Cameron v Hume

[2009] WASC 265

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   CAMERON -v- HUME [2009] WASC 265

CORAM:   HASLUCK J

HEARD:   20 AUGUST 2009

DELIVERED          :   17 SEPTEMBER 2009

FILE NO/S:   SJA 1052 of 2009

BETWEEN:   JOSEPH PETER CAMERON

Appellant

AND

CLAYTON PATRICK HUME
Respondent

FILE NO/S              :SJA 1053 of 2009

BETWEEN              :MATTHEW DONALD CAMERON

Appellant

AND

CLAYTON PATRICK HUME
Respondent

ON APPEAL FROM:

For File No               :  SJA 1052 of 2009

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R K BLACK

File No  :PE 5094 of 2008

For File No               :  SJA 1053 of 2009

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R K BLACK

File No  :PE 5093 of 2008

Catchwords:

Criminal law - Practice and procedure - Appeals against conviction on charges of assault occasioning bodily harm - Pleas of self-defence and aiding in self-defence - Burden of proof upon prosecution to negate or rule out defence pleas - Whether magistrate erred in application of the rule in Browne v Dunn - Whether findings by magistrate sufficient to negate defence pleas - Ruling that matters raised in defence during trial were properly considered and there was no error of law - Appeals dismissed

Legislation:

Criminal Code (WA), s 24, s 222, s 223, s 248, s 250, s 317(1)
Criminal Procedure Act 2004 (WA), s 112

Result:

Appeals dismissed

Category:    B

Representation:

SJA 1052 of 2009

Counsel:

Appellant:     Mr S B Watters

Respondent:     Ms M Mattocks

Solicitors:

Appellant:     Taylor Smart

Respondent:     Director of Public Prosecutions (WA)

SJA 1053 of 2009

Counsel:

Appellant:     Mr S B Watters

Respondent:     Ms M Mattocks

Solicitors:

Appellant:     Taylor Smart

Respondent:     Director of Public Prosecutions (WA)

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

Alford v Magee (1952) 85 CLR 437

Anderson v Davis [2009] WASC 38

Browne v Dunn (1893) 6 R 67 HL

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

Devries v Australian National Railways Commission (1993) 177 CLR 472

Garrett v Nicholson [1999] WASCA 32; (1991) 21 WAR 226

Harling v Hall (1997) 94 A Crim R 437

Liberato v The Queen (1985) 159 CLR 507

MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436

Pezzino v State of Western Australia [2006] WASCA 131

Quinlan v The Police [2007] WASC 44

The State of Western Australia v Pollock [2009] WASCA 96

WCW v The State of Western Australia [2008] WASCA 232

HASLUCK J: 

Introduction

1. The appellants, Matthew Donald Cameron and Joseph Peter Cameron, were each charged with an offence of assault occasioning bodily harm pursuant to s 317(1) of the Criminal Code (WA). The charges arose out of an incident which occurred at the home of the complainant, Caleb Francis Pullella, in Willetton in the early hours of 23 September 2007.

2. The appellants denied the charges with the result that the matter was tried before his Honour Magistrate Black on 24 November 2008 and on various days thereafter.  The appellants were represented by counsel at the hearing.

The hearing

1. It was not disputed at the hearing that the complainant sustained bodily harm as a result of an encounter at the subject premises on the night in question.  This meant that the medical report pertaining to the complainant's injuries was tendered by consent.  It is not necessary to say anything further about that aspect of the matter.

2. It was the prosecution case that Joseph Cameron hit the complainant in the hallway of the subject premises, which caused the complainant to stumble backwards into his adjoining bedroom and fall onto his bed.  The appellants then entered the complainant's bedroom and proceeded to punch and kick the complainant whilst he was lying on the bed trying to protect himself.  In the course of the alleged assault, a witness, Tara Jade Claffey, was in the complainant's bedroom. 

3. On the prosecution case another witness, Jeremy John Calabrese, moved from the lounge room to the hallway adjoining the complainant's bedroom while the altercation was taking place and observed what was happening in the bedroom.

4. It emerged, as the trial proceeded, that the prosecution, in order to discharge its burden of proof, was obliged to negate or rule out certain issues arising from the appellants' version of what occurred. 

5. The appellants gave evidence to the effect that shortly after entering the premises the complainant struck Matthew Cameron and this led to an altercation in which both Matthew and the complainant were injured. Matthew raised a plea of self‑defence pursuant to s 248 of the Criminal Code. Joseph Cameron raised a plea of aiding in self‑defence pursuant to s 250 after giving evidence that he came to the aid of his brother in the course of the altercation.

6. It will now be useful, in summary form, to look at the evidence given by these witnesses before turning to his Honour's reasons for decision and the grounds of appeal.

The prosecution witnesses

1. It was not in dispute that prior to the date of the incident Matthew and Tara had been in a relationship that had come or was coming to an end.  It was also not in dispute that on the evening in question Caleb Pullella (the complainant) had attended a couple of hotels in the Perth city area with each of the accused and others.  In due course he and each of the accused returned to their respective residences. 

