City of Stirling v Legg - [2023] WASC 443

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CITY OF STIRLING -v- LEGG [2023] WASC 443
CORAM:   LEMONIS J
HEARD:   10 OCTOBER 2023
DELIVERED          :   23 NOVEMBER 2023
FILE NO/S:   SJA 1027 of 2023
BETWEEN:   CITY OF STIRLING
Appellant
AND
RICHARD PAUL LEGG
Respondent

ON APPEAL FROM:
For File No:   SJA 1027 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R YOUNG
File Number            :   PE 53828/2021

Catchwords:

Respondent charged with an offence under s 33D(1) of the Dog Act 1976 (WA) on the basis that he was in control of a dog that attacked a young girl - The learned magistrate was not satisfied the dog's conduct constituted an attack within the meaning of the Dog Act 1976 (WA) and found the respondent not guilty - Appellant contends the learned magistrate applied the wrong test and made other errors - Consideration of the applicable test, in particular what constitutes provocation, and whether there was any error in the learned magistrate's reasoning

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Dog Act 1966 (NSW)
Dog Act 1976 (WA)
Evidence Act 1906 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T Houweling & B Waugh
Respondent	:	In person

Solicitors:

Appellant	:	Cornerstone Legal
Respondent	:	In person

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

Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593
Browne v Dunn (1893) 6 R 67
De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57
Douglass v The Queen [2012] HCA 34
Hall v Frost (Unreported, NSWSC, 18 August 1997)
Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351
Lake Macquarie City Council v Morris [2005] NSWSC 387; (2005) 63 NSWLR 263
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Martin v City of Stirling (Unreported, WASC, Library No 8477, 13 September 1990)
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Mohammadi v Bethune [2018] WASCA 98
NCH v The State of Western Australia [2013] WASCA 29
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

LEMONIS J:

This appeal concerns the application of the Dog Act 1976 (WA) (Act) to a circumstance where a person (here, a young child) is injured by a dog.
The respondent, Mr Legg was charged with an offence contrary to s 33D of the Act that on 2 October 2021:
… being the person liable for the control of a dog, namely a 9 year old male Staffordshire Bull Terrier named Henry, which dog attacked a person, being a 5 year old female, causing physical injury.
The trial of the charge took place before the learned magistrate on 10 May 2022 and 13 March 2023. His Honour delivered reasons for decision on 24 March 2023 and found Mr Legg not guilty of the offence. The City of Stirling (City) as the prosecutor now appeals against that acquittal. Mr Legg represented himself in the Magistrates Court and on the hearing of the appeal.
As I will come to explain in more detail, an attack within the meaning of the Act 'does not include behaviour which was an immediate response to, and was induced by, provocation…'.
There was no dispute that Mr Legg, who owned the dog, was liable for its control. There also was no dispute that the dog injured the child. In very brief terms, the learned Magistrate reasoned as follows. He could not discount Mr Legg's evidence of what had occurred between the dog and the child. Having regard to Mr Legg's evidence, his Honour was not satisfied beyond reasonable doubt that the dog's behaviour was not an immediate response to and was not induced by provocation. Therefore, the City had not proved that the dog's behaviour constituted an attack within the meaning of the Act.
It obviously is of concern where a young child is injured by a dog. However, that does not mean it was inevitable Mr Legg was guilty of the charged offence. Ultimately, this case turns on its own particular factual circumstances and the application of the provisions of the Act to those circumstances. That is the approach which the learned magistrate took.
There are four grounds of appeal. It is useful to elucidate those grounds after having explained the provisions of the Act and his Honour's reasons.
I will start by describing the framework within which the appeal is brought.

Criminal Appeals Act 2004

The appeal is brought pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act), the City being a person aggrieved by the decision of the learned magistrate to acquit Mr Legg of the charge.
An appeal may be made on grounds that include:
1.the learned magistrate made an error of law or fact, or of both law and fact;[1] and
2.that there has been a miscarriage of justice.[2]
[1] CA Act s 8(1)(a)(i).
[2] CA Act s 8(1)(b).
Leave of this court is required for each ground of appeal. Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding.[3]
[3] CA Act s 9(2).
Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of the City, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[4]
[4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] - [45].
It is useful at this point to set out the established principles of statutory construction.

Principles of statutory construction

The principles applicable to statutory construction were summarised in the joint reasons for decision of the Court of Appeal of Western Australia in Mohammadi v Bethune.[5] Statutory construction requires attention to the text, context and purpose of the Act. Further, as their Honours observed in Mohammadi v Bethune at [32] and [33]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions. (footnotes omitted)
[5] Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
In addition, as the High Court observed in Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association[6] in respect of the legislative provisions under consideration in that case:
The material provisions of the Act must be understood, if possible, as parts of a coherent whole.
[6] Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16]; see also Mohammadi v Bethune at [34] - [35].
I now turn to the provisions of the Act.

