection of Wellington Street and Bennett Street and stopped. There were some cones on the street in front of the vehicle. The worker, who she assumed was Geoffrey,[17] came to the driver's side of the vehicle and spoke to the appellant. The appellant explained that they were trying to get home, that the car registration should have been radioed through and asked could he 'let us through'. Mr Douglas asked the appellant for proof of his residential status, and his identification. In response, the appellant pointed to the residential parking permit (for the area) that was clearly displayed on the windscreen of the vehicle. Ms Cooke said that Mr Douglas asked the appellant twice for his identification.
[17] In her evidence, Ms Cooke referred to Mr Douglas as 'Geoffrey'. In the remainder of the summary of her evidence in these reasons he is referred to as 'Mr Douglas'.

The appellant then said to Mr Douglas that he Mr Douglas did not have any authority to ask for identification and that he (the appellant) was not prepared to provide that personal information. They then both spoke to Mr Douglas and said for the second time words to the effect of, 'We're just trying to get home. You should have already had the car rego. Let us through'.
Mr Douglas then started to walk away. The appellant leaned across her and wound down the passenger's side window and shouted out to Mr Douglas, 'Who can we contact? Who do we complain to?'. Mr Douglas' response was, 'Not my fucking problem'.[18]
[18] ts, 1 May 2019, 39.
The appellant then exited the vehicle to try and further appeal to Mr Douglas to let them through. At that point, Mr Douglas was still walking away and the cones were still in front of the appellant's vehicle. Mr Douglas then turned around and said to the appellant, 'Get back in your car or I'll knock you to the fucking ground'. The appellant was standing at the front of his vehicle and remained there.
Ms Cooke then got out of the vehicle because, 'I could see that Mr Douglas was being aggressive. My motherly instinct was to protect the person I was with, and that's why I felt I needed to exit the car'.[19] When asked what was it that made her think that she needed to protect the appellant she said, 'Because of the aggression that was being shown towards [the appellant] and myself. The language that was being used was quite threatening. There was a direct threat in the last statement made (by Mr Douglas to the appellant)'. Although Mr Douglas was walking away when he said those words it was her opinion that the threat that he made was indicative of somebody who wanted to further provoke, and she feared for the appellant's safety.[20]
[19] ts, 1 May 2019, 40.
[20] ts, 1 May 2019, 40 ‑ 41.
When Ms Cooke was cross-examined, it emerged that Ms Cooke had some experience in martial arts, as did the appellant.
When she got out of the vehicle, Mr Douglas stopped walking away. He was a couple of metres away.
Ms Cooke went to the front of the vehicle and stood in front of the appellant facing towards Mr Douglas. The appellant was behind her, in front of the bonnet of the vehicle.
While she was standing in front of the appellant, Mr Douglas asked the appellant if he wanted to fight and the appellant told him to back off. At that point in time, Mr Douglas was about a metre and a half away. Mr Douglas then came towards both her and the appellant, which she believed was a threatening and aggressive manoeuvre. She turned around to face the appellant because she was concerned for his safety, and then as she turned back to Mr Douglas he was making a remark about his shin, and rubbing his shin.
It is Ms Cooke's evidence that she did not see the appellant kick Mr Douglas.
At the conclusion of Ms Cooke's evidence‑in‑chief, the prosecutor made an application to put to Ms Cooke a witness statement that she had made and given to the police about the matter, which statement was said by the prosecutor to be a prior inconsistent statement.
His Honour informed the prosecutor that he could not cross-examine Ms Cooke as she was a prosecution witness. The prosecutor then sought a short adjournment to obtain some advice as to how to proceed, and the application for a short adjournment was granted by his Honour.
When the hearing resumed, the prosecutor made an application to declare Ms Cooke as a hostile witness. The application was heard in the absence of Ms Cooke. After hearing from the prosecutor, his Honour dismissed the prosecution's application. No further evidence‑in‑chief was led from Ms Cooke.

2.2.2.2 Ms Cooke's evidence in cross-examination

After being asked to recite much of what she had said in her examination‑in‑chief, Ms Cooke was asked to describe the appellant's demeanour when he got out of the vehicle and walked towards Mr Douglas. In response, Ms Cooke said that the appellant exited the vehicle calmly, 'to further converse, in order to achieve the objective of just getting home that night'.[21] Ms Cooke also said the appellant was not in any way aggressive towards Mr Douglas, that it was Mr Douglas who was being quite aggressive, that Mr Douglas attempted to provoke a response from the appellant, and that she had stood in front of the appellant because she wanted to stop any further provocation from Mr Douglas.[22]
[21] ts, 1 May 2019, 52.
[22] ts, 1 May 2019, 53.
Ms Cooke also stated when cross-examined that after Mr Douglas made a comment about his shin he said he would call his supervisor and continued with his threatening behaviour and bad language. Ms Cooke then went on to say that, although she did not recall seeing the kick, after the incident occurred she recalled turning around to the appellant for a second time and seeing him step back in what she knew to be a defensive stance (used in martial arts) with his hands open and he said to Mr Douglas, 'Back the fuck off'.[23]
[23] ts, 1 May 2019, 54.
Ms Cooke then told Mr Douglas to get away from the appellant. When Mr Douglas' supervisor arrived, he told Mr Douglas to sit down and shut up or he would be taken off-site.
Ms Cooke spoke to the supervisor, but the appellant did not. When asked by the appellant why that was, she said:[24]
I wanted to take control of the situation and I felt that I could recount the details accurately towards the supervisor. I felt, with Geoffrey's continuing threats, that you may still be feeling threatened. So I wanted to speak to the supervisor myself and allow you time and space to move away from those threats.

2.2.3 Mr Astridge's evidence

[24] ts, 1 May 2019, 57.

Mr Astridge was the supervisor for the company contracted to perform the roadworks on the intersection of Plain Street and Wellington Street on the night of 27 October 2018. Traffic control was being performed by another company known as JAG.
At about 10.00 pm that night, Mr Astridge received a call on the two‑way radio from the team leader informing him that there was an incident on Bennett Street. Mr Astridge and the team leader drove to the corner of Bennett Street and Wellington Street. When he arrived he saw Mr Douglas arguing with the appellant. He told Mr Douglas to go to one side so he could speak to the appellant.
After Mr Douglas went to the footpath, Mr Astridge spoke to the appellant, who started to explain what had happened and why he was led to believe he was allowed to go through (Wellington Street) when Mr Douglas called out and started to say it did not happen that way so he told Mr Douglas again to go to the side of the road.
Mr Astridge spoke to the appellant and his partner. The appellant told him that other traffic controllers had said to go around the block to enter Wellington Street from Bennett Street and when he arrived 'they sort of had an altercation'. The appellant told him that he had a scuffle with Mr Douglas, kicked him and that he should not have done that, but it had been done in the heat of the moment. When cross-examined further about whether he could recall specifically what the appellant had said, Mr Astridge said he recalled that the appellant had said that he went around and kicked Mr Douglas, and he had apologised by saying it was in the heat of the moment.[25]
[25] ts, 1 May 2019, 69.
Mr Astridge told the appellant, 'That's probably not a good idea. We've got to look after our side. I don't want to get our people injured as well'.[26] He explained to the appellant why it was necessary to block the road. He then asked the appellant where he lived. The appellant told him he lived just up the road, and provided his name and telephone number. Mr Astridge then arranged for traffic control to allow him access and he told the people working on the roadworks to stop working.
[26] ts, 1 May 2019, 62.
When Mr Astridge was cross-examined, he was asked whether he could hear what was being said between the appellant and Mr Douglas when he first arrived at the intersection of Wellington Street and Bennett Street. In response, Mr Astridge said he could not make out much of what was said.
When cross-examining Mr Astridge, the appellant put to him that it was the appellant's partner who spoke to him on the night in question and that he, the appellant, did not speak to him. Mr Astridge disagreed and said that both the appellant and his partner spoke to him, and that the conversation was civil.