2. As the first witness for the prosecution, Caleb said in evidence that after he had arrived home Tara turned up and went to his bedroom for a chat.  There was then a phone call between Tara and Matthew which included a brief exchange on the phone between Matthew and Caleb himself.

3. After that call Caleb Pullella heard a bit of commotion going on in the house.  He left the bedroom, came out into the hallway, and opened the hallway door which 'opens out into a like a living area or a table, chairs area' (ts 4).  He saw Joseph and Matthew Cameron who were known to him from primary school.  The former struck Caleb several times so that basically he was beaten back into his bedroom.  There, while on his bed, he was continually being hit.  Caleb could only recall Joseph hitting him, but there was a lot of noise and shouting by male voices, and he definitely heard Tara scream.

4. Under cross‑examination Caleb denied saying to Matthew in the course of the telephone conversation that he should come over and sort it out.  As to events after the two brothers arrived at the house, Caleb denied grabbing hold of Matthew in the hallway or striking him.  He said positively that 'I didn't strike anyone that night' (ts 14).  When pressed, Caleb denied that he struck Matthew first and that a fight ensued between he and Matthew in the hallway.  He reiterated that it was Joseph who struck him first.  Caleb did not recall ending up on the ground in the hallway wrestling.  He denied that he was the aggressive person or that he was acting violently.

5. Tara Claffey said that on the night in question she went to Matthew Cameron's house.  She then went to Caleb's house to discuss things with him.  While there, chatting to Caleb in his bedroom, she got a phone call from Matthew Cameron so she passed the phone to Caleb who spoke to Matthew for a bit.  Later, while still in the complainant's bedroom, she heard a bang.  Caleb went through the doorframe to see what was happening. 

6. According to Tara, 'like a few seconds later I just saw Caleb fly back onto the bed and then Joseph Cameron ran in first and then Matthew Cameron ran in afterwards' (ts 26).

7. Tara said in evidence that Joseph jumped on top of Caleb and started punching him.  The complainant was in a foetal position on the bed which was when Joseph started punching him.  Matthew came in 'like a second later and jumped on him too' (ts 27).

8. Tara went on to say that Joseph threw several punches to the body and Matthew threw several punches to the head and shoulders.  This continued for a few minutes.  She then saw Jeremy Calabrese standing about five metres from her but not yet in the bedroom.  Caleb was being kicked by both Joseph and Matthew.

9. Jeremy Calabrese, as a third witness for the prosecution, said that on the night in question he was in the lounge room watching TV while waiting for a taxi to come and pick him up.  When someone knocked he answered the door because Caleb and Tara were in the bedroom.  It was Joseph Cameron and his brother. 

10. The Cameron brothers said that they were going to see Caleb so Jeremy just went back to the lounge room.  He sat down but a minute or 30 seconds later he heard a girl scream and some yelling and shouting.  He walked through the kitchen and having walked to the bedroom door he saw Caleb on the bed in a foetal position with Joseph on top of him and Matthew standing there with Tara at the foot of the bed standing up.  Jeremy saw Joseph sort of straddling Caleb and throwing punches and Matthew maybe threw a couple of little punches.

11. Jeremy said that throughout the time of his observation Caleb was scrunched up covering his face.  He did not see any injuries to Joseph or Matthew save that the knuckles of Joseph's right hand were quite red.  He saw swelling to Caleb's right eye.

12. Under cross‑examination Jeremy denied hearing any loud thumping in the hallway.  He did not think he had to open the door to the bedroom to make the observations mentioned earlier.

The defence witnesses

1. Each of the accused gave evidence.  Matthew Cameron said that, after returning home from a night out in the city, Tara arrived.  She left after about 15 minutes when Matthew made it clear that he was too tired to talk.  Because Tara seemed upset Matthew then sent her a text message to ask if she was okay. 

2. The message led to Tara calling Matthew from Caleb's house to say she was fine.  In the course of the conversation, according to Matthew, Caleb Pullella grabbed the phone to say that he wanted Matthew to come over.

3. Matthew said that as a result of the conversation he asked his brother Joseph to drive him to Caleb's house.  When Joseph knocked on the door it was opened by Jeremy Calabrese who told Matthew that Caleb was around the corner in his room.  Matthew then walked passed Joseph and Jeremy, who were chatting, down the main entrance hallway and around the corner into the other hallway.  He did not have to open any doors along the way.  Matthew observed Caleb about half way through the hallway and he could see Tara standing up.  He sought an explanation for being called over. 

4. According to Matthew, Jeremy and Joseph had walked into the lounge room and he could not see them from the position where he was.  Matthew said that Caleb was obviously drunk because he was slurring his words, so Matthew told him he did not want to talk and turned to walk away.  When Caleb put his hand on his shoulder, Matthew flicked it off and said 'leave me alone'.  He went to turn to his right but then felt Caleb punch him in his left eye. 

5. Matthew said that he was sort of hit in his left eye brow which caused his eye brow ring to split the skin open on his eye brow, and he started bleeding.  As a result of that he grabbed Caleb below the shoulders, holding his arms, and sort of pushed towards him.

