CEG v Wright - [2020] WASC 457

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CEG -v- WRIGHT [2020] WASC 457
CORAM:   DERRICK J
HEARD:   2 DECEMBER 2020
DELIVERED          :   11 DECEMBER 2020
FILE NO/S:   SJA 1033 of 2020
BETWEEN:   CEG
Appellant
AND
BRADLEY WRIGHT
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S M DE MAIO
File Number            :   JO 9202 of 2019

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of aggravated unlawful assault - Whether magistrate's verdict was unreasonable or cannot be supported by the evidence

Legislation:

Children and Community Services Act 2004 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)

Result:

Application for leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr T F Percy QC
Respondent	:	Ms G M Mullins

Solicitors:

Appellant	:	Frost & Associates
Respondent	:	State Solicitor's Office

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

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
Montalbano v Morris [2019] WASC 309; (2019) 279 A Crim R 174
PYN v The State of Western Australia [2020] WASCA 116
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Walker v The State of Western Australia [2020] WASCA 85
Wells v The State of Western Australia [2017] WASCA 27

DERRICK J:

Introduction

On 5 August 2019 the appellant was charged with one offence of unlawfully assaulting MP (complainant) in a circumstance of aggravation contrary to s 313(1)(a) of the Criminal Code (WA) (Code).[1] The alleged circumstance of aggravation was that the appellant was in a domestic and family relationship with the complainant.[2]
[1] I have anonymised the names of the appellant, the complainant, and the child of the appellant and the complainant referred to later in these reasons, in order to avoid contravention of s 237(2)(c) of the Children and Community Services Act 2004 (WA).
[2] Code, s 221(1)(a).
The appellant pleaded not guilty to the charge.
The appellant's trial took place before Magistrate De Maio on 20 December 2019 and 28 February 2020. The appellant was represented by senior counsel at the trial. At the conclusion of the trial the magistrate reserved her decision.
On 7 April 2020 the magistrate delivered her oral reasons for decision. Her Honour found the appellant guilty of the charged offence and recorded a judgment of conviction against him.
On the same date the magistrate sentenced the appellant for the offence to a 6 month community based order. Her Honour imposed supervision and program requirements as conditions of the order.
The appellant applies for leave to appeal against the decision of the magistrate convicting him of the offence.[3]
[3] The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to convict the appellant is a decision that may be appealed by the appellant: CAA, s 6(c) and s 7(1).
On 14 July 2020 the Principal Registrar ordered that the application for leave to appeal be heard together with the appeal.
The terms of the sole ground of appeal are set out below. In essence the appellant alleges that the magistrate's verdict was unreasonable and cannot be supported by the evidence.

Leave to appeal - principles

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[4] The ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[5] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[6]
[4] CAA, s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[6] CAA, s 9(3).

Events surrounding the incident the subject of the appellant's offence

Before proceeding further it is necessary, in order to place the ground of appeal in its proper context, and in order to explain the origins of some of the evidence that was adduced at trial, to refer to events that occurred prior to and shortly after the incident comprising the appellant's offence. What I am about to say in this regard is not contentious.[7]
[7] ts 4 ‑ 5, and 6 ‑ 7, 20 December 2019; ts 5, 7 April 2020.
The appellant and the complainant are married. In 2018 they were living in a house in a suburb of Perth (the residential premises).
In December 2018 the appellant and the complainant had three children. Further, the complainant was pregnant with their fourth child.
In December 2018 the fourth child, BD, was born prematurely.
BD was released from hospital on 9 April 2019.
In mid‑May 2019 the Department for Child Protection and Family Services (DCPFS) moved the family from the residential premises because the premises were unfit for habitation.
On 20 May 2019 BD was admitted to hospital. Tragically, six days later she died.
Following BD's death the police commenced an investigation into her death.
As part of the investigation into BD's death the police obtained a warrant permitting the installation of a listening device at the residential premises in order to enable them to monitor and record conversations between the appellant and the complainant. The warrant was issued to the police on 27 May 2019. Pursuant to the warrant a listening device was installed at the residential premises.
On 17 June 2019 the complainant was arrested in relation to BD's death. However, no charges were laid and she was released.
On 24 July 2019, that is, the day prior to the incident comprising the appellant's offence, the appellant's and the complainant's three children were removed from their care by DCPFS.
On 25 July 2019 at least part of the incident the subject of the appellant's offence was captured (intercepted) by the listening device installed at the residential premises. An audio recording of what had been captured was made and listened to by the police. As a result of what the police heard on the recording they arrested the appellant on 5 August 2019 and charged him with the assault offence of which he was ultimately convicted and which is the subject of the appeal.
After the appellant was arrested and charged he was remanded in custody for a period of six weeks until he was granted bail.
While the appellant was in custody, and as part of their ongoing investigation into BD's death, the police obtained a warrant permitting the installation of a listening device at the prison in which the appellant was being held in order to enable them to monitor and record conversations between the appellant and the complainant during visits by the complainant to the prison. The warrant was issued to the police on 8 August 2019. Pursuant to the warrant a listening device was installed at the prison.

The trial - a summary

The prosecution case as opened

In opening the prosecution case the prosecutor, so far as is presently relevant, said the following:[8]
I will just give your Honour just a very brief outline of what the allegations are. So the allegation is that this occurred on 25 July this year between 11 o'clock am and on [sic] 11.30 am. And it occurred at their home address... They're, at the time, husband and wife. The allegation is that there was a verbal argument. There were a couple of applications before [sic]. So I don't wish to particularise which ones constitute the applications of force. There's more than one.
It does involve strikes to the face. It does involve pushing her into a pillow. …
[8] ts 4, 20 December 2019.
Thus in opening the prosecution case the prosecutor did not confine the alleged assault to one application of force. Rather, the prosecutor opened the prosecution case on the basis that the alleged assault 'involved' not only strikes to the complainant's face but also pushing the complainant's face into a pillow.[9]

The evidence adduced

[9] The complainant answered some of the questions asked of her without the assistance of the interpreter. On other occasions she required the assistance of the interpreter. It is not clear from the transcript what language the interpreter was interpreting (although I suspect given the interpreter's surname as revealed by the transcript that she was an interpreter in the Thai language): ts 8, 20 December 2019.