The Act

The relevant offence is created by s 33D(1) of the Act. It provides:
If a dog attacks or chases any person or animal and physical injury is caused to the person or animal that is attacked or chased, every person liable for the control of the dog commits an offence.
A person liable for the control of the dog includes the owner of the dog: s 3 of the Act.
Section 3 defines the word 'attack' in the following terms:
attack, in relation to the behaviour of a dog, does not include behaviour which was an immediate response to, and was induced by, provocation, but includes -
(a)aggressively rushing at or harassing any person or animal; or
(b)biting, or otherwise causing physical injury to, a person or an animal; or
(c)tearing clothing on, or otherwise causing damage to the property of, the person attacked; or
(d)attempting to attack, or behaving in such a manner toward a person as would cause a reasonable person to fear physical injury,
unless the owner establishes that the behaviour was justified by a reasonable cause;
…
This definition provides for two exclusions from the concept of attack. The first arises from the introductory words of the section that an attack 'does not include behaviour which was an immediate response to, and was induced by, provocation'. Those words are of significance to this appeal. They reflect an overall concept - the exclusion encapsulates that the dog's behaviour was an immediate response to, and was induced, by provocation. The City bears the onus of proving that the exclusion does not apply.[7] It must do so beyond reasonable doubt. Given the composite nature of the exclusion, the City needs only prove that one of the constituent parts does not apply.
[7] See by way of analogy Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 332 - 334.
The second exclusion is if the owner establishes that the dog's behaviour was justified by a reasonable cause. The onus is on the owner to prove this on the balance of probabilities. The necessity to do so only arises if the prosecution has first proved that the dog's behaviour constituted an attack that was not an immediate response to and induced by provocation.
It is not immediately apparent why the second exclusion can only be relied on by the owner and not by a person liable for control of the dog who is not the owner. The word attack is not only used in s 33D. It is also used in respect of the foundational bases for a declaration that a dog is a dangerous dog (s 33E) and for an order for destruction of a dog (s 33G). While it is the owner who has the right to object to such declaration or order,[8] s 33D applies to every person liable for the control of the dog. In any event, the rationale for the second exclusion only being available to a dog's owner is not something that I need to concern myself with on this appeal.
[8] Section 33F(2) and s 33G(2).
Section 3 defines the word provocation in these terms:
provocation, in relation to the behaviour of a dog, includes -
(a)on the part of a person, other than a person liable for the control of the dog -
(i)any teasing, tormenting, or abuse of the dog; or
(ii)any assault on, or act of cruelty towards, the dog; or
(iii)entry without lawful excuse on any land or premises of which the owner of the dog is an occupier or where the dog is ordinarily kept; or
(iv)any intrusion into or upon any vehicle in or on which the dog is present; or
(v)any threat to, or attack upon, another person or animal towards whom the dog could reasonably be expected to be protective;
or
(b)on the part of another animal -
(i) an attack on the dog made by any other animal; or
(ii)the entry of that other animal on any land or premises of which the owner of the dog is an occupier or where the dog is ordinarily kept; or
(iii) any threat to, or attack upon, another person or animal towards whom the dog could reasonably be expected to be protective,
but does not include an intentional provocation of the dog by a person liable for the control of the dog;
…
I will return in more detail to the definition of provocation when considering the grounds of appeal.
Having regard to the provisions of the Act, the elements which the City must prove beyond reasonable doubt to make out the charge were as follows:
1.Mr Legg was liable for the control of the dog.
2.The dog bit the child and caused her physical injury, or otherwise caused physical injury to the child.
3.The dog's behaviour in doing so was not an immediate response to and induced by provocation.
In respect of the first element, Mr Legg was the owner of the dog and therefore was liable for the control of the dog. Thus, the first element is made out.
In respect of the second element, Mr Legg accepts that the dog's behaviour caused physical injury to the child. Thus, the second element is made out. Mr Legg does not accept that the dog bit the child. Rather, Mr Legg gave evidence that the dog spun around with its mouth open and its teeth came into contact with her face. Even though the second element is made out, it is still necessary to have regard to the nature of the incident and the dog's reaction to it when considering whether the City had proved the third element.
For the City to prove the third element, it is only necessary that the City prove beyond reasonable doubt one of the following three matters:
1.the child's conduct towards the dog did not constitute provocation within the meaning of the Act; or
2.the dog's behaviour was not an immediate response to provocation; or
3.the dog's behaviour was not induced by provocation.
The principal issues at trial were directed to the nature of the child's conduct towards the dog, the dog's behaviour in response and whether the City had proved beyond reasonable doubt the dog's behaviour was not an immediate response to, or was not induced by, provocation.
I turn now to his Honour's reasons.