6. Matthew went on to describe an altercation in the middle of the hallway in which he was getting punched and kicked because he had fallen on top of Caleb.  They started wrestling on the ground.  By that time Matthew had quite a lot of blood in his eye but he managed to land some blows on Caleb.  Matthew said that he had not assaulted or touched Caleb in any way before he himself was punched.  He said that they both finished up on the ground.  He believed he saw Caleb's bed from the hallway but the scuffle did not move into Caleb's bedroom.

7. Matthew said that he could hear Joseph come in and 'he basically just helped me off and pulled me away from Caleb, stood in between, looked at me and said let's go' (ts 80).  At that stage Caleb was sort of lying on the ground.  Joseph did not kick or punch Caleb.  Matthew saw Joseph walk out before Matthew walked out 'so he didn't do anything' (ts 81).  Joseph was leading Matthew at that stage because Matthew could not see where he was going due to the blood.  The whole incident, from the time of arrival to the time of departure, took probably two to three minutes.

8. Joseph Cameron gave evidence to the effect that he and Matthew went to the front door of the subject premises and were let in by Jeremy Calabrese.  His brother Matthew went down a hallway and through an open door while he (Joseph) went and sat in the lounge room with Jeremy.  A couple of minutes later he heard yelling from what he thought was the kitchen area.

9. Joseph said that he came out of the lounge area and walked down the hallway to a closed door which he opened and went through.  He walked through and to the left was a table and he could see down by the table the legs of his brother and Caleb on the floor, with Caleb lying on his back and Matthew on top, telling Caleb not to hit him.

10. Joseph said that he saw Caleb hit Matthew, being one punch to the left side of his face, so he ran up and told Matthew that they should go.  He did not see Matthew punch Caleb at any time or kick him in the head.  He did not at any time go into the bedroom or punch or kick Caleb.  He said that he did not actually see Tara at this stage in the kitchen or at all on the night in question.

11. Under cross‑examination Joseph denied coming in and walking straight down to Caleb's bedroom.

12. When Joseph was asked where the kitchen was in relation to the bedroom he answered as follows:

    In relation to the bedroom?  As you walk from the front door, then there's a hallway and a door and to the left and around the corner - to the left is a kitchen table where the boys were and then past that there's another hallway that goes to a bedroom.  To the right of that is the kitchen dining area, but it's like an open area so ...

Issues

1. Section 317(1) of the Criminal Code provides that any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime.  By s 1(1) the term 'bodily harm' means any bodily injury which interferes with health or comfort. 

2. The term 'assault' is defined by s 222 of the Criminal Code.  In essence, a person who strikes or applies force of any kind to the person of another without his consent or by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose is said to assault that other person.

3. It emerges from a consideration of the evidence given at the hearing that there was a very significant difference between the account presented by the prosecution witnesses and the evidence given by the defendants. 

4. Put shortly, the tenor of the prosecution evidence was that the complainant, Caleb Pullella, was assaulted initially by Joseph Cameron in the vicinity of the bedroom door and the assault was then continued in the bedroom itself where the complainant, while on the bed, was in a foetal position, being kicked and punched by both of the brothers. 

5. The evidence to the contrary from the defendants was that Caleb struck Matthew Cameron in the hallway which led to a struggle in the hallway.  Matthew Cameron acted in self‑defence, being aided eventually by his brother. 

6. I note in passing that the prosecution witnesses were not shaken in cross‑examination and no admissions were made which could be said to support the defendants' case.

7. In the course of the closing addresses an issue arose as to whether counsel for the appellants had put to the prosecution witnesses a central feature of the defence case, namely, that an altercation initiated by the complainant took place in the hallway and did not at any stage extend to the bedroom.

8. In the course of this discussion, counsel for the appellants made these observations:

   Because the defence case was that matters happened in the hallway and then they progressed and they were wrestling on the ground and therefore by implication quite clearly in the questions that I asked it was put that those assaults never occurred in the bedroom at all, and certainly that was put to Tara.  (ts 24)

9. Counsel for the appellants submitted a little later that 'it was put positively that the incident occurred in the hallway' (ts 27).

Reasons for decision

1. His Honour took time to consider the matter before handing down reasons for decision on 27 March 2009.  He described the evidence given by the various witnesses at some length.  In doing so, for ease of reference, he used the abbreviations JC and MC as a shorthand description of Joseph and Matthew Cameron.  In the course of his review he made these observations:

   Calabrese's evidence is that whilst he did not see what occurred initially when he went to a position just outside Pullella's bedroom door he observed Pullella to be on the bed being struck by each of the accused.  To this extent his evidence is entirely consistent with the evidence of Pullella and Claffey.  As indicated it was not put to any of Pullella, Claffey or Calabrese that whatever occurred between Pullella and either of JC or MC did not occur substantially within Pullella's bedroom.  Indeed counsel for the accused cross‑examined each of these witnesses on the basis that the accused had been in Pullella's bedroom during a substantial part of whatever occurred.  It was not suggested to any of the prosecution witnesses that they were incorrect in relation to this, it was not put to them that in fact whatever occurred happened outside the bedroom and that neither of the accused had entered Pullella's bedroom at any point.  It was also not put to them that whilst in the bedroom Pullella had been striking out at MC or that he was, in effect, the aggressor.  (ts 11)