The prosecution called only one witness at the trial, namely the complainant. The complainant gave her evidence with the assistance of an interpreter.[10]
[10] Where it is alleged that a person committed more than one assault on a person during a single incident, the person may be charged with one offence of assault: Criminal Procedure Act 2004 (WA), s 23(2) and cl 8(1) of sch 1.
In addition to calling the complainant the prosecution, with the consent of the appellant, read into evidence the statements of a number of police officers in the absence of the officers. The statements of the police officers dealt with, in summary, the obtaining of the warrants for the installation of the listening devices at the residential premises and at the prison, as well as with the circumstances of the installation of the devices.
Further, the prosecution tendered as part of its case the following audio recordings:
1.The audio recording of the incident on 25 July 2019 the subject of the appellant's offence obtained via the listening device installed at the residential premises (played from 7:55 minutes onwards);[11] and
2.Portions of two audio recordings of conversations that took place between the appellant and the complainant on 16 August 2019 and 19 August 2019 at the prison at which the appellant was being held, obtained via the listening device installed at the prison.[12]
[11] Exhibit 1; ts 20 ‑ 22 and 29, 20 December 2019. The portion of the audio recording that was played and tendered as exhibit 1 was from 7:55 minutes onwards. The portion of the audio recording was tendered on the basis that it was a recording of the res gestae: ts 5, 20 December 2019.
[12] Exhibits 2 and 3; ts 24 ‑ 28 and 30, 20 December 2019. The portions of the audio recording that were played and tendered as exhibit 2 were between 9:00‑17:10 minutes, 30:00‑36:56 minutes and 47:45‑50:25 minutes. The portions of the audio recording that were played and tendered as exhibit 3 were between 4:00‑20:08 minutes and 27:00‑28:40 minutes.
The exhibit comprised of the audio recording of the incident on 25 July 2019 the subject of the appellant's offence[13] was contained on a disc labelled 'Home audio' in an audio file titled '25 July 2019 98… - Enhanced.wav'. The magistrate was also provided with an 'unofficial transcript' of the audio recording as an aide.[14]
[13] Exhibit 1.
[14] ts 21 ‑ 22, 20 December 2019.
The exhibit comprised of the audio recording of the conversation that took place between the appellant and the complainant on 16 August 2019[15] was contained on a disc labelled 'Hakea audio' in an audio file titled 'Hakea…16082019'. The magistrate was also provided with an 'unofficial transcript' of the audio recording as an aide.[16]
[15] Exhibit 2.
[16] ts 27, 20 December 2019.
The exhibit comprised of the audio recording of the conversation that took place between the appellant and the complainant on 19 August 2019[17] was also contained on the disc labelled 'Hakea audio' in an audio file titled 'Hakea…19082019'. Again, the magistrate was also provided with an 'unofficial transcript' of the audio recording as an aide.[18]
[17] Exhibit 3.
[18] ts 30, 20 December 2019.
The prosecution also tendered as part of its case two documents, specifically the warrants pursuant to which the listening devices were installed at the residential premises and at the prison.[19]
[19] Exhibits 8 and 9; ts 90, 28 February 2020.
The appellant elected not to give evidence. However, the appellant adduced evidence by tendering a number of documents through the complainant during the course of cross-examination. The documents consisted of a statutory declaration sworn by the complainant on 2 August 2019,[20] a statutory declaration sworn by the complainant on 6 August 2019,[21] a medical certificate relating to the complainant issued by a doctor at the Joondalup Drive Medical Centre dated 5 August 2019[22] and a letter from a doctor at the Joondalup Drive Medical Centre relating to the complainant dated 8 August 2019.[23]

The issues

[20] Exhibit 4; ts 66, 28 February 2020.

[21] Exhibit 5; ts 73, 28 February 2020.

[22] Exhibit 6; ts 77, 28 February 2020.

[23] Exhibit 7; ts 79, 28 February 2020.

At trial the appellant did not, unsurprisingly, dispute the alleged circumstance of aggravation.[24] Rather, 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 a pillow.[25] In the alternative, the appellant contended that if contrary to his primary position the prosecution had proved that he had assaulted the complainant by slapping her and/or by pushing her face into a pillow, the prosecution had not disproved the 'defence' of provocation provided for by s 246 of the Code;[26] that is, had not proved that the assault was not authorised, justified or excused by law and therefore unlawful.[27]

The magistrate's findings

[24] ts 7, 20 December 2019; ts 97, 28 February 2020.

[25] ts 99 ‑ 103, 28 February 2020.

[26] ts 103 - 105, 28 February 2020.

[27] Code, s 223.

It is apparent from reading the magistrate's reasons for decision as a whole that in finding the appellant guilty of the offence her Honour, on the basis of the complainant's evidence considered in combination with the audio recording of the incident and the audio recordings of the conversations between the appellant and the complainant at the prison, made the following findings:
1.Between 11.00 am and 11.30 am on 25 July 2019 the appellant and the complainant were at home at the residential premises;[28]
2.The appellant and the complainant became involved in a verbal argument. The argument began over the complainant's refusal to see the appellant's father;[29]
3.The verbal argument escalated and became heated.[30] During the course of the argument the complainant taunted the appellant by laughing at him and saying words to the effect that she had killed BD but would get away with it;[31]
4.In response to the complainant's taunts the appellant slapped the complainant to the face twice;[32]
5.After slapping the complainant to the face twice the appellant then pulled or dragged the complainant into the bedroom, and once in the bedroom pressed or forced the complainant's face into the bed, and prevented her from lifting her head, by placing his hand over her head or neck; [33]
6.For the period of time that the appellant pressed the complainant's face into the bed (the period of time not being specified by her Honour) the complainant was unable to breathe for a short time;[34]
7.The taunting by the complainant of the appellant (specified in point 3 above) in the course of a heated argument in circumstances where both of them were being investigated over the death of BD, and in circumstances where their three children had been removed from their care, amounted to a provocation which in fact deprived the appellant of his self‑control and upon which he acted, by slapping the complainant to the face twice, on the sudden before there was time for his passion to cool;[35]
8.'In respect of the slaps', the prosecution had not negated 'the defence of provocation', the response being proportionate to the provocation comprised of the complainant's taunts (referred to in point 3 above);[36] and
9.'In relation to the assault in the bedroom', the prosecution had negated 'the defence of provocation' beyond reasonable doubt because the act of holding the complainant's head down into the bed so that she could not breathe was 'completely disproportionate to the provocation offered'.[37]
[28] ts 2, 7 April 2020.
[29] ts 9, 7 April 2020.
[30] ts 9, 7 April 2020.
[31] ts 11, 7 April 2020.
[32] ts 11, 7 April 2020.
[33] ts 11, 7 April 2020.
[34] ts 11, 7 April 2020.
[35] ts 11, 7 April 2020.
[36] ts 11, 7 April 2020.
[37] ts 11, 7 April 2020.
Accordingly, the unlawful assault that the magistrate convicted the appellant of was comprised of the appellant's conduct in forcing the complainant's head, face down, into the bed and then holding her head in that position for a short period of time.

The loss of the exhibits by the Magistrates Court

By letter dated 19 June 2020 the court requested the Magistrates Court at Joondalup to provide it with the exhibits tendered at the appellant's trial. The request was made pursuant to s 10(7) of the CAA.
By an email dated 14 July 2020 the Supervising Officer of the Magistrates Court at Joondalup advised the court that 'after an exhaustive search' the Magistrates Court had been unable to locate the exhibits tendered at the appellant's trial.
By letter dated 27 August 2020 the court informed the parties of the Magistrates Court's advice in relation to the exhibits.
In light of the Magistrates Court's inability to locate the exhibits tendered at the appellant's trial, the parties recovered from their own files, and provided to the court under cover of a letter from the respondent's solicitor dated 29 October 2020 copies of:
1.the two discs that contained the three audio recordings that were played and tendered as exhibits 1‑3 during the appellant's trial as well as the 'unofficial transcripts' of the recordings that were provided to the magistrate as aides; and
2.the six documents that matched the description of the six documents that were tendered as exhibits 4‑9 during the appellant's trial.
With respect to the six copy documents, the respondent's solicitor made clear in their letter that although the parties could not confirm with 'absolute certainty' that the copy documents were in fact the documents tendered in the Magistrates Court, they agreed that the documents appeared, 'in all likelihood' to be the documents that were tendered. Further, by their letter the respondent's solicitor informed the court that in light of s 39(1) and s 40(1)(e) of the CAA the parties agreed that it was appropriate for the following to occur:
1.The audio files that were played at the trial and which were contained on the provided discs be admitted into evidence on the appeal and stand as exhibits 1‑3; and
2.The six copy documents be admitted into evidence on the appeal and stand as exhibits 4‑9.
I note that the two provided discs containing the three audio recordings played at the trial also contain the 'unofficial transcripts' of the audio recordings that were provided to the magistrate.
In light of s 39(1) the course proposed by the parties as stated in the respondent's solicitor's letter was clearly sensible and appropriate. Accordingly, at the hearing of the appeal, and pursuant to s 40(1)(e) of the CAA, I admitted the three audio recordings contained on the two provided discs as played at the trial as exhibits 1‑3 on the appeal, and the six copy documents as exhibits 4‑9 on the appeal.
I will proceed on the basis that exhibits 1‑9 on the appeal are accurate and complete copies of exhibits 1‑9 tendered at the appellant's trial.

The ground of appeal

The appellant's single ground of appeal is pleaded in the following terms:
1.The Magistrate erred in law and fact in finding that the Appellant had assaulted [the complainant] 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].
Particulars
1.1The Magistrate found that [the complainant] was a largely reliable witness. However, such a finding was not reasonably open to the Magistrate on the following grounds:
1.1.1The Magistrate found that [the complainant's] memory of the day was very poor.
1.1.2The Magistrate found that [the complainant's] evidence as to why she had laughed at the Appellant immediately prior to an incident in the Appellant's Loungeroom, this incident occurring shortly before the Assault [the Loungeroom Incident] could 'not possibly be true' and 'made no sense'.
1.1.3The Magistrate found that [the complainant] was confused as to where the Appellant struck her during the Loungeroom Incident.
1.1.4The Magistrate found that [the complainant] was apparently confused as to the sequence of events leading up to the Loungeroom Incident.
1.1.5The Magistrate found that [the complainant's] evidence of the circumstances of the argument that led to the Loungeroom Incident contained a 'significant' omission.
1.1.6The Magistrate found that [the complainant] had made a prior inconsistent statement as to the number of times she had been hit.

Accordingly, the allegation the subject of the ground of appeal is that the magistrate's verdict was unreasonable and cannot be supported by the evidence (often also expressed in terms of the verdict being 'unsafe or unsatisfactory').
Although the ground of appeal as pleaded alleges that the magistrate made an error of law and fact, an allegation that a magistrate's verdict is unreasonable and cannot be supported by the evidence is, for the purposes of s 8 of the CAA, which sets out the grounds on which an application for leave to appeal can be made against a decision of a magistrate, an allegation that a miscarriage of justice has occurred.[38]
[38] CAA, s 8(1)(b); The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44]; Montalbano v Morris [2019] WASC 309; (2019) 279 A Crim R 174 [22].

Analysis and determination of the ground of appeal

Applicable legal principles

The principles that must be applied in determining whether a verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate.[39] The principles are well‑established and may be summarised as follows:[40]
1.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;
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty. This question requires consideration of whether the magistrate must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
3.In answering the question whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty, the appeal court must pay full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the magistrate had of seeing and hearing the evidence;
4.A doubt experienced by an appellate court would be a doubt that a magistrate ought also to have experienced, unless the magistrate's advantage in seeing and hearing the evidence is capable of resolving that doubt;
5.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the magistrate, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict; and
6.The setting aside of the verdict of a magistrate on the ground that it is unreasonable and not supported by the evidence is a serious step, not to be taken without regard to the advantage enjoyed by the magistrate over an appellate court which has not seen or heard the witnesses called at trial.

The magistrate's overall assessment of the complainant

[39] The State of Western Australia v Olive [44].

[40] Wells v The State of Western Australia [2017] WASCA 27 [13]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113], The State of Western Australia v Olive [41] ‑ [43], PYN v The State of Western Australia [2020] WASCA 116 [46] ‑ [48] and MEN v The State of Western Australia [2020] WASCA 118 [403] ‑ [406].

The magistrate, in finding the appellant guilty of the offence, made the following ultimate finding in relation to the credibility, that is, honesty and reliability, of the complainant:[41]
Having considered all of 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 in 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 recount of the actions that comprised the assaults upon her during the incident.

The appellant's argument

[41] ts 10, 7 April 2020.

As is revealed by the pleaded particulars to the ground of appeal, the appellant submits, in essence, that various aspects of the complainant's evidence, considered together, reveal that her evidence was unreliable to such a degree that it was not open to the magistrate to be satisfied beyond a reasonable doubt that he was guilty of the offence.[42] The aspects of the complainant's evidence pointed to by the appellant as demonstrating her unreliability and lack of credibility generally are in summary as follows:
1.Evidence relating to the cause of the argument that she had with the appellant;[43]
2.Evidence of her explanation for laughing at the appellant;[44]
3.Evidence as to her memory of the incident;[45]
4.Evidence as to where on her head she was struck and how many times she was struck; and[46]
5.Evidence as to the timing of the assault and the sequence of events.[47]

The respondent's argument

[42] Appellant's submissions [16]; Appeal, ts 3 ‑ 6.

[43] Ground of appeal, particular 1.1.5; Appellant's submissions [16(i)].

[44] Ground of appeal, particular 1.1.2; Appellant's submissions [16(iii)].

[45] Ground of appeal, particular 1.1.1; Appellant's submissions [16(iv)].

[46] Ground of appeal, particular 1.1.3 and 1.1.6; Appellant's submissions [16(v)].

[47] Ground of appeal, particular 1.1.4; Appellant's submissions [16(vi) ‑ (vii)].

The respondent contends that it was, on all the evidence before the magistrate, reasonably open for her Honour to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.

The appellant's argument: analysis

The aspects of the evidence identified by the appellant

Although the appellant relies upon the cumulative effect of the aspects of the evidence identified, it is convenient to deal with each aspect in turn.

The cause of the argument

In her evidence‑in‑chief the complainant gave evidence to the effect that the verbal argument that she had with the appellant was about going to the appellant's father's house.[48] However, in cross‑examination the complainant, after initially stating that she could not remember,[49] agreed that although the argument initially related to the appellant wanting her to go and see his father, it also related to the death of her and the appellant's child and the fact that the appellant was accusing her of causing the child's death.[50] The complainant denied that it was true to say that the argument was not really about going to see the appellant's father.[51]
[48] ts 11 ‑ 14, 20 December 2019.
[49] ts 48 ‑ 49, 28 February 2020.
[50] ts 49 ‑ 59, 28 February 2020.
[51] ts 57, 28 February 2020.
It is clear from the magistrate's reasons for decision that her Honour was cognisant of the fact that the complainant had not in her evidence‑in‑chief testified that she and the appellant had been arguing about the death of their child. In this respect her Honour said the following:[52]
There is a significant omission from her explanation of the argument. The complainant never says that the parties were arguing about [BD's] death at the time. She is, however, clearly very emotional when talking of [BD's] death and that is clearly central to the argument heard on the audio recording.
[52] ts 6, 7 April 2020.
The complainant's failure to refer in her evidence‑in‑chief to the argument being concerned with the death of BD must be considered in light of the entirety of exhibit 1. It is clear from exhibit 1 that the argument between the appellant and the complainant started over the appellant's desire for the complainant to visit his father, and in large part focussed on the issue of the appellant wanting the complainant to visit his father. Indeed, prior to the appellant's slapping of the complainant there were numerous references to the issue of visiting the appellant's father.[53] In addition, less than 10 seconds after the appellant slapped the complainant the following exchange occurred:[54]
Complainant: What the fuck you hit me for, what I do [CEG] I'm scared, what you doing?
Appellant: You killed my girl.
Complainant: (crying) go tell the police.
Appellant: Why can't you just cooperate with me [MP]?
Complainant: What you doing?
Appellant: My dad wants us to get to the bottom of this [MP].
[53] Exhibit 1, 8:48‑9:10 minutes; 9:50‑12:35 minutes; 13:11‑13:14 minutes; 13:35‑13:42 minutes; 14:29‑14:35 minutes; 14:47‑15:02 minutes; 15:50‑16:29 minutes; 16:49‑16:52 minutes.
[54] Exhibit 1, 19:02 minutes.
Furthermore, even after the assault the subject of the offence that the magistrate found the appellant to have committed, the complainant continued to make references to the issue of visiting the appellant's father by stating, '(indistinct) your dad. Don't make me go and see him. I'm not going to see him ok',[55] and 'I'm not listen to your dad'.[56]
[55] Exhibit 1, 25:40‑25:47 minutes.
[56] Exhibit 1, 26:35‑26:37 minutes.
In summary, it is abundantly clear that the issue of visiting the appellant's father was at all times a very significant, if not the major component, of the argument. In these circumstances, and given the obviously sensitive and emotional nature of the subject matter of BD's death, it was in my opinion reasonably open to the magistrate to find, as her Honour obviously did, that the complainant's failure to mention in her evidence‑in‑chief 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 as to the conduct the subject of the offence dishonest or unreliable.

Laughing at appellant

In cross‑examination the complainant, in agreeing that part of the argument between her and the appellant related to the death of BD, said that she laughed at the appellant because she knew that what he was saying was untrue.[57] However, the complainant also testified that she laughed at the appellant to 'make him calmer'.[58]
[57] ts 50, 52, 28 February 2020.
[58] ts 54, 28 February 2020.
In relation to this aspect of the complainant's evidence the magistrate said the following:[59]
The complainant, however, agrees that on 25 July, that is, the day after the children were removed by DCPFS, she and the [appellant] were both upset. When it was put to her in cross‑examination that she laughed at the [appellant], she agreed but said she laughed because he said things that were not the truth. She agrees that the [appellant] was angry and became angrier after she laughed, but she denied that she was trying to make him angrier.
Indeed, she indicates that she laughed in order to calm him down which, clearly, cannot possibly be true having heard myself the audio recording of the incident. Her explanation makes no sense at all …
[59] ts 5 ‑ 6, 7 April 2020.
Thus, it is apparent from the magistrate's statements that she did not accept the complainant's evidence that she laughed at the appellant in an attempt to calm him down. Her Honour's rejection of this aspect of the complainant's evidence is entirely understandable. It is clear from exhibit 1 that when the complainant laughs at the appellant she does so in a mocking type way and as a way of deriding the statements being made to her by the appellant to the effect that she was in some way responsible for BD's death. Of course, the fact that her Honour rejected this aspect of the complainant's evidence does not of itself compel the conclusion that it was not open to her Honour to accept other material aspects of the complainant's evidence as being honest and reliable.

Where and how many times the appellant struck the complainant

In her evidence‑in‑chief the complainant, after initially stating that she could not remember where on her face the appellant had slapped her, said that he had slapped her on her cheek.[60] In cross‑examination the complainant said that she could not remember where she was hit and that maybe she had been hit on the cheek.[61] Later in cross‑examination the complainant admitted that in a statement that she had made to the police she stated that she had been hit above the right eye.[62] Further, when the complainant was pressed on this apparent inconsistency the following exchange occurred:[63]
[60] ts 13 ‑ 14, 20 December 2019.
[61] ts 59, 28 February 2020.
[62] ts 61, 28 February 2020.
[63] ts 61 ‑ 62, 28 February 2020.
PERCY, MR: Will you tell us, was it on your cheek?
THE WITNESS: I can't remember.
PERCY, MR: You told the police that it was above your right eye, didn't you?
THE WITNESS: Because it's not if he slapped one time, it's about two or three times, so I can't remember which way.
PERCY, MR: I thought you told us he only hit you once.
THE WITNESS: Yes, but one but he did slap about three times.
PERCY, MR: You didn't tell us that last time, did you?
THE WITNESS: Yes.
PERCY, MR: The police played you that tape that you just heard, didn't they, when you went in to see them on 5 August.
THE WITNESS: Yes.
PERCY, MR: So you heard that tape. You've heard that before, haven't you?
THE WITNESS: Yes. I heard that before.
PERCY, MR: And you told the police that was the argument you had on 25 July?
THE WITNESS: Yes.
PERCY, MR: And you told them that he hit you above your right eye?
THE WITNESS: I can't remember - sorry - if there.
PERCY, MR: Can you remember telling them that?
THE WITNESS: Yes. I remember.
PERCY, MR: And you signed a statement saying that, didn't you?
THE WITNESS: Yes.
PERCY, MR: So how many times did he hit you that day?
THE WITNESS: I can't remember.
In dealing with this aspect of the complainant's evidence the magistrate said the following:[64]
The complainant's police statement was put to her in cross‑examination as and by way of prior inconsistent statement. She confirmed that she remembered telling the police that he had hit her on the face above the right eye. When the inconsistencies put to her [sic] that is, that she only mentioned her cheek and not her eye in examination, the complainant clarified that he slapped her two or three times. Whilst this might be a glaring inconsistency, it was very clear during cross‑examination that the complainant, as I said, has difficulties with the subtlety of the English language.
When the question is put to her, 'I thought you told us he had only hit you once', she replies, 'yes, but he did slap about three times'. The complainant has always confined the assault to one incident which involved her being slapped more than once.
[64] ts 6 ‑ 7, 7 April 2020.
It is therefore clear that the magistrate, taking account of the complainant's language difficulties and the number of times that she had been slapped by the appellant within a very short space of time during the one incident, did not consider the inconsistency between the complainant's evidence that she had been slapped on the cheek and the assertion in her statement to the police that she had been hit above the right eye, to be such as to warrant the rejection of her evidence that the appellant had hit her on the cheek or the rejection of her evidence as to the assault the subject of the appellant's offence. This was, in my opinion, a finding that was reasonably open to her Honour to make.
It is also clear from the magistrate's above cited statements that her Honour did not, again taking account of the complainant's language difficulties and that she was slapped by the appellant more than once within a short space of time during the one incident, consider that the complainant's evidence in cross‑examination that the appellant slapped her two or three times to be inconsistent with her evidence‑in‑chief. Again, this finding was, in my view, one that was reasonably open to her Honour. Indeed, her Honour, as I previously indicated, found that the appellant slapped the complainant to the face twice, this finding being based not only on the complainant's evidence but also on what can be heard on exhibit 1.[65]

The timing of the assault and the sequence of events

[65] ts 9, 7 April 2020.

In her evidence‑in‑chief the complainant initially testified that she and the appellant argued for about half an hour in relation to going to the appellant's father's house, that she kept saying that she did not want to go to the appellant's father's house, and that the next thing that happened while she and the appellant were arguing was that the appellant slapped her on the face.[66] After the complainant gave this evidence the following exchange occurred between the prosecutor and the complainant:[67]
[66] ts 10 ‑ 11, 20 December 2019.
[67] ts 11 ‑ 12, 20 December 2019.
STEWART, MS: Ok. Now, let's go backward a little bit and talk about what happened right before that slap. Ok?
THE WITNESS: So you want me tell the story or - - -
STEWART, MS: Yes. Tell the story, but you said just now that he slapped you on the face. Ok? Now, just before he slapped you on the face, I just want you to tell the court about what was happening right before the slap.
THE WITNESS: Sorry. I can't remember.
STEWART, MS: Can't remember?
THE WITNESS: Yes.
STEWART, MS: Ok. Tell the court about the slap. How did that happen?
THE WITNESS: Because he was - just ask me I need to go see my father‑in law. And I say, 'No. I not want to go'. And he just say I not want my kid back or something like that. And I say, 'Yes, I want my kid back'. But if I go see my father‑in law, he can't do anything. So I just keep saying I not want to go. And that why just started argue with him. And he just angry with I not want to go see [HJ].[68]
[68] I have anonymised the name of the appellant's father for the reason specified in footnote 1 above.
STEWART, MS: He was angry because you didn't want go see - who is [HJ]?
THE WITNESS: That is my father-in law, [CEG's] dad.
STEWART, MS: [CEG's] dad ok. Yes. So tell the court about the slap. What happened?
THE WITNESS: He just drive off to see [HJ] home. And getting in car and then he just drive off. And he just - I'm just home by myself. And I think, after about 15 minute [CEG] just - - -
STEWART, MS: Sorry. Just tell the court about the slap. Tell the court how that happened. Where did he hit you?
THE WITNESS: I can't remember what - what hand he hit me.
STEWART, MS: You can't remember what hand he hit you with.
THE WITNESS: Yes.
STEWART, MS: Do you remember where he hit you on your body?
THE WITNESS: On the face.
INTERPRETER: Yes. I was sitting on the sofa when he slapped me.
STEWART, MS: You were sitting down. Where was he?
THE WITNESS: He just - I think he just standing in the kitchen.
STEWART, MS: He was standing in the kitchen?
THE WITNESS: No. After the argue - because [CEG] was speaking to - - -
INTERPRETER: Yes. After [CEG] finished talking to his father on the phone, he came to me and said - after he hang up with his dad, and then he came to me and said, 'I have to go and talk to my ' - - -
THE WITNESS: Talk to my dad.
INTERPRETER: To his dad.
STEWART, MS: Yes. And then what happened?
THE WITNESS: And then, when I say I not want to go, and he just get really angry. And I say, 'I not want to go. Your dad can't do anything'. And he just angry that I not listen. And he just hit me.
INTERPRETER: Yes. And I said, 'No. I don't want to go. Your dad can't do anything. Why do I have to go?' And then he has got very upset. And then he slapped me.
A little later in her evidence‑in‑chief the complainant testified that straight after the appellant had slapped her he took her into the bedroom and pushed her down into the bed and pushed her face down into the pillow.[69]
[69] ts 15 ‑ 18, 20 December 2019.

In cross‑examination the complainant, after being played portions of exhibit 1, initially testified that the sequence of events was that she and the appellant argued about going to see the appellant's father, that the appellant slapped her, that the appellant then left and went to his father's house, that the appellant then returned, and that it was after the appellant's return that he pushed her head into the bed.[70] However, later in cross‑examination the complainant testified that the appellant had pushed her head 'down to the pillow' before they had gone to the appellant's father's house, and that she could not remember the length of time that elapsed between the appellant slapping her and the appellant pushing her head down into the pillow.[71]
[70] ts 57 ‑ 59, 28 February 2020.
[71] ts 60, 28 February 2020.
With respect to this apparent discrepancy in the complainant's evidence as to the precise sequence of events the magistrate in her reasons for decision said the following:[72]
… Further, at one point in the cross‑examination, the complainant seems to confuse the timing of the physical assault, suggesting that parts of it occurred after she accompanied the [appellant] to see her father‑in law.
It is 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 [appellant] 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 [appellant] 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 [appellant], 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.
[72] ts 6, 7 April 2020. The magistrate made these statements immediately after making her earlier cited statements in relation to the complainant's failure to refer in her evidence‑in‑chief to the argument also being concerned with the death of BD.
It is therefore apparent that the magistrate found that the inconsistencies in the complainant's evidence as to the precise sequence of events, which were in any event ultimately clarified by the complainant, were a consequence of the difficulties she had with the English language and were not indicative of any dishonesty or unreliability on her part. This was a finding that was reasonably open to the magistrate. The inconsistencies were not, in my opinion, such as to necessitate the magistrate rejecting as dishonest or unreliable the complainant's evidence as to being slapped by the appellant or the complainant's evidence as to what occurred in the bedroom.

