"C" v Marsh
[2006] WASC 41
"C" -v- MARSH [2006] WASC 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 41 | |
| Case No: | SJA:1090/2005 | 11 JANUARY 2006 | |
| Coram: | SIMMONDS J | 15/03/06 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Convictions for assault occasioning bodily harm quashed Conviction for assault upheld | ||
| B | |||
| PDF Version |
| Parties: | "C" JASON LEE MARSH |
Catchwords: | Criminal law Appeal against conviction Assault occasioning bodily harm Assault Whether defences properly considered Whether evidence properly considered Whether substantial miscarriage of justice occurred Appeal allowed in part |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(2), s 14(3) Criminal Code (WA), s 23, s 246, s 248, s 250, s 313(1)(b), s 317(1) |
Case References: | Chamberlain v MacLachlan [2003] WASCA 200 Corke v Corke (1958) 1 All ER 224 Garrett v Nicholson (1999) 21 WAR 226 Howe v The Queen (1981) 55 ALJR 5 Latham v The Queen [2000] WASCA 57 Liberato v The Queen (1985) 61 ALR 623 Stanik v The Queen [2001] WASCA 333 Chau Kau v The Queen [1955] AC 206 Griffiths v The Queen (1994) 125 ALR 545 Harling v Hall (1994) A Crim R 437 Lomans v Morony [2000] WASCA 90 Mancini v Director of Public Prosecutions [1942] AC 1 R v Gill [1963] 1 WLR 841 R v John Theo Trifyllis [1998] QCA 416 R v Mullen (1983) 59 CLR 124 R v Stingel (1990) 171 CLR 312 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 160 ALR 588 Whitehead v Procopis [2005] WASC 195 Woolmington v Director of Public Prosecutions [1935] AC 462 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JASON LEE MARSH
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T G SCHWASS
File No : CC 1803 of 2005, CC 1804 of 2005, CC 1805 of 2005
Catchwords:
Criminal law - Appeal against conviction - Assault occasioning bodily harm - Assault - Whether defences properly considered - Whether evidence properly considered - Whether substantial miscarriage of justice occurred - Appeal allowed in part
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2), s 14(3)
Criminal Code (WA), s 23, s 246, s 248, s 250, s 313(1)(b), s 317(1)
Result:
Convictions for assault occasioning bodily harm quashed
Conviction for assault upheld
Category: B
Representation:
Counsel:
Appellant : Ms H K Muhling
Respondent : Mr S M Stocks
Solicitors:
Appellant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chamberlain v MacLachlan [2003] WASCA 200
Corke v Corke (1958) 1 All ER 224
Garrett v Nicholson (1999) 21 WAR 226
Howe v The Queen (1981) 55 ALJR 5
Latham v The Queen [2000] WASCA 57
Liberato v The Queen (1985) 61 ALR 623
Stanik v The Queen [2001] WASCA 333
(Page 3)
Case(s) also cited:
Chau Kau v The Queen [1955] AC 206
Griffiths v The Queen (1994) 125 ALR 545
Harling v Hall (1994) A Crim R 437
Lomans v Morony [2000] WASCA 90
Mancini v Director of Public Prosecutions [1942] AC 1
R v Gill [1963] 1 WLR 841
R v John Theo Trifyllis [1998] QCA 416
R v Mullen (1983) 59 CLR 124
R v Stingel (1990) 171 CLR 312
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 160 ALR 588
Whitehead v Procopis [2005] WASC 195
Woolmington v Director of Public Prosecutions [1935] AC 462
(Page 4)
- SIMMONDS J:
Introduction
1 This is an appeal by leave from the appellant's convictions on two charges of assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code, and one charge of assault, contrary to s 313(1)(b). The accused at the time of his trial was under 18 years of age.
2 The two charges of assault occasioning bodily harm were Charge No 1804 of 2005, for an assault on Mr Thien Van Le, on 18 March 2003, on Charge No 1805 of 2005, for an assault on Mr T V Le's wife, Mrs Thanh Tue Ngo, on the same day. The charge of "common" assault was Charge No 1803 of 2005, for an assault on Mr Tue Ngo Le, the son of Mr T V Le and Mrs T T Ngo who was then aged 11, on the same day. All the charges were laid by the same Children's Court's complaint, dated 11 April 2005, naming the respective victims as the respective complainants.
3 On 14 July 2005 following the single trial of all three charges in the Children's Court before Magistrate Schwass, the appellant was found guilty on all charges. Subsequently, he received the same sentence on all three convictions. That sentence was a conditional release order of 10 months from 23 August 2005, plus 50 hours community work.
4 On 3 October 2005 McKechnie J gave leave to appeal on "Complaint No 1803/05", "in respect of ground 1(a) – (e)". He did so on the papers, without any appearance by the parties. The question arose before me whether the leave was in respect only of the indicated grounds with respect to the assault on Tue (Complaint No 1803/05) or three complaints. The doubt arose in the following way.
5 There was a separate Appeal Notice lodged for the purposes of Criminal Appeal r 65 for each of "Prosecution Notice No" 1803/2005, 1804/2005 and 1805/2005. The appeal in each case is against conviction only. The grounds of appeal in each case include grounds 1(a) – (e), although there are some differences between the formulation of some of the grounds.
6 To appreciate the differences, it is necessary I set out the grounds of appeal 1(a) – (e) for each of the Appeal Notices in turn.
7 Grounds 1(a) – (e) for Prosecution Notice No 1803/05 (for the assault on Tue) were as follows:
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- "1. The learned magistrate made errors of both law and fact in that he (a) failed to consider properly or at all the defences of self defence and/or provocation, sections 246, 248 & 250 the Criminal Code of Western Australia
(b) failed to consider properly or at all issues raised by the inconsistencies in the evidence of the prosecution witnesses which if properly considered would have raised doubts about the credibility or reliability of the evidence of the three civilian witnesses
(c) failed to consider properly or at all matters relating to the evidence of the child witness, Tue Ngo Le, which if considered properly would have raised doubts about the credibility of the three civilian witnesses
(d) wrongly focussed on the findings of lack of credibility of the defence witnesses, and thereby reversed the onus of proof
(e) wrongly made findings against the credibility of the the [sic] evidence of the defendant and his witness, when parts of that evidence were corroborated by the evidence of a prosecution witness."
8 The references to "three civilian witnesses" is to Mr T V Le, Mrs T T Ngo and Tue, each of whom gave evidence at the trial on the charges.
9 The grounds of appeal 1(a) – (e) for the Prosecution Notice No 1804/2005 for the assault on Mr T V Le, were as follows:
"1. The learned magistrate made errors of both law and fact in that he (a) failed to consider properly or at all the defences [sic] of self defence sections [sic] 248 of the Criminal Code of Western Australia
(b) failed to consider properly or at all issues raised by the inconsistencies in the evidence of the prosecution witnesses which if properly considered would have raised doubts about the credibility or reliability of the evidence of the three civilian witnesses
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- (c) failed to consider properly or at all matters relating to the evidence of the child witness, Tue Ngo Le, which if considered properly would have raised doubts about the credibility of the three civilian witnesses
(d) wrongly focussed on the findings of lack of credibility of the defence witnesses, and thereby reversed the onus of proof
(e) wrongly made findings against the credibility of the the [sic] evidence of the defendant and his witness, when parts of that evidence were corroborated by the evidence of a prosecution witness."
10 It will be noted that ground 1(a) for Prosecution Notice 1804/2005 makes no reference to s 246 (provocation) or 250 (aiding in another's self-defence) of the Criminal Code, unlike ground 1(a) for Prosecution Notice 1803/2005.
11 Finally, grounds of appeal 1 (a) – (e) for the Prosecution Notice 1805/2005 for the assault on Mrs T T Ngo, were as follows:
"1. The learned magistrate made errors of both law and fact in that he (a) failed to consider properly or at all the sections of the Criminal Code relating to accident – section 23, and self defence, section 248 of the code
(b) failed to consider properly or at all issues raised by the inconsistencies in the evidence of the prosecution witnesses which if properly considered would have raised doubts about the credibility or reliability of the evidence of the three civilian witnesses
(c) failed to consider properly or at all matters relating to the evidence of the child witness, Tue Ngo Le, which if considered properly would have raised doubts about the credibility of the three civilian witnesses
(d) wrongly focussed on the findings of lack of credibility of the defence witnesses, and thereby reversed the onus of proof
(e) wrongly made findings against the credibility of the the [sic] evidence of the defendant and his witness, when
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- parts of that evidence were corroborated by the evidence of a prosecution witness."
12 It will be noted that there is a reference to s 23 of the Criminal Code on accident in ground 1(a) that distinguishes this ground from the corresponding grounds for the previous Prosecution Notices.
13 In the written submissions for the appellant, the grounds of appeal addressed are grounds 1(a) – (e) from each of the Appeal Notices. By contrast, the written submissions for the respondent appeared to address the grounds of appeal 1(a) – (e) from the Appeal Notice for Prosecution Notice No 1803/2005 only. Prior to the hearing I had those matters raised with the parties. At the hearing, the parties confirmed their mutual understanding that leave to appeal had been granted in respect of all three Prosecution Notices, and the reference to grounds 1(a) – (e) was to those grounds in each of the Appeal Notices. The parties further indicated that they were prepared to argue the appeal on that basis.
14 In any event, I determined, if necessary, I should grant leave to appeal with respect to Prosecution Notices 1804/2005 and 1805/2005, on their respective grounds 1(a) – (e).
15 At the hearing, the appellant also sought leave to amend the grounds of appeal to include references to s 250 of the Criminal Code in the grounds 1(a) in relation to Prosecution Notices 1804/2005 and 1805/2005. The counsel for the State indicated no objection to this. I granted leave accordingly and the appeal was argued on that basis.
Background to the Appeal: The Events of 18 March 2003
16 Mr T V Le immigrated to Australia from Vietnam, arriving in 1987. Mrs T T Ngo also emigrated from Vietnam, arriving in this country in 1989. In 2002 the two, acquired a supermarket in Lathlain. On 18 March 2003 at about 5 pm Mr T V Le, Mrs T T Ngo and Tue were in the supermarket. What occurred thereafter was the series of events out of which the alleged assaults arose. It is necessary I canvass in basic form the evidence of each of the seven persons who gave evidence at the trial.
17 Mr T V Le gave evidence first. He testified that he was called by his wife from the place in the supermarket where he was doing paperwork to the counter where she was. His wife called him by telling him there were two people who had come into the shop, and one had a stick. He referred to matters as being "scary". The father saw two aboriginal people, one a woman with a container of chocolate milk, and the other a man who had a
(Page 8)
- stick. It subsequently emerged that the man was Mr Richard Taylor, an uncle of the appellant, and the woman, Mrs Paula Taylor, was Mr Taylor's wife.
18 Mr T V Le testified he had heard a loud argument between his wife and Mrs Taylor. Mr T V Le testified he did not serve Mrs Taylor, and did not say to her that she was stealing the chocolate milk. Mr T V Le testified he asked Mr Taylor if he could help, and Mr Taylor told him he had sore legs, no money and needed cigarettes. Mr T V Le testified he told Mr Taylor he could not give cigarettes away, an argument developed between the two men, and Mr T V Le was hit in the stomach by Mr Taylor.
19 In cross-examination, Mr T V Le was asked about whether there was a stick in the shop, which he denied, adding, however, that there was a hook, "used to pull the cigarette cabinet". The significance of the stick referred to lies in the evidence relied on by the defence as showing that Mr T V Le and Mrs T T Ngo had used a stick or a baton to confront the Taylors and the appellant.
20 The father's evidence was that at that point Tue ran in and there was an incident between Tue and the appellant. Mr Le testified the appellant hit Tue, who began to cry loudly. Mr T V Le ran to the appellant and told him to get out of the supermarket, which he did not. Mr T V Le testified that Mr Taylor then ran to him, indicating Mr Taylor wanted to hit him with Mr Taylor's stick, whereupon there was a struggle between the two over the stick. Mr Taylor hit Mr T V Le with the stick, and Mr T V Le fell. Mr T V Le testified that both Mr Taylor and the appellant hit Mr T V Le at this point, but Mr T V Le could not remember how many times, as he lost consciousness, regaining it only after Mr Taylor, Mrs Taylor and the appellant had left the supermarket. Mr T V Le subsequently received medical attention for his injuries, which it appears to have been accepted, on photographic and medical record evidence tendered at the trial, were "bodily harm" within s 317(1) of the Criminal Code.
21 Mrs T T Ngo gave evidence next. She testified that Mr and Mrs Taylor entered the shop, the former carrying a stick, and both went to a refrigerator. In cross-examination, Mrs T T Ngo denied there was a stick kept in the shop, but said there was a "hook" used to pull the front door. This was because of the shortness of all of the members of the family.
(Page 9)
22 Mrs T T Ngo testified Mrs Taylor came to the counter and slammed a container of chocolate milk on it. Mrs Taylor told Mrs T T Ngo she would not pay for the product and wanted cigarettes. Mrs T T Ngo rang a bell to summon her son, Tue, who was in the back of the supermarket watching television. This was for the purpose of having him talk to Mrs Taylor, to have her pay for the chocolate milk, and so she could be sold cigarettes. Mrs T T Ngo was concerned that because of her limited English Mrs Taylor would not be able to understand her.
23 As Tue was talking to Mrs Taylor, the appellant ran into the shop and hit Tue, making him cry. Mr T V Le, seeing this, ran to the appellant, and "put [him] away", by which the witness apparently meant Mr T V Le pulled the appellant away to get him out of the supermarket. She testified that Mr T V Le told the appellant not to hit Tue and to get out of the shop. Mrs T T Ngo tried to push the appellant to the outside of the supermarket, and Mr Taylor came to hit Tue, apparently after having also hit Mr T V Le. Mrs T T Ngo tried to ring the police, but could not make them understand her. She then saw Mr Taylor and the appellant both hitting Mr T V Le, who was under the counter.
24 As she tried to pull her husband away, she felt a hand hitting her face, and noticed the appellant hitting her. In cross-examination, Mrs T T Ngo admitted that about this time she fell on her back, although she could not remember how this happened, nor how she landed.
25 Mrs T T Ngo then rang the police, and the police attended. Mrs T T Ngo was not sure whether Mr and Mrs Taylor and the appellant left just before or just after that time. Mrs T T Ngo subsequently received medical attention for her injuries, which it was apparently accepted, on both photographic and medical report evidence tendered at the trial, were "bodily harm" within s 317(1) of the Criminal Code.
26 Tue testified next. His evidence was of being summoned to the counter area, where he saw Mr and Mrs Taylor and his parents. He said all had "aggravated looks" and appeared "angry". Tue also noted Mr Taylor had a "small stick" he was using to keep his balance. His father, Mr T V Le, was talking to Mrs Taylor about the chocolate milk, saying she should pay before she drank it.
27 Tue also testified he had heard his parents say to the Taylors that if they came closer his parents would defend themselves. In cross-examination he acknowledged his statement to the police on the night of the incident in which he had said his parents had said to
(Page 10)
- Mrs Taylor they had a stick and if attacked would defend themselves. Just before so acknowledging, there was the following exchange:
"Did they say something about 'we've got a stick and if you attack us then we'll defend ourselves'--- Not in those words.
Well, what were the words?---They - - 'If you come closer then we'll be - - we'll have to defend ourselves,' but in broken English."
29 His mother asked her son to move "out the way". Tue testified that, after Mrs Taylor failed to move on his asking her to do so, he had placed his hand on one of her arms. She had told him to let go and swore at him, and he had let go. He testified that at about this time Mr Taylor had run outside to get the appellant who appeared in the supermarket. The appellant told Tue to "get away from my auntie or I smash you" and, after briefly trying to drag Tue out of the supermarket, punched him on the arm.
30 Mr T V Le then came from behind the counter to defend Tue. Mr Taylor went to stop Mr T V Le from "hurting" the appellant, and blocked and punched him. Tue saw Mr Taylor take his stick with him to this encounter, "waving it around threateningly". Tue testified, however, he did not see Mr Taylor use it. In cross-examination he acknowledged that in the statement referred to he had said he saw Mr Taylor punch his father and hit him with a stick. Tue responded that he was now not sure if Mr Taylor had hit his father with the stick.
31 Tue testified he then felt himself hit on the back of the neck by the appellant. Tue spun around to get away and saw the appellant and Mr Taylor hitting his father. His mother was screaming, and she tried to pull his father away from the fight. Tue recalled his mother being hit but not by whom.
(Page 11)
32 Mr and Mrs Taylor and the appellant then ran off. At about that point Tue ran behind the counter to get the stick with hooks to which he had referred, in case he was attacked again.
33 Tue did not require any medical attention.
34 Evidence was given by a police officer who testified he had attended at the supermarket on 18 March 2003 shortly after the incident was reported. He said the chocolate milk container and video surveillance tapes were provided to him. His partner took the statement from Tue referred to.
35 Evidence was also given by another police officer, a Detective Marsh, who testified that he was assigned a file for the incident in September 2004. A DNA match from a sample on the chocolate milk container had been identified, which had regenerated this file.
36 On 5 October 2005 Detective Marsh had a conversation with Mrs Taylor who indicated to him her keenness that police procure and view the video surveillance tape or tapes from the supermarket. He did not indicate to her what emerged at the trial, that the video surveillance tapes from the supermarket had been returned to Mr T V Le, who might have taped over them. It was accepted at the trial that there was no longer any video surveillance material available.
37 The appellant then testified. In his testimony he said he had accompanied Mr and Mrs Taylor to the supermarket, selected an item as Mrs Taylor selected a chocolate milk, and had then gone outside, leaving her to take his item to the counter and pay for it. The appellant testified he went back inside the supermarket on hearing shouting and his aunt calling him. He saw Tue with his hands on Mrs Taylor, "trying to direct her out of the shop, or something" by trying to shake her and pull her. Mrs Taylor had raised her voice, because "they refused to serve her or something". Mr T V Le was telling Mrs Taylor to get out of the shop, and the man and Mr T V Le, Mrs T T Ngo and Mr and Mrs Taylor were arguing. The appellant had said "get away from my auntie" as he was angry at what he saw of how his aunt was being treated. The appellant then peeled Tue's hands off Mrs Taylor, whereupon Mr T V Le tried to come to Tue's aid, coming at the appellant with a stick, which the appellant described as wooden, a "jarrah sort of colour". In cross-examination the appellant said he had seen the stick on previous visits to the supermarket.
(Page 12)
38 Mr Taylor intervened at this point, tackling Mr T V Le and wrestling him for the stick. The appellant tried to move Mrs Taylor out of the supermarket, and the two of them ended up running back to the appellant's house.
39 The appellant denied punching Tue, Mr T V Le, or Mrs T T Ngo.
40 The appellant acknowledged saying in his video record of interview he did not remember the incident, explaining this as his not being sure what the interview was about. He admitted the impact of what happened that day, combined with the effect of the drugs he had been taking then, had meant that at the time he "couldn't remember as good as I usually could when I'm on the drugs". However, he testified his memory had come back. In cross-examination he said the return of his memory explained discrepancies between the interview and his testimony.
41 Finally, Mrs Taylor testified. She said she and Mr Taylor went to the supermarket unaccompanied by anyone else. Once inside she had taken a chocolate milk from a freezer and began to drink from it as she walked back to the counter to pay for it. Mrs T T Ngo who was behind the counter began to yell that Mrs Taylor had to pay for the chocolate milk before drinking it. Mrs Taylor continued to drink it. Mrs T T Ngo then began to talk in Vietnamese to Mr T V Le, who had been immediately behind Mrs Taylor when she removed the chocolate milk from the freezer, followed her to the counter, and had gone behind it. Mr Taylor was at the counter to buy cigarettes by this point.
42 Mrs Taylor told Mr T V Le and Mrs T T Ngo she had money to pay, which Mrs Taylor put on the counter, going on to tell Mrs T T Ngo not to talk "her language".
43 At that point Mrs Taylor testified the appellant came in, and Mr and Mrs Taylor "got arguing with this lady". Mr T V Le "came around" and pulled out from underneath the counter "a pine wooden plank about four feet in length and two inches in width", while Mrs T T Ngo had what looked like "a small baton" she had "retrieved from around the, um, counter". She testified the accused asked "what's going on?", as Mrs T T Ngo and Mr Taylor "had come around the man waving the plank of wood and saying "I kill you; I been in the war; I kill you".
44 As Mr T V Le was trying to deliver blows with the stick on Mr Taylor, Mr Taylor was trying to block blows.
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45 Tue, who Mrs Taylor described as "much bigger" than the appellant (who was about 15 at the time), at this point pushed the appellant, the appellant pushed him back, and then Mrs T T Ngo who had had the baton in her hands, "turned around" and pushed the appellant "really hard" with her two hands on his chest. The appellant pushed her back with two arms, causing her to fall "on her backside".
46 Mr Taylor pushed Mrs Taylor out of the supermarket, preceded by the appellant.
47 When, in October 2004, Detective Marsh had a conversation with Mrs Taylor, Mrs Taylor had told him to look at the video surveillance from the supermarket. In her evidence she complained about the unavailability of the video surveillance material. In cross-examination, she testified she had noticed cameras while in the supermarket and had seen photographs of her husband coming out of it.
48 She initially denied speaking with her husband about the incident while he was in prison on another matter, but then admitted she could have talked about it with him.
49 In cross-examination she was shown the photographs in evidence of the father and mother indicating injuries to their faces, and testified the wounds did not come from the incident.
50 I now turn to the argument on the grounds of appeal.
Ground 1(a): The Defences
51 These grounds (as amended) raise the defences of accident (s 23 of the Criminal Code) for Prosecution Notice 1805/2005 (the assault on Mrs T T Ngo); provocation (s 246) for Prosecution Notice 1803/2005 (the assault on Tue); self-defence (s 248) for Prosecution Notices 1803/2005, 1804/2005 (the assault on Mr T V Le) and 1805/2005; and aiding in another's self-defence (s 250) for all three Prosecution Notices.
52 It is of course clear law that, where there is evidence to support any of those defences, the burden on the State to establish the case beyond a reasonable doubt includes a burden to negative the relevant defence to that standard: see Howe v The Queen (1981) 55 ALJR 5, at 7 per curiam.
53 In relation to the defence of accident, the appellant referred me to the evidence of Mrs T T Ngo that she tried to push the appellant to the outside of the supermarket, and in cross-examination that she fell and could not remember how she landed. The learned Magistrate found he had "no
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- difficulty in accepting the evidence of Mrs Nao [sic]; it was given in a very careful way and the matters that she didn't know, she readily conceded". It was put to me that in the face of this evidence and that finding the learned Magistrate failed to consider the defence of accident in relation to the assault on Mrs T T Ngo properly or at all.
54 As to the defences of provocation, self-defence, and aiding in another's self-defence, in relation to the assault on Tue, the appellant referred to Tue's evidence that he touched Mrs Taylor on the arm and tried to move her away from the counter before the appellant touched him, and that the appellant had said, before that touching, "get away from my auntie or I'll smash you" or words to that effect. The learned Magistrate had found "that the evidence of Tu [sic] was correct and an accurate account of what occurred". I was referred to the evidence of the appellant that Tue grabbed Mrs Taylor by two hands around the arm, and the appellant had tried to peel Tue's fingers off the arm, that Tue's actions had made him angry and that he had not punched Tue.
55 The learned Magistrate did not accept the evidence of the accused, as a quotation from his Honour's judgment below indicates.
56 The appellant put to me that, even if the learned Magistrate had relied on the evidence of Tue alone, that evidence required him to consider the defences of provocation, self-defence and aiding in another's self-defence, which the learned Magistrate failed to do properly or at all.
57 As to self-defence in relation to the assault on Tue, I was not referred to any evidence of Tue that it was suggested fairly raised that defence. Tue did not testify he had hit or threatened the appellant. Of course there was evidence from Mrs Taylor that Tue had pushed the appellant and that the appellant had pushed him back.
58 As to the defences of provocation, self-defence and aiding in another's self-defence in relation to the assault on Mr T V Le, I was referred to Tue's evidence that when he came to the counter all four adults looked angry, that his father had told Mrs Taylor she had to pay for the chocolate milk before drinking it, that his parents had said that if the Taylors came any closer his parents would defend themselves, that his mother had possibly used the word "stick", and his parents motioned towards one which he had conceded was kept at the counter. There was also the evidence of his mother that her husband tried to pull the appellant to get him out of the supermarket. All of this was in addition to the
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- evidence of Detective Marsh, confirming that of Mrs Taylor, that she had been anxious the police procure and view the surveillance video.
59 There was also the evidence of the appellant and Mrs Taylor of Mr T V Le charging with a stick.
60 In view of the learned Magistrate's determinations as to Tue's and Mrs T T Ngo's evidence, and the way the evidence of Tue, Detective Marsh and the appellant tended to support or "corroborate" (as counsel put it) the evidence of Mrs Taylor as to Mr T V Le being the aggressor with a stick, it was put to me that the learned Magistrate had failed to consider the matters of self-defence or defence of another properly or at all.
61 As to self-defence, in relation to the assault of the mother, I was referred to the evidence of Mrs T T Ngo that she tried to push the appellant to the outside of the supermarket, as well as to the evidence of Mrs Taylor that Mrs T T Ngo pushed the appellant. In relation to the defence of another (s 250) I was referred to Tue's evidence, above, of the context in which his parents referred to a stick, as carrying a threat.
62 In view of the learned Magistrate's acceptance of Mrs T T Ngo's and Tue's evidence, it was put to me the learned Magistrate failed to consider self-defence and defence of another with respect to the assault on Mrs T T Ngo properly or at all.
63 I note that counsel for the appellant in closing submissions at trial laid particular emphasis on the evidence as to whether there was a stick wielded by Mr Le, and whether there was evidence that Tue's parents had such an object in the supermarket. Counsel also referred in those submissions to whether they were angry at the time Tue came to the counter, and whether Mrs Ngo had sustained her injuries by falling over. Specific reference was made to s 248 and s 23 of the Criminal Code. Those two matters were thus clearly before the learned Magistrate. On the evidence I have referred to, as to the assaults including a threat as to his uncle and his aunt, aiding in the defence of another in s 250 was also in my view clearly before the learned Magistrate.
64 The respondent put to me that the learned Magistrate did not fail to deal, or to deal properly, with the defences in relation to the evidence before him to which my attention had been drawn by the appellant as indicated.
65 In order to assess the arguments on the issues here, I need to set out, at some length, the relevant passages from his Honour's judgment. These
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- indicate the contexts in which he made his determinations to accept the evidence of Mrs T T Ngo and Tue, and not to accept the evidence of Mrs Taylor and the appellant (I reach the assessment of the evidence of Mr T V Le separately below):
"Mrs Nao [sic] - - or Ms Nao, the wife of Mr Lee [sic] and the mother of Tu [sic], then gave evidence that she saw the accused - - the accused's uncle and aunt first went they came into the shop and she gave clear evidence that the man had a stick in his hand – that's Mr Taylor – and she became concerned and asked other customers in the shop to wait while she attended to Mrs Pamela Taylor, as we now know her to be.
She asked Mrs Taylor if she had paid her for the Chocmilk and she said, 'No', and then said that they wanted cigarettes and she said she would not pay for the Chocmilk. She rang the bell for her son to come; she wanted her son to come and help interpret as she thought the difficulty lay perhaps in her limited use of English. She asked her son to tell the lady to pay for the Chocmilk and than she would sell them cigarettes.
She asked her husband to help, as she was frightened. And the son – on her evidence – was talking to Mrs Taylor when the accused ran in from outside and hit her son. She gave evidence she didn't know how because she didn't actually see it but she heard her son crying. She then looked and saw that the accused was hitting her son with his hand.
Her husband, Mr Lee, then having seen two hits, ran to the boy and told him not to hit his son and told him to get out of the shop. And then Mr Taylor – on her evidence – attacked or hit her husband. She gave evidence that her husband was being hit and she was trying to ring the police but they could not understand her so she put the phone down. And the man and the boy were hitting her husband. The man held a stick and the boy was using his fists. By the 'boy', I mean the accused.
Her husband was hit many, many times and he fell on to the ground. His eyes were swollen and full of blood. She went and tried to pull her husband away and then she was hit by the boy - that is, the accused – in her face and to her yes. She gave evidence she couldn't remember how many times she was hit by the accused. I have no difficulty in accepting the evidence of
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- Ms Nao; it was given in a very careful way and the matters that she didn't know, she readily conceded. There was no suggestion that she'd made anything up or tried to fill the gaps in, as we've seen, to the prosecution's case.
The son, Tu Lee, then gave evidence and he'd been born in Australia, now 14, was able to give very clear evidence in English without the benefit of an interpreter. With the assistance of an interpreter he gave evidence that on that day he was home from school - - or had come home from school and was watching TV in a room out the back and was summonsed by his mother with the buzzer and was asked to ask Mrs Taylor to move out of the way. He asked the lady to leave and she swore at him. He said however he had his hand on her arm and telling her to move out of the way. And when she swore at him saying, 'Fucking let me go', she - - he let go.
The accused then came in and told him to stay away from his aunt or he'll smash him. And then the accused punched him on the arm. His father saw that happen and came out from behind the counter to defend him and then Mr Taylor started punching Mr Lee. The accused then hit Tu in the back of the neck and he spun around to get away. He then saw the accused and Mr Taylor were hitting his father - - or they were over him punching and hitting him. His mother was screaming and then they ran off. He was pretty sure that his mother was hit but not sure by whom. He was unable to give any clear evidence as to the accused assaulting his mother.
I have no doubt at all that the evidence of Tu was correct and an accurate account of what occurred. Much has been made of the fact that his statement that he gave to the police that day was different from the evidence he gave in court in evidence in-chief and I accept that the evidence he gave in court didn't have as much detail as the statement he gave to the police that night.
In particular, the evidence as to whether there was a stick that was kept behind the counter and was threatening to be used or in fact was used. He confirmed or gave evidence that he did tell the police there was a hook there. On his evidence, it was for the purpose of pulling down the roller door at the front of the shop – everybody in the family being too short to be able to do it in any other way. And there was some talk of getting the
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- hook if they were going to be attacked and that by the time he went to get the hook, they had gone.
…
I don't accept the evidence of the accused. He would have the court believe that at no time did he strike anybody, nor did his uncle, or for that matter his aunt, and they're at a complete loss as to how the injuries that the three complainants give evidence of and which is clearly shown in the photographs occurred. His evidence is not accepted. It was continually changing and was given in a manner that suggested the accused was considering the effect of his evidence, rather than trying to recount what actually occurred.
Ms Taylor, his aunt, then gave evidence. She was a well spoken lady and gave her evidence initially in a very careful and plausible manner, then changed during the cross-examination, and I'm satisfied that she was not a witness of truth in relation to a number of crucial matters, in particular whether she has spoken to her husband on the telephone – he'd been in gaol – about this. She finally conceded that she had lied about that and a number of small but material matters were at odds with the evidence of the accused.
She did not strike me as a witness whose evidence could in any way have any weight placed up on it. She would have the court believe that the complainants, in particular Mr Lee and Ms Nao, for some reason produced weapons and attacked them and they were in fact the victims. I don't have any difficulty in refusing to accept that. It's completely at odds with the evidence of the complainants, which I accept, and it's completely at odds with the photographs, which I accept were taken the next day at the police station.
…
The possibility of various defences applying, given my findings on the facts, do not apply. I'm satisfied that the stick, the weapon, was in fact carried by Mr Taylor. There was no situation where the accused was in a position of having to defend himself or go to the aid of Mr or Ms Taylor. There is no possibility that the defence of accident applies and I cannot see that there is any defence available to the accused and I'm
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- satisfied beyond a reasonable doubt as to every element of the offence.
A number of matters are conceded, such as the injuries to Ms Nao and Mr Lee constituting bodily harm, and I'm satisfied beyond reasonable doubt that those injuries were inflicted in part by the accused or in part by Mr Taylor, with whom the accused was acting in concert. It is not necessary, as I understand the law, for the court to determine which particular injuries were caused by which particular assailant.
…
Much has been made of the fact that the video tape, the surveillance tape from the store, was not available in evidence and whilst it would have no doubt been helpful in deciding this matter to have a video tape of it occurring, the reality of it is that there is no tape available.
…
The evidence in relation to there being a weapon in the shop I've already touched upon and I'm more than satisfied that there was no suggestion that called for a response from the accused or Mr and Mrs Taylor, as in fact occurred."
66 It seems to me from this material that his Honour has clearly indicated the evidence from each witness of importance to him, including all that to which my attention was drawn, which of it he accepts and which of it he rejects, and why.
67 However, it seems to me that in evaluating whether the learned Magistrate had properly dealt with this evidence, it is necessary to take account of the inconsistencies in the evidence of Mr T V Le, Mrs T T Ngo and Tue to which my attention is called under grounds 1(b) and (c) below, against the standard I consider in relation to ground 1(d), below. When that is done, I am of the view grounds 1(a) are made out, in relation to self-defence and aiding in another's self-defence, for the assaults on Mr Le and Mrs T T Ngo, but not for the assault on Tue. The ground of appeal as to accident, for the assault on Mrs Ngo, is also not made out.
68 The grounds 1(a) as to self-defence and aiding in another's self-defence are made out, as to the assaults on Mr T V Le and Mrs T T Ngo, because the inconsistencies in the evidence as to the attitude of those two
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- towards the Taylors, and whether there was a potential weapon to which reference was made by the parents, were not considered by the learned Magistrate for their bearing on whether there was a basis for a reasonable doubt in the evidence relied on by the defence as tending to show that the parents had wielded one or more weapons against Mr and Mrs Taylor and against the appellant.
69 I have noted that it is important to read the reasons given by a trial court in their context to determine if what appears to be a material omission (here, an indication that the bearing the inconsistencies had on the possibility of the parents' use of a weapon or weapons had been properly considered) could be "adequately explained": Garrett v Nicholson (1999) 21 WAR 226 at 249 per Owen J.
70 However, I am unable so to conclude in this case. The apparent reference to Tue's evidence of the "talk" of a stick does not seem to me to be directed towards the significance attached to it in the defence case as lending support to the claim, central to that case, that one or other or both parents came at the Taylors and the appellant wielding a stick or sticks or similar.
71 As to the defence of accident in relation to the assault on Mrs T T Ngo there was no similar issue to be taken with the learned Magistrate's analysis, in my view. There appears to be no significant divergence in the evidence as to the context to which the defence was sought to be related, of Mrs Ngo falling over, nor that she fell on her back. It seems to me that this would warrant the conclusion that no basis lay in the evidence for a conclusion that the fall would have produced facial injuries of the sort in evidence from Mrs T T Ngo. Nor, in my view, could the basis for accident be laid in the evidence she was struck a glancing blow as she tried to extricate her husband from the struggle with Mr Taylor. The blow could not be an event "which would not reasonably have been foreseen by an ordinary person", one of the two elements of accident referred to by Anderson J in Stanik v The Queen [2001] WASCA 333 at [83] (see also Malcolm CJ at [37]).
72 As to the assault on Tue, it seems to me that the matters concerning a basis for a reasonable doubt arising out of the evidence the defence said showed the parents had wielded one or more weapons against Mr and Mrs Taylor and the appellant have no bearing on any conduct of the appellant towards Tue. It was put to me by the appellant that these matters might provide a basis for reasonable doubt arising out of other evidence of Mrs Taylor (as to Tue pushing the appellant), and of the
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- appellant (as to his being provoked by Tue's handling of her to try to peel Tue's fingers off his aunt, or to deal with Tue otherwise). This basis, it was said, would lie in the enhancement of the general credibility of both defence witnesses which entertaining the reasonable doubt arising out of the evidence to show the wielding of the stick would supply.
73 However, it seems to me the possibility of such an enhancement would be too tenuous to warrant separate consideration by the learned Magistrate. I have already referred to the matters to which he had in his reasons referred in relation to the general credibility of the parents and Tue. Unlike in relation to the matter of the claimed aggression of the parents, there was no support for the other evidence of Mrs Taylor or the appellant from any evidence by others in this case.
74 The matter of the video surveillance tape stands differently. The learned Magistrate does not seem to me to note Mrs Taylor's evidence that she had in her conversation with Detective Marsh called on the police to procure and view the video. It was put to me by the appellant that he failed to note its bearing on his findings as to evidence that the parents produced weapons and attacked the Taylors and the accused. That bearing was a willingness to have her evidence tested in that way.
75 However, the learned Magistrate's omission in this respect is in my view adequately explained. The statement by Mrs Taylor to Detective Marsh, when it may be accepted it would not have been apparent there was no video surveillance material available, falls within the rule that proscribes the use of prior consistent statements subject to fixed exceptions, none of which applies here. See Heydon, J D, Cross on Evidence, 7th Australian ed, Sydney LexisNexis Butterworths, 2004, at [17255] and the authority there referred to, Corke v Corke [1958] 1 All ER 224 (CA).
76 To the extent indicated, then, I would uphold the grounds 1(a), but in relation only to the assaults on Mr T V Le and Mrs T T Ngo, but in relation to the assault on Mrs T T Ngo, on the basis of self-defence, not on the basis of accident.
Grounds 1(b)'s Inconsistencies in the Evidence of the Prosecution Witnesses
77 In this connection, I had my attention drawn to the evidence of Tue and his parents only.
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78 The inconsistencies were between the evidence of Tue, on the one hand, and, on the other, the evidence of his father alone, his mother alone, and both parents.
79 The inconsistencies between the evidence of Tue and the evidence of Mr T V Le alone were the latter's denial he had conversed with Mrs Taylor, where Tue testified he had spoken to her about paying for the chocolate milk, as well as Mr T V Le's testimony he had been punched in the stomach by Mr Taylor where Tue did not give any evidence confirmatory of such a punch.
80 I would put the latter "inconsistency" aside immediately. It does not seem to me to involve any contradiction between Tue's evidence and that of his father.
81 The inconsistency between Tue's evidence and the evidence of Mrs T T Ngo alone was in relation to her evidence she had summoned her son to the counter to help advance the transaction with Mrs Taylor with respect to the chocolate milk and cigarettes, where Tue testified his mother wanted help with moving Mrs Taylor out of the way, from which it should be inferred Mrs T T Ngo was angry.
82 The inconsistencies between the evidence of Tue, on the one hand, and the evidence of both of his parents, on the other, were, first, in relation to their denial they had either mentioned to the Taylors they had a stick, or referred to its possible use to defend themselves, where Tue gave evidence about a stick with two hooks towards which his parents motioned, he had acknowledged his statement to the police about his parents' mention of the stick, and he also had acknowledged the possibility his mother used the word "stick". There was also the evidence of his parents that there was no "stick" but only a "hook", where Tue's evidence was that there was a bar, of metal, about 4 feet in length, with a hook at each end.
83 The learned Magistrate, as I have indicated, accepted the evidence of Tue and his mother. The learned Magistrate also indicated, after describing the evidence of Mr Le, as follows:
"I have no difficulty in accepting the evidence of Mr Lee [sic]. It was given with the benefit of an interpreter and Mr Lee obviously had some English and got a little confused at times when he was answering the questions before the interpreter had time to interpret. Nevertheless, his evidence was given in what appeared to be a truthful manner. He appeared to be giving
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- evidence of an actual event and recalling what occurred rather than answering a question to serve his own ends – whatever they might have been."
84 The learned Magistrate's only express reference to inconsistencies between the evidence of the three members of the family was in respect of inconsistency between the evidence of Mr T V Le and of Tue. That reference was as follows (TS 14 July 2005 at page 4):
"The evidence of Mr Lee [sic] has been commented on as being inconsistent with that of Tu [sic]. But of course there's the fact that Mr Lee [sic] was unconscious by this stage and on the floor and could not possibly give evidence of what Mrs Nao [sic] said to in respect of the hook and in fact knowing that perhaps Tu perhaps did not go around and get the hook, as indeed he said he did."
85 However, that reference has nothing to do with the inconsistencies to which I have referred.
86 It was put to me that the inconsistencies referred to needed to be assessed in the light of the limited English of the parents. That limited English required the use of an interpreter for each of them. Each of the inconsistencies referred to, particularly that having to do with the difference between the "hook" referred to by each of the parents and the bar with hooks at each end described by Tue, was of a relatively subtle sort susceptible of misunderstanding in the interpreting process.
87 However, I consider that the evidence in question was clear enough to raise the inconsistencies argued for (excluding the punch in the stomach as I have indicated). The learned Magistrate had indeed expressed his concern that the interpreter be used rather than the parents try to answer questions themselves. No clarifications of the answers were sought by his Honour. The answers went to matter on which the burden of proof lay on the prosecution.
88 I consider that the inconsistencies were such as together required address because of their bearing on whether or not the parents had wielded a weapon or weapons as I indicated on the previous grounds. The omission of a reference to this matter in the learned Magistrate's reasons cannot be adequately explained, in my view, otherwise than as the failure to consider their bearing on whether a reasonable doubt arose out of all of the evidence based on whether the parents had wielded a stick as the defence claimed.
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89 However, I do not consider the inconsistencies go further, to provide a basis for doubting the credibility and reliability of Mr T V Le, Mrs T T Ngo and Tue on all other issues. The learned Magistrate had indicated why in general he preferred the evidence of those three over that of the defence witnesses. Whether, that notwithstanding, the evidence of the defence witnesses was with all of the other evidence still capable of leaving him with the basis for a reasonable doubt on the issue in question was one requiring analysis of all of the evidence on that issue and related ones. I was not taken to any other evidence on other issues that would help to provide that basis.
Grounds 1(c): Evidence of Tue
90 In this connection my attention was again drawn to Tue's evidence as to the stick, evidence to which I referred in the previous connection. I do not need to say any more about that evidence.
91 I was also referred to the fact that Tue did not refer to anything about a stick or a hook until his cross-examination. However, the learned Magistrate did indeed refer to this aspect of his evidence, without indicating how he assessed that aspect. In my view, it is not an aspect which would, if considered "properly", have raised the credibility doubts contended for. There was in my view no indication in that pattern of giving evidence of an attempt by Tue to deceive. He responded as he did when the matter was first specifically put to him. On his apparent view that the matter was of little or no significance, such a pattern was understandable.
Ground 1(d): Reversal of the Onus of Proof
92 In this connection I was referred to the learned Magistrate's acceptance of the evidence of the witnesses for the prosecution, by which was meant the parents and their son, with only the limited comment on the inconsistencies in their evidence I have referred to.
93 The appellant reminded me of the learned Magistrate's rejection of the evidence of Mrs Taylor as the parents' production of weapons and their attack in the terms which I quoted above. The appellant further reminded me of the learned Magistrate's rejection of the evidence of the accused, in the terms I have also quoted above, particularly where his Honour referred to the fact "they're at a complete loss" as to how the injuries, testified to by Mr T V Le and Ms T T Ngo and Tue, and "clearly shown" in the photographs in evidence, occurred.