2. His Honour made some observations concerning the rule in Browne v Dunn (1893) 6 R 67 HL. I will say more about this later. However, having completed his review of the evidence, his Honour then summed up in this way:

   In my view, taking into account the matters already referred to, the differences between the evidence of JC and MC, that there has been a failure in this instance to comply with the rule in Browne v Dunn in relation to matters of substance and that there is no other cogent and convincing evidence in relation to where any incident took place, the evidence of the prosecution witnesses in this regard is to be preferred.  That being the case and again given previous comments in these reasons in my view the evidence of Pullella, Claffey and Calabrese ought to be and is accepted as being the correct version of what occurred.  As a result I find as facts that Pullella left his bedroom on hearing a noise outside, he entered the passageway outside his bedroom and opened a door leading to the living area.  On so doing he observed JC in front of MC, facing him.  I find that at that point JC struck Pullella causing him to stumble back into his bedroom.  On doing so he fell onto the bed.  JC then entered the bedroom, followed by MC, and each of them began to strike Pullella.  I find as a fact that Pullella did not attempt to strike either of JC or MC and was more intent upon protecting himself.  As a result I conclude that each of the accused assaulted Pullella.  As previously indicated it is not in dispute that as a result of that Pullella suffered bodily harm within the definition of bodily harm in the Criminal Code.  On these findings of fact it is not necessary to consider the question of self defence.

   For these reasons I am satisfied the prosecution has proved each of the charges to the necessary degree, that is beyond reasonable doubt.  (ts 13)

3. Having made these findings, convictions were duly entered upon the basis that the charge against each accused was proved.  On 22 April 2009 each accused was fined $1,500 with costs of $114.20.

Appeal

1. By an appeal notice dated 9 June 2009 Matthew Cameron initiated an appeal upon the following grounds:

   1.The presiding Magistrate erred both in law and in fact when he failed to consider a defence available to the Appellant such that there was a miscarriage of justice;

   Particulars:

   i)Section 248 (self‑defence) of the Criminal Code should have been properly considered.

   2.The presiding Magistrate erred both in law and in fact in his application of the rule of Browne v Dunn ('the rule'), such that there was a miscarriage of justice;

   Particulars of error:

   i)the second limb of the rule should not have been applied;

   ii)there was compliance with the rule on matters of substance;

   iii)there was competing cogent and convincing evidence to the contrary.

1. Joseph Cameron initiated an appeal on essentially the same grounds save that as to the particulars under ground 1 it was not pleaded that self‑defence pursuant to s 248 of the Criminal Code should have been properly considered but, rather, that s 250 (defence of another) of the Criminal Code should have been properly considered. 

2. In other words, the defence case was that a plea of self‑defence was available to Matthew as a person allegedly assaulted by Caleb Pullella.  A plea of aiding in self‑defence was available to Joseph Cameron as a person who allegedly came to the aid of his brother.  I will look at the relevant statutory provisions in more detail later.

3. On 22 June 2009 McKechnie J ruled that leave to appeal was granted in respect of the grounds specified in the appeal notices.  It will now be useful to look at the legal principles bearing upon appeals of this kind.

Legal principles

1. By s 14 of the Criminal Appeals Act 2004 (WA) the Supreme Court may dismiss or allow an appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.

2. It is apparent from s 39 of the Act that an appeal court must decide the appeal on the evidence and material that were before the lower court but this does not prevent consideration of any evidence that the lower court refused to admit.  By s 40 an appeal court may admit any other evidence.

3. A magistrate is generally required to set out the relevant findings of fact in the reasons for his or her decision.  These must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson [1999] WASCA 32; (1991) 21 WAR 226.

4. Where there is a conflict in the evidence, if the tribunal of fact prefers the evidence of the prosecution, it must not convict an accused unless it is satisfied beyond reasonable doubt of the truth of that evidence: Liberato v The Queen (1985) 159 CLR 507. The court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.

5. Generally, an appellate court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or palpably misused the advantage of seeing and hearing the witness or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

6. The question on appeal will often be not whether the court will have formed a different view, but whether the magistrate's approach in view of the evidence was defensible: Chamberlain v The Queen (No 2) (1984) 153 CLR 521.

