Goulding v Eaves
[2023] WASC 19
•6 FEBRUARY 2023
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| IN CRIMINAL | ||
| CITATION | : | GOULDING -v- EAVES [2023] WASC 19 |
| CORAM | : FORRESTER J | ||
| HEARD | : 22 NOVEMBER 2022 | ||
| DELIVERED | : 6 FEBRUARY 2023 | ||
| PUBLISHED | : 6 FEBRUARY 2023 | ||
| FILE NO/S |
| ||
| BETWEEN | : DAWN ALISON GOULDING |
Accused
AND
MARK EAVES
Prosecution
ON APPEAL FROM:
| For File No | : | SJA 1083 of 2021 |
| Jurisdiction | : | MAGISTRATES COURT OF WESTERN AUSTRALIA |
| