Ceg v Wright
[2022] WASCA 42
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CEG -v- WRIGHT [2022] WASCA 42
CORAM: QUINLAN CJ
BEECH JA
HALL J
HEARD: 19 NOVEMBER 2021
DELIVERED : 1 APRIL 2022
PUBLISHED : 1 APRIL 2022
FILE NO/S: CACR 18 of 2021
BETWEEN: CEG
Appellant
AND
BRADLEY WRIGHT
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: DERRICK J
File Number : SJA 1033/2020
Catchwords:
Criminal law - Appeal against conviction - Aggravated assault - Appellant convicted after trial in Magistrates Court - Appeal to single judge dismissed - Whether verdict unreasonable or unsupported by the evidence - Whether complainant's evidence credible and reliable - Complainant's evidence supported by audio recording - Appeal ground without any reasonable prospect of succeeding
Legislation:
Criminal Code (WA), s 246
Criminal Procedure Act 2004 (WA), s 23(2)
Result:
Extension of time to appeal refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | G M G McIntyre SC |
| Respondent | : | A J Sefton SC & G Mullins |
Solicitors:
| Appellant | : | Frost & Associates |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
CEG v Wright [2020] WASC 457
Dayananda v The State of Western Australia [2021] WASCA 11
Jago v The State of Western Australia [2022] WASCA 2
M v The Queen (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
Introduction
Family violence often occurs in the privacy of a home. Typically, the only people present are the alleged perpetrator and the alleged victim. Courts are presented with the difficulty of two irreconcilable accounts of what occurred. The credibility and reliability of the alleged victim may be vigorously challenged. The alleged victim may be ambivalent about wanting to proceed.
In this case, extraordinarily, the conflict between the appellant and the complainant in their home was covertly audio recorded by the police. The recording provided irrefutable, independent evidence that strongly supported the prosecution case that an aggravated assault of the complainant had occurred in the manner alleged by the complainant.
Notwithstanding the existence of the recording, the appellant pleaded not guilty to the charge in the Magistrates Court and, when convicted, appealed against his conviction to a single judge. That appeal having been dismissed, he now seeks leave to appeal to this court.
The appeal was filed three weeks late and an extension is required. The reason given for the delay is that the appellant initially attempted to file a notice within time on the wrong form. He then became 'unmotivated' to pursue the appeal, but, after the time had expired, reconsidered his position and instructed his solicitors to re-file an appeal notice.
The delay, though relatively short, has not been adequately explained. In these circumstances an extension can only be granted if the appellant establishes that to deny him an extension would result in a miscarriage of justice. Thus, the application for an extension of time depends on the merits of the appeal.
In essence, the single ground of appeal is that the verdict of guilty was unreasonable or unsupported by the evidence. The allegation is that the evidence of the complainant was so lacking in credibility and was so unreliable that a finding that the appellant was guilty could not be reached. The submissions in support of that claim fail to have proper regard to the evidence of the audio recording. As already noted, and as recognised by both the magistrate and the primary judge, the audio recording powerfully supported the prosecution case. When the whole of the evidence is considered, the appeal is seen to be entirely without merit. Leave to appeal should be refused and the appeal dismissed.
Prosecution case
The context in which the argument and the alleged assault occurred was as follows. The appellant and the complainant are married. As at December 2018, they had three children and the complainant was pregnant with their fourth child. In that month, the fourth child, a daughter, BD, was born prematurely. BD required a lengthy period of hospital care and was discharged on 9 April 2019.[1]
[1] CEG v Wright [2020] WASC 457 [12] - [14].
In mid‑May 2019, the Department for Child Protection and Family Services (DCPFS) moved the family from the premises where they were then residing because those premises were unfit for habitation. On 20 May 2019, BD was admitted to hospital. She died six days later.[2]
[2] CEG [15] - [16].
The police commenced an investigation into the circumstances of BD's death. In connection with that investigation, the police obtained a warrant permitting the installation of a listening device at the premises where the appellant and the complainant were residing. The purpose of the device was to allow the police to covertly monitor and record conversations between the appellant and the complainant. The warrant was issued on 27 May 2019 and the listening device was installed soon after.[3]
[3] CEG [18].
On 17 June 2019, the complainant was arrested in relation to BD's death, however she was later released without charge. On 24 July 2019, the day prior to the alleged offence, the three children of the appellant and the complainant were removed from their care by DCPFS.[4]
[4] CEG [19] - [20].
The prosecution case was that, on the morning of 25 July 2019, the appellant and the complainant were at their house in Greenwood. Between 11.00 am and 11.30 am, they had an argument. The prosecution alleged that the appellant slapped the complainant and then pushed her face into a bed such that she could not breathe.[5]
[5] ts 4.
The argument between the complainant and the respondent, during which the alleged assault occurred, was captured by the listening device and preserved as an audio recording. As a result of what the police heard in that audio recording, they arrested the appellant on 5 August 2019 and charged him with the assault.[6]
[6] CEG [21].
Where it is alleged that a person has committed more than one assault on another person during a single incident, the person may be charged with one offence of assault.[7] The prosecution case was that the alleged assault was comprised of both the strikes to the complainant's face and the pushing of her face into the bed. That meant that the charge could be established by proving beyond reasonable doubt that either or both of those components had occurred.
[7] Criminal Procedure Act 2004 (WA), s 23(2) and cl 8(1) of schedule 1.
After the appellant was arrested and charged, he was remanded in custody for a period of six weeks until he was granted bail. Whilst in custody, the police obtained a warrant permitting the installation of a listening device at the prison to enable them to monitor and record conversations between the appellant and complainant during visits. The warrant was issued on 8 August 2019 and a listening device was installed soon after.[8]
[8] CEG [22] - [23].