2.3 The appellant's evidence

The appellant elected to give evidence.
At the time of giving evidence the appellant was 40 years of age and was employed as a human resources consultant and an advocate for tenancy and consumer law matters.
The appellant's evidence was as follows.
At approximately 10.00 pm on 27 October 2018, he and his partner, Ms Cooke, were driving home when they encountered roadworks on Plain Street. He stopped at a roadblock and spoke to two traffic controllers and asked how he could get to his street, and told them that he lived on Wellington Street. He was told to drive further down Plain Street, but when he did he was unable to locate an access point. He drove back to the roadblock and spoke again to the traffic controllers. He told them again that he lived on Wellington Street, he was a local resident, and he pointed to his parking permit.[27] The appellant also asked the traffic controllers again how could he get home and, after some negotiations and 'some heated discussion', he was told that if he drove down Bennett Street to the corner of Wellington Street, his name and vehicle registration would be communicated or radioed to Mr Douglas, and they would be allowed to go straight through.[28] When cross-examined about the 'heated discussion', he agreed that during that heated discussion the traffic controllers threatened to have him arrested and charged.[29]
[27] ts, 1 May 2019, 78.
[28] ts, 1 May 2019, 79.
[29] ts, 1 May 2019, 88 ‑ 89.
When he arrived at the corner of Wellington Street and Bennett Street, he stopped at a red light and observed another vehicle being stopped by Mr Douglas. He saw the driver of that vehicle stepping out of his vehicle communicating with Mr Douglas, and after about three minutes the driver was allowed to drive through (the roadblock). He then drove slowly towards the traffic block. As he did so, Mr Douglas put the cones back on the road in front of his vehicle to prevent his thoroughfare.[30]
[30] ts, 1 May 2019, 79.
Mr Douglas then came to the driver's side of his vehicle. By that time, the driver's side window was down. Prior to that, the window was up, he and Ms Cooke had not been yelling, had not been abusive, and had not spoken at a volume that could have been heard by Mr Douglas from a distance. Mr Douglas demanded to see his driver's licence. The appellant asked why he needed to see it and the appellant asked to be let through (the roadblock). Mr Douglas repeated his request. The appellant declined, pointed to the residential parking permit (on the windscreen), and said to Mr Douglas that his (vehicle) registration number should have been radioed through to let them through. In response, Mr Douglas said, 'I'm not fucking letting you through', and then walked away across the front of the appellant's vehicle to the passenger's side.
The appellant then wound down the passenger window and said to Mr Douglas that he wanted to speak to a supervisor or a person in authority, and asked for a contact number so he could make a complaint about being prevented from getting access to his home street as he was a local resident and all he was intending to do was to go home. In response, Mr Douglas said, 'Not my fucking problem'.[31]
[31] ts, 1 May 2019, 80.
The appellant then calmly stepped out of the vehicle, was not abusive, threatening or aggressive, and approached Mr Douglas and said, 'What's your fucking problem? I just want to get through. Please let us through. Please move the cones so I can get through. Why are you not letting us through? What is your issue? Call a supervisor. This is ridiculous'.[32]
[32] ts, 1 May 2019, 80.
Mr Douglas pointed at the appellant with his left hand and said, 'Get back in the car or I will knock you to the fucking ground', and said if the appellant did not comply with a traffic controller's instructions, he would be arrested and charged. In response, the appellant questioned Mr Douglas as to his legal authority; did he have the right to threaten him with arrest and being charged (with an offence). Mr Douglas said in response, 'I am a fucking traffic controller. That's my jurisdiction'.[33]
[33] ts, 1 May 2019, 80.
At that point in time, Ms Cooke stepped out of the vehicle and stood between Mr Douglas and the appellant. Mr Douglas walked towards Ms Cooke and was shouting at the appellant, 'Do what you're told. Comply. I will have you charged. I will have you arrested. Do you want to fight me?'.[34] From where he was standing behind Ms Cooke, it looked like Mr Douglas was touching Ms Cooke, and he formed the opinion that Mr Douglas was going to move Ms Cooke out of the way. At that point, he felt immediate fear and believed he was in danger (of being assaulted by Mr Douglas). He then saw Mr Douglas dropping his shoulder, clenching his fists, and starting to lean forward, or to the side of, Ms Cooke. As Mr Douglas did so, the appellant kicked Mr Douglas in the left shin, and then took two steps back.[35]
[34] ts, 1 May 2019, 81.
[35] ts, 1 May 2019, 81 ‑ 82.
The appellant described what he then said he did as a technique used in crowd control and in conflict situations. He took two steps backwards for every step Mr Douglas took towards him and said, 'Back off. I don't want to fight. I don't want aggression. I just want to go home'.[36]
[36] ts, 1 May 2019, 82.
At that point in time, two people who said they were supervisors arrived at the intersection, one of whom was Mr Astridge and the other a person called Jason. There was also a third person called Shane. All three told Mr Douglas to sit down and remove himself from the situation. The appellant then spoke to Mr Astridge, and told him he was just trying to get home and that, 'You said we could get through. You said you would radio through to let us through. It doesn't appear that we were allowed to. What is going on?'. Mr Astridge apologised for their inconvenience, and then Ms Cooke took over the discussion with Mr Astridge.[37]
[37] ts, 1 May 2019, 83.
The appellant said that at no point during the conversation with Mr Astridge did he apologise for kicking Mr Douglas, and he made no statement in regard to the kick itself.[38]
[38] ts, 1 May 2019, 83.
Whilst Ms Cooke was speaking with the supervisors, Mr Douglas was sitting on another vehicle or on a kerb tending to his injury. During Ms Cooke's conversation, on numerous occasions, Mr Douglas stood up and started saying, 'Do you want to have a go? Do you want to fight me? Shall we go now? Shall we just have it now? Let's do it. Let's go for it'.[39]
[39] ts, 1 May 2019, 83.
Mr Douglas was told by his supervisors on two or three occasions to sit down. On one occasion, his supervisor told him that if he did not calm down, and did not stop making the comments, he would be put off‑site.
Mr Astridge spoke with Ms Cooke. It was discussed that the appellant would provide his contact name and telephone number for the purpose of someone from the organisation contacting him.
At that point, the appellant interrupted his evidence‑in‑chief to ask his Honour whether mobile telephones could be used in the court (as he could see that the prosecutor was using his mobile phone). His Honour informed the appellant that that was permissible if the prosecutor was using a mobile phone as an aid.[40]
[40] It is not alleged in this appeal that the prosecutor was using a telephone to make telephone calls, but it appears that the prosecutor and the trainee prosecutor who was assisting him were using their mobile telephones to send text messages and/or retrieve information; ts appeal, 15 March 2021, 35 ‑ 38.
The appellant then continued his evidence‑in‑chief and said that he provided his name and telephone number to Mr Astridge, and that he did so with the expectation that he would receive a communication as to why he had not received a letter‑drop giving notice of the roadworks.
The prosecutor commenced the cross-examination of the appellant by asking questions of the appellant about his training in martial arts. It is apparent from the transcript that the appellant did not answer some questions in a way that was responsive, which resulted in his Honour informing the appellant that he was being evasive, and being evasive during cross-examination was not helpful.[41]
[41] ts, 1 May 2019, 86 ‑ 87.
When the prosecutor put to the appellant that it would be impossible for him to see whether Mr Douglas was touching Ms Cooke because he was behind her, the appellant said it was difficult to explain in words. The appellant made a request of his Honour for a volunteer to demonstrate how he could see what was happening in front of Ms Cooke when he stood behind her. His Honour refused the application. The appellant then described in words what he could see when Ms Cooke was standing in front of him, and between him and Mr Douglas, as follows.[42]
[42] ts, 1 May 2019, 93.
The appellant said that Mr Douglas was much taller than Ms Cooke, and that Mr Douglas' body was half‑protruding from the left hand side of Ms Cooke, so that he could see only half of Mr Douglas' body.
The appellant strongly contended when he was cross-examined that he was not concerned about a threat to Ms Cooke from Mr Douglas; he was concerned that Mr Douglas was a threat to him because Mr Douglas had dropped his shoulder, made a fist and had stepped forward.[43]

2.4 No closing addresses

[43] ts, 1 May 2019, 94 ‑ 95.

Immediately following the conclusion of the evidence given by the appellant, the following exchange occurred between the prosecutor and his Honour:[44]
HIS HONOUR: Sergeant, are you wanting to make final submissions?
BEDELLS, MR: Your Honour, I was pencilling some few things down, but I know your Honour's preference, that the prosecution doesn't. I do have a few thoughts I would like to share briefly.
HIS HONOUR: Well, my normal practice is that if a person is not represented, it's probably not fair to make submissions and I will go straight into my decision.
BEDELLS, MR: Your Honour, frankly, I don't think I'm going to persuade your Honour to convict or acquit - - -
HIS HONOUR: No.
BEDELLS, MR: - - - with my submissions, so I won't.
HIS HONOUR: Thank you. Mr B, it's usually my intention, if a person is unrepresented, I don't ask for submissions; I just go about making my decision, whether it be today or be it some other time. My personal view is that I could do it today. All right? Thank you.
[44] ts, 1 May 2019, 96.
His Honour then immediately delivered his judgment, found that the charge of assault causing bodily harm to Mr Douglas had been proved beyond reasonable doubt, and entered a conviction for the offence against the appellant.