His Honour's reasons

His Honour set out the events leading up to the incident, which centred around the dog being tethered to a fence near the 'sausage sizzle' outside a Bunnings' store in Innaloo. The sausage sizzle took place in a pop up tent.
His Honour described the evidence of the relevant incident as follows.
Mr Legg would regularly attend the sausage sizzle and get a sausage for himself and for the dog. He would tie the dog up because it was friendly and would jump on people to get pats.[9]
[9] Reasons delivered 24 March 2023, ts 2 (Reasons).
Another man and his daughter, then five years old, were also getting a sausage from the same place. The child's father did not witness what occurred.
His Honour observed there were three people who said they witnessed the incident itself, being the child, Mr Legg and Mr Lee.
His Honour summarised the child's evidence as follows: she approached the dog from the front, put her hand out to pat it, the dog jumped up and bit her on the face.[10] Mr Legg did not cross-examine the child. His Honour noted that Mr Legg seemed discomforted at the prospect of questioning a young child.
[10] Reasons, ts 3.
Mr Lee was a volunteer at the sausage sizzle, who was cooking sausages at the time. His Honour found that he did not present as a particularly cogent witness. His Honour summarised Mr Lee's evidence as being that the child went towards the head of the dog and touched its head, the dog lashed out and she said 'naughty dog'.[11] His Honour considered that Mr Lee had difficulty articulating the touch that he described.[12] His Honour described Mr Lee's evidence as being that the dog barked and he saw the girl bleeding. Mr Lee also says that he heard a loud bark and the dog lashed out.[13] His Honour observed that no other witness had given evidence of hearing any sort of a bark.[14] Mr Lee said the dog was facing towards the tent about 30 seconds prior to the incident. His Honour observed that Mr Lee could not say which direction the dog was facing when the young girl approached it.[15] The City does not challenge his Honour's findings regarding Mr Lee's evidence.
[11] Reasons, ts 3.
[12] Reasons, ts 3.
[13] Reasons, ts 3.
[14] Reasons, ts 3.
[15] Reasons, ts 4.
His Honour noted that Mr Legg took part in a record of interview on 8 October 2021. His Honour recited Mr Legg's account in the record of interview as follows:[16]
He said that he tied the dog behind the sausage sizzle and walked to order food. As he was ordering he was looking towards the dog, and the dog was facing him. Out of the blue a little girl ran up fast behind the dog. She 'grabbed him or [slapped] him with both hands on either side of his ass'. He didn't see her coming. That is the dog didn't see her coming and was startled. He spun around, growled with his mouth open and hit her with his teeth but didn't bite. So by that I take it to mean that by 'bite' he's referring to a process of a mouth being opened and then closed again.
[16] Reasons, ts 4.
Mr Legg also gave evidence. In his Honour's view, Mr Legg's evidence was in broadly similar terms to what he said in the interview.[17] His Honour noted Mr Legg's evidence of the contact between the child and the dog was that the child jumped on the dog's back.[18] Mr Legg's evidence was also to the effect that the dog spun around after being startled and contact was made with the child in that way.
[17] Reasons, ts 4.
[18] Reasons, ts 4.
His Honour noted there was no doubt that the child was injured as a result of her interaction with the dog.[19]
[19] Reasons, ts 4.
His Honour stated that the photographs of the child following medical treatment showed some stitches to a wound on her forehead and also what appeared to be a puncture wound to the forehead which appears to the naked eye to be quite deep.[20] His Honour also noted the photographs reflected more superficial injuries appearing to be in the nature of scratches to her chin.[21]
[20] Reasons, ts 4.
[21] Reasons, ts 4.
His Honour said there was no evidence from a vet or other expert to allow him to confidently conclude that the injuries occurred as a result of a bite, as opposed to the dog spinning around after being startled and contact being made in that way.[22]
[22] Reasons, ts 5.
His Honour noted that the case 'comes down squarely to whether the prosecution can prove an attack beyond reasonable doubt'.[23] His Honour then referred to the definition of attack in s 3 of the Act and to the definition of provocation. His Honour said that the definition of provocation is not exhaustive.[24] His Honour also said that: [25]
The examples given are the sort of behaviours which are included in the concept of provocation but are not intended to cover the field in terms of the sort of behaviour which might be regarded as amounting to provocation.
[23] Reasons, ts 5.
[24] Reasons, ts 6.
[25] Reasons, ts 6.
His Honour said that if he accepted the child's evidence and rejected Mr Legg's evidence then the charge would be proven.[26] His Honour also noted the City's position that even if Mr Legg's version cannot be discounted beyond reasonable doubt, then the offence is still made out.[27]
[26] Reasons, ts 6.
[27] Reasons, ts 6.
His Honour stated that the actions of the child would not amount to teasing, tormenting or abuse or an act of cruelty within the categories of behaviour set out in the definition of provocation. His Honour noted that the child's behaviour 'could be potentially an assault insofar as that concept can be taken to include an unexpected touching of the dog in a way which startled or scared it and/or caused discomfort'.[28]
[28] Reasons, ts 6.
Ultimately, his Honour held that as the definition is not exhaustive, the relevant analysis 'should not resolve into considering whether the behaviour said to be provocative can be fitted within the concept of teasing, tormenting, abuse, cruelty or assault.'[29]
[29] Reasons, ts 6.
His Honour then went through the authorities to which he had been taken by the City. In particular, his Honour considered Martin v City of Stirling,[30] Hall v Frost[31] and Lake Macquarie City Council v Morris.[32] In the trial and on appeal, the City relied on Hall v Frost for the proposition that provocation within the meaning of the Act requires that the provocation be intentional. His Honour rejected that proposition. I will return later to his Honour's reasons in that respect.
[30] Martin v City of Stirling (Unreported, WASC, Library No 8477, 13 September 1990).
[31] Hall v Frost (Unreported, NSWSC, 18 August 1997).
[32] Lake Macquarie City Council v Morris [2005] NSWSC 387; (2005) 63 NSWLR 263.

His Honour held that the authorities 'seem to focus attention on an objective assessment of the effect of the behaviour on the dog rather than the subjective intention of the person providing the provocative conduct.'[33] His Honour said that his preferred construction of the legislation is that there must be some behaviour directed towards the dog which, viewed objectively, caused the dog to respond immediately or instinctively to that behaviour.[34]
[33] Reasons, ts 9.
[34] Reasons, ts 9.
Returning to the evidence, his Honour said that he must regard the case in accordance with the principles in Liberato.[35] In that respect, I understand his Honour to be saying that if he thought Mr Legg's version of events might be true, he must assess the question of provocation against that version. Such an approach is consistent with the usual iteration of a typical Liberato direction.[36]
[35] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
[36] De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 [12]; see also Douglass v The Queen [2012] HCA 34 [13].
His Honour said that:[37]
If, however, I cannot discount Mr Legg's version of events such that it might reasonably be true, I would then have to proceed on that basis. And that would then mean determining whether, as the prosecution contend, the charge is nonetheless proven.
[37] Reasons, ts 10.
His Honour found that he was unable to be satisfied beyond reasonable doubt that the incident occurred as the child described in her evidence, that is by way of the dog biting the child as she approached with her hand out to pat it.[38] His Honour said that there was a real issue as to whether it would be safe to act upon the essentially uncorroborated evidence of a girl aged five who testified 18 months after the incident. His Honour acknowledged that Mr Legg did not cross‑examine the child, however his Honour did not consider this was a reason to disbelieve Mr Legg's evidence.
[38] Reasons, ts 10.
In respect of the child's evidence, his Honour described it as being very brief and lacking in detail other than the bare narrative of being bitten as she patted a dog. His Honour also commented that he imagined this is the way in which a child of that age would process such an incident.[39] His Honour also noted the unfortunate position that the child had given evidence 18 months after the relevant incident.
[39] Reasons, ts 10.
His Honour reiterated that an issue to consider was whether it was safe to convict Mr Legg, having regard to the child's age and the lapse of time between the incident and when the child gave evidence. His Honour described the child's evidence as being essentially uncorroborated.
His Honour said that in the absence of expert evidence, the child's injuries do not determine whether the incident occurred as a result of a direct front‑on bite to the face or contact made as the dog spun quickly in response to being grabbed from behind.[40] His Honour said that he did not find the evidence of Mr Lee to be terribly helpful, describing him as not being a terribly cogent witness.[41]
[40] Reasons, ts 10.
[41] Reasons, ts 10.
His Honour described Mr Legg as not being a wholly compelling witness, and in particular noting how he became defensive - almost belligerent - under cross‑examination. However, in his Honour's view, Mr Legg's evidence was not implausible or inconsistent in any significant way.
Further, his Honour noted that Mr Legg had a reason to be looking at his dog at the time and therefore would be in a position to observe what had happened. Furthermore, his Honour said that it makes sense that the dog would be facing towards its owner, Mr Legg, and also towards where the sausages were being cooked.[42] His Honour did not accept Mr Legg would have been able to distinguish whether the dog bit the girl as an opening and closing of the jaws or whether it spun around quickly with its teeth bared in response to being grabbed as Mr Legg described.[43]
[42] Reasons, ts 11.
[43] Reasons, ts 11.
Ultimately, in relation to Mr Legg's evidence, his Honour found that he could not discount Mr Legg's evidence as to the happening of the event. In this respect, his Honour noted that Mr Legg's evidence is consistent generally with the evidence of Mr Lee, especially insofar as the direction the dog was facing. His Honour also noted that it was not inherently implausible to think that a child might act in the way that Mr Legg described and try to be affectionate in that way.[44]
[44] Reasons, ts 12.
His Honour then went on to consider whether or not the City had proved beyond a reasonable doubt that the dog's behaviour constituted an attack within the meaning of the Act.
It is useful to set out the entirety of the passage setting out his Honour's conclusion:[45]
Has the prosecution proven an attack beyond a reasonable doubt. In particular, has it been proven that the dog's behaviour was not an immediate response to and induced by provocation. Now, certainly, in my view, it can be regarded as an immediate response. And there can be no question at all that it unfolded very quickly. It was not a case of an ongoing attack. It would appear to be an instinctive, very quick response after which, according to Mr Legg, the dog cowered away.
It did not continue to growl or bark or show any aggression, lunging towards [the child] - things like that - after the incident. And those are factors which are consistent with the response being described as immediate. As to provocation, as I've said, I prefer a construction which looks at the objective circumstances rather than the attempt of any person to deliberately provoke. At the same time, I acknowledge there is, of course, an expectation that dogs will be friendly enough, passive enough and/or well-trained enough to be left alone in public.
Ultimately, weighing up all those factors, I am not satisfied beyond reasonable doubt that an attack has been proven. There is a basis, I reasonably find, that [the child] approached the dog from behind and made some forceful, albeit wholly innocent, contact with it. When I say 'forceful', I mean simply contact capable of causing the dog to be startled and apprehend a threat and respond in relation to that. It cannot be discounted in those circumstances the dog was startled and spun around towards the source of what had made the contact.
If in the course of so doing, in that fast, immediate, instinctive response contact was made with the girl causing injury, whether by way of a bite or other contact with the teeth, that would seem to me to be a matter which can be objectively described as induced by provocation. That is not suggested in any way to place any fault or blame onto [the child] who was acting as a child might be expected to act. But looking at the matter objectively, in my view, it is reasonable to conclude on the evidence that there was unexpected contact from behind to which the dog reacted instinctively.
And as I said, the notion of it being immediate is reinforced by the fact that there was no ongoing aggression after that incident. Indeed, the dog seems to be (indistinct) in the aftermath. So for those reasons I'm not satisfied that the case has been proved beyond a reasonable doubt and enter a judgment of acquittal.
[45] Reasons, ts 12 -13.
The key features of his Honour's reasoning are as follows:
1.It is reasonably possible that the child approached the dog from behind and made some forceful, albeit wholly innocent, contact with the dog.
2.This conduct was capable of causing the dog to be startled, apprehend a threat and respond to that threat.
3.It cannot reasonably be discounted in those circumstances that the dog was startled and spun around towards the source of what had made the contact.
4.Such a response was immediate.
5.If in the course of doing so, contact was made with the child causing injury, that is a matter which can be objectively described as induced by provocation.
6.His Honour was therefore not satisfied that the City had proved the dog's behaviour constituted an attack within the meaning of the Act.
I now turn to the grounds of appeal.

Grounds of appeal

There are four grounds of appeal. Initially, they were as follows:
1.The Magistrate erred by applying the wrong test in finding that a 5 year old child had: (a) provoked a dog causing it to attack her; and (b) assaulted a dog so as to provoke the dog, when the learned magistrate ought to have found that there was no provocation on the basis of: (a) the subjective intentions of the child was to pat the dog; (b) the actions of a 5 year old do not amount to an assault on the dog; and (c) the response of a dog in a public place was disproportionate to the actions of the 5 year old child.
2.The Magistrate erred by excluding the evidence of a child witness without any evidentiary basis, finding that he could not rely on the evidence of the child witness because: (a) the evidence was that of a 6 year old child; and (b) there was a delay of 18 months between the attack and the trial.
3.The Magistrate erred in fact and law in finding the uncorroborated evidence of a 6 year old child could not be relied on, when corroboration of witness evidence is not required, but nonetheless, it was in fact corroborated by: (a) the tendered photographic evidence; (b) the evidence of Mr Lee; and (c) the medical records.
4.The Magistrate erred by failing to admit into evidence hospital records of the injuries on the child, contrary to section 79C of the Evidence Act 1906 (WA).
At the hearing of the appeal, I granted the City leave to amend ground 2 by replacing the initial ground with the following:
That the evidence of the child witness not having been the subject of cross-examination must on any contradiction with the evidence of the accused been accepted so as to satisfy the learned Magistrate beyond reasonable doubt that the accused dog did attack within the meaning of the Dog Act.[46]
[46] Appeal Hearing 10 October 2023, ts 30.
I will deal with each of the grounds separately.