Conversations between the complainant and the appellant at the prison on 16 August 2019 and 19 August 2019 were captured and recorded. These conversations contained references by the appellant to having hit the complainant. The prosecution relied on these references as admissions by the appellant to having assaulted the complainant.[9]
[9] CEG [28]; Exhibits 2 and 3, ts 24 - 28 and 30 (20 December 2019).
The prosecution case consisted of the oral evidence of the complainant, the audio recording from the residential premises and portions of the audio recordings of the prison conversations. Statements of the police officers who had obtained the warrants were also read by consent.[10]
[10] CEG [27] - [28].
Defence case
The appellant's defence at trial was that the prosecution had failed to prove that he had assaulted the complainant as alleged; that is by slapping her or by pushing her face into the bed. In the alternative, the appellant contended that, if the prosecution had proved either component of the assault, then the prosecution had not proved that the assault was not authorised, justified or excused by law on the basis that the appellant was acting in circumstances of provocation as provided for by s 246 of the Criminal Code (WA).[11]
[11] ts 98, 104 - 105.
Before the assault, the appellant had accused the complainant of having hurt BD, that he had lost his other children due to her and that she should leave. She then asked him why he did not blame himself and he replied by saying because he did not kill BD, accusing the complainant of having done so. She laughed at this accusation. It was this exchange, and in particular the laugh, that was said to have acted as provocation and that deprived the appellant of self-control.[12]
[12] ts 104.
Prosecution evidence
Audio recording of the assault
A portion of the audio recording from the listening device at the residence was tendered as exhibit 1 at the trial. A transcript was provided to the magistrate as an aid and the accuracy of that transcript was not disputed on this appeal.[13]
[13] Exhibit 1, ts 29.
In the initial part of the recording, the appellant appears to be talking on the telephone with his father. The appellant says that he wants the complainant to come with him and talk to his father. The appellant and the complainant then argue about the care and protection proceedings relating to their children. The argument becomes more heated and the appellant accuses the complainant of having killed BD. The transcript records the following:[14]
[14] BAB 219 - 220.
THE APPELLANT - We're not getting our kids back coz they're investigating something they don't even know, so you tell them you fucken hurt that little girl mate, you tell them.
THE COMPLAINANT - Oh I killed her (laughs). Yeah, why they not come and get me, Why.
THE APPELLANT - Hey don't make me turn this investigation on its arse Kuk coz they've got proof I wasn't there mate and I tell you what you will go down bigtime girl.
THE COMPLAINANT - Yes yes yes.
THE APPELLANT - Don't make me do that Kuk, you know what I still love you right but don't make me fucken do that okay.
THE COMPLAINANT- That's all you and your dad do.
THE APPELLANT - Is that right.
THE COMPLAINANT - (Indistinct)… I don't hit the girl how dare you say that, how fucken dare you.
THE APPELLANT - I want you to fuck off out of here, Get out.
THE COMPLAINANT - No, I'm only sitting here what the fuck.
THE APPELLANT - Get out of this house.
THE COMPLAINANT - Fucken hell and where can I go.
THE APPELLANT - I don't fucken care, I don't care, I don't care where you go cunt.
THE COMPLAINANT - You mad as hell.
THE APPELLANT - I don't care, I haven't got my kids coz of you cunt, I haven't got my kids coz of you.
THE COMPLAINANT - And why the fuck you not blame yourself at all.
THE APPELLANT - Coz I didn't fucken kill (BD) like you fucken did.
THE COMPLAINANT - Hahahahaha why the police not come and get me why.
THE APPELLANT - You're too scared to tell the cops what you did fucken bitch.
THE COMPLAINANT - Go tell them go tell them.
THE APPELLANT - You're a fucken bitch mate.
THE COMPLAINANT - Go tell them I don't care.
THE APPELLANT - You fucking shook her mate, you shook her cunt.
THE COMPLAINANT - Laughing.
THE APPELLANT - You killed my girl mate you bitch.
THE COMPLAINANT - I not care whatever.
THE APPELLANT - You fucken killed my fucken girl.
THE COMPLAINANT - (Indistinct yelling).
THE APPELLANT - I should kill you.
THE COMPLAINANT - Go on kill me fucken man.
THE APPELLANT - You killed my fucken kid didn't ya.
At this point there are at least two, possibly three, sharp hitting sounds. The sounds are consistent with the impact of a hand to the face or head. The complainant's demeanour abruptly changes. Having previously been a participant in the angry exchange of abuse, she begins to wail and cry. She immediately complains of being hit, pleading with the appellant not to hit her again. The transcript continues:
THE COMPLAINANT - (Crying) Don't hit me again.
THE APPELLANT - You killed my girl.
THE COMPLAINANT - (Crying) Why the fuck you hit me for, what I do (CEG) I'm scared, what you doing.
THE APPELLANT - You killed my girl.
THE COMPLAINANT - (Crying) Go tell the police.
THE APPELLANT - Why can't you just cooperate with me Kuk.
THE COMPLAINANT - What you doing.
THE APPELLANT - My dad wants us to get to the bottom of this Kuk.
THE COMPLAINANT - (Crying/Angry) - That's what I'm doing (indistinct) … you fucken have a go at me, you fucken have … talk to me and then you fucken hit me. Is that right. Really. What the fuck are you doing (CEG) huh.
THE APPELLANT - Get out of my house.
THE COMPLAINANT - Indistinct crying.
THE APPELLANT- Hey babe listen to me right.
THE COMPLAINANT - Why you hit me for.
THE APPELLANT - We are never getting our kids back.
THE COMPLAINANT - Why the fuck you just hit me. (Indistinct) crying.