7. Let me now turn to the grounds of appeal.

Grounds of appeal

1. In the course of earlier discussion I noted that the charges in question were brought pursuant to s 317(1) of the Criminal Code (WA). The effect of the provision is that any person who unlawfully assaults another and thereby does that person bodily harm is guilty of a crime. This requires that the assault complained of be unlawful. Section 223 of the Criminal Code provides that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

2. The Criminal Code contains certain provisions concerning self‑defence and aiding in self‑defence which bear upon the question of whether an act which might be characterised as an assault is justified or excused by law. The provisions in question included the former s 248 and s 250 of the Criminal Code, being provisions that have now been abolished. However, the effect of transitional provisions contained in sch 1 cl 2 of the Criminal Code is that the changes made to the law of self‑defence (as contained in the Criminal Law Amendment (Homicide) Act 2008 (WA)) in August 2008 apply only to offences committed after that date. The present offences were allegedly committed on 23 September 2007 with the result that the former s 248 and s 250 continue to apply to the facts in question.

3. By s 248 of the Criminal Code the general principal is that the accused person may use such force as is reasonably necessary to make effectual defence against an assault.  An objective test is to be applied as to whether the force used was reasonable.

4. Section 250 provides that in any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first‑mentioned person.

5. It follows from a consideration of these provisions that if findings of fact were made which were generally consistent with the evidence given by Matthew and Joseph then it was open to them to contend, as they did at trial, that it was lawful for Matthew to have used force against Caleb Pullella because the latter struck the first blow. Further, it was lawful for Joseph to come to the aid of his brother with the result that any force used by him was excused, having regard to s 250 of the Criminal Code. 

6. However, it is apparent from the magistrate's reasons for decision that he accepted the evidence of the prosecution witnesses and gave little or no weight to the account provided by Matthew and Joseph Cameron, and was not prepared to find that Caleb Pullella was the assailant.  On these findings of fact, the magistrate observed, it was 'not necessary to consider the question of self defence'.

7. Both grounds of appeal are directed to the question of whether his Honour erred in acting upon the evidence of the prosecution witnesses and holding that the defences raised by the Cameron brothers had been sufficiently negated or ruled out by findings to the effect that Caleb Pullella did not strike or attempt to strike either of the accused in the course of the encounter.

8. It will be convenient to look initially at the second ground of appeal.

Second ground of appeal in each of the appeals

1. The second ground of appeal asserted that the presiding magistrate erred both in law and in fact in his application of the rule in Browne v Dunn such that there was a miscarriage of justice.  The particulars provided in support of this contention were that the second limb of the rule should not have been applied, there was compliance with the rule on matters of substance and there was competing cogent and convincing evidence to the contrary.

2. The rule in general terms is that defence counsel must put to prosecution witnesses the substance of the evidence that the defence proposes to lead from either the defendant or his witnesses on a material issue and which is different from the evidence‑in‑chief of the prosecution witness being cross‑examined.

3. It emerges from the observations of Johnson J in Anderson v Davis [2009] WASC 38 at [28] to [29] that there are two aspects to the rule. The first aspect is a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties, whilst the second aspect relates to the weight and cogency of evidence; that is, if a witness is not cross‑examined upon a particular matter upon which he has given evidence, then that circumstance will often be very good reason for accepting the witness' evidence upon that matter, unless a witness' evidence upon a particular matter appeared in his evidence‑in‑chief to be incredible or unconvincing, or if contradicted by other evidence, which appeared worthy of credence.

4. Her Honour went on to observe that acceptance by the court of evidence, which has not been the subject of cross‑examination is not automatic, but is related to the consequences of the breach of the rule, which varies according to the circumstances.

5. In Cross on Evidence (7th Aust ed) the learned author set out the second proposition in Browne v Dunn in this way:

   Secondly, if the witness has not been cross‑examined on a particular matter that may be a very good reason for accepting that witness' evidence, particularly if it is uncontradicted by other evidence.  But there is no requirement that the court must accept the evidence not the subject of cross‑examination; this is so if the evidence is contradicted by other evidence (17,460).

6. In Garrett v Nicholson Pidgeon J concluded that the proposition that evidence on a particular matter is accepted in its entirety where no questions are asked has very limited application in a Court of Petty Sessions. His Honour made observations at 241 to the effect that the second aspect of the rule did not apply in certain circumstances which may be summarised as follows:

   i.If the evidence is seeking to prove an element of the offence, then the plea of not guilty, itself, is notice that the evidence is in contest and it cannot be said that the evidence is being accepted in the event of questions not being asked;

   ii.when the evidence is seeking to prove a fact that is an indispensible intermediate step towards the inference of guilt; and

   iii.in matters of which the defendant or proposed defence witnesses have no knowledge or which are not relevant to the facts to be proved.

7. In MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436 the High Court looked at the application of the rule in criminal cases. Gummow, Kirby and Callinan JJ observed at [38] that the rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit. One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non‑compliance with the rule. A further corollary is that not only will cross‑examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross‑examination to deal with the imputation intended to be made against him or her.

8. The same members of the High Court went on to say at [40] that reliance on the rule in Browne v Dunn can be both misplaced and overstated.  If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross‑examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put.  In criminal cases, in many jurisdictions, the salutary practise of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted.  There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course suggested is one that should be able to be adopted on most occasions without injustice.