The complainant's memory of the incident

In her evidence‑in‑chief the complainant stated that she could not remember what happened 'right before the slap',[73] that she could not remember what hand the appellant had used to slap her,[74] and that she could not remember on what side of her face she was struck.[75]
[73] ts 12, 20 December 2019.
[74] ts 12, 20 December 2019.
[75] ts 13, 20 December 2019.
In cross‑examination the complainant conceded that her memory of 'this day was very poor'.[76]
[76] ts 55, 28 February 2020.
The complainant, although making the general concession that her memory of the day was very poor, did not at any point admit to having a poor memory of the fact of being struck, or of the fact of being dragged into the bedroom and having her head pushed down into the bed. To the contrary, she maintained her version of events in relation to these matters in both examination‑in‑chief and cross‑examination. As the magistrate stated in her reasons for decision, 'The critical parts of [the complainant's] narrative remain unchanged after robust cross‑examination'.[77] In these circumstances, the fact that the complainant did not recall the details identified, and the fact that she made the concession that her memory of the day was 'very poor' did not, in my opinion, necessitate the magistrate rejecting, on the basis that it was either untruthful or unreliable, the complainant's evidence as to being slapped or her evidence as to being dragged into the bedroom and having her head pushed down into the bed.

Additional evidence that supported the magistrate's findings

[77] ts 6, 7 April 2020.

The appellant's argument focusses on alleged deficiencies in the complainant's evidence. However, in assessing the merits of the appellant's argument it is important not to overlook the other aspects of the evidence that supported the magistrate's findings.
The other aspect of the evidence that supported the magistrate's findings in a substantial way was exhibit 1. Exhibit 1 was tendered on the basis that the recorded assertions made by the complainant and the appellant formed part of the res gestae.[78]
[78] ts 5, 20 December 2019; See generally Walker v The State of Western Australia [2020] WASCA 85 [69] ‑ [92].
With respect to exhibit 1 I make the following observations.
In the minutes leading up to the appellant slapping the complainant the argument between the appellant and the complainant is, to say the least, heated. The complainant repeatedly yells and swears at the appellant and the appellant repeatedly yells and swears at the complainant. On occasions the appellant literally screams at the complainant in anger. Indeed, in my view it is abundantly clear that the appellant, in the moments before hitting the complainant, completely loses any vestige of self‑control.
The sound of the slaps delivered by the appellant to the complainant can be heard on exhibit 1 at approximately 19:02 minutes. Indeed, to my ear the appellant can be heard delivering three, not two, slaps to the complainant.
Immediately following the sound of the slaps being delivered, the complainant can be heard crying and saying, 'Don't hit me again' and 'Why the fuck you hit me for, what I do [CEG], I'm scared'.[79] The argument between the appellant and the complainant can then be heard continuing. At approximately 21:00 minutes there are sounds of something physical occurring and the complainant can be heard saying, 'Get off me' as the noise moves away from the vicinity of the listening device. Immediately after the sounds of something physical happening, the complainant can no longer be heard on the recording. However, there are muffled sounds in the background. The appellant can still be heard clearly making statements to the effect of, 'Are you going to listen to me?' and 'I'll fucking kill you'. It is clear from the appellant's tone of voice that he is angry. At approximately 21:30 minutes the appellant can be heard saying, 'You gonna listen?' and the complainant can be heard yelling, 'Yes, [CEG], please', although the complainant's voice is not easy to hear. After the complainant makes this statement she cannot be heard again until around 22:18 minutes from which time her voice becomes clear again as though she has come back to the area closest to the listening device. From 22:18 minutes the complainant can be heard crying and yelling at the appellant. At about 26:10 minutes the complainant can be heard saying as part of the continuation of her argument with the appellant, 'Gonna kill me, fuck off' and 'Fuck off [CEG]. That is a pig the way you fucking try to kill me like that, it fucking disgusting … What the fuck you doing?'[80]
[79] Exhibit 1, 19:03‑20:44 minutes.
[80] Exhibit 1, 26:03‑26:19 minutes.
In relation to the portions of exhibit 1 referred to in the previous paragraph the magistrate in her reasons said the following:[81]
The audio of the incident [on] 25 July 2019 is consistent with the complainant's version of events. The verbal argument did begin with the complainant's refusal to see the [appellant's] father. It then goes into particular reasons why such a visit would be necessary which, of course, encompasses the arrangements regarding the three living children and a discussion about [BD's] death. At 18:50 on the recording, there are sounds of two blows, the second immediately consequent on the first, which are immediately followed by the complainant crying and stating, 'Don't hit me again'.
At this point, the verbal argument has reached a crescendo. The two sounds are heard and there is an immediate effect on the complainant. She is no longer engaged in the verbal argument as such and is crying as she continually asks the [appellant] why he has hit her. There is no denial from the [appellant] at this point. A little later on when the complainant shouts, 'Don't hit me again,' then, the [appellant] states, 'I'm not hitting you. I'm trying to explain to you'. These are very different responses by the [appellant].
At 21:00 there are sounds of something physical occurring, and then, the voices move from the vicinity of the recording device. However, the [appellant's] voice can still be heard and he is clearly angry. His tone is menacing and he threatens to kill the complainant. Very relevantly, there is nothing from the complainant, which is very different from her behaviour earlier and subsequent in which it can be said that she is a very vocal participant.
When you do hear her voice, it is muffled initially. Finally, you hear her saying, 'Yes, [CEG], please' and the parties return to the area close to where the listening device must be placed. Upon re‑entry into what must be the living area, the complainant repeats a number of times that he's not to hit her again and says to him, 'Fuck off, [CEG]. That is a pig the way you fucking tried to kill me like that. It's fucking disgusting'.
She is certainly not referring to the slaps that are alleged to have occurred earlier. That is a very different accusation by her and specific to the language used in the other room by the [appellant]. It must be specific to his actions in the bedroom …
[81] ts 9 ‑ 10, 7 April 2020.
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.
Another aspect of the evidence that provided support for the magistrate's finding that the material evidence given by the complainant was honest and reliable was the evidence comprised of the recordings of the conversations that took place between the appellant and the complainant at Hakea Prison on 16 August 2019 and 19 August 2019, exhibits 2 and 3 respectively.
During the conversation on 16 August 2019 the appellant said:[82]
Babe I've been sitting down and 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 gonna ever touch and I'm not gonna hurt you ever again [indistinct].
[82] Exhibit 2, 16:50 minutes.
A little later in the conversation the appellant said:[83]
I promise you mate this has taught me a good lesson, I reckon it's karma a little bit for me, as simple as that not to touch you ever again, I shouldn't have touched you in the first place, I tell you what that wasn't me babe, it was the drugs do you understand that? Yeah because I never remember when I first had you and all that shit I never, I never used to touch you big time until, until we started using that drug and even when I was in Thailand that happened in front of your sister, that was coming down from the drugs and shit bub.
[83] Exhibit 2, 36:30 minutes.
A little later again in the conversation the appellant said:[84]
At the end of the day I shouldn't have done what I did babe, I shouldn't have gave them reason to do this, I shouldn't have got angry.
[84] Exhibit 2, 48:05 minutes.
During the conversation on 19 August 2019 the appellant said to the complainant that her cursing of him when he had 'hit' her had come true.[85]
[85] Exhibit 3, 6:40 minutes.
The appellant contends that his above referred to statements cannot be construed as admissions to the conduct the subject of the offence of which he was convicted or even as admissions to having slapped the complainant during the incident on 25 July 2019 (as opposed to having done so on some earlier unspecified occasion). I accept the first part of this submission. The statements made by the appellant cannot be construed as admissions to having dragged the complainant into the bedroom and having pushed her face into the bed. This much is accepted by the respondent.
I do not, however, accept the appellant's submission that his statements cannot be construed as constituting admissions to having slapped the complainant during the incident on 25 July 2019. In my opinion, given the dates of the conversations and the fact that they occurred in the context of the appellant having been arrested, charged and remanded in custody for assaulting the complainant on 25 July 2019, the only inference reasonably available to be drawn is that the appellant, in making the statements in question, was admitting to having slapped the complainant as had been alleged by the complainant. This is a finding that the magistrate clearly made, although it must be accepted that it is not entirely clear from her Honour's reasons if she also found (incorrectly) that the statements amounted to admissions to the conduct the subject of the offence of which the appellant was convicted.[86] In any event, the evidence before the magistrate of admissions made by the appellant to having engaged in at least part of the conduct that was the subject of the charge before her Honour, specifically the slapping of the complainant, was capable of being viewed by the magistrate as supporting the credibility of not only the complainant's evidence as to being slapped, but also her evidence as to the conduct of the appellant the subject of the offence of which he was convicted. To put the matter another way, the fact that the complainant was shown, by the admissions made by the appellant, to have given honest and reliable evidence in relation to being slapped during the relevant incident was something that the magistrate was entitled to view as providing some support for the honesty and reliability of the evidence that she had given in relation to being dragged into the bedroom and having her face pushed into the bed.