THE COMPLAINANT - They don't see me because they know I not there, they fucking know I don't fucking hit her (CEG).
THE APPELLANT - And I did and I was there?
THE COMPLAINANT - Go talk to your dad why go why, you're angry go talk to your dad, really (CEG).
THE APPELLANT - Because we're going to go to court tomorrow blind again Kuk and get the same result - nothing.
THE COMPLAINANT - Oh alright yes put more stuff into my head you don't need to control me (CEG) whatever I want to say I say it myself okay. I don't need to listen to anyone.
THE APPELLANT - You're not listening to anybody are ya.
THE COMPLAINANT - (Shouts) Don't hit me again.
THE APPELLANT - I'm not hitting you, I'm not fucken hitting you, I'm just trying to explain to ya. Like really Kuk hey.
THE COMPLAINANT - (Sobbing) What the fuck you doing.
THE APPELLANT - You're not listening, you're a stubborn fucking cunt.
At this point there are scuffling and stepping noises and the voices become more distant. The complainant suddenly goes quiet. The silence is a very marked change to the previous continuous arguing and yelling by both participants.
The only noises that can then be heard are stifled or muffled sounds consistent with the complainant being forced down into pillows or bedding. The complainant appears to be released sufficiently to be able to say 'get off me' and 'yes, (CEG) please'. Other than this, there is a period of approximately one minute and 15 seconds during which the complainant is not arguing and the appellant threatens to kill her. The transcript records the following:
THE COMPLAINANT - Get off me.
THE APPELLANT - You're gonna listen to me huh, you gonna listen to me huh.
THE APPELLANT - Are ya, Yeah.
THE APPELLANT - I'll fucking kill you cunt (indistinct) you gonna listen.
THE COMPLAINANT - Yes (CEG) please.
THE APPELLANT - You gonna listen. I'll fucken kill you cunt, fucken cunt (indistinct) you don't wanna listen to me, you're a fucken get out (indistinct).
THE COMPLAINANT - What the fuck you doing (crying) you fucken angry is that fucken fair hey.
THE COMPLAINANT - I haven't done (indistinct) (CEG) please don't hit me again.
THE APPELLANT - You gonna stop.
THE COMPLAINANT - Don't hit me again.
THE APPELLANT - You gonna stop.
THE COMPLAINANT - Don't hit me again, don't hit me again you fuck (CEG), get away from me fuck off, call police for me, don't want to stay with this fucking (CEG) anymore, I'm not staying with you anymore.
THE COMPLAINANT - Get away from me fuck off (indistinct) your mum and sister, you touch me (CEG) (indistinct).
THE COMPLAINANT – (Indistinct ranting).
THE APPELLANT - Get out of my house.
THE COMPLAINANT - Fuck off I fucking get your (indistinct) bigtime. Fucking fuck off.
THE APPELLANT - Tell me to fuck off you fuck off, get out of here c ya later bitch and don't come back. Go away fuck off.
The recording continues for a short time after this. The appellant and the complainant continue to argue; he tells her to leave and she appears to do so.
The prison recordings
The prison recordings were of conversations between the appellant and the complainant on 16 August 2019 and 19 August 2019. Relevant parts of these recordings on which the prosecution relied were transcribed. It is sufficient for present purposes to only refer to the most significant of these.
In the conversation on 16 August 2019 at 4.50 pm the appellant said:[15]
Babe I've been sitting down here thinking a lot and this is a little bit of karma for hitting ya, ok it is alright so I gotta take the punishment and when I get out I'm never ever gonna touch and I'm not gonna hurt ya ever again.
[15] CEG [82].
In the conversation on 19 August 2019 at 6.40 am the following was said:[16]
[16] BAB 222 - 223.
THE APPELLANT - You're curse right, your curse came true.
THE COMPLAINANT - It not curse you I never curse you.
THE APPELLANT - You did curse me when I hit ya.
THE COMPLAINANT - I never ever curse you (CEG).
THE APPELLANT - You were cursing under your breath babe.
THE COMPLAINANT - They show me video, sorry not camera the noise only the noise.
THE APPELLANT - Well that's nothing noise is shit did they show me hitting you.
THE COMPLAINANT - No and this what I say he not hitting me. They say why you say it and I say I just say that to make him scared, but he doesn't touch me, I don't know why they put you in here I didn't sign nothing, nothing.
….
THE COMPLAINANT - This is what I say to Leigh McKnight when I on the phone I say my husband he not even kill a spider. He say we not believe that.
THE APPELLANT - Hey Kuk, listen to me one day when I get out of this place, I promise you mate, look at my lips, I'm gonna kill em all, I am there's no way they're getting away with what they've done to me mate. They don't get done for nothing coppers and shit.
The complainant
The complainant is from Thailand and gave evidence with the assistance of an interpreter. She had some ability to speak English (as evident from the audio recordings) and answered some questions in English. On other occasions she relied on the interpreter.
The complainant said that she is aged 34 years old and has been married to the appellant for 10 years. They have four children together.[17]
[17] ts 9 - 10.
The complainant said that on the morning of 25 July 2019, she and the appellant were at home. He was sitting on a couch and he asked her to go and see his father. She said, no, that she did not want to at the moment. This caused an argument. The argument went for about half an hour and the appellant then slapped the complainant on the face. She could not remember which hand he used. She said that she was sitting on the couch when he slapped her.[18]
[18] ts 10 - 13.
Asked to explain what immediately preceded the slap, the complainant said that the appellant had been talking on the telephone to his father. After he hung up, he said that she should talk to his father. She said that she did not want to do that and that his father could not do anything. The appellant then became angry that she would not listen to him and 'he just hit me'. Asked what part of her face he slapped, the complainant said that she could not remember because it was a long time ago but indicated her cheek.[19]
[19] ts 12 - 14.