9. It emerges from a consideration of these cases that where the evidence given by a witness is challenged, fairness ordinarily requires that the basis of that challenge be put to the witness during cross‑examination.  However, in criminal cases the consequences of failure to cross‑examine in relation to an issue may need to be considered in light of the nature and course of the particular proceedings.  The crucial question in the present case is whether, in referring to and purporting to apply the rule in Browne v Dunn, the magistrate erred by giving an undue emphasis to the second limb of the rule or otherwise failed to apply the rule in a nuanced way in order to take account of the circumstances of the case before him.

10. Counsel for the appellants contended that the magistrate applied the rule in a rigid way which resulted in a miscarriage of justice.  It was said, having regard to the observations made by Pidgeon J in Garrett v Nicholson that this was a case in which findings as to credibility and as to where exactly the alleged altercation took place upon the subject premises was central to the question of whether the prosecution had made out its case to the required standard of proof. 

11. It was said that findings as to these matters could be characterised as an indispensible, intermediate step towards the inference of guilt with the result that, having only a limited application to the circumstances, the learned magistrate gave an undue emphasis to a supposed lack of compliance with the rule.  This is evident in the final passage of his reasons for decision in which his Honour said that there had been 'a failure in this instance to comply with the rule in Browne v Dunn in relation to matters of substance' and went on to indicate that this was a significant reason why the evidence of the prosecution witnesses was to be preferred.  That is, to use the language of the appellants' written submissions it formed 'a central plank' as to why the evidence of the prosecution witnesses was preferred.

12. It will be apparent from earlier discussion concerning the evidence given by the various witnesses at the hearing that during the course of cross‑examination of witnesses for the prosecution, although there was a suggestion that the altercation occurred in the hallway, the evidence given by the prosecution witnesses that Caleb was assaulted by both appellants in the bedroom was not directly challenged.  In my view, it was therefore open to the magistrate to conclude that there had been a failure to comply with the rule.

13. Counsel for the appellants contended that undue weight was given to this perceived failure, having regard to a passage in the reasons for decision in which it was said that, by reason of the failure, 'the evidence of the accused in that regard ought to be disregarded'.  However, to my mind, it is apparent from the context in which that statement was made, that the magistrate at that stage of his reasons was simply summarising a submission made by the prosecution.  He went on to refer to the reasoning of Johnson J in Anderson v Davis and to a submission by the accused 'that a failure to comply with the rule in Browne v Dunn does not itself mean that the evidence of one or more witnesses in relation to a particular matter must be accepted'. 

14. His Honour then said 'I accept that statement as being a correct statement of law'.  He said further that it seemed to him that a failure to comply with the rule in Browne v Dunn means that a tribunal of fact may regard evidence which has not been the subject of cross‑examination with a greater degree of assurance than might otherwise have been the case.  That is, of course, absent other cogent or convincing evidence in relation to the matters the subject of any failure to cross‑examine or indeed other cogent or convincing evidence which would mean such failure could be disregarded.

15. It was in that context, having articulated what I take to be a more nuanced formulation of the rule, and thus a more limited application of it, that he went on to say that in his view, taking into account matters already referred to, the differences between the evidence of the brothers, and that there had been a failure to comply with the rule in relation to matters of substance, the evidence of the prosecution witnesses was to be preferred.

16. To my mind, it emerges that failure to comply with the rule was simply one of several factors that his Honour relied upon in deciding which evidence to accept when making his findings of fact.  Further, his Honour limited his application of the second aspect of the rule to his decision to accepting the evidence of the witnesses for the prosecution that the incident ended in the bedroom.  To my mind, it cannot be said that he treated failure to comply with the rule as a 'central plank' as to why the evidence of the prosecution witnesses should be preferred.

17. I am of the view that the circumstances of this case were not such that the magistrate was restricted in applying the second part of the rule as suggested by counsel for the appellants.  Findings as to where exactly the crucial events took place cannot be characterised as one of the circumstances mentioned by Pidgeon J in Garrett v Nicholson that may exclude the application of the rule in Browne v Dunn.  These findings were directed principally to issues of credibility and set the scene for reliance upon the direct testimony of the prosecution witnesses that both brothers were in the bedroom and participated in the assault.  His Honour was entitled to apply the second aspect of the rule to his analysis of the evidence, in the way that he did.  He appropriately considered where the incident took place as being a matter of substance, but not as an indispensible intermediate step towards the inference of guilt.

18. Further, his Honour was entitled to conclude that there was not competing and cogent evidence as to where the altercation occurred in circumstances where three witnesses for the prosecution gave evidence that the greater part of the altercation occurred in the bedroom without their evidence being shaken in the course of cross‑examination.  Accordingly, I am of the view that the appeal cannot succeed on this ground.

The first ground of appeal

1. The first ground of appeal asserted that the presiding magistrate erred both in law and in fact when he failed to consider a defence available to the appellant such that there was a miscarriage of justice.

2. As to Matthew Cameron, it was said that s 248 (self‑defence) was not properly considered. Joseph Cameron contended that in his case the magistrate failed to consider properly a line of defence available to him under s 250 of the Criminal Code whereby it is lawful for a person acting in good faith in aid of another to use such force to the assailant as is reasonably necessary for the purpose of defending the person being aided.