Ground 1

Ground 1 proceeds on the premise that his Honour found that the child had provoked the dog, causing it to attack her and had assaulted the dog so as to provoke it.
However, that is not what his Honour found. Rather, consistently with the City bearing the onus of proof, his Honour found that he was not satisfied beyond reasonable doubt that the dog's behaviour was not an immediate response to and induced by provocation from the child. Furthermore, his Honour did not find that the child had assaulted the dog.
Given ground 1 broadly asserts that his Honour applied the wrong test, it is necessary to explain what I think is the correct test having regard to the circumstances of this case. This predominantly requires consideration of what constitutes provocation within the meaning of the Act.
The word provocation is only used in the Act in respect of what constitutes an attack by a dog. The proper interpretation of 'provocation' needs to be viewed in that context, having regard to not only the definition of provocation, but also the definition of attack.
The concept of provocation in the Act reflects different concepts compared to how provocation is understood at either common law or under the Criminal Code (WA). At common law, provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the relevant accused did. Further, the provocation must actually cause the accused to lose self-control and to act in the way in which they did.[47] As can be seen, a critical feature is the loss of self-control. That is also the case with the defence of provocation as provided for by s 245 and s 246 of the Code.
[47] Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58, 66.
To state the obvious, provocation in the Act is dealing with the behaviour of a dog. While the definition of provocation in the Act includes conduct that is capable of causing a dog to lose control (for example, teasing or abuse), the definition goes beyond that. It also includes conduct that is capable of causing a dog to act in its own defence, or in the defence of a person or animal.
The focus of the definition of provocation, when read together with the definition of attack, is on conduct which is capable of causing a dog to act instinctively in an aggressive or protective manner. The definition sets out matters which are regarded as being capable of causing a dog to act in such a way. However, that is not an exhaustive list. In this respect, the definition uses the word 'includes' in describing the matters that constitute provocation. By way of contrast, many of the other definitions in s 3 use the word 'means'. Furthermore, the Act is dealing with the conduct of a dog. It would not be expected that the types of conduct capable of causing a dog to act in the way which I have just described are finite.
Given the definition is not exhaustive, in my view, conduct may constitute provocation in two ways, bearing in mind that the onus was on the City to prove beyond reasonable doubt that the child's conduct did not constitute provocation of the dog.
First, the conduct falls within the defined categories set out in the definition of provocation, subject to the qualification explained at [75] below.
Second, when the conduct engaged in, viewed objectively, is such that it is capable of causing the dog to act instinctively in an aggressive or protective manner. This arises irrespective of whether the conduct falls within any of the defined categories.
The learned magistrate did not ultimately determine whether it was reasonably possible the child's conduct towards the dog fell within any of the defined categories. Rather, his Honour said that the relevant analysis 'should not resolve into considering whether the behaviour said to be provocative can be fitted within the concept of teasing, tormenting, abuse, cruelty or assault.'[48] That being so, it is not necessary to consider on this appeal whether conduct that falls within the defined categories will constitute provocation only if that conduct is also of such gravity that it is capable of causing the dog to act instinctively in an aggressive or protective manner.
[48] Reasons, ts 6.
The further questions which need to be considered are whether the dog's behaviour was an immediate response to the conduct said to constitute provocation and whether the dog's behaviour was induced by that conduct. These questions are directed to assessing whether the dog's behaviour is an instinctive reaction to that conduct, as opposed to being the result of other factors, for example the aggressive tendencies of the dog. The required assessment needs to have regard to the gravity of the conduct said to constitute provocation, the extent to which that conduct might induce aggressive or protective behaviours by the dog and the severity and duration of the dog's behaviour.
As I will now explain, the approach which I have just outlined is the approach which his Honour took.
His Honour found that it is reasonably possible there was forceful contact on the dog from behind by the child which was capable of 'causing the dog to be startled and apprehend a threat and respond in relation to that'.[49] His Honour therefore was not satisfied the City had proved the child's conduct did not constitute provocation of the dog. His Honour's approach accords with my view set out at [71] and [74], his Honour in effect finding that it was reasonably possible the child's conduct towards the dog was capable of causing the dog to act instinctively in an aggressive or protective manner.
[49] Reasons, ts 12.
His Honour found the dog's response to the contact from the child was immediate, which it plainly was. In this respect, his Honour noted that there was no ongoing aggression by the dog after the incident. Mr Legg's evidence was that the dog cowered once it realised the source of the contact was a young girl. The effect of his Honour's finding is that he was not satisfied beyond reasonable doubt that the dog's behaviour was not an immediate response to provocation.
In relation to whether the dog's response was induced by the contact from the child, his Honour found that if 'in that fast, immediate, instinctive response contact was made with the girl causing injury, whether by way of a bite or other contact with the teeth, that would seem to me to be a matter which can be objectively described as induced by provocation'.[50] Thus, his Honour found that the City had not proved beyond reasonable doubt that the dog's behaviour was not induced by provocation.
[50] Reasons, ts 13.
Accordingly, his Honour did not apply the wrong test.

Balance of ground 1

Ground 1 also asserts that the learned magistrate ought to have found that there was no provocation on the basis of the subjective intentions of the child, that the actions of a 5-year-old child do not amount to an assault on the dog and the response of a dog in a public place was disproportionate to the actions of a 5-year-old child.
I will deal with these matters separately.