3.0 The magistrate's reasons for decision

After referring again to the presumption of innocence, the right of the appellant to remain silent, and that the prosecution bears the onus of proof to the standard of beyond reasonable doubt, his Honour considered each of the elements of the offence of assault causing bodily harm pursuant to s 317 and s 222 of the Criminal Code.
His Honour referred to the fact that the appellant had raised self‑defence, provocation and consent in his opening address, and remarked that there was no evidence that would suggest that Mr Douglas consented to being kicked. In these circumstances, he did not intend to deal with the issue of consent.
In respect of self-defence and provocation, his Honour stated that it was for the prosecution to prove beyond a reasonable doubt that the appellant did not act in self‑defence or was not provoked by Mr Douglas.[45]
[45] ts, 1 May 2019, 98.

His Honour comprehensively summarised the evidence of each of the prosecution witnesses, and the appellant.[46]
[46] ts, 1 May 2019, 99 ‑ 107.
His Honour then set out the matters that the prosecution must prove beyond reasonable doubt to discharge the onus of proof to prove the appellant did not act in self‑defence pursuant to s 248 of the Criminal Code, and to prove the appellant was not provoked within the meaning of s 245 of the Criminal Code.
After making findings about the credibility of each of the prosecution witnesses and the appellant, his Honour found that the evidence of the appellant and Ms Cooke was well‑rehearsed and certain aspects of the evidence were lies,[47] that Mr Douglas was not the aggressor and did not threaten the appellant in any way,[48] and he was satisfied beyond reasonable doubt:[49]
(a)the appellant did not act in self‑defence;
(b)Mr Douglas did not give the appellant provocation for the assault; and
(c)on all of the evidence Mr Douglas did not, in any way, consent to being assaulted.
[47] ts. 1 May 2019, 109.
[48] ts, 1 May 2019, 109 ‑ 110.
[49] ts, 1 May 2019, 111.
His Honour's findings of credibility in respect of each of the prosecution witnesses and the appellant were as follows:[50]
[50] ts, 1 May 2019, 108 ‑ 110.
Dealing then with the evidence, firstly, Mr Douglas. Can I say that I found Mr Douglas to be a very impressive witness indeed. I found his evidence to be concise. I found his evidence to be clear. At no stage during his evidence did I feel that he was prone to exaggerate.
He was certain about his evidence and in my view, he had a good recollection of the events. He was unshaken in cross-examination. I felt that he was honest. I felt that he was accurate. He was reliable, and, quite frankly I found his evidence to be both convincing and persuasive. Mr Astridge was not as impressive witness as Mr Douglas. This is not surprising. He didn't witness the incident. He was here simply to speak about matters that had occurred after the incident. He was a little vague about certain aspects of his evidence. However, there were aspects of his evidence that he was certain about, and that is that at no stage during the course that he was present at the scene did he see Mr Douglas being aggressive towards the accused or Ms Cooke or make any threats or make any propositions to fight with them. He was adamant in his evidence that the accused told him that he had kicked Mr Douglas and that the accused had apologised for doing it.
I turn then to the evidence of Ms Cooke. Ms Cooke made her statement on 1 November 2018, which is some four or five days after the incident. Although on the face of her evidence it was impressive, I formed the view that it was well-rehearsed and there are aspects of it that were litany of lies. I do not accept her evidence that Mr Douglas was the aggressor. I simply do not accept that at all.
She was precise. She was certain about things. She wasn't shaken in cross-examination, but I don't accept that her evidence was entirely honest and I don't accept that it was entirely accurate and, as I say, in my view, it was a well-rehearsed litany of lies. The same can be said for the evidence of the accused. I don't accept many aspects of his evidence.
I don't accept for a moment that Mr Douglas was the aggressor. I accept Mr Douglas' evidence that these two people ‑ although this was not his evidence, but this is quite obvious from all of the evidence ‑ that by the time these two people got to the corner of Wellington and Bennett Street they were already upset by having been stopped by two prior traffic controllers. They were clearly angry and irate by the time they got to Mr Douglas and Mr B vented his anger towards Mr Douglas because of it.
I don't accept his evidence for a moment that Mr Douglas was the aggressor. I accept Mr Douglas' evidence that Mr B was, in fact, the aggressor. I have absolutely no hesitation in finding ‑ bearing in mind, of course, it was accepted by the accused himself ‑ that he kicked Mr Douglas, and to that extent I'm satisfied beyond a reasonable doubt that he assaulted Mr Douglas.
In relation to the defence of self-defence, I'm satisfied beyond a reasonable doubt that the accused did not believe, subjectively, that his harmful act, that is, the kicking of Mr Douglas, was necessary to defend himself. I say that because there was no unlawful harmful act by Mr Douglas that would warrant that belief in the first place. As I have said, I accept the evidence of Mr Douglas that the accused was the aggressor throughout the incident.
I accept the evidence of Mr Douglas that he told the accused to, 'Fuck off,' at one stage and he told the accused to get back into his car, but that was the extent of what Mr Douglas said to him or did to him. The prosecution have proved beyond a reasonable doubt that the accused did not act in self-defence. With respect to provocation, although I accept the evidence of Mr Douglas that he told the accused to, 'Fuck off,' and get back into his car, these were not such insults as to be likely to deprive an ordinary person of the power of self-control and induce him to assault Mr Douglas.
As I have said, I reject the evidence of both Ms Cooke and the accused that Mr Douglas was the aggressor. I do not accept their evidence that Mr Douglas asked for the accused's identification. I do not accept their evidence that Mr Douglas said, 'That's not my fucking problem.' I do not accept their evidence that Mr Douglas said, 'Get back in your car or I will knock you to the fucking ground.'
I do not accept their evidence that Mr Douglas threatened the accused in any way, shape or form. I do not accept Mr B's evidence that Mr Douglas moved towards him in a threatening manner by dropping his shoulder with a clenched fist, and I do not accept his evidence that Mr Douglas told the accused that if he didn't comply with what Mr Douglas was saying he would be charged.

4.0 Ground 1 ‑ Principles ‑ Conduct of a fair trial

4.1 Procedural fairness, including the right to make a closing submission and submission as to sentence

In all proceedings before the Magistrates Court, a party must be afforded an opportunity to present their case, which includes making submissions on the evidence in a closing address, and making submissions as to sentence following a conviction.
The right to make a closing address following a trial in a prosecution is expressly provided for in s 145 of the Criminal Procedure Act 2004 (WA). Section 145 provides:
145.Closing addresses
(1)When the parties have finished giving or adducing evidence in a trial, the prosecutor is entitled to give a closing address to the court about the whole case.
(2)Immediately after the prosecutor has given or declined to give a closing address, the accused is entitled to give a closing address to the court about the whole case.
(3)If in an accused's closing address any fact is asserted that is not supported by evidence in the trial, the court may permit the prosecutor to give an address to the court in reply to the assertion.
In Brooks v Drysdale, I set out the relevant principles of the 'hearing rule' that apply to all criminal trials (which extends beyond simply a right to make a closing address on the evidence and as to matters of law following a trial), including the sentencing process as follows:[51]
The requirement of a court to accord natural justice includes an obligation to accord procedural fairness. The principles of procedural fairness require that a party be given an opportunity to present their case and be heard (the hearing rule).
The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.
The relevant legal principles concerning procedural fairness in a criminal trial were considered by Jenkins J in Sprlyan v Wyborn:
'Procedural fairness requires that an accused person in a criminal trial must be given a reasonable opportunity to appear and present his or her case. What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, including the nature of the jurisdiction, the subject matter, and the statutory provisions governing the power or jurisdiction being exercised.
As a general rule a person will not be afforded procedural fairness if he or she is not given a reasonable opportunity to make relevant submissions, give evidence, and call witnesses in support. However, the opportunity that must be afforded will always be qualified by the requirement that the material and argument sought to be presented must be sufficiently relevant and significant to warrant being received.
The assessment is one of "practical injustice". For example, a court may refuse to grant relief based upon a suggested denial of procedural fairness if it may safely be concluded that the completion of the submissions that were cut off would have made no difference to the outcome.'
In a sentencing hearing the rules of procedural fairness require that an offender be given a reasonable opportunity to present their case by evidence, information and submissions relevant to a plea in mitigation and sentence.
[51] Brooks v Drysdale [2020] WASC 466 [61] ‑ [64] (footnotes omitted).
If s 145 of the Criminal Procedure Act is not complied with, or the common law rules of procedural fairness are not complied with, the failure will necessarily give rise to a miscarriage of justice.[52] However, an appeal will not be successful on this ground if the court considers that no substantial miscarriage of justice has occurred.[53]

4.2 Apprehended bias

[52] Ng v Cooper [2005] WASC 233 [8] (McKechnie J).

[53] Criminal Appeals Act 2004 (WA) s 14(2).

A miscarriage of justice will arise if it can be demonstrated that a magistrate displayed apprehended bias. The test to establish bias is well established. The Court of Appeal recently summarised the principles that must be made out to establish bias in Y v X:[54]
The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it.
[54] Y v X [2020] WASCA 104 [123] (footnotes omitted).
Apprehended bias must be firmly established. The suspicion of the ultra‑sensitive, paranoid or cynical must not be allowed to determine the applicable legal standard of impartiality.[55]
[55] S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 374 (Kirby P).
Two things need to be remembered:[56]
(a)the observer is taken to be reasonable; and
(b)the person observed is a professional judicial officer whose training, tradition and oath or affirmation, require the judicial officer to discard the irrelevant, the immaterial and the prejudicial.

4.3 Rights of a self-represented accused

[56] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ); cited with approval in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [80] (Gummow J), [132] (Heydon, Kiefel & Bell JJ); Vakauta v Kelly (1988) 13 NSWLR 502, 527 ‑ 528 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 584 ‑ 585 (Toohey J); Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289 [40] (McKechnie J; Malcolm CJ agreeing).

It is not the law in Australia that every person accused of an indictable offence is entitled to have appointed a legal representative to provide advice and appear on their behalf at trial, or that in the absence of the appointment of a legal representative to act on their behalf a miscarriage of justice will inevitably arise.
In VJS v The State of Western Australia, Mazza JA pointed out that the decisions of the High Court in McInnis v The Queen and Dietrich v The Queen make it clear that the common law of Australia does not recognise the right of an accused facing serious charges to be provided with counsel by the State at public expense.[57] However, the Dietrich principles require, in the absence of exceptional circumstances, that a trial of a serious criminal offence to be adjourned, postponed or stayed if an indigent accused person seeks an adjournment to obtain legal representation.[58]
[57] VJS v The State of Western Australia [2017] WASCA 172 [154] (Mazza JA); applying McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575, 579 (Barwick CJ) and Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 297 ‑ 298, 311 (Mason CJ & McHugh J).
[58] VJS v The State of Western Australia [2017] WASCA 172 [155] ‑ [160] (Mazza JA).
In Konings v Commonwealth Bank of Australia, the Court of Appeal relevantly observed:[59]
A party is not denied natural justice, or procedural fairness, merely because they do not have legal representation. That is the case whether the lack of legal representation is a matter of choice or because they are unable to afford it. It is accepted, however, that a court ought to assist a litigant in person to the extent consistent with the interests of justice. What the court ought do to will depend upon the nature of the case and the litigant's capacity to understand the issues in the case: see Tobin v Dodd [2004] WASCA 288 [14]. But the court must not intervene to such an extent that a position of neutrality cannot be maintained or an unrepresented litigant is given a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored: Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1, 14; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26] ‑ [29].
[59] Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12]; applied in an appeal against conviction and sentence by the Court of Appeal in Van der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113 [15].
It is not unusual for a person accused of an offence that is tried in the Magistrates Court not to be represented by a legal practitioner. The Magistrates Court Act 2004 (WA) expressly provides for the court's duties in respect of self-represented parties in s 30, which provision applies to both civil and criminal proceedings in the Magistrates Court.
Section 30 of the Magistrates Court Act prescribes that in a case where a party is self-represented, the court must inform the party of:
(a)the need, when cross-examining a witness called by another party, to ask the witness about any evidence of which the witness or the other party has not previously had notice that the self-represented party ‑
(i)intends to adduce; and
(ii)intends to allege will contradict the witness's evidence;
and
(b)the consequences of not doing so.
The effect of s 30 is that a magistrate who presides over a trial is required to adequately explain to a self-represented party the rule in Browne v Dunn,[60] which is a rule of practice to achieve fairness to witnesses and a fair trial.[61]
[60] Browne v Dunn (1893) 6 R 67.
[61] Bennett v Carruthers [2010] WASCA 131 [46] ‑ [48] (Mazza J; McLure P & Newnes JA agreeing).
No point is raised in this appeal that the presiding magistrate did not comply with s 30 of the Magistrates Court Act.
In Dunn v The Queen, Buss JA set out the established principles concerning a trial judge's duty to an accused who is self-represented as follows:[62]
In R v White [2003] VSCA 174; (2003) 7 VR 442, Chernov JA (Charles JA relevantly agreeing) said that when an accused is unrepresented at his or her trial 'the judge must ensure that the accused is fully aware of the legal position in relation to the substantive and procedural aspects of the case without effectively advising him or her of what course should be followed, or unduly interfering in the Crown's case as if the judge was the accused's counsel' (original emphasis) [34].
In O'Connell v The State of Western Australia [2012] WASCA 96, Mazza JA (Martin CJ & Buss JA agreeing) observed [106]:
'A criminal trial is an adversarial process. It is not the role of the trial judge, when faced with an unrepresented accused, to play the part of his or her advocate and give the advice, guidance and representation which counsel would have provided: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 334 - 335 (Deane J). However, consistent with a trial judge's duty to ensure a fair trial, he or she is under an obligation to give an unrepresented accused such information and advice as is necessary to ensure that he or she has a fair trial: MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 534 (Mason J). There is no limited category of matters of which a judge must advise an unrepresented accused: MacPherson v The Queen (524) (Gibbs CJ and Wilson J). The scope of the assistance to be given depends on the particular litigant and the nature of the case. The touchstones are fairness and balance: Tomasevic v Travaglini (2007) 17 VR 100 [14] (Bell J).'
[62] Dunn v The Queen [2015] WASCA 126 [200] ‑ [201]; (Newnes & Mazza JJA agreeing); see also McGuinness v Heffernan [2017] WASC 40 [12] (Le Miere J) and McGuinness v Heffernan [2017] WASCA 194 [23].
In VJS v The State of Western Australia, Mazza JA also relevantly referred to a number of established authorities and observed that an unrepresented accused will generally, if not always, be at a disadvantage compared to someone who is represented by counsel.[63] This is because he or she will not ordinarily have the knowledge and skill of counsel, or the ability to present his or her case dispassionately.[64] His Honour also observed that:
(a)there will almost always be a mismatch in competence as between a legally qualified prosecutor on the one hand, and a self-represented accused on the other. By reason of these disadvantages, the burden on the trial judge to ensure a fair trial is greater when faced with an unrepresented accused;[65]
(b)an unrepresented accused does not gain any special advantage compared to an accused who has counsel. The procedures and laws that apply to criminal trials apply to all litigants, whether represented or not;[66] and
(c)the touchstones are fairness and balance, and it is necessary to have regard to the entire trial record in order to decide whether an appellant received a fair trial.[67]
[63] VJS v The State of Western Australia [2017] WASCA 172 [175].
[64] VJS v The State of Western Australia [2017] WASCA 172 [175].
[65] VJS v The State of Western Australia [2017] WASCA 172 [175].
[66] VJS v The State of Western Australia [2017] WASCA 172 [178].
[67] VJS v The State of Western Australia [2017] WASCA 172 [178].
Consequently, it is not the role of a presiding magistrate to provide legal advice to a self-represented party. Nor does a party charged with a criminal offence have a general right to have, provided at the State's expense, legal counsel.
A magistrate's role is limited to informing a self-represented party of:
(a)their basic rights, the presumptions that will apply in the trial (such as the presumption of innocence);
(b)the burden and standard of proof; and
(c)the requirement of a self‑represented accused to put their case to the prosecution witnesses, and that the consequences of not doing so may impact on the magistrate's assessment of the credibility of both the witness and the accused. A presiding magistrate should also explain to a self-represented accused the manner in which the trial is to proceed, the order of calling witnesses, and the right to cross-examine.

It is also the duty of a presiding magistrate to ensure that the procedural and evidential rules, and the principles of law, are complied with. A presiding magistrate is entitled to discourage or rule against questioning of a witness in respect of a matter that is irrelevant to the determination of the issues properly before the court.
Whilst a presiding magistrate must conduct a trial in accordance with the rules of procedural fairness so that a person whose rights are affected is given a fair hearing,[68] a fair hearing does not require a magistrate to allow an unrepresented litigant to conduct their case in any way whatsoever.[69] A magistrate has a wide discretionary power to contain cross‑examination within proper limits and to disallow repetitious prolix or unnecessary questions.[70]

4.4 Disposition of ground 1 - was the conduct of the trial unfair?

[68] Sprlyan v Wyborn [2019] WASC 227 [160] (Jenkins J).

