B v Smith - [2006] WASC 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: B -v- SMITH [2006] WASC 253

CORAM: JENKINS J

HEARD: 23 OCTOBER 2006

DELIVERED : 7 NOVEMBER 2006

FILE NO/S: SJA 1078 of 2006

MATTER :Criminal Appeals Act 2004, Pt 2

BETWEEN: B
Appellant
AND
GRANT ALAN SMITH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE W G TARR
File No  :PE 15713 of 2006

Catchwords:

Criminal law - Appeal against conviction for assault - Adequacy of Magistrate's reasons

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code Act 1902 (WA), s 313(1)(a)
Evidence Act 1906 (WA), s 25(1), s 25(2), s 25(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J R Ludlow
Respondent: Ms K Y Loh

Solicitors:

Appellant: Kitto & Kitto
Respondent: State Solicitor's Office

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gardner v Caporn [2005] WASCA 153

Case(s) also cited:

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
CSR Ltd v Della Maddalena (2006) 224 ALR 1
Fox v Percy (2003) 214 CLR 118
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Hajinoor v Dench [2005] WASC 274
Harling v Hall (1997) 94 A Crim R 437
Jones v Hyde (1989) 85 ALR 23
M v The Queen (1994) 181 CLR 487
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Skerritt v O'Keefe [1999] WASCA 183

JENKINS J:

The decision under appeal

The appellant appeals from his conviction on Prosecution Notice No PE 15713 of 2006 which alleged that on 2 February 2006 he unlawfully assaulted the complainant under circumstances of aggravation, namely in the presence of a child contrary to the Criminal Code Act 1902 (WA) ("the Code"), s 313(1)(a).
On 29 June 2006 a Magistrate sitting in the Magistrates Court at Perth found the charge proven, imposed a conditional release order in the sum of $500 for nine months and made a spent conviction order.
On appeal, the appellant contends that the Magistrate erred in finding the charge proven. I dismiss the appeal.

Grounds of appeal

There are nine grounds of appeal. In summary, the grounds of appeal are that the Magistrate erred in fact and/or law by:
1reciting but failing to assess or give any weight to the appellant's evidence;
2failing to give reasons for not accepting the appellant's evidence;
3failing to give reasons for giving full weight to the evidence of Ms Souter, aside from her independence, when Ms Souter's evidence was in part contradicted by all other prosecution and defence evidence (there are three particulars of this ground);
4gave undue weight to Ms Souter's evidence in circumstances wherein her evidence was distinct from the evidence of the other prosecution witnesses, in the areas set out in appeal ground 3 above;
5failing to assess, or give any weight at all to the exculpatory evidence of Ms Culmsee;
6preventing defence counsel cross‑examining the complainant on a previous fraud against Centrelink, in circumstances where credit was pivotal to finding the charges proven;
7failing to make any finding at all on the credibility of the complainant, in circumstances where the video evidence directly contradicted her account of the incident and where credit was pivotal to finding the charges proven;
8making adverse and unbalanced findings about the appellant only (ie that he was abusive and aggressive) in the period before the alleged assault, contrary to the evidence of the only two independent witnesses Ms Souter and Mr Howard who testified that both the appellant and the complainant were arguing; and contrary to the magistrate's true belief (as revealed in the sentencing remarks) that both parties were abusive.
9finding the appellant denied trying to take the child off the mother, contrary to the evidence.

The proceedings before the Magistrate

On 27 June 2006 the appellant appeared before the Magistrate, apparently after having previously indicated a plea of not guilty, and a trial ensued.
The respondent called four witnesses. They were:
(a)The complainant;
(b)Mr David Francis Spencer, a private investigator;
(c)Ms Jamie Lee Souter, an employee of McDonalds fast food restaurant, which then occupied the premises at which the offence was said to have occurred; and
(d)Mr Joshua Abe Howard, also an employee of McDonalds.
The appellant then gave evidence and called;
(a)Ms Noel Culmsee, his then girlfriend;
(b)his mother; and
(c)Mr Matthew John Thomson, his friend.
The only witnesses who were potential witnesses to the alleged offence were the complainant, the appellant, Mr Spencer, Ms Souter and Ms Culmsee.
The Magistrate had the advantage of having before him a map of the area in which the offence was said to have occurred. This was drawn by one or more witnesses on a white board. Various witnesses identified on the map where they were standing and where they saw events occur. Some witnesses also demonstrated what they did and saw. There is no record of these matters. In the following paragraphs, in the absence of these aids, I have done my best to summarise the evidence before the Magistrate.
The appellant and the complainant were married and had a child, who I will call "S". S was four years old at the relevant time. The parties had separated and had a history of disputation over the parenting of S. The parties had arranged that on days when S was to go from one of their homes to the other they would meet at McDonalds in Dianella. The evidence disclosed that this arrangement was sometimes not amicable and one of the complaints that the appellant had was that the complainant was often late. As the Magistrate said when sentencing the appellant, it is not to the parties' credit that they were unable to arrange for non‑confrontational meetings when exchanging S.
On 2 February 2006 at 4 pm the appellant went to McDonalds, as arranged, to pick up S. The complainant was not there. She testified that this was because she was delayed because S had been sick. At approximately 4.08 pm the appellant phoned the complainant and as she was driving at the time she did not answer the call. She arrived at McDonalds at approximately 4.10 pm. She walked into the restaurant, the appellant walked towards her, and said words like "You're always late" and swore at her. The complainant was holding S on one hip and she had a calico shoulder bag on one shoulder. The complainant testified that S was crying and saying that she did not want to go with her father. A heated argument took place. The McDonalds' staff then asked them to move outside which they did.
The complainant testified that whilst outside the appellant stepped towards her, abusing and intimidating her and she was effectively moved back against the wall of the building. She said that the appellant then grabbed both her upper arms and squeezed them. He then grabbed the calico bag off her shoulder and continued to try and pull S away from her. She said that the appellant also punched her on her left arm. She said that her phone rang and she then moved around the corner of the building. Any violence between the parties concluded at that point. After a period of some minutes the complainant gave S to the appellant and the parties separated.
Mr Spencer gave evidence that he was engaged by the complainant's family to conduct surveillance of the handover of S to the appellant. Consequently, he was in a car in a car park near McDonalds at the time the complainant arrived. He said he saw the complainant and the appellant leave the building with the complainant still holding S and the bag. He saw the appellant reach over and grab the complainant's arm and as his arm came back, her arm was raised. He also said that the appellant moved towards the complainant on a number of occasions in a "baulking sort of manner". He then took up a position to video the couple.
The video, which was tendered in evidence, is apparently taken from the time the complainant and the appellant moved around the corner of the building. It shows both of them on their mobile phones and the complainant is still holding S. After speaking on their phones they speak to, and argue with, each other. Occasionally the complainant holds one of her hands up towards the appellant and comforts S by patting her. The appellant is clearly hovering near to the complainant urging and waiting for her to give S to him. S appears to be holding onto her mother but when the complainant moves to pass her to the appellant, S goes to the appellant and then holds onto him in the same manner she held onto her mother. Eventually that occurs and the appellant, now with S, and the complainant go their separate ways.
Ms Souter was only 17 years of age at the time she gave her evidence and did not know either the appellant or the complainant. She heard both the complainant and the accused swearing and arguing in the restaurant. They then moved outside and continued to argue. She said she witnessed what occurred from a distance of about four metres to the side of the couple. She said that the appellant "was in [the complainant's] face quite a bit and tried to grab [S]". She testified that as they continued to argue the appellant pushed the complainant back on her shoulders and then punched the top of her arm. The appellant also tried to grab S from the complainant. She said that the appellant did not grab the top of the complainant's arms. Ms Souter saw them go onto their mobile phones and she then went into an office area.
Mr Howard had seen the appellant and the complainant in the restaurant before but had never spoken to them. He saw them inside the restaurant "struggling" together and both were screaming. He said that they were "in each other's faces" there was definite contact between them. Mr Howard went away to call the police. Once he returned the situation had calmed down, they were each speaking on their phones and Mr Howard cancelled the request for assistance.
The appellant testified that on this occasion he went to McDonalds with his partner, Ms Culmsee as a witness. However, she remained at other premises some distance away whilst he went to get S. He said that when the complainant walked into the restaurant he told the complainant she was late and asked for S. He said that the complainant asked to keep S because she had been sick and the appellant refused saying that he was her father and knew how to care for her. Abusive words were exchanged between them and the complainant refused to hand S to him. He asked the staff to call the police. He moved towards the complainant to remove S from her arms and the complainant demanded that he not touch her and so he pulled away.
The appellant said that they went outside and as they did so the calico bag fell off the complainant's shoulder and he grabbed it. He said that he took hold of S around her rib cage and as S was coming to him the complainant grabbed S by her legs and pulled her towards her. He denied ever having touched or hit the complainant and feared that the complainant would drop S if he did so. At 4.19 pm he telephoned Ms Culmsee to tell her to witness that the complainant would not give S to him and a minute later he called the police to complain that the complainant would not give him his daughter. It seems that around the same time the complainant walked around the corner with S and the appellant followed.
Ms Culmsee gave evidence that she was waiting about 50 metres away from McDonalds when the appellant telephoned her and told her that the complainant would not hand S over. Later, in cross‑examination she said she was not sure if this telephone call was made then or when they were outside. Given that other evidence is to the effect that the appellant first made a call when he was outside, this second version is more likely to be correct.
In cross‑examination Ms Culmsee said that the complainant and the appellant kept moving whilst they walked around the corner. She denied that the complainant had ever had her back up against the wall before she walked around the corner. She said that she could see the complainant yelling at the appellant, waving her arms around because she was angry and she also saw the complainant with her elbows around S holding onto her. She says that the appellant then rang her to tell her that the police were on their way. She then saw the complainant give S to the appellant. Ms Culmsee testified that she did not see the appellant grab S under the arms and try to pull her away from the complainant. She denied seeing the appellant chase, hit, punch or touch the complainant during this incident.
The appellant's mother and Mr Thomson gave character evidence for the appellant and said that they had witnessed a number of difficult situations when S was going from one parent to the other. The appellant's mother said that the complainant had a tendency on these occasions to hang onto S. Mr Thomson said that the complainant made handovers difficult but that he had never seen the appellant become angry with the complainant. The admissibility of some of this evidence is doubtful. Further, the appellant admitted being angry with the complainant on this occasion and that much is plain on the video. Consequently, it is not surprising that the Magistrate did not refer to the evidence of these witnesses in his findings.
I note that no particulars of the charge are given in it and neither did the prosecutor open the case and particularise the charge. In his closing address, the prosecutor submitted that the Magistrate ought to rely upon the evidence of Ms Souter and to find that she was a truthful witness.
In the appellant's counsel final address, in respect to Ms Souter, he acknowledged that she was an independent witness and "her evidence should be given a fair bit of weight" as a witness of truth. On the other hand, he suggested that her evidence may not be wholly reliable. He gave two reasons for this. The first is that she was witnessing the event behind two layers of glass being the outer window and the inner counter. This submission was contrary to the evidence, which was that Ms Souter came out from behind the counter to view the events occurring outside the window.
The second reason given as to why Ms Souter's evidence may have been unreliable was that if the appellant had been in close proximity to the complainant it may have mistakenly looked liked that he was grabbing her on the arms. I note that this possibility was not specifically put to Ms Souter.
Counsel referred to Ms Culmsee's evidence as a "counterweight" to that of Ms Souter but wisely conceded that given the distance she was away from McDonalds and the fact that she did not see the appellant grab the child the Magistrate "might find [her] evidence is lacking to a degree".
The Magistrate reserved his decision and said that he was going to watch the video. Two days later, he delivered his oral reasons for decision. His Honour referred to the allegation against the appellant as being that he grabbed the complainant by the upper arms and later punched her on the upper arm. He referred only to the complainant's, the appellant's and Ms Souter's evidence. The Magistrate specifically rejected Mr Spencer's evidence saying that his evidence and the manner in which he gave it did not impress him. He did not refer to Ms Culmsee's evidence.
The Magistrate stated that this was not just one person's word against another because there was an independent witness, being Ms Souter, whose evidence was not shaken in cross‑examination. He said that Ms Souter had described the assault, "in the same manner" as the complainant. The only reason he gave for not believing the accused was that his explanation as to how he came to be holding the calico bag.
The Magistrate found:
"I am satisfied, and particularly having heard the evidence of the independent witness, Jamie Lee Souter, that the accused did push at least the claimant (sic) with two hands at one time and then punch her upper arm at another, and that under the Criminal Code constitutes an assault and I find the charge proven."