3. In dealing with this ground it is necessary to begin by looking at the obligations of a judicial officer in reviewing the elements of the offence and the evidence adduced at trial.

4. In Australian legal history, the classic statement of the obligation of a trial judge when charging the jury is that set out in Alford v Magee (1952) 85 CLR 437 per Dixon, Williams, Webb, Fullagar and Kitto JJ at 466:

   It may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them.  He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case.  He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case and (2) of telling the jury, in the light of the law, what those issues are.

5. This passage was quoted with approval by Miller JA in The State of Western Australia v Pollock [2009] WASCA 96. I note also that in Pezzino v State of Western Australia [2006] WASCA 131 Wheeler JA observed that s 112 of the Criminal Procedure Act 2004 (WA) requires a judge to instruct the jury on the law applicable to the case, but as to the facts provides that the judge may make such observations about the evidence that the judge thinks necessary in the interests of the justice. Her Honour observed that, having regard to this provision, a judge has a duty to ensure a fair trial and must refer to and explore so much of the evidence as is necessary in order to achieve that end. Section 112 is plainly not intended to detract from that duty.

1. The question of when a defence should be left to the jury (with appropriate directions being given) has arisen in the decided cases in various contexts.  For example, in WCW v The State of Western Australia [2008] WASCA 232 these observations were made by Buss JA concerning a line of defence arising under s 24 of the Criminal Code at [8], [9]:

   Where there is evidence, fit for the jury's consideration, of an honest and reasonable, but mistaken, belief by the accused, the burden of negativing the defence rests upon the prosecution.  See CTM v The Queen (2008) 82 ALJR 978 [8], [35] (Gleeson CJ, Gummow, Crennan and Kiefel JJ); Loveday, (268) (Philp J), (271) (Stanley J); Lyons, (299).

   The question for a trial judge in determining whether there is evidence, fit for the jury's consideration, of an honest and reasonable, but mistaken, belief is this:  whether, on the version of events most favourable to the accused that is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused did not have an honest and reasonable, but mistaken, belief.  Compare Stingel v The Queen (1990) 171 CLR 312, 334 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

2. In the same case Murray AJA made these observations at [119], [120]:

   The question on the application for leave is whether the trial judge erred in law in making that ruling. His Honour was obliged to leave the issue to the jury and to give appropriate directions as to its resolution if, on a view of the evidence fairly open, necessarily that most favourable to the appellant, the jury might be required, if a fair trial was to be had, to deal with the question of mistake under s 24: see generally Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166, and note particularly the observations of McHugh J at 198 - 199 [83] - [84]; Rogers v Western Australia [2008] WASCA 201 [25] - [26] (Steytler P, Miller JA and Murray AJA agreeing). Rogers was also a case where it was argued that the issue of an honest and reasonable mistake of fact should have been put to the jury.

   Stingel v The Queen (1990) 171 CLR 312 was a case of murder, where it was argued, unsuccessfully, that the 'defence' of provocation should have been left to the jury. Because the case came from Tasmania and therefore, as here, it was for the prosecution to negate the availability of the defence, the High Court tested whether the defence should have been left to the jury by stating the relevant question in terms of the onus and standard of proof applicable. In my view, that is the appropriate course to take in this case.

3. However, it has to be kept in mind that the reasoning in the WCW case concerns the circumstances in which a judge sitting with a jury should leave specific issues to the jury for consideration.  Decisions such as Quinlan v The Police [2007] WASC 44 suggest that when a magistrate is sitting as the tribunal of fact and law, it is permissible and will be sufficient for findings to be made that result in related issues being disposed of as a necessary consequence of such findings, but subject of course to the obligation to provide reasons showing to the litigant (and the appeal court) why a decision was made in a particular way.

4. Thus in Quinlan's case Johnson J held that the magistrate did not err in not considering the possible application of s 244 of the Criminal Code concerning defence against home invasion to the facts. She observed that once the magistrate accepted the evidence of the crucial witness (Slater) 'any defence under s 244 simply fell away'.

5. In the course of her judgment Johnson J noted that a practical approach has been taken to the giving of reasons concerning conflicts in the evidence given by various witnesses.  She accepted that the intellectual process by which the decision‑maker arrived at the conclusion must be made clear.  She added these observations at [127]:

   However, in my opinion, there is a clear distinction between an absence of explanation for a specific finding or a failure to refer to certain evidence, and an inability to identify, on the face of the reasons in their entirety, the reasons for the finding or whether the evidence has been considered.  In many cases, the way in which a specific issue or item of evidence has been dealt with by the Magistrate may not be adequately explained or referred to at all in the relevant part of the reasons.  However, it is often abundantly clear from the reasons as a whole, often including the ultimate decision itself, the basis of the finding or the way in which the Magistrate dealt with that evidence.  I emphasise this point because when a failure to refer to, or adequately refer to, a matter is being considered for the purposes of an appeal, I consider it is important that the extra step is taken to consider whether the way in which the Magistrate dealt with the matter is apparent from the reasons as a whole.  It should not be assumed that an absence of reference to a particular issue or item of evidence means that it was afforded no consideration.