[69] Fantakis v NSW Commissioner of Police [2013] NSWSC 1333 [39] (Price J).

[70] R v Kelly; Ex parte Hoang Van Duong (1981) 28 SASR 271, 273 (King CJ); applied in Farkas v Thomason [2020] WASC 67 [27] (Smith J).

In the first particular to ground 1, the appellant asserts that he was not able to properly defend himself at trial due to being a vulnerable adult because he was self-represented, having been refused Legal Aid, and because he suffers from a mental cognitive disorder, bipolar type 2.
The appeal cannot succeed on this ground just because the appellant was self-represented at trial, having been refused Legal Aid. This is because at no time did the appellant apply for an adjournment or stay of the proceedings to obtain legal representation. In any event, there is no evidence before the court to demonstrate that he is, or was at the time of trial, indigent.[71]
[71] See the discussion by Mazza JA in VJS v The State of Western Australia [2017] WASCA 172 [156] ‑ [163].
Having read the transcript of proceedings of the trial, and having heard the appellant make oral submissions on the appeal, it is clear that the appellant is unable to make out a claim that he suffers from any special disadvantage, or suffers from any cognitive impairment that inhibits his ability to understand the nature of the charge brought against him, or any aspect of the trial procedure.
To the contrary, it is clear that the appellant is well‑educated, intelligent and articulate, and was clearly able to not only understand the trial procedure, but was also able to clearly articulate his own evidence on all relevant points, and, without much assistance from his Honour, to properly and comprehensively put his case to each of the prosecution witnesses.
In the second particular to ground 1, the appellant complains that he was prevented from giving evidence by the use of a 'volunteer' to demonstrate how he was able to see Mr Douglas clenching his fists when Ms Cooke was standing in front of him, and between him and Mr Douglas. His Honour did not allow the appellant to perform a physical re-enactment with a volunteer, but instead properly invited the appellant to describe in words how he was able to see Mr Douglas. It is clear from the transcript that the appellant was able to adequately describe in words what he was able to see.[72] Consequently, no miscarriage of justice could arise in respect of his Honour's ruling on this point.
[72] The appellant's description in respect of this issue is set out in [86] ‑ [87] of these reasons.
In the third, fourth and fifth particulars to ground 1, the appellant raises three matters which relate to the conduct of the prosecutor that gave the prosecution an unfair advantage because he was not afforded similar advantages. These matters are that his Honour granted the prosecution an adjournment to seek legal advice, there were two prosecutors and the prosecutors were able to use an iPhone and iPad during the trial.
The only adjournment sought by the prosecutor was to seek advice about a foreshadowed application to declare a witness hostile. After a short adjournment for this purpose, the application was made by the prosecutor and refused by his Honour. The appellant made no application at any time for any adjournment for any purpose during the trial. Consequently, no disadvantage to him could properly be found to arise.
Only one prosecutor appeared on behalf of the prosecution in the trial. The other person present in the court with the prosecutor was a trainee prosecutor who assisted the prosecutor in proofing the witnesses and preparing for the trial that morning. In‑court training of police prosecutors is not only common but also appropriate. More importantly, the appellant is unable to point to any specific disadvantage to him that arose because the prosecutor was assisted by a trainee.
As to the use by the prosecution of an iPhone or iPad in court, the use of such devices is common in all courts by persons who appear in proceedings. In the absence of any application by the appellant to use a mobile or computer device in court that was refused, no miscarriage of justice could properly be found to arise by the fact that the prosecutor and the trainee prosecutor used their electronic devices in court.[73]
[73] It is noted that the Magistrates Court of Western Australia Practice Direction Number 3 of 2021, made by the Chief Magistrate on 30 March 2021, specifically regulates the use of electronic devices and prohibits the use of such devices when court is in session, except within the court room by members of the legal profession, and self-represented litigants who are engaged in a case, provided that earphones are not used and the device is in silent mode and does not make any noise.
The sixth particular to ground 1 is that the appellant alleges that his trial was unfair because his Honour showed signs that he had made a decision of guilt prior to the trial.
The basis of the appellant's complaint of bias is that during the course of cross-examination of Mr Douglas, the appellant put to him that Ms Cooke had asked him, 'Who do we speak to in regards to this matter' etc,[74] and then was about to put a proposition that began with 'my witness and I will contend that you prevented', when his Honour interrupted and said:
HIS HONOUR: You've obviously had a lot of opportunity to speak to your witness, Mr B.
ACCUSED: Sorry, your Honour?
HIS HONOUR: You've obviously spoken about this a lot to your witness.
ACCUSED: I don't know what you mean by that, but thank you, your Honour.
HIS HONOUR: Thank you. Carry on.
[74] ts, 1 May 2019, 23.
The appellant's complaint about this interchange is, first, his Honour was mistaken about Ms Cooke being his witness because Ms Cooke was called by the prosecution and, second, it can be inferred from this interchange that his Honour had formed the view that the appellant and Ms Cooke had rehearsed their evidence.
Although Ms Cooke was called by the prosecution to give evidence, she could not be said to be an independent witness. She was, at the time the incident occurred, and at the time she gave evidence, the partner of the appellant. The only reason why she was called by the prosecutor to give evidence in the prosecution case was because she had provided a witness statement to the police about the incident. More importantly, as pointed out on behalf of the respondent, the appellant, when cross‑examining Mr Douglas, referred to Ms Cooke as his witness.
As a trier of fact, it was for his Honour to determine, as he did, whether he should accept the appellant's, and Ms Cooke's, evidence as credible. In the assessment of the evidence of any witness, a trier of fact is entitled to take into account whether the reliability of a witness has been tainted, contaminated or otherwise tailored to assist the appellant's case, by a discussion or discussions about what occurred with another witness to an incident.[75] At the point at which his Honour interrupted the appellant's cross-examination of Mr Douglas and said to the appellant, 'You've obviously spoken about this a lot to your witness', the appellant had, prior to that remark, put five different questions to Mr Douglas, which were prefaced by words to the effect that, 'My witness and I will provide evidence that'.[76]
[75] See for example the discussion in Presilski v Shepherd [2021] WASC 100 [232] ‑ [238], where the evidence of a witness who was cross-examined in an appeal was not admitted as evidence in the appeal on grounds that it was the witness' evidence that he could not say his recollection of the events in question was his recollection as opposed to the recollection of the appellant, after having discussing the events with the appellant on three occasions.
[76] ts, 1 May 2019, once on 18, twice on 22 and twice on 23 (the last of which was immediately before his Honour made the remark).
In these circumstances, his Honour's remark to the appellant, whilst it could be regarded in one sense as unnecessary, is not sufficient on its own to raise apprehended bias. This is because, when the whole of the transcript is read, it is clear that his Honour took many steps to ensure the appellant's trial was fair, including explaining at length the relevant principles that apply to a criminal trial and overruling prosecution objections and applications. Further, his Honour allowed the appellant considerable leeway in his questioning of witnesses, even when the questions asked were not relevant,[77] and assisted the appellant by explaining his right to put prior inconsistent statements to witnesses.[78]
[77] See for example ts, 1 May 2019, 17 ‑ 18.
[78] ts, 1 May 2019, 67.
For these reasons, none of the particulars to ground 1 of the appeal have prospects of success, and leave to appeal on this ground should be refused.