Consideration of the grounds of appeal

Grounds 1, 2 and 5

The appellant has grouped these grounds together as they all relate to the Magistrate's failure to assess or give weight to the defence evidence of the appellant or Ms Culmsee.
The relevant legal principles are well known. In Gardner v Caporn [2005] WASCA 153 at [59] Roberts-Smith JA agreed with the summary given by the single Judge on appeal that:
" … an appeal court should not be overly critical of the reasons given by a Magistrate in a busy court, … R v Nevermann (1989) 43 A Crim R 347, 350; and Garrett v Nicholson (1999) 21 WAR 226, 248. … [I]t is nonetheless the obligation of a judicial officer to give sufficient reasons for decision to enable a losing party to see why they lost the case; in other words, so that justice is not only done but is seen to be done; and because it is necessary for reasons of sufficient clarity to be given to allow scrutiny by an appeal court (Lloyd v Faraone [1989] WAR 154, 162 ‑ 164; Garrett v Nicholson (supra))."
In Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 McHugh J (Mason CJ, Deane, Dawson and Gaudron JJ agreeing) said:
" … where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion': Watt or Thomas v Thomas."
His honour then referred to the facts of that case and to the trial Judge's finding of fact based on the evidence of one witness without having referred to the evidence of another witness on the same point. His Honour continued at 178 ‑ 179:
"If there is any inconsistency between Professor Ferguson's evidence and her Honour's findings concerning supervision, then she must be taken to have rejected that evidence."
In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 Brennan, Gaudron and McHugh JJ, in a joint judgment, said:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against ‑ even strongly against ‑ that finding of fact ((5) See Brunskill (1985), 59 A.L.J.R. 842; 62 A.L.R. 53; Jones v. Hyde (1989), 63 A.L.J.R. 349; 85 A.L.R. 23; Abalos v Australian Postal Commission (1990), 171 C.L.R. 167.). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' ((6) S.S. Hontestroom v S S Sagaporack, [1927] A.C. 37, at p. 47.) or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' ((7) Brunskill (1985), 59 A.L.J.R., at p. 844; 62 A.L.R., at p. 57.)."
There does seem to be the possibility for tension between the principle from Abalos' case and the principle that a party is entitled to know from the reasons why he or she lost the case. It may be thought that unless a judicial officer articulates the reasons why he or she preferred the evidence of one witness against another witness then the aggrieved party does not know why they lost. This is the appellant's position.