Conclusion

1. It is apparent from the magistrate's reasons for decision in the present case, looked at as a whole, that he did not overlook the matters relied on by the appellants in order to excuse their actions; that is, evidence relevant to Matthew's plea of self‑defence and to Joseph's plea of aiding in self‑defence.  The tenor of his reasoning clearly shows that he felt obliged to review all the evidence and to resolve the central issue concerning credibility, in which respect, as I have indicated, he properly brought to account the rule in Browne v Dunn and his perception that the three prosecution witnesses gave their evidence in a straightforward way and were not shaken in the course of cross‑examination.  This approach set the scene for certain critical findings of fact and his final observation that 'on these findings of fact it is not necessary to consider the question of self‑defence'.

2. Put shortly, the tenor of his Honour's reasoning and his final comment, representing the end point of the reasoning process, make it clear that the magistrate did not lose sight of the lines of defence raised on behalf of the appellants, which were essentially inter‑related, for if it emerged from the evidence as a whole, and the related findings, that Matthew, contrary to his version of the events, was an assailant, and therefore not a person having to defend himself, a finding could not be made that Joseph acted in good faith in providing aid.  The structure of the reasoning including the final observation clearly revealed an awareness by the decision‑maker that the lines of defence raised on behalf of the appellants had to be addressed and disposed of.

3. The appellants by their first ground of appeal seem to accept that some attention was devoted to the matters raised on their behalf.  The more specific question raised on appeal is whether the lines of defence were 'properly considered'.  The suggestion is that their defences were considered and then dismissed in a cursory or overly peremptory way.

4. It could certainly be argued that if the charge against each appellant was being tried by a jury, it would be necessary, having regard to the principles referred to in earlier discussion, that the respective defences would have to be left to the jury on the basis that after taking into account the version most favourable to the accused, being the version supported by the evidence of the appellants themselves, a jury acting reasonably might have been left with a reasonable doubt as to whether the complainant had been assaulted as alleged.  In leaving the matter to the jury the presiding judge would necessarily have been obliged to speak at some length in providing the appropriate directions as to how the jury should deal with circumstantial evidence and issues of credibility.  In the context of a trial of that kind all of this might be enough to remove any query in an observer's mind as to whether the self-defence and aid issues had been fully and properly considered.

5. However, as Johnson J held in Quinlan's case, when a magistrate is sitting as a tribunal of fact and law, without a jury, it is a different situation.  It is important that the trier of fact be alive to all the legal and evidentiary issues to be decided, but it would be absurdly artificial, and possibly productive of error, to require decision‑makers in the different situation to go through the motions of giving themselves elaborate directions before disposing of a factual issue.  The crucial factor is whether the reasons for decision disclose adequately and persuasively the process which has resulted in a particular determination.  A finding of fact as to a central issue may have the consequence, inevitably, in law and in logic, that the defence case concerning some other issue is shown to be untenable and the issue falls away.

6. These observations bear upon the first ground of appeal in each case.  It follows from earlier discussion that a fair reading of the reasons for decision as a whole discloses that the defence issues raised on behalf of the appellants were considered.  They can be said to have been properly considered, for once the crucial findings were made that the evidence of the three prosecution witnesses was compelling and that the complainant was assaulted as alleged, a finding that the complainant was the assailant, or that the appellants were both involved in fending off an attack by the complainant, was no longer open on the evidence.  The inevitable effect of the crucial findings was to negate or rule out the line of defence raised by each appellant.

7. Counsel for the appellants focused upon an observation made by the magistrate in his final summing up which arguably suggested that, in his view, the differences between the evidence of JC and MC undermined their credibility and therefore, by extension, indicated that the evidence of the prosecution should be preferred.  Counsel submitted, that the so‑called differences were negligible with the result that his Honour's reasoning was fatally weakened by this crucial fallacy.

8. I am not persuaded to this point of view.  There were significant inconsistencies between the evidence given by the brothers as to where the incident occurred and as to when the complainant was allegedly punched in the eyebrow area, being the inconsistencies that the magistrate had identified earlier in his reasons.  More importantly, however, it is clear from the context in which the magistrate's observation was made that the presence of the differences was only one of several factors (factors that, for the reasons I have given previously, properly included a failure to comply with the rule in Browne & Dunn) that led to his Honour's conclusion that the evidence of the prosecution witnesses should be preferred.  He cannot be said to have been led astray by a fallacy or to have erred in adding this factor to the other factors in arriving at his final conclusion.  That conclusion, as I have indicated, inevitably disposed of the issue of self‑defence, and thus of any related issue of aiding in self‑defence.

9. It follows that, in my view, the appeal in each case cannot be allowed on this ground.

Summary

1. Each of the appeals, SJA 1052/09 and SJA 1053/09, will be dismissed.  I will hear from the parties as to whether any further orders are required.