Relevance of the subjective intention of the child

The core aspect of the City's proposition is that in assessing whether or not there was provocation, the learned magistrate was required to have regard to the child's intention in dealing with the dog. The City in its written submissions stated:[51]
… the young girl had no intention of, nor displayed any signs of teasing, tormenting, abusing, assaulting or causing cruelty towards the dog so as to constitute provocation.
[51] Appellant's written submissions [34].
The City relied heavily on the finding made by Newman J in Hall v Frost that 'provocation of the dog must be intended by the relevant person'.[52]
[52] Hall v Frost 11.
However, that finding cannot be looked at in isolation from the legislation which Newman J construed. The relevant provisions before Newman J were s 4 and s 6 of the Dog Act 1966 (NSW), which his Honour noted were in the following terms:[53]
[53] Hall v Frost 2.
6.(1)The owner of a dog that attacks or causes injury to a person or animal shall be guilty of an offence against this Act and liable to a penalty not exceeding 10 penalty units.'
Section 6(2)(b) of the Act provides:-
6.(2)Subsection (1) does not apply if the attack or injury by the dog:
…
(b)is in immediate response to, and is wholly induced by intentional provocation of the dog by a person other than the owner of the dog or the owner's servants or his agents;
…
4.(1)In this Act, unless the context or subject matter otherwise indicates or requires:
Provocation' of a dog:
(a)by a person - includes:
• teasing, tormenting or abusing the dog; or
• any act of cruelty towards the dog; or
•entry without lawful excuse on any land, vehicle or premises of which the owner of the dog is an occupier or on which the dog is ordinarily kept; or
•attacking the owner of the dog, or any person towards whom the dog could reasonably be expected to be protective, in front of the dog;
Section 6(1) sets out the offence provision, which applies to the owner of a dog that attacks or causes injury to a person. Section 6(1) does not apply if the attack or injury is in the circumstances prescribed by s 6(2)(b), which broadly speaking is the provocation exclusion. As can be seen, s 6(2)(b) uses the words 'intentional provocation of the dog'.
Newman J ultimately held:[54]
…I am of the view that the Crown submission that the ordinary and natural meaning of the words is that provocation of the dog must be intended by the relevant person not that the conduct of the person which may cause the dog to be provoked must be intended by that person is the correct construction of s 6(2)(b), thus the objective test adopted by the learned magistrate constituted error.
[54] Hall v Frost 11.

In coming to this finding, Newman J said that in his opinion the language of s 6(2)(b) is plain and unambiguous.[55]
[55] Hall v Frost 10.
Accordingly, the decision in Hall v Frost goes no further than saying that the ordinary and natural meaning of the words in s 6(2)(b) is that the provocation of the dog must be intended.
The definitions of attack and provocation set out in s 3 of the Act are in different terms to s 6(2)(b) of the Dog Act (NSW).
The definition of attack says it 'does not include behaviour which was an immediate response to, and was induced by, provocation'. It does not use the word 'intentional' as found in the Dog Act (NSW). The introductory words to the definition of provocation do not use the word intentional as a qualifying word to provocation.
The only reference to intentional provocation in the Act is in the concluding words of the definition of provocation, which provide that provocation 'does not include an intentional provocation of the dog by a person liable for the control of the dog'. This reflects that for the purposes of the Act, an intentional provocation of the dog by a person liable for its control is not regarded as provocation.
Accordingly, Hall v Frost is not of any assistance to the City, as it reflects the interpretation of legislation which is in substantially different terms to the Act.
Furthermore, as his Honour set out in his reasons, the proposition put forward by the City would have quite arbitrary results. His Honour pointed to the following particular examples. Provocation would not arise if the person engaging in the relevant behaviour was incapable of forming an intention, for example, because of their age or their mental state. If a person accidentally fell onto a dog, that would not constitute provocation but if the person deliberately jumped on the dog, that would be provocation. As his Honour noted:
So the exact same physical incident towards the dog would produce two different results depending on whether or not the behaviour of the person was deliberate or deliberately provocative or otherwise.[56]
[56] Reasons, ts 8.
The clear purpose of the definition of attack is to exclude an instinctive reaction by a dog to provocation as I have explained at [70] ‑ [76]. The legislation focuses on the perception and reaction of the dog, not the intent of the person engaging in the conduct. There is no warrant in the language of the Act that requires the provocation to be intentional.

The second proposition

In respect of the second proposition, as I have already explained, his Honour did not find that the child assaulted the dog. Rather, his Honour found he was not satisfied beyond reasonable doubt that the child's behaviour did not constitute a provocation of the dog.
Whether the actions of a child can constitute the provocation of a dog depends upon the overall circumstances. One of those circumstances is whether the dog appreciates that the actions are those of a child.
In this case, his Honour found it was reasonably possible on the evidence that the child approached the dog from behind. Accordingly, on that scenario, the dog did not know the contact had come from a child. This is to be contrasted with his Honour's finding that if he was satisfied the incident occurred as described by the child, then that would constitute an attack within the provisions of the Act.
The second proposition is not made out.

The third proposition

The concept of proportionality is, broadly speaking, caught up within the application of the definitions of provocation and attack. The more disproportionate the dog's response is to the provocative conduct, the less likely it is that the response is an immediate response to and induced by the conduct. As I have sought to explain at [76], the assessment needs to have regard to the gravity of the conduct said to constitute provocation, the extent to which that conduct is capable of causing the dog to act in an instinctive manner and the severity and duration of the dog's behaviour in response. There is no requirement that the learned magistrate separately consider the question of proportionality.
The third proposition is not made out.
For these reasons, I refuse leave to appeal in respect of ground 1.