The contrary view, and the one that I find is consistent with authority, is that in this respect the law requires parties to draw conclusions that are reasonably implicit from the decision maker's articulated findings. Where such conclusions can be discerned then the law considers that a party does know why they lost.
Further, when considering the decision maker's reasons a party is required to take into account the submissions they made to the decision maker. A decision maker is entitled to use counsel's submissions to narrow the issues in a case. A Magistrate in a busy court is not expected to deal in his or her reasons with every possible issue arising in a trial. They are entitled to accept counsel's submissions to the effect that certain issues or evidence are or are not relied upon by a party and tailor their reasons accordingly.
In this case, the appellant's counsel suggested to the Magistrate that he might find Ms Culmsee's evidence "lacking to a degree" because of the distance she was away from the scene. That comment helps to explain why the Magistrate did not feel the need to advert to her evidence in his reasons.
Further, it is clear from the Magistrate's reasons that he was looking for independent evidence to support the evidence of either the complainant or the appellant. It is implicit from his comments in this regard that he would not have relied upon Ms Culmsee who was the appellant's partner and taken to the scene by him to be his witness.
Whilst it would have been preferable for the Magistrate to have stated, even briefly, the reasons why he rejected her evidence, it is clear from his finding that he found that the assault occurred as Ms Souter said it did and that he rejected Ms Culmsee's evidence.
That rejection ought to stand unless I am satisfied that any advantage enjoyed by the Magistrate due to having seen and heard the witnesses, could not be sufficient to explain or justify his conclusion.
To the contrary, in my opinion the Magistrate was correct not to rely upon the evidence of Ms Culmsee. Her evidence was contrary to that of the complainant, the appellant and Ms Souter in that she said the parties did not stop as they came out of McDonalds. Rather, she said that they continued moving and came around the corner. The effect of the evidence of the complainant, the appellant and Ms Souter was that the complainant, the appellant and S came out of McDonalds and there was an interchange between them prior to them walking around the corner of the building. The offence was said to have occurred during this interchange. Even the appellant said that he reached for and took hold of S's body prior to the parties walking around the corner. Ms Culmsee denied having seen this occur. The inconsistency between Ms Culmsee's evidence and the evidence of the other eyewitnesses may have been due to her being too far away to see what happened or for some other reason. Whatever the reason it was clear that her evidence could not be relied upon.
As for the appellant's evidence, the structure of the Magistrate's reasons is reasonably clear, although there is no doubt that he could have easily avoided the controversy of this appeal by being more detailed in and taking more care with his reasons. The Magistrate summarised the evidence of the complainant and the appellant and then made the point that this was not a case of one witness' word against another but that there was an independent witness Ms Souter. It is true that the Magistrate did not making a finding that he did not believe the evidence of the appellant. As to that failure, I make the same point that I made in respect to Ms Culmsee's evidence. By implication, the Magistrate's acceptance of Ms Souter's evidence meant that the Magistrate must have rejected the evidence of the appellant.
However, I also note that the Magistrate did not make any finding that he accepted or rejected the evidence of the complainant. In my opinion, the Magistrate impliedly said that he was not prepared to rely upon the unsupported evidence of the complainant or the appellant. Rather he was only prepared to rely upon the independent evidence of Ms Souter.
Again, the Magistrate's focus on Ms Souter's evidence is in part explained by the prosecutor's and counsel's submissions. The prosecutor had urged the Magistrate to accept the evidence of Ms Souter. Then the appellant's counsel agreed that Ms Souter was an independent witness and her evidence should be "given a fair bit of weight". It is then hardly surprising that the Magistrate focussed on whether he should believe Ms Souter rather than the evidence of either the complainant or the appellant.
The Magistrate's decision to rely upon the evidence of Ms Souter as an independent witness is an implicit rejection of the evidence of the appellant. That rejection ought to stand unless I am satisfied that any advantage enjoyed by the Magistrate due to having seen and heard the witnesses, could not be sufficient to explain or justify his conclusion.
In my opinion, the Magistrate was entitled to come to the view of the evidence he did. The Magistrate was not obliged to accept either the evidence of the appellant or the complainant. The appellant and the complainant were at loggerheads with each other and their evidence was likely to be tainted by the bitterness each felt towards the other. Commonsense says that neither witness was likely to be reliable. Yet their evidence was not internally inconsistent or improbable and thus even a close examination of their evidence was unlikely to assist in determining whether the respondent had proven the charge. Any rational decision maker would have been looking for impartial evidence upon which to rely. Thus, the Magistrate's decision to rely upon the evidence of Ms Souter was amply justified.