Other aspects of the complainant's evidence found by the magistrate not to adversely affect the complainant's credibility

[86] ts 10, 7 April 2020.

In her reasons the magistrate dealt with other aspects of the complainant's evidence that the appellant had pointed to as reflecting adversely on the complainant's credibility. In particular, the magistrate made the following points:
1.In cross‑examination the complainant was 'very frank in confirming that she happily swore the contents of the statutory declaration which is exhibit 4', which included a statement that the appellant had at no time physically or mentally hurt her;[87]
2.The complainant had 'very happily confirmed that she did want to sign [exhibit 4] because she didn't want there to be a restraining order against [the appellant]' and that 'she was distressed that the order had been made';[88]
3.In cross‑examination the complainant confirmed that when she attended a doctor on 5 August 2019 she did so to obtain a script for diazepam because she was stressed about the appellant having been arrested, and that she did not tell the doctor that she had been assaulted by the appellant because the assault, that had occurred some days earlier, was not an issue for her at that time and had not left her with any injuries;[89]
4.The complainant readily agreed that she lived with the appellant until 5 August 2019 and that she visited him in prison and sent him affectionate letters;[90] and
5.The complainant was very frank about why she visited the appellant and that her letters indicated that she was waiting for him to get out of prison.[91]
[87] ts 7, 7 April 2020. The complainant swore the statutory declaration on 2 August 2019.
[88] ts 7, 7 April 2020.
[89] ts 8, 7 April 2020.
[90] ts 8, 7 April 2020.
[91] ts 8, 7 April 2020.
The magistrate found that none of the above matters adversely affected the complainant's credibility.[92] Her Honour found that the complainant had adequately explained herself, particularly in relation to the 'omission of paragraph 4 from her handwritten statement' which in her Honour's view was 'very telling'.[93] These findings were reasonably open to her Honour.

Decision

[92] ts 8 and 9, 7 April 2020.

[93] ts 8, 7 April 2020. The magistrate's reference to the 'omission of paragraph 4 from her handwritten statement' was, when read in the context of her Honour's preceding remarks, clearly a reference by her Honour to paragraph 4 of the complainant's statutory declaration and the complainant's failure to make any reference in that paragraph to the fact that the appellant had, on 25 July 2019, physically assaulted her.

For the reasons I have given, and having full regard not only to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence but also the very significant advantage that the magistrate had of seeing and hearing the complainant give evidence, it is my opinion 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 subject of the offence having occurred as described. In my opinion, 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 in respect of the offence.
I state to avoid any doubt on the issue, that I would still have come to the conclusion expressed in the preceding paragraph even in the absence of the evidence of the admissions to which I have referred made during the conversations comprising exhibits 2 and 3.

Conclusion

The ground of appeal lacks merit and has not been made out. I therefore refuse leave to appeal and dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
11 DECEMBER 2020