Ground 2

With respect to the City, the initial ground 2 misapprehended his Honour's findings in relation to the child's evidence. His Honour did not exclude the child's evidence. Rather, his Honour expressed caution in relation to her evidence, having regard to her young age and the relatively extensive delay between the incident and the child giving evidence. This is an entirely orthodox approach.
The new ground 2 directs attention to the child's evidence not having been the subject of cross-examination by Mr Legg. The City contends this is a breach of the rule in Browne v Dunn[57] and to the extent of any conflict between the child's evidence and Mr Legg's evidence, the child's evidence must be accepted.
[57] Browne v Dunn (1893) 6 R 67.
The rule in Browne v Dunn is a rule of practice. In Hofer v The Queen,[58] Kiefel CJ, Keane and Gleeson JJ observed:
The rule requires that where it is intended that the evidence of the witness on a particular matter should not be accepted, that which is to be relied upon to impugn the witness's testimony should be put to the witness by the cross‑examiner for his or her comment or explanation. (footnotes omitted d)
[58] Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 [26].
It may be accepted in this case that the rule was breached because Mr Legg did not put his version of events to the child. In this respect, the learned magistrate stated:[59]
As I said, she was not cross-examined. It would in the circumstances be unfair, in my view, to use that as a reason to disbelieve Mr Legg's evidence. Firstly, he's not a lawyer. And my experience, regrettably, is that the rule in Browne v Dunn – no matter how often you explain it and how many different ways you explain it – is almost always misunderstood by self-represented litigants. Secondly, it was clear he was very uncomfortable about cross-examining a child of that age.
[The child's] evidence was very brief and, as one might expect, lacking in detail other than the bare narrative of being bitten as she patted a dog. I imagine that is the way in which a child of that age would process such an incident. Now, certainly, she came across an intelligent and confident child. But again, the issue arises whether it is safe to convict having regard to her young age and the lapse of time between incident and her testimony in court.
[59] Reasons, ts 10.
As can be seen from this passage, his Honour did not consider the failure to cross-examine the child was a matter that provided a reason to disbelieve Mr Legg's evidence. His Honour came to this view having regard to Mr Legg not being a lawyer and his Honour's assessment that Mr Legg was very uncomfortable cross-examining such a young child.
His Honour then went immediately to assessing the child's evidence and the clear implication from the manner in which his Honour structured his reasons was that he took into account that she was not cross-examined.
Moreover, an important aspect of Mr Legg's evidence (including his account in the interview) is that the child approached the dog from behind. After Mr Legg declined to ask any questions of her, the learned magistrate asked the child 'Did you walk up to the front of the dog, or from behind the dog?', to which she answered 'In front of the dog.'[60] Therefore, that important aspect of Mr Legg's evidence was put to her, albeit by the learned magistrate.
[60] Hearing 13 March 2023, ts 7.
In NCH v The State of Western Australia, Buss JA (as his Honour then was) observed that the manner in which a breach of the rule in Browne v Dunn should be dealt with will depend on the nature and extent of the breach and the particular facts and circumstances generally. [61] Further, Buss JA set out the discretionary responses available to a trial judge in a criminal trial, his Honour stating:[62]
Where the rule in Browne v Dunn has been breached in a criminal trial before a judge and jury, it will be necessary for the trial judge to decide how, in the particular circumstances and in the interests of justice, the breach should be dealt with. The authorities indicate that, depending on the particular circumstances, the discretionary responses available to a trial judge include:
(a)having a witness or witnesses recalled for cross-examination or further cross-examination;
(b)ruling that it is not fairly open to counsel who breached the rule to make a particular submission in his or her closing address;
(c)drawing to the jury's attention in summing up that a witness was not given the opportunity to respond to particular evidence led from another witness;
(d)informing the jury that the failure to put specified matters to a witness may be taken into account by the jury in assessing the weight to be given to the witness's evidence about those matters;
(e)if the trial judge is satisfied that the omission was the fault of defence counsel or the instructing solicitor and not the accused, informing the jury of the potential disadvantage to the State's case or other witnesses from the omission, and stating that this was defence counsel's or the instructing solicitor's fault and not that of the accused; and
(f)discharging the jury.
[61] NCH v The State of Western Australia [2013] WASCA 29 [104].
[62] NCH [105].
These same observations apply to a trial by magistrate, with the necessary adjustment to reflect it not being a trial by jury.
The approach which the learned magistrate took was an entirely appropriate one. His Honour noted that the child had not been cross‑examined. His Honour also had regard to the young age of the child and that Mr Legg was not a lawyer and was uncomfortable cross-examining such a young child.
His Honour also observed that he imagined the child's evidence was the way in which a child of that age would process such an incident. This reflects common sense as to the capacity of a young child to express in detail what would have been a traumatic incident for the child. Further, his Honour's reference to the delay between the incident and the child giving evidence reflects the experience of the courts that the longer the delay, the more opportunity there is for error, particularly for events occurring in childhood.
The course now advanced by the City is to the effect that Mr Legg should not be permitted to rely on his own evidence as to the incident itself. That was not a course which the City urged upon the learned magistrate during their counsel's closing address at trial. Further, in my view is not a course that was open to the learned magistrate.
For these reasons, I decline to grant leave to appeal in respect of ground 2.