The complainant said that, after he slapped her, the appellant pulled or dragged her into the bedroom and pushed her head into the bed. She said that she couldn't breathe. Her face was down on the bed and she could feel a hand at the back of her neck. She could not remember clearly whether he was saying anything while that was occurring.[20]
[20] ts 15 - 16.
The complainant said that, after this incident, they continued arguing. Eventually she did go with the appellant to see his father. When asked why, she said 'if I go see he dad that probably make him stop hitting me'.[21]
[21] ts 17 - 18.
The complainant did not consent to being hit. She kept saying 'stop hitting me' to the appellant and 'don't hit me'.[22]
[22] ts 18.
The prosecution then played to the complainant the audio recording from the residence. The complainant identified the voices as her own and that of the appellant. She confirmed that, during the recording, she had been slapped and her head held to the bed.[23]
[23] ts 21 - 24.
The prosecution also played the recording of the prison visits to the complainant, and the complainant identified the voices of herself and the appellant.[24]
[24] ts 27 - 29, 32 - 33.
In cross‑examination, the complainant confirmed that she was not particularly happy to be pregnant with her fourth child because she realised that her relationship with the appellant was not very good. She tried to terminate the pregnancy by taking a tablet and, shortly afterwards, BD was born prematurely. BD spent 16 weeks in hospital before being discharged and released on 9 April 2019. In mid‑May, the family was moved to a different house because DCPFS determined that the original house was unfit to inhabit. On 20 May 2019, BD was admitted again to hospital and, six days later, passed away. On 17 June, the complainant was arrested in relation to BD’s death but released without being charged. The other three children were removed from her and the appellant by DCPFS on 24 July 2019, the day before the alleged assault.[25]
[25] ts 46 - 48.
In cross‑examination it was suggested that the appellant had wanted the complainant to see his father because he thought that the complainant should get a lawyer. She disagreed, saying that she already had a lawyer at that time.[26]
[26] ts 48.
It was put to the complainant that the appellant had accused her of killing the child. She said that she could not remember what the appellant said. When asked why she had said in the argument that she did not care, she said that this meant that she did not care to go and see his father.
It was put to the complainant that during the argument she had laughed at the appellant when he accused her of hurting BD. She was then asked:
PERCY, MR: Did he appear to get more angry when you laughed at him?
INTERPRETER: Yes.
PERCY, MR: Why did you laugh at him?
THE WITNESS: Because why he angry? Sorry, say again please.
INTERPRETER: Because he say things that is not the truth.
PERCY, MR: It wasn't a very funny matter, was it?
THE WITNESS: Yes, that's true.
PERCY, MR: And when you laughed at him, did he appear to get even more upset?
INTERPRETER: But he always angry.
PERCY, MR: Were you trying to make him even more angry?
INTERPRETER: Not true.
THE WITNESS: No.
PERCY, MR: You knew he was very upset about (BD's) death?
THE WITNESS: Yes.
PERCY, MR: And that he was accusing you of having killed her.
THE WITNESS: Yes.
PERCY, MR: Did you not think that by laughing at him it would make him even more upset?
INTERPRETER: I think I laugh to make him calmer. [27]
[27] ts 52 - 54.
The complainant was asked why she had said that the argument was about going to see her father‑in‑law and had not mentioned any argument about BD’s death. The following exchange occurred:
PERCY, MR: You didn't mention any argument about the child's death, did you?
INTERPRETER: Yes, with the starting off, with the (CEG's) would like pushed me to go and see his father.
PERCY, MR: But that's not what was being argued about when he hit you, as you say happened, was it?
THE WITNESS: Not true. [28]
[28] ts 55.
It was put to the complainant that her memory of the day was very poor and she agreed. She said that she could remember being slapped but could not remember which hand the appellant hit her with. She later indicated, with a gesture, her right cheek and said that maybe he had hit her there.[29]
[29] ts 55 - 59.
When asked what they were talking about just before the appellant hit her, the complainant said that she could not remember. She was then asked:[30]
PERCY, MR: You were talking about the child's death, weren't you?
THE WITNESS: No. This the first argue is just about he make me go see his dad and I don't know why I need to go see his dad and he said, no, I need to go see his dad. That was first when we argue about. He start to hit me first.
[30] ts 57.
The complainant confirmed that the appellant had pushed her head down onto the bed. She accepted that this left no marks on her body and that she did not receive any injuries that day. She agreed that when the police obtained a statement from her, she told them that she had been hit above her right eye. She said that the appellant slapped her about three times.[31]
[31] ts 57, 60, 62.
The complainant agreed that on 30 July 2019 she had signed a statutory declaration in which she stated, 'at no time does (the appellant) physically or mentally hurt me'. This was to be used in restraining order proceedings. She said that the statutory declaration was arranged by her father‑in‑law. She said that she read it at the time, but that it was all in English and that she didn't understand what it was 'talking about'. She was asked by the appellant's father to sign the declaration and so she did. She said that the statement regarding the appellant never having physically or mentally hurt her was untrue.[32]
[32] ts 63 - 66.
The complainant was then shown a statutory declaration dated 6 August 2019. She said that she signed the second declaration because someone had suggested that she had been forced to sign the first one. Her father‑in‑law asked her to write out the second declaration in her own writing. She did so and copied the words from the original declaration. However, she did not include the paragraph that stated that she had never been physically or mentally hurt by the appellant because that was not true. There was a paragraph that stated, 'I have not sought or required a restraining order from (the appellant) as I have not been threatened nor are threatened by (the appellant)'. When asked whether that statement was true, she said that she did not know what it meant when she signed it. She said that her father‑in‑law asked her to copy the whole thing on to another piece of paper, but she didn't understand the meaning of it. In particular, she did not understand what the word 'threatened' meant. Later in her evidence, she clarified that, although she had signed this declaration, the handwriting was not hers. She could not remember if the declaration was read to her before she signed it.[33]
[33] ts 69 - 76.