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94 The law in relation to conflicting evidence and the onus of proof has been described by Miller J in Chamberlain v MacLachlan [2003] WASCA 200 at [32] as follows:
"In considering the learned Magistrate's reasons in this case, it must be appreciated that a finding of guilt cannot be reached simply by rejecting the case put forward by the defence. The principles to be applied are those set out by Anderson J in R v Harling (1997) 94 A Crim R 437 at 443 as follows:
'A finding of guilt is not to be reached simply be rejecting the case put forward by the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is, actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence (and it is trite to say he/she need not do so) the question is not so much whether it is to be preferred to the prosecution evidence but whether, in the light of it, the prosecution has proved its case. Even if the court does not positively believe the defendant's evidence and in that sense does not 'prefer' it, the question remains whether, on the whole of the evidence, the guilt of the defendant has been proved beyond a reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely: yet the court may be unable to rule it out. The defendant may not go into evidence at all: yet the prosecution evidence may fail to satisfy the court to the required degree'."
"So at the end of all of the evidence, I'm satisfied beyond reasonable doubt as to every element of the offence. It's not a matter of choosing which of the witnesses I prefer over the
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- other. It's a matter of whether I am satisfied to the required standard and I am so satisfied. I have no hesitation in finding the accused guilty of each charge. Is there any previous record alleged?"
96 The respondent put to me that the rejection of the appellant's and Mrs Taylor's evidence was simply part of the learned Magistrate's assessment of their credibility and reliability. In view of the just quoted passage from his Honour's reasons, I should not see that rejection as a failure to consider whether their evidence, considered with other evidence in the case, nonetheless left him with a reasonable doubt as to the appellant's guilt.
97 However, the limited comment on inconsistencies I have referred to, which did not address the particular inconsistencies of concern here, coupled with the comment about their being "at a complete loss" in the respect referred to, causes me to consider, albeit not without some difficulty, there was such a failure.
98 The matter of the lack of any explanation from the accused and Mrs Taylor for the injuries to Mr T V Le and Mrs T T Ngo raises further issues. As to Mr T V Le, the appellant had testified in cross-examination as follows:
"Prosecutor - - that's when both you and your uncle Richard attacked him?---No. That's not what happened. Well, he came at me and - - well, he came at me and my uncle Richard has just - - them two have got into a scuffle and them two - - I don't know how he got busted up." (TS 14 July 2005 at p 38)
99 This would indicate to me that the appellant was unable to say how Mr T V Le suffered his injuries, although it was a strong inference from his evidence that they came about as a result of the "scuffle".
100 As to Mrs T T Ngo, the appellant offered her fall as the explanation for her injuries.
101 I do not see then that there is in the evidence a "complete loss" on the part of the appellant as to how the injuries suffered by the parents came about.
102 As to Mrs Taylor, she had testified in re-examination that Mr T V Le and Mrs T T Ngo "must have flogged themselves or got someone to flog 'em" (TS 14 July 2005 page 33). She also testified they must have fought
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- each other. However, the learned Magistrate in fact made a finding as to this evidence of Mrs Taylor's, that it was "not accepted at all", on the following basis (TS 14 July 2005 p 5):
"The manner in which the complainants gave their evidence made it quite clear they were frightened and scared when this occurred and the possibility that it was all concocted to make a claim for criminal injuries compensation is not supported at all by any of the other evidence."
Ground 1(e): The Credibility of the Defence Witnesses
104 As put to me this ground went to the evidence of Tue with respect to his parents being angry, the stick in the supermarket and his parents' mention of it as a possible weapon. That evidence it was said offered support for the defence witnesses' account of the stick or similar wielded by one or both parents. So considered, it does not seem to me this ground adds anything material to the previous grounds.
The Question whether no Substantial Miscarriage of Justice has Occurred
105 My conclusion that the grounds 1(a) – (e) have been made out to the extent I have indicated, raises the issue of the application of Criminal Appeals Act 2004 (WA), s 14(2).
106 The respondent put to me there was no basis for entertaining a reasonable doubt in this case when the evidence as a whole is considered. I was reminded of the comparative advantages of the learned Magistrate in assessing evidence before him. In this case there was in particular the comparative physical statures of the parents and the son, on the one hand, and of the appellant and Mrs Taylor on the other. There was also their demeanour in giving their evidence of all five witnesses. There was no indication the learned Magistrate had failed to make proper use of those comparative advantages. There was also the evidence that strongly supported the conclusions at which the learned Magistrate had arrived,
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- evident from his reasons. He was not bound to accept the evidence put forward by the defence, which had the deficiencies his Honour properly identified.
107 However, I do not consider that no substantial miscarriage of justice has occurred in this case. Where there is a "significant possibility" that a finder of fact convicted on the basis of a choice of evidence "as distinct from being satisfied beyond reasonable doubt of the ingredients of the charge against the accused" there is "no room" for the application of proviso like the one in s 14(3): Liberato v The Queen (1985) 61 ALR 623 at 633 per Deane J, quoted in Latham v The Queen [2000] WASCA 57 at [10] per Malcolm CJ, Pidgeon and White JJ agreeing, on the proviso to s 353(1) of Criminal Law Consolidation Act 1935 (SA). I have already indicated why, notwithstanding what the learned Magistrate said in his reasons for judgment, I am satisfied he appears to have failed to consider the whole of the evidence to determine whether he was left with a reasonable doubt arising out of the matter of whether the parents came at the Taylors and the appellant with a weapon or weapons as contended for. That conclusion means to me, on the way the learned Magistrate appears to have approached the matter, by preferring one body of evidence over another, I should also conclude there is a "significant possibility" of the sort referred to, which leaves no room for a finding that s 14(3) is met.
Conclusion and Orders
108 I conclude then that the appeal should be allowed on the grounds indicated and the convictions of the appellant on the charges of assault of Mr T V Le (Prosecution Notice No 1804/2005) and Mrs T T Ngo (Prosecution Notice No 1805/2005) should be quashed. My conclusion leaves undisturbed the conviction of the appellant on the charge of assault on Tue (Prosecution Notice No 1803/2005).
109 I will hear from the parties as to the other orders, including orders as to costs, that are called for to give effect to these reasons.
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