Grounds 3 and 4

The appellant has grouped these grounds together because they relate to the Magistrate's allegedly unexplained reliance upon the evidence of Ms Souter.
In my opinion, these grounds ignore the substance and effect of the Magistrate's reasons. The Magistrate clearly found Ms Souter to be a reliable witness because she was independent and she was not shaken in cross‑examination. These findings were made against a background where the Magistrate was clearly looking for impartial evidence of what had occurred and where defence counsel had submitted that her evidence should be given weight. Defence counsel had not sought to discredit Ms Souter's on any of the grounds now particularised in the grounds of appeal. In my view whilst clearly the Magistrate could have been more fulsome in his explanation he was not required to say more than he did in respect to Ms Souter's evidence.
Further, I am not satisfied that Ms Souter's evidence was contradicted by all other witnesses in respect to all of the three particularised matters. Dealing first with the second issue, that is whether Ms Souter said that the appellant and complainant stayed at the front of the building whilst the other witnesses said they went around the corner, in my opinion, the effect of Ms Souter's evidence is that she saw the offence occur at what I will call the front of the building and she saw the complainant, the appellant and S move towards the corner but they stayed at the front. She saw them on their phones and then she went into the office and when she came back the appellant was walking off with S. She said that she did not see the handover of S or where it occurred. In my opinion, her evidence is consistent with her seeing what occurred at the front of the store. As the parties moved towards the corner she went into the office and by the time she returned the incident had finished. I do not see that this is inconsistent with the evidence of the other witnesses.
The first and third particulars of inconsistency are two sides of the one coin. Ms Souter testified that the appellant pushed the complainant whilst the complainant said that he grabbed her. The evidence of Ms Souter and the complainant is consistent as to where this happened, what part of the body the appellant used to touch the complainant and the part of the complainant's body with which he made contact. The only inconsistency between them is whether the appellant grabbed or pushed the complainant.
It is notorious that it is unusual to find two witnesses who give identical versions of the same assault when it occurs quickly and in a stressful situation. In my opinion, the Magistrate was entitled to find that similarities between the evidence of the complainant and Ms Souter in this respect were of significance in proving that an assault had occurred. This he clearly did when he said that Ms Souter "described the assault complained of by the complainant, in the same manner as the complainant". I am also satisfied that he was entitled not to put any weight or attach any significance to the inconsistency between their evidence given the nature of the inconsistency.
I pause here to deal with a submission pressed on me during oral argument to the effect that the Magistrate's error was in failing to explain why he did not accept the defence submission that what Ms Souter saw as a push could merely have been the appellant reaching for S during the course of the argument. This possible resolution of the inconsistency between the appellant's evidence and that of Ms Souter was put to the Magistrate in closing but was not put to Ms Souter.
I note that this attempt to reconcile the evidence of the appellant and Ms Souter can not explain away what Ms Souter says was the appellant's punch to the complainant's arm.
The Magistrate did not assess or consider this alternative view of the facts. His reasons would have been more complete had he done so. However, in my opinion it is not a view of the facts that was consistent with either the evidence of the appellant or Ms Souter. If the Magistrate had accepted it would have been tantamount to him considering a theory not supported by the evidence.
Ms Souter's evidence was that she saw the appellant push the complainant back with his hands on her shoulders. The appellant's evidence was that he reached out and took hold of S with both hands around her chest or under her arms and did not touch the complainant in doing so. These versions of events are not the same. I do not see that, without Ms Souter acknowledging that it was possible that what she thought she saw was in fact the appellant reaching out and taking hold of S or the appellant conceding that he may have come into contact with the complainant as he did so, the Magistrate would have been entitled to find that Ms Souter was or may have been confused about this issue.