The complainant agreed that on 5 August 2019 she consulted a doctor at the suggestion of her father‑in‑law. She said that she did this because the appellant had been arrested and she was very stressed. She received a prescription for Diazepam tablets. The doctor also gave her a medical certificate. She agreed that she did not tell the doctor that she had been assaulted by the appellant. Nor did she complain about any injuries resulting from that assault.[34]
[34] ts 76 - 77.
The complainant agreed that she attended another doctor on 8 August 2019. She said that she again did this at the suggestion of her father‑in‑law, who she was staying with at the time. She requested a letter from the doctor. That letter states that the complainant was examined on that day and that there was no evidence of bruising or injury to suggest external insults to her face, neck, torso, arms or legs. It was put to the complainant that she told the doctor that there had been no domestic or physical abuse, only verbal abuse. She said that she could not remember saying such a thing.[35]
[35] ts 78 - 83.
The complainant agreed that, after the incident on 25 July 2019, she continued to live with the appellant until 5 August 2019. She denied telling a person from the Victim Support Service that she had not had any contact with the appellant since the date of the offence. She agreed that, after the appellant was remanded in custody, she visited him in prison and wrote affectionate letters to him. The letters included references to her missing him and telling him about the children and how they were going. She agreed that no one forced her to visit the appellant.[36]
[36] ts 84 - 86.
The complainant agreed that she initially told police that she did not want to press any charges. She was asked whether she had changed her mind about that and said that she had not. She disagreed with the proposition that she was trying to make the police happy. She also disagreed that proceeding with the charges might help her in avoiding being charged with BD's death. She did not accept the proposition that she was trying to portray the appellant as a bad person so that the police might think he was more likely to have caused BD's death. She said that the present case had nothing to do with BD's death.[37]
Other evidence
[37] ts 86 - 87.
Other evidence consisted of statements of police officers that were read by consent. Those statements related to the obtaining of the warrants for the listening devices and the use of those devices.[38]
[38] ts 89 - 93.
Defence evidence
The appellant elected not to adduce or give any evidence at the trial.
The magistrate's reasons for decision
After setting out the relevant legal principles and summarising the evidence, the magistrate turned to some aspects of the complainant's evidence. She found that the complainant's suggestion that she laughed in order to calm the appellant down could not possibly be true. She also noted that the complainant had agreed that her memory of the day was very poor and that she was confused as to where the appellant had struck her. The magistrate said that there was a significant omission from the complainant's account of the argument in that she did not say that the parties were arguing about BD's death at the time of the assault. Her Honour described this as being 'clearly central to the argument heard on the audio recording'. She also noted that, at one point in cross‑examination, the complainant seemed to confuse the timing of the assault and had suggested that parts of it occurred after she accompanied the appellant to see her father‑in‑law.[39]
[39] ts 5 - 6 (7 Apr 2020).
Her Honour then said:[40]
It's quite clear however that there is a significant language barrier. At times the complainant misunderstands the questions that are asked of her which is not surprising given the subtleties of the English language and the difficulties in comprehending common usage of phrases as opposed to a literal translation. The complainant does clarify that she did accompany the accused to her father‑in‑law's house after the incident.
That is consistent with her evidence‑in‑chief when she said that after the incident she accompanied the accused to see her father‑in‑law because 'it would probably make him stop hitting me'. She remained firm in cross‑examination that she was initially slapped by the accused and then he pushed her head down into the bed in their bedroom. The critical parts of her narrative remain unchanged after robust cross‑examination.
[40] ts 6 (7 Apr 2020).
Her Honour then referred to what was suggested to be an inconsistency between the complainant's evidence and her police statement regarding where she had been hit. In evidence she only mentioned her cheek and not her eye. Her Honour said that, whilst this might appear to be a 'glaring inconsistency', it was very clear during cross‑examination that the complainant had difficulties with the subtleties of the English language. Her Honour also noted that the complainant clarified that the appellant had slapped her two or three times.[41]
[41] ts 6 - 7 (7 Apr 2020).
As regards the statutory declarations, her Honour said that it became clear during cross‑examination that the complainant did not understand what she had signed. The first statutory declaration had been organised by her father‑in‑law and, although she read it, she did not understand what it was about. She was adamant that paragraph 4 of that declaration, which stated that the appellant never physically or mentally hurt the complainant, was not true. As to the second statutory declaration, her Honour noted that the complainant's evidence was that she had copied this document at the request of her father‑in‑law, that she had omitted a paragraph that was in the earlier statutory declaration, and that she did not understand the paragraph that dealt with the word 'threat'.[42]
[42] ts 7 (7 Apr 2020).
Her Honour also made reference to the evidence regarding the consultations with doctors in which no complaint of assault had been made by the complainant and no injuries had been observed. Her Honour then concluded:[43]
I find that none of these adversely affect her credit and that she has adequately explained herself, particularly in relation to the omission of paragraph 4 from her handwritten statement which is, in my view, very telling. The complainant was very firm under strong cross‑examination about living with the accused after the incident. She denies that she ever told Victim Support Services that she left the accused and had never seen him since 25 July. … She quite happily confirms that no one forced her to go to the prison to visit her husband. The complainant also readily confirms that she did tell the police that she did not want to go through with the charges and has not changed her mind about that. She denies that her giving evidence against the accused has anything to do with the investigation in respect to [BD] and nothing to do with wanting to be seen favourably in police eyes.