5.0 Ground 2 ‑ Appellant denied opportunity to make a closing address ‑ Ground 3 ‑ Whether the verdict was unreasonable or unable to be supported

5.1 The issues raised in grounds 2 and 3

Ground 2 and ground 3 should be considered together.
It is properly accepted by the respondent that his Honour erred by not affording the appellant the opportunity to make a closing address, and this was contrary to the appellant's right to do so pursuant to s 145(2) of the Criminal Procedure Act.
Consequently, ground 2 of the appeal must be decided in favour of the appellant.
In this matter, this court is to consider whether if the appellant had been afforded the opportunity to make a closing address, and had put the matters he wished to put to his Honour, those submissions would have made a difference to the result.[79]
[79] Stead v State Government Insurance Commission [1986] HCA 54; (1996) 161 CLR 141, 145 ‑ 146 (Mason, Wilson, Brennan, Deane & Dawson JJ).
However, success on this ground will not necessarily result in the setting aside of the conviction and the substitution of a verdict of acquittal, if the court considers that no substantial miscarriage of justice has occurred, as not all errors of law enliven this court's jurisdiction. To enliven the appellate court's jurisdiction, the error must be material, in the sense that it must have affected, or have been capable of affecting, the decision to convict or acquit or, where the appeal is against sentence, the sentence imposed.[80]
[80] See the discussion in Crocker v Vinicombe [2019] WASC 416 [41] ‑ [42] (Fiannaca J) in respect of the application of the proviso in s 14(1)(b) of the Criminal Appeals Act 2004 (WA) as it applies to appeals against sentence.
In Morgan v Kramer, Hall J explained:[81]
The success of the grounds of appeal does not necessarily result in the setting aside of the acquittal and the substitution of a conviction. Section 14(2) of the Criminal Appeals Act 2004 (WA) provides that 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.
This form of the proviso needs to be understood as operating in a context where, unlike a jury, the magistrate provides detailed reasons for his or her decision. This enables an assessment to be made of whether any error was in fact material to the result, rather than merely having the potential to have such an effect.
Whether the error is one of fact or law is relevant to the question of whether there has been no substantial miscarriage of justice. Where the error is one of law, there may be circumstances where the error has not affected the outcome, but there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.
[81] Morgan v Kramer [2019] WASC 68 [44] ‑ [46] (footnotes omitted).
The appellant argues that if he had not been denied the opportunity to make closing submissions, he would have:
(a)made detailed submissions about the internal inconsistencies of the evidence of Mr Douglas and the inconsistencies of his evidence with the evidence of other witnesses;
(b)identified reasonable inferences that could have been drawn from the evidence;
(c)highlighted holes, discrepancies or weaknesses in the prosecution's case;
(d)summarised his case; and
(e)made a submission about the legal principles that apply in respect of the law of self-defence.

5.2 Principles ‑ Unreasonable verdicts

In an appeal brought under s 7 of the Criminal Appeals Act, a claim that a magistrate's verdict was, having regard to the evidence, unreasonable or unable to be supported, is a claim that a miscarriage of justice was occasioned.[82] The Chief Justice and Beech JA, in a joint judgment in MEN v The State of Western Australia, recently summarised the general principles governing the determination of appeals alleging that a jury's verdict is unreasonable or cannot be supported.[83] Although this was an appeal against a decision made by a magistrate, the principles are nonetheless applicable. In MEN v The State of Western Australia, Quinlan CJ and Beech JA said:[84]
[82] The State of Western Australia v Olive [2011] WASCA 25 [40] (Buss JA).
[83] MEN v The State of Western Australia [2020] WASCA 118.
[84] MEN v The State of Western Australia [2020] WASCA 118 [403] ‑ [406] (footnotes omitted); applied in De Pledge v The State of Western Australia [2021] WASCA 1 [29]; LTC v The State of Western Australia [2021] WASCA 60 [71].
In Wells v The State of Western Australia, this court summarised the principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence, by reference to the leading authorities, including M v The Queen, SKA v The Queen and R v Baden‑Clay, as follows:
'(a)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.
(b)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.
(c)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(d)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.
(e)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.
(f)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.
(g)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 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.'
In Fennell v The Queen, the High Court observed:
'Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. (citations omitted)'
Recently, in Pell v The Queen, the High Court elaborated on the principles in the following terms:
'[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community.Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, 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 upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
It should be understood that when the joint reasons in M v The Queen spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either 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 proof of guilt. (citations omitted; emphasis added)'
In this passage, the High Court emphasised that the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court. The appellate court performs its function on the assumption, in a case such as the present case, that the evidence of the complainant was assessed by the jury to be credible and reliable. The question for the appellate 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.

Where a verdict depends to a substantial degree on the credibility of a witness or witnesses, the following principles, applied by Buss JA in Ascic v Bedworth, are also to be followed:[85]
Where there has been a trial before a judge alone or a magistrate, the reasoning of the court which is based on a credibility determination must be distinguished from the reasoning of the court which is based on inferences drawn from facts that were undisputed or found by the court.
Normally, the court's credibility‑based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. However, as Kirby J observed in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458:
'Even in the case of expressed credibility findings, the statutory duty to conduct a real "rehearing" remains. It may sometimes justify reversal of a decision by a primary judge who has "failed to use or has palpably misused his advantage" or where "incontrovertible facts or uncontested testimony" demonstrates the findings to be erroneous; or where they are "glaringly improbable" and "contrary to compelling inferences" [21] (footnotes omitted).'
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561 (Isaacs J)), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow & Kirby JJ). In Dearman, Isaacs J said:
'The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).'
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
'These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23] (footnotes omitted).'
[85] Ascic v Bedworth [2013] WASCA 174 [64] - [67] (Martin CJ & Mazza JA agreeing); applied in The State of Western Australia v Rayney [2013] WASCA 219 [374].
It must be borne in mind that a trial judge or a magistrate is not obliged to make findings about inconsistencies in the evidence in respect of peripheral matters which throw no light on the real issues in the case.[86] Further, it is inevitable that when a number of witnesses are describing an event witnessed by them there will be some inconsistencies in what they state they observed and can remember.[87] This is because experience shows that different people perceive things differently and memories fade over time.

5.3 Disposition of Grounds 2 and 3

[86] Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349, 351 (McHugh J; Brennan, Deane, Dawson & Toohey JJ agreeing); Tomcsanyi v Yuswak [2015] WASC 111 [48] (Hall J).

[87] Hawker v Coulthard [2011] WASC 139 [24] (Sleight C).