Grounds 6 and 7

The appellant has grouped these grounds together as they both relate to the complainant's credibility and the Magistrate's failure to admit evidence relating to her credibility or to make a finding on the credibility of the complainant.
The appellant's written and oral submissions on appeal did not address ground 6. However it was not expressly abandoned so I will deal with it, albeit briefly.
During the course of cross‑examination the appellant's counsel sought to ask the complainant whether she had disclosed to Centrelink payments that she had received whilst working as a prostitute. There was an exchange between the Magistrate and counsel as to the relevance of the answer. On one view of it, the Magistrate did not make a final ruling on that issue but I will assume for present purposes that he refused to allow the question. The Magistrate made it clear that any ruling he made was only in respect to the complainant's dealing with Centrelink.
Pursuant to the Evidence Act 1906 (WA), s 25(1) the Magistrate had a discretion to disallow such a question as it went solely to credit. That discretion had to be exercised in accordance with s 25(2) and s 25(3). Those subsections focus on whether the truth of the imputation conveyed by the questions would not affect, slightly effect or seriously affect the opinion of the court as to the credibility of the witness. I am of the view that, prima facie and in the absence of a reasonable explanation, evidence of non disclosure of income to Centrelink when disclosure had, by law, to be made should have an adverse affect on a Court's assessment of the credibility of the witness who has failed to make the disclosure. The question is to what extent it would affect the Court's assessment of the credibility of the witness?
The Magistrate said that he did not think that whether the complainant had not disclosed the information was highly probative of the credibility of the complainant. No evidence has been put before me to establish either the nature of the non‑disclosure or that it was so related in time, place or circumstance to the alleged assault as to be likely to more than slightly effect the Court's assessment of the complainant's credibility. Without that evidence I can not conclude that the Magistrate was in error in failing to allow the question.
In respect to ground 7, my view is, as I have already expressed, that the Magistrate did not accept the unsupported evidence of the complainant or the appellant. The appellant's grounds of appeal and submission erroneously characterise this case as a contest between the evidence of the appellant and the complainant. This ground of appeal alleges that the appellant's credibility was "pivotal" to finding the charge proven. The appellant has assumed the particulars of the assault relied upon by the respondent were those as given by the complainant in her evidence. Yet these were not particularised to my knowledge and in closing the prosecutor expressly sought to rely upon Ms Souter's evidence. The Magistrate found that the assault took place as Ms Souter alleged, having already said she described the assault in the same terms as the complainant.
The complainant's evidence was, only by default, accepted by the Magistrate to some degree because he accepted Ms Souter's evidence.

Ground 8

The Magistrate made some adverse findings against the appellant but he was entitled to make these findings. The gravamen of this ground appears to be that the Magistrate did not make similar findings against the complainant. In my opinion, he did not need to do so because he did not rely upon her uncorroborated evidence and by implication found her, as well as the appellant, to be a witness upon whom he would not rely without independent evidence.

Ground 9

In my opinion, the Magistrate omitted to insert "not" before the word "deny" on the second last line of the first paragraph on transcript p 88. I have come to this conclusion because of the phraseology used in, and the sense of, the paragraph. Unfortunately, it is not the only error of articulation made in the Magistrate's reasons. In the same paragraph, the Magistrate refers to the appellant's evidence that he did not touch the "Accused". This clearly should have been a reference to the complainant and I read the paragraph with this amendment.
Thus the sense of the paragraph, as I understand it, is that the Magistrate first makes the point that Ms Souter described the assault in the same manner as the complainant did. He then says that this is contrary to the appellant's evidence that he did not touch the complainant. As the paragraph has been transcribed, he goes onto say, although the appellant denies trying to take the child off the complainant. In my view it does not make sense that the Magistrate intended to say, in effect, the appellant denies touching the complainant, although he denies trying to grab S. What is logical is that he would have intended to say that the appellant denies touching the complainant, although he does not deny trying to grab S. This would also be in accordance with the evidence. I am prepared to read the paragraph in this manner.
Thus whilst this ground might be decided in favour of the appellant, I would not allow the appeal on this ground. In my opinion, the Magistrate's error did not involve a substantial miscarriage of justice: Criminal Appeals Act 2004 (WA) s 14(2).

Conclusion

For the above reasons the appeal is dismissed.