A motive to lie may substantially adversely affect the credibility of a witness. The accused does not bear any burden of proving the complainant has a motive to lie, though. Furthermore, if I reject the possibility that the complainant does have a motive to lie, that does not mean that (indistinct) telling the truth. The suggestion that she is motivated to lie is undermined by the audio recordings. The discs of the audio recordings were produced into evidence and are exhibits 1, 2 and 3.
[43] ts 8 ‑ 9 (7 Apr 2020).
Her Honour then referred to the content of the audio recordings and said that the audio of the incident on 25 July 2019 was consistent with the complainant's version of events. Her Honour acknowledged that the verbal argument begins with the complainant's refusal to see the appellant's father. The argument then progresses into a discussion about BD's death. Her Honour notes that at about 18:50 on the recording there are sounds of two blows, the second immediately subsequent to the first and followed immediately by the complainant crying and stating, 'don't hit me again'. Her Honour stated that, after the two sounds, there is an immediate effect on the complainant. She is crying and continually asks the appellant why he has hit her. There is no denial from the appellant. Her Honour then notes that at 21:00 there are sounds of something physical occurring and the voices then move from the vicinity of the recording device. The appellant's voice can still be heard and is clearly angry. His tone is menacing and he threatens to kill the complainant. Her Honour notes that, relevantly, there is nothing heard from the complainant, which is very different from her behaviour earlier when she was a very vocal participant.[44]
[44] ts 9 - 10 (7 Apr 2020).
Her Honour referred to the audio recordings from the prison visits and to references by the appellant that he hit the complainant. Her Honour then said:[45]
Having considered all the evidence I find that the complainant is an honest and largely reliable witness. Her evidence is entirely supported by the audio recordings and she never sways from the critical components of her evidence. Her actions in not wanting to proceed with the prosecution and signing the statutory declarations do not adversely affect her honesty. Where she is vague about where she was slapped, this does not undermine the reliability of her account of the actions that compromised the assaults upon her during the incident. I find, therefore, that the accused slapped the complainant on her face twice, that he then pulled or dragged her to the bedroom and pressed her face into the bed so she could not breathe. It is not disputed that the parties were in a familial relationship.
[45] ts 10- 11 (7 Apr 2020).
Her Honour then moved to the question of provocation and found that the complainant did taunt the appellant by laughing and sarcastically saying words to the effect that she had killed BD but would get away with it. Her Honour found that the complainant's actions were such as would be likely to deprive a person of their self‑control. She found that the appellant was in fact deprived of self‑control and acted suddenly before there was time for his passion to cool. She found that the response of slapping the complainant was proportionate to the provocation. However, in relation to the assault in the bedroom, she found that the prosecution had succeeded in negativing the defence of provocation. She said that the act of holding the complainant's head down to the bed so that she could not breathe was disproportionate to the provocation. Accordingly, she found the charge proven on the basis of that part of the alleged assault.[46]
[46] ts 11 (7 Apr 2020).
Single judge appeal
The appellant sought leave to appeal his conviction to a single judge. The ground of appeal alleged that the evidence was not capable of establishing beyond reasonable doubt that the appellant had assaulted the complainant.[47] In essence, this was an allegation that the verdict was unreasonable or could not be supported by the evidence.
[47] CEG [45].
The particulars to the ground alleged that the finding of the magistrate that the complainant was a largely reliable witness was not reasonably open. This was said to be because the magistrate had also found that the complainant's memory was poor, that the reason she gave for laughing was not true, that she was confused as to where the slapping occurred, that she was confused as to the sequence of events, that her account of the cause of the argument contained a significant omission, and that she had made a prior inconsistent statement as to the number of times she had been hit.[48]
[48] CEG [45], [50].
The primary judge dealt with each of the matters raised by the appellant. As regards the memory of the complainant, his Honour noted that, although she had made a general concession that her memory of the day was very poor, she did not at any point admit to having a poor memory of being struck, or of being dragged to the bedroom and having her head pushed down into the bed. To the contrary, she maintained her version of events in both examination‑in‑chief and cross-examination. His Honour concluded that the fact that the complainant did not recall every detail and conceded that her memory of the day was very poor did not necessitate the magistrate rejecting the complainant's evidence as whether the assaults alleged had occurred.[49]
[49] CEG [70] - [72].
As regards the reason for laughing, his Honour said that it was clear from the recording that the complainant laughed at the appellant in a mocking way and as a way of deriding the accusations that she was responsible for BD's death. The magistrate's rejection of the complainant's evidence that she laughed to calm down the appellant was understandable but did not compel a conclusion that it was not open to accept the evidence of the complainant as to the occurrence of the assault.[50]
[50] CEG [58] - [60].
As regards where and how many times the appellant struck the complainant, his Honour noted that the magistrate took into account the complainant's language difficulties and the number of times that she was struck within a short period of time in deciding that any inconsistency was not such as to justify the rejection of her evidence in the material respects. His Honour concluded that the magistrate's findings were reasonably open to her.[51]
[51] CEG [61] - [64].
As regards the sequence of events, his Honour noted that the alleged inconsistency as to whether the second part of the assault had occurred before or after going to see the appellant's father had been clarified by the complainant in her evidence. The magistrate found that any confusion was a product of the complainant's difficulties with the language. His Honour concluded that this was a finding that was reasonably open to the magistrate and that the alleged inconsistency was not such as to necessitate rejection of the complainant's evidence as to the occurrence of the assault.[52]
[52] CEG [65] - [69].