Ground 3

With respect to the City, this ground misapprehends his Honour's findings. His Honour did not find that the uncorroborated evidence of a six‑year‑old child could not be relied on. Rather, His Honour said:[63]
But a real issue arises as to whether it would be safe to act upon the essentially uncorroborated evidence of a girl aged five who testified 18 months later.
[63] Hearing 23 March 2023, ts 10.
Accordingly, in assessing the evidence as a whole and whether the City had proved the charge beyond reasonable doubt, his Honour took into account that the child's account of the incident was uncorroborated. This was again an entirely orthodox approach to take considering the child's young age, the substantial delay between the incident and the child giving evidence, and that Mr Legg's evidence stood in stark contrast to the child's evidence.
The City also submits that there was evidence which corroborated the child's account of the incident. The City points to three matters: the tendered photographic evidence, Mr Lee's evidence and the medical records.
The last two of these matters can be dealt with relatively briefly.
In relation to the medical records, they were not admitted into evidence. They are therefore not evidence and cannot be regarded as corroborative evidence. I will return to the medical records when considering ground 4.
In relation to Mr Lee's evidence, his Honour found that his evidence was not terribly helpful and that Mr Lee did not present as a particularly cogent witness.[64] This finding is not challenged. Having read through Mr Lee's evidence, with respect to him, it is at times confusing and reflects that he looked to see what was happening when the dog barked.[65] Furthermore, his Honour noted Mr Lee's evidence that the dog was facing towards the tent not long prior to the incident would be consistent with the child approaching the dog from behind, if the dog was still facing in that direction at the time of the incident.[66] Mr Lee was asked whether the child came towards the dog's head and he said she went towards his head. He was asked whether she touched the dog on its head, to which he said yes. Some aspects of Mr Lee's evidence could be seen as supporting the child's evidence, some aspects do not. In any event, his Honour's unchallenged finding is that Mr Lee's evidence was not 'terribly helpful' and he did not present as a particularly cogent witness.
[64] Reasons, ts 3.
[65] Hearing 13 March 2023, ts 14.
[66] Reasons, ts 10 - ts 11.
In relation to the photographs, his Honour found that 'they do not assist in ascertaining how the incident occurred'.[67]
[67] Reasons, ts 10.
The City submits that finding was in error and the photographs do support the child's evidence. There are two principal areas of dispute between the child's evidence and that of Mr Legg. The first is in relation to the child's conduct towards the dog, in particular the direction from which she approached and what she did to the dog. The second is in relation to what the dog did. The child says it bit her. Mr Legg says it spun around quickly with its teeth bared and contact was made in that way.
In relation to the first area of dispute, the photographs do not assist in ascertaining the direction from which the child approached the dog, or what the child did to the dog.
In relation to the second area of dispute, the City submits that the photographs support a finding that the dog bit the child. The City says the child's injuries as reflected by the photographs support such a finding.
His Honour found that:[68]
Photographs of [the child] were tendered taken in the immediate aftermath and then also following the blood being cleared away and further photographs following medical treatment. There were some stitches to a wound on the forehead. The photographs show what appears to be a puncture wound to the forehead which appears to the naked eye to be quite deep which is also what the witness, Gillon, said. The other injuries are more superficial, appearing to be more in the nature of scratches to the chin.
There's no doubt the injuries are broadly consistent with the accounts given of the incident. But there was no evidence, for example, from a vet or other expert to allow me to confidently conclude the injuries occurred as a result of a bite, by which I mean an opening and closing of the jaw, as opposed to what Mr Legg said as to the dog spinning around after being startled and there being contact made in that way.
[68] Reasons, ts 4 - 5.
His Honour also found that:[69]
Now, there's no question that, on any version of events, she suffered an injury as a result of contact from the dog's teeth with her face. But the injuries, in the absence of any expert evidence, do not determine whether it occurred as a result of a direct front-on bite to the face or contact made as the dog spun quickly in response to being grabbed from behind.
[69] Reasons, ts 10.
As I raised with the City's counsel, on each of the scenarios presented by the evidence of the child and of Mr Legg, the dog's mouth was open when it came into contact with her. In this respect, for the dog to bite the child in the place where her injuries were, its mouth would need to be relatively wide open before the bite was applied. On the other hand, on Mr Legg's evidence, the dog turned towards the child with its mouth open.
There was no evidence before his Honour that the injuries were more consistent with the application of force applied by a bite, compared to the child coming into contact with the dog's open mouth. Further, as Mr Legg submitted on the appeal, if the dog had bitten the child, then common sense suggests far more extensive injuries would have been caused to the child. In this respect, common sense suggests that if the dog bit the child's face, the wounds would have traversed a broader area of her face, consistent with the dog's lower and upper teeth.
Absent expert evidence that the wounds depicted in the photographs were consistent with a dog bite, his Honour was correct to find that the photographs did not assist in ascertaining how the incident occurred.
For these reasons, I refuse leave to appeal in respect of ground 3.

Ground 4

On the hearing of the appeal, the City identified the use it sought to make of the medical evidence. It sought to rely on the statement in the Perth Children's Hospital Admission record made 2 October 2021 that the diagnosis was 'dog bite - lac face'.
On the first day of the hearing on 10 May 2022, his Honour raised concerns with evidence being adduced by way of the hospital records. His Honour said that while the City did not need to call every doctor involved: [70]
If it's disputed … then you will get a registrar to come and say, you know, 'These are my qualifications. I've reviewed the notes, and these are my findings about the nature of the injuries, and how they were caused.
[70] Hearing 10 May 2022, ts 10.
In response to this, counsel for the City said 'I don't think that the medical records are anything.'[71] There was then further discussion around this subject matter and his Honour indicated a preliminary view that: [72]
But I don't think I can receive the medical records insofar as they purport to say that the injuries were consistent … with the allegation. That seems to be in dispute.
[71] Hearing 10 May 2022, ts 10.
[72] Hearing 10 May 2022, ts 13.
Counsel for the City then indicated that the matter would have to proceed part heard as there was a witness who observed the attack who was not in court on the first day of the hearing. His Honour then said the following: [73]
Well, if we go part heard, then you can consider in the meantime whether … how you want to address the issue of the medical records.
[73] Hearing 10 May 2022, ts 13.
At the further hearing on 13 March 2023, counsel for the City explained that the delay in bringing the matter on was in part due to 'dealing with some matters relevant to the medical evidence'.[74] The City did not seek to tender any medical records at the further hearing. The City did not purport to rely on the medical records in the manner now identified.
[74] Hearing 13 March 2023, ts 2.
His Honour did not make a final finding rejecting the admissibility of the medical records. When his Honour first raised the matter, the response from counsel for the City was that counsel did not think that the medical records are 'anything'. Furthermore, his Honour invited counsel for the City to address the issue further if they wished at the hearing on 13 March 2023. The City did not pursue the matter.
In effect, the City seeks to now rely on the statement in the hospital records as constituting expert medical evidence as to the cause of the injuries. However, the basis for the opinion is not identified. All the statement says is 'Diagnosis: dog bite - lac face'. The name of the responsible clinician is redacted.
It is well established that an expert opinion ordinarily must set out the intellectual basis for the conclusions reached.[75] The medical records do not set out the intellectual basis for the medical opinion relied on by the City.
[75] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85].

It is not necessary on this appeal to consider whether the combined effect of s 79C(2a) and s 79C(3)(d) of the Evidence Act 1906 (WA) is that an opinion expressed in a business record is admissible, even where the intellectual basis for the opinion is not set out.
His Honour had a residual discretion under s 79C(6) of the Evidence Act to reject the tender of the medical records if, broadly speaking, he considered their probative value was outweighed by the consideration that their admission may create undue prejudice. The admission of the medical records would have created undue prejudice to Mr Legg which significantly outweighed their probative value. The opinion relied on by the City went to a critical issue in the case. In order for Mr Legg to test that opinion, he needed to know the intellectual basis for it and he needed to have the opportunity to cross-examine the medical professional who formed that opinion. Accordingly, even if his Honour's remarks did reflect a final ruling rejecting the admission of the medical records, his Honour had a very sound basis to do so.
I refuse leave to appeal in respect of ground 4.

Conclusion

For the reasons set out above, I do not grant leave to appeal in respect of each of the four grounds and the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Honourable Justice Lemonis
23 NOVEMBER 2023