The appellant submits that if he had had an opportunity to make a closing address he would have pointed out the following inconsistencies in Mr Douglas' evidence, and the evidence of Mr Douglas that was incontrovertibly wrong:[88]
[88] ts appeal, 15 March 2021, 27 ‑ 32.
(1)Mr Douglas stated that the appellant's vehicle was a blue Toyota Camry, when it was a beige Renault Laguna.[89]
[89] ts, 1 May 2019, 33 ‑ 34.
(2)Mr Douglas did not entirely recall what was said in relevant conversations, such as receiving a radio call to let the appellant's vehicle through.
(3)Mr Douglas' evidence was inconsistent with the evidence of Ms Cooke as to the following matters:
(a)it was Ms Cooke's evidence when Mr Douglas first approached the appellant's vehicle he went to the driver's side window, whereas Mr Douglas' evidence was that he approached the passenger's side window;
(b)Mr Douglas admitted touching Ms Cooke;
(c)it was Ms Cooke's evidence that Mr Douglas made a request that the appellant produce his driver's licence, which was denied by Mr Douglas; and
(d)it was Ms Cooke's evidence that Mr Douglas was the aggressor, which evidence was inconsistent with Mr Douglas' evidence.
(4)Mr Douglas' evidence is inconsistent with the evidence of Mr Astridge that he had to tell Mr Douglas twice to sit down on the footpath, which is consistent with Ms Cooke's evidence that Mr Douglas was the aggressor.
(5)Mr Douglas' evidence that he could hear shouting from the appellant's vehicle just before the appellant's vehicle pulled up was not credible as loud music was playing in the vehicle at the time.
(6)When giving evidence, Mr Douglas was unable to say what legislation gave him authority to stop or impede traffic.
When making oral submissions in support of the appeal, the appellant summarised the submissions that he would have made about the evidence as follows:[90]
[T]he information provided by Mr Douglas was inconsistent. He couldn't even get the car right. And that would obviously show that from there, the domino and a cascade effect of the information that he was providing. And I would have been able to articulate that in the submission, that what he was saying was not truthful. That myself and my partner were driving home, and this man decided to stop us for whatever reason and started taking arms against us because we weren't choosing to comply with his demands, even though he was told to get through. Just because he wanted, I don't know, an authority trip. That would have been articulated to the magistrate. And given the opportunity for that magistrate to at least consider those options or the inconsistencies in my submissions. But by not giving me that opportunity to submit or make those submissions, that magistrate has not had then the ability to consider the facts.
[90] ts appeal, 15 March 2021, 34.
Although the appellant makes a submission that he would have summarised the evidence if allowed to make a closing submission at the end of the trial, the appellant did not outline in his oral submissions any specific parts of the evidence that he would have referred to, other than what he contends were the inconsistencies and factual areas in the evidence of Mr Douglas, and the inferences that should have been drawn from those inconsistencies. However, in his written submissions filed on 25 January 2021, the appellant summarises the facts that he says should have been found, and the inferences that should have been drawn, on the evidence.
In respect of the submission the appellant states that he would have made about self-defence, in his written submissions filed on 25 January 2021 the appellant correctly points out that it is an element of the defence of self-defence, under s 248(4)(a) of the Criminal Code, that a person who commits a harmful act to another must have believed the harmful act was necessary to defend themselves or another person from a harmful act, including a harmful act that is not imminent.
As to self-defence, under s 248 of the Criminal Code a person does a harmful act to another person if they unlawfully assault that other person.
In order for self‑defence to be relied upon by an accused there must, at the close of the evidence, be some evidence which, taken at its highest in favour of the accused, could lead a reasonable trier of fact, properly instructed, to have a reasonable doubt as to whether the prosecution had negated self‑defence.[91]
[91] O'Neill v The State of Western Australia [2013] WASCA 158 [77] ‑ [78] (Buss JA); Morrison v Chiera[No 2] [2020] WASC 253 [99] (Derrick J).
Once an accused discharges this evidential onus, it is for the State to prove that an accused was not acting in self‑defence.[92]
[92] Morrison v Chiera[No 2] [2020] WASC 253 [99] (Derrick J).
The appellant in his written submissions concedes that his act of kicking Mr Douglas was a harmful act and simply says that it was necessary to do so because he had a reason to defend himself (from a harmful act of Mr Douglas).
A factual finding on the issue of whether the appellant must have believed that the act of kicking Mr Douglas was necessary to defend himself, turns solely on whether it was open for the presiding magistrate to:
(a)accept the evidence of Mr Douglas that at the time he was kicked by the appellant Ms Cooke was pushing against his chest with her hands preventing him from moving forward, and that he was standing still and not being aggressive;
(b)reject the evidence of Ms Cooke and the appellant that Mr Douglas came at both of them in a threatening and aggressive manoeuvre; and
(c)reject the evidence of the appellant that Mr Douglas made a threatening manoeuvre to him, by dropping his shoulder, clenching his fists and leaning forward to the side of Ms Cooke immediately before he kicked Mr Douglas.
As to the matters raised by the appellant in respect of Mr Douglas' evidence, before considering the issues relating to the assessment of the credibility of the witnesses, it is to be noted that:
(1)As to the make and colour of the appellant's vehicle, it was Mr Douglas' evidence when he was asked whether it was correct that the appellant's vehicle was a blue Toyota, he said, 'To tell you the truth, I probably let through 30 or 40 or ‑ 40 cars that night. It's very difficult to remember. My recollection is that you were driving a blue Camry, but I ‑ you know, it's a recollection. I was more concentrating on you and your partner'.[93] It was then put to Mr Douglas that the vehicle was not blue, that it was beige, and a Renault Laguna, to which Mr Douglas replied, 'Okay'.[94] He was then asked why his recollection of the events on that particular night was vague and indifferent and he said, 'It was six months ago'.[95]
(2)It was not the evidence of Mr Douglas that he touched Ms Cooke, and this allegation was not put to him in cross‑examination. It was Mr Douglas' evidence that Ms Cooke was pushing him to prevent him from moving forward.[96] It was, however, the appellant's evidence that Mr Douglas either touched Ms Cooke or appeared to be touching Ms Cooke.[97]
(3)It was not relevant whether Mr Douglas was or was not able to state the legislative authority conferred upon him to stop or impede the flow of traffic on a road. It was not put in issue in the trial that Mr Douglas had no authority to stop traffic from travelling east along Wellington Street from the Bennett Street intersection on the night in question. In any event, if the point had been taken it would not have been successful. Regulation 292A of the Road Traffic Code 2000 (WA) provides that where a portion of road is subject to work being done on, over or under it by or on behalf of an authorised body, a driver that is approaching or passing the place at which the work is being done must comply with a direction given by a person who is apparently a servant, agent or delegate of the authorised body. A breach of reg 292A of the Road Traffic Code constitutes an offence,[98] which carries a modified penalty of 3 PU (penalty units) and 2 points (demerit).
(4)No evidence was given by any witness, or by the appellant, at the trial that when the appellant drove his vehicle into Wellington Street from Bennett Street and approached Mr Douglas that music was being played inside the vehicle.
[93] ts, 1 May 2019, 33.
[94] ts, 1 May 2019, 34.
[95] ts, 1 May 2019, 34; in any event Ms Cooke described the colour of the vehicle as 'gold'.
[96] ts, 1 May 2019, 12.
[97] See for example ts, 1 May 2019, 92.
[98] Road Traffic Code 2000 (WA) reg9(1).
As to the matters that are said to be inconsistent between the evidence of Ms Cooke (whose evidence accorded closely to the appellant's evidence of the events in question) and the evidence of Mr Douglas, the magistrate heard their conflicting accounts, and made an evaluation of their evidence. Their evidence was conflicting in a number of critical respects, the most critical were whether Mr Douglas acted aggressively from the time he first spoke to Ms Cooke and the appellant, and whether, when Ms Cooke was standing between the appellant and Mr Douglas, Mr Douglas was about to do a harmful act to the appellant, when the appellant kicked Mr Douglas.
His Honour found that Mr Douglas was a credible, convincing, and reliable witness and that he did not accept the evidence of Ms Cooke and that her version of the events was not entirely honest, nor accurate and was a well-rehearsed litany of lies. In effect, he also made the same findings about the credibility and reliability of the evidence of the appellant and found that he did not accept many aspects of the appellant's evidence.
In assessing these findings of credibility, an appeal court must have regard to the significant advantage that his Honour had of seeing and hearing the witnesses giving their evidence when making those findings.
In this matter, there is no independent evidence that could be said to corroborate one version or the other. In these circumstances, not having seen or heard the witnesses give their evidence at the trial, I am not in a position to resolve the conflicts in their evidence.
Although there was a substantial divide between the two versions of the incident between the evidence given by Mr Douglas and Mr Astridge, and Ms Cooke and the appellant, this cannot be decisive of the critical question that I must answer. The question is whether it was open to the presiding magistrate, acting rationally, having full regard to the advantage that his Honour had in seeing and hearing the witnesses, to be satisfied on the whole of the evidence, beyond reasonable doubt, that the appellant was guilty of the offence.[99]
[99] MEN v The State of Western Australia [2020] WASCA 118 [408] (Quinlan CJ & Beech JA); LTC v The State of Western Australia [2021] WASC 60 [72].
The fact that Mr Douglas' recollection of the colour and make of the appellant's vehicle was wrong is not definitive. In light of Mr Douglas' evidence that he was concentrating on the appellant and Ms Cooke, and the fact that he accepted when put to him that the vehicle was beige and a Renault Laguna, is an inconsistency in respect of a peripheral matter only.
Mr Astridge's evidence that he had to tell Mr Douglas twice to sit down on the footpath, while he spoke to Ms Cooke and the appellant, was not inconsistent with the evidence of Mr Douglas. It was Mr Douglas' evidence that when Mr Astridge, and his supervisor arrived at the intersection, his supervisor told him to back off and go and sit on the kerb, and whilst he was sitting on the kerb he was told twice by his supervisor to sit down and shut up.
There is one important factual finding that arose out of the appellant's evidence which supports his Honour's findings of fact, that Mr Douglas was a reliable and credible witness whereas Ms Cooke and the appellant were not, and that is the appellant's evidence that prior to driving to the intersection of Wellington Street and Bennett Street that night the appellant had attempted to enter Wellington Street from Plain Street on two occasions, and was prevented entry by traffic controllers, which led to a heated exchange between those workers and the appellant. In light of this evidence, his Honour drew an inference by the time the appellant and Ms Cooke arrived at the intersection of Wellington Street and Bennett Street they were clearly angry and irate. In light of this evidence and having reviewed all of the evidence given in the trial, I am not persuaded that his Honour, acting rationally, was bound to have a reasonable doubt as to the credibility and reliability of the evidence of Mr Douglas. In particular, it was open to his Honour, acting rationally, to reject the evidence of Ms Cooke and the appellant that Mr Douglas was the aggressor and find, beyond reasonable doubt, that the appellant did not believe, subjectively, that his harmful act (kicking Mr Douglas) was necessary to defend himself.
In these circumstances, I am satisfied that the presiding magistrate acted rationally and had, in effect, found that the appellant had not satisfied the evidential onus in relation to self-defence. This is because it is clear from his Honour's findings that he found there was no threat of an imminent harmful act to the appellant when the appellant kicked Mr Douglas.
For these reasons, ground 3 has no prospect of success, and leave to appeal on this ground should be refused
Leave to appeal on ground 2 should be allowed because the appellant was deprived of his legal right to make a closing address at the conclusion of the evidence in the trial and that failure occasioned a miscarriage of justice.
However, I am satisfied that the miscarriage of justice was not a substantial miscarriage because, even if those submissions were made, I am satisfied that if the submissions the appellant intended to put were put to his Honour, his Honour would inevitably have entered the same verdict of guilty. Consequently, I am not satisfied the error was material, and the jurisdiction to allow the appeal under s 14(1)(b) of the Criminal Appeals Act is not enlivened.

6.0 Grounds 4, 5 and 6 ‑ Appeal against sentence

In ground 5, the appellant asserts that the record of his criminal convictions provided to him and to the court was not accurate. The basis of the appellant's contention is, first, the record records traffic convictions, and, second, the record records that all prior convictions had been subject to spent conviction orders.
There is nothing controversial in a criminal record containing both criminal and traffic convictions. The appellant's criminal record is a history of all past convictions of criminal and traffic offences that were entered on the occasions a magistrate recorded a conviction against the appellant following either a plea of guilty to a charge in a prosecution notice or following a trial. The appellant's criminal record, like every other criminal record kept by the Western Australian Police in Western Australia, records the date on which each conviction was recorded, the name of the court, particulars of each offence, the date of each offence, the charge number of each offence and the sentence.
Although the prosecution of the offence in this matter was not a traffic offence, it is important for a court, when called upon to sentence an offender for any offence, to have before it all information that may be relevant to the character of an offender, including whether they have been convicted of any traffic offences.
As to the second point raised by the appellant, the effect of s 14(2)(b) and s 25(1) of the Spent Convictions Act 1988 (WA) is that when a judge, magistrate or a tribunal makes a determination of the guilt or innocence of a person charged with an offence, and where a conviction is relevant to that determination or the determination of the appropriate punishment to be imposed by that court or tribunal for an offence, the court or tribunal may have regard to a spent conviction. As McKechnie J remarked in M v O'Neill:[100]
The term 'spent conviction' is a misnomer. The conviction is not spent at all. It remains on the record for subsequent court proceedings. The Spent Convictions Act 1988 (WA) prevents discrimination against a person for employment and other purposes and allows them to answer 'No' to questions about convictions.
[100] M v O'Neill [2013] WASC 187 [23].

For these reasons, ground 5 has no prospect of success, and leave to appeal on this ground should be refused.
Grounds 4 and 6 must necessarily be considered together.
In ground 4, the appellant contends that he was prevented from making a plea in mitigation. Specifically, he argues that he was unable to address his Honour about his personal background, work history, employment status, financial position and mental health. In ground 6, the appellant asserts that his Honour erred in failing to consider his personal circumstances when refusing to make a spent conviction order.
As the respondent points out, it is inaccurate to say that he was not afforded an opportunity to address his Honour as to sentence. After recording a conviction, asking the prosecutor whether the appellant had a criminal record, and receiving a copy of the criminal record from the prosecutor, his Honour turned to the appellant and asked him whether there was anything he wished to say.[101]
[101] ts, 1 May 2019, 111.
In response, the appellant said that he was obviously disappointed that his Honour did not accept the evidence, that he would appeal and he complained that he was unable to make a submission as to the evidence. He then requested that orders be made for a 'suspended conviction', and a spent conviction, and reiterated in his view that he had acted in self‑defence.[102]
[102] ts, 1 May 2019, 111.
His Honour then informed the appellant that he would be fined $1,500 and ordered to pay costs of $205.30. The appellant asked that these amounts be reduced on grounds of hardship, and the following exchange occurred between his Honour and the appellant:[103]
[103] ts, 1 May 2019, 112 ‑ 113.
HIS HONOUR: No. I'm not going to reduce it. In relation to your application for a spent conviction, spent convictions are provided for in section 45 of the Sentencing Act. Section 45 of the Sentencing Act provides that a person shall not be granted a spent conviction unless he can satisfy three criteria. The first is I have to be satisfied that it's unlikely the accused will ‑ the offender, I should say, would commit such an offence again. Secondly, I need to be satisfied that the offence is trivial or the person is a person of prior good character; and, thirdly, that the person should be immediately relieved from the adverse effect that a conviction like this would have on him. Well, it's difficult for me to make a decision as to whether it's unlikely you will commit such an offence again. You have a prior conviction for obstructing public officers. Your demeanour in court appeared to me to be one of an argumentative, somewhat aggressive individual.
ACCUSED: Sorry, your Honour. I just request - - -
HIS HONOUR: Don't interrupt me when I'm speaking. But it's possible that it's unlikely you will commit such an offence again. The offence is not trivial. Assault occasioning bodily harm is very serious, particularly when the assault is committed against a person who is simply going about their business, their lawful business in the sense of their employment. And, in any event, that subsection provides me to be satisfied that you are a person of prior good character. I cannot be satisfied of that. You have a prior conviction for possessing drugs. You have a prior conviction for obstructing public officers. And, to that extent, I am not satisfied that you are a person of prior good character.
ACCUSED: May I - - -
HIS HONOUR: And because you don't satisfy that particular criteria, I am not prepared to grant you a spent conviction.
ACCUSED: Your Honour, may I - - -
HIS HONOUR: So the fine is one of $1500, $1000 of that to be paid to Mr Douglas and costs in the sum of $205.30. And your application for a spent conviction is denied.
ACCUSED: Sorry, your Honour. Can I respond to the three points for the ‑ I would like to make at least a comment in regards to those three points, please.
HIS HONOUR: You can make a comment if you wish.
ACCUSED: One, I am a person of good character. I work very commonly within the community. I actually assist people in regards to advocacy when people have been offended or have been booted out of their homes. I work very closely with community organisations in regards to that. In regards to the adverse effects, it would actually affect my work, moving forward.
HIS HONOUR: Yes, but you have to satisfy all three criteria. I am not satisfied that you satisfy the criteria of being a person of prior good character, Mr B.
ACCUSED: That's fine, your Honour. You believe I'm argumentative. That's fine.
Whilst his Honour did not ask the appellant whether he wished to make any further submissions as to sentence or inquire as to the appellant's personal circumstances, prior to informing the appellant that he would be fined, his Honour did hear submissions about the appellant's personal circumstances before refusing the appellant's application for a spent conviction. His Honour refused the application on grounds that he was not positively satisfied that the appellant would be unlikely to commit such an offence again, was positively satisfied that the offence was not trivial, and the appellant was not of prior good character.
The preconditions for the exercise of the power to make a spent conviction are set out in s 45(1) of the Sentencing Act 1995 (WA). Section 45(1) provides:
45. Spent conviction order making and effect of
(1)Under s 39(2), a court sentencing an offender is not to make a spent conviction order unless ‑
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to ‑
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
It is to be expected that, generally, those who contend they come within the conditions laid down in s 45(1) will demonstrate that fact by convincing evidence.[104]
[104] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [14] (Burchett AUJ; Wallwork & Wheeler JJ agreeing).
Section 45(1)(a) of the Sentencing Act requires a conclusion that the offender is unlikely to commit such an offence again, not that the offender will definitely not commit such an offence again.[105]
[105] Lee Suarez v Cutler [2012] WASC 171 [25] (Beech J).
Unless this precondition is satisfied, the court has no power to exercise its discretion to make, or not to make, a spent conviction order. If the preconditions in s 45(1)(a) and s 45(1)(b)(i) or s 45(1)(b)(ii) are satisfied, the sentencing judicial officer has a discretion, not a duty, to make a spent conviction order.[106]
[106] GNR v The State of Western Australia [2015] WASCA 5 [44] (McLure P); applied in Sharpe v Vinning [2020] WASCA 79 [96].
Consequently, unless the appellant was able to satisfy his Honour that the precondition in s 45(1)(a) was met, his Honour could not then go on to consider whether the further preconditions in s 45(1)(b)(i) or s 45(1)(b)(ii) were satisfied, so as to enliven the discretion to make a spent conviction order.
There must be convincing evidence before a sentencing judicial officer to satisfy the first precondition, that is, there must be convincing evidence that the offender is unlikely to commit such an offence again.
Consequently, his Honour was required to form a view on the evidence and material before the court (including the matters stated in submissions made in mitigation by the appellant and his criminal record) that the appellant was unlikely to commit such an offence again. On the material before his Honour, he could not be satisfied of the first precondition for the exercise of discretion to make a spent conviction order.
Consequently, the appellant's submissions that he made, or intended to make, about his character, and matters personal to him, were immaterial because the appellant could not satisfy the first precondition. For this reason, grounds 4 and 6 of the appeal have no merit.
Despite it not being necessary to do so, his Honour did go on to consider the second precondition in s 45(1)(b)(i) for the exercise of the discretion to make a spent conviction order, and formed the view that, having heard the evidence at trial, the offence was not trivial and the appellant was not a person of good character (which by regard to the appellant's criminal history his Honour could not be satisfied that the appellant was a person of good character).
For these reasons, grounds 4, 5 and 6 of the appeal have no prospects of success, and leave to appeal on these grounds should be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
30 APRIL 2021