As regards the cause of the argument, his Honour said that it was abundantly clear from the audio recording and the complainant's evidence that the issue of visiting the appellant's father was at all times a very significant, if not the major component, of the argument. Given the sensitive and emotional nature of the subject of BD's death, his Honour concluded that it was reasonably open for the magistrate to find that the complainant's failure to mention that the argument also, at various points, was about the death of BD, although a significant omission, was not such as to render her evidence about the assault dishonest or unreliable.[53]
[53] CEG [53] - [57].
His Honour then said that it was important not to overlook the other evidence that supported the magistrate's findings, in particular the audio recording from the residence. The recording provided support for what the complainant said had occurred.[54] As regards that part of the recording relating to the second part of the assault, his Honour said:[55]
The complainant's silence during the period from approximately 21:00 minutes to approximately 22:18 minutes, save for the making of the one statement, 'Yes, [CEG], please', is at odds with how vocal she had been during the course of the argument up until that point. Her silence is consistent with the appellant, during this period of time, pushing her face into the bed. Further, the appellant's angry questioning of the complainant as to whether she was going to listen to him and his angry assertions that he was going to kill her are also consistent with the appellant, during this period of time, pushing the complainant's face into the bed as a means of forcing her to listen to him. Further still, the above referred to statements made by the complainant from 26:10 minutes, admitted as part of the res gestae, are consistent with her allegation that the appellant pushed her face into the bed and held her down so that she could not breathe. Her statements to the appellant that he had tried to kill her are clearly capable of being interpreted as applying to some conduct of the appellant other than his conduct in slapping the complainant. It was therefore reasonably open to the magistrate to find, as her Honour clearly did, that exhibit 1 provided support to the complainant's evidence as to what the appellant did to her, and in particular as to what the appellant did to her after he had slapped her.
[54] CEG [73] - [74].
[55] CEG [80].
His Honour referred to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence, and also the very significant advantage that the magistrate had of seeing and hearing the complainant give evidence. He concluded that it was reasonably open to the magistrate to be satisfied beyond reasonable doubt that the complainant was an honest and reliable witness as to the fact of the assault. The evidence, considered in its entirety, does not require the conclusion that the magistrate must have entertained a reasonable doubt about the appellant's guilt.[56]
[56] CEG [90].
Ground of appeal
The ground of appeal to this court repeats the allegations contained in the ground in the single judge appeal. In essence, the ground alleges that the verdict of the magistrate was unreasonable or unsupported by the evidence.
The ground, with its particulars, is as follows:[57]
[57] WAB 2 - 3.
1. The Appeal Judge erred in law in finding that, on the whole of the evidence, it was open for the Magistrate to have been satisfied beyond reasonable doubt that the Appellant had assaulted the Complainant on 25 July 2019 by holding her head onto a pillow ('the Assault'), when the evidence was not capable of establishing beyond a reasonable doubt that the Appellant had so assaulted the Complainant, and thereby a miscarriage of justice ensued.
Particulars
1.1 His Honour erred in law in holding, at paragraphs 55 ‑ 57 of Reasons for Decision that; although Magistrate found that the Complainant's evidence given [in] her evidence in chief as to why she had argued with the Appellant shortly prior to the Assault contained a significant omission, such omission was not such as to render the Complainant's evidence as to the conduct the subject of the offence dishonest or unreliable.
1.2 His Honour erred in law in holding, at paragraph 60 of the Reasons for Decision that, although Magistrate found that the Complainant's evidence as to why she had laughed at the Appellant immediately prior to the Assault could 'not possibly be true' and 'made no sense', such finding did not in itself compel a conclusion that it was not open to accept other material aspects of the Complainant's evidence
1.3 His Honour erred in holding, at paragraph 63 of the Reasons for Decision that, although the Magistrate found that there was an inconsistency between the Complainant's evidence that she had been slapped on the cheek and her prior assertion to the Police that she had been hit above the right eye, such inconsistency was not such as to warrant the rejection of her evidence as to the commission of the Assault.
1.4His Honour erred in law in holding, at paragraph 72 of the Reasons for Decision that, although the Magistrate had found that the Complainant's memory of the day of the Assault was very poor, the Magistrate did not err in rejecting the Complainant's evidence as to the events leading up to, and including, the Assault.
1.5His Honour erred in law in holding, at paragraph 87 of the Reasons for Decision that the Magistrate did not err in finding that statements made by the Appellant in an audio recording at Hakea prison recorded subsequent to the Assault amounted to admission that he had slapped the Complainant shortly prior to the Assault, the effect of such statements being capable of supporting the complainant's credibility, and
1.6His Honour erred in law holding, at paragraph 89 of the Reasons for Decision that the Magistrate's findings that the Complainant:
(a) admitted she 'happily' swore ('sic') a statutory declaration that the Appellant had not physically or mentally hurt her,
(b)'happily confirmed' she signed a statement that she did not want a Restraining Order against the Appellant, and that she was distressed that the order had been made,
(c)did not mention the Assault to a doctor during a medical appointment on 5 August 2019 as it was not an issue for her at the time and had not left her with any injuries,
(d)had readily agreed that she had lived with the Appellant until 5 August 2019 and had visited him in prison and sent him affectionate letters, and
(e) was frank about her reasons for visiting the Appellant in prison and that she was waiting for him to get out of prison,
were not such as to adversely affect her credibility.
The particulars reveal two flaws in the appellant's approach to this appeal.
First, the ground, and the appellant's submissions in support of it, recasts the original particulars as errors by the primary judge, when there is no occasion, or need, to do so. A verdict either is or is not unreasonable or unsupported by the evidence. On an appeal to this court from the primary court's rejection of a ground that asserts that the verdict was unreasonable or unsupported by the evidence, this court applies that correctness standard to the primary judge's decision.[58] An appellant advancing such a ground need to do no more than persuade this court of the insufficiency or inadequacy of the evidence.
[58] See, by analogy, Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541.
Secondly, as explained in [76] below, the particulars reveal and reflect the piecemeal approach to the evidence that has pervaded the appellant's case, both before the primary judge and before this court.
Legal principles
The principles governing a ground of appeal that a jury verdict is unreasonable or cannot be supported by the evidence are well known and apply by analogy to a trial before a magistrate.[59] This court has outlined the principles established by the leading High Court decisions, including M v The Queen,[60] SKA v The Queen,[61] R v Baden-Clay[62] and Pell v The Queen,[63] many times.[64] The principles were recently summarised by this court in Jago v The State of Western Australia, in the following terms:[65]
(a)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(b)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(c)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(d)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.
(e)The appeal court performs its function on the assumption, in a case such as the present case, that the evidence of the complainant was assessed by the jury to be credible and reliable. The question for the appeal court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(f)A doubt experienced by an appeal court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(g)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(h)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court which has not seen or heard the witnesses called at trial.
[59] The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44].
[60] M v The Queen (1994) 181 CLR 487, 493 - 495.
[61] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [11] - [14].
[62] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [65] - [66].
[63] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] - [39].
[64] See, for example, Dayananda v The State of Western Australia [2021] WASCA 11 [43] - [53]; MEN v The State of Western Australia [2020] WASCA 118 [403] ‑ [410]; Wells v The State of Western Australia [2017] WASCA 27 [13].
[65] Jago v The State of Western Australia [2022] WASCA 2 [144].
Merits of the appeal
The appeal to this court suffers from the same selective approach to the evidence as did the appeal to the primary judge. It alleges deficiencies in the evidence of the complainant without having regard to the fact that her evidence was strongly supported by the audio recording. This approach is fundamentally flawed, both in assessing the credibility and reliability of the complainant and also in determining whether it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty of the assault. Furthermore, the ground overlooks the fact that it was open to the magistrate to accept parts of the complainant's evidence and reject other parts.
When the audio recording is taken into account, the suggestion that the evidence was not capable of establishing beyond reasonable doubt that the appellant was guilty of assaulting the complainant is patently lacking in any merit. In particular, for the reasons given by the primary judge, and referred to at [68], the recording provides strong support for the complainant's evidence that she was dragged to the bedroom and that her face was pushed down forcibly into the bed.
As to the matters raised in the ground of appeal to this court, none of them, either individually or collectively, require a conclusion that the evidence of the complainant could not be accepted on the issue of whether the assault had occurred as alleged. The conclusions of the primary judge in respect of each of these matters were clearly correct, for the reasons that he gave.
As to particular 1.1 of the ground of appeal, the complainant's characterisation of the argument as being about her refusal to go with the appellant to see his father must be seen in context. The argument commenced as a disagreement about whether she would go to see his father. The ostensible purpose was to discuss how to regain custody of the other children. The appellant then raised the death of BD as being the reason why the other children had been taken into care. It can be seen from this that the argument was an evolving one. The subject of going to see the appellant's father was connected to the subject of the death of BD. Seen in this light, even if the omission of the complainant to say that the argument also encompassed the death of BD was significant, it was not of such a nature as to justify a conclusion that the complainant was a generally untruthful or unreliable witness. There could be no suggestion that the complainant was seeking to conceal anything, given the existence of the audio recording.
As to particular 1.2, the complainant's reason for laughing as being to calm down the appellant was not accepted by the magistrate, but this was a matter of minor significance. The complainant did not deny laughing and it is plain from the recording that she was not doing so out of amusement but as a way of scoffing at the appellant's accusations. Given that the complainant was being asked to remember why she did something in the heat of the argument and that English is not her primary language, it was entirely open to the magistrate to conclude that her explanation for the laughter did not compel a conclusion that her evidence in other respects could not be accepted.
As to particular 1.3, the asserted inconsistency as to where the appellant slapped the complainant, on the cheek or above the right eye, assumes that there was a single slap. In fact, the recording suggests that there were at least two and possibly three slaps, and the complainant also said that she was slapped more than once. Even if there was an inconsistency, it was not one that compelled a conclusion that the complainant could not be believed as to the fact she was slapped or that she was then dragged to the bedroom and had her face forced down into the bed.
As to particular 1.4, the complainant's acceptance that her memory of the day was very poor does not detract from the evidence that she gave of what occurred that day. That evidence was strongly supported by the audio recording.
As to particular 1.5, it was plainly open to find that the statements made by the appellant in the prison recordings were admissions that he had hit the complainant. Whilst that was only relevant to the first part of the assault, it did confirm the complainant's evidence in that regard and was, therefore, capable of supporting her credibility.
As to particular 1.6, the matters raised must take into account the explanations given by the complainant. She said that the statutory declarations were not prepared by her and that she signed them at the behest of her father-in-law without understanding them. She did not mention the assault to the first doctor because that was not why she was there and, in any event, she conceded that she suffered no injuries. She accepted that she had continued to live with the appellant after the assault, had visited him in prison and sent him affectionate letters. To suggest that this detracts from her evidence ignores the fact that experience shows that it is not uncommon for a person who has been subjected to family violence to stay with an abusive partner.[66]
[66] A fact now reflected in s 39F(b)(ii) of the Evidence Act1906 (WA).
Conclusion
The primary judge was correct, for the reasons he gave, to dismiss the first instance appeal. The ground of appeal to this court has no reasonable prospect of success. Leave to appeal should be refused.
Orders
The orders are as follows:
1.Extension of time to appeal refused.
2.Leave to appeal refused.
3.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate
1 APRIL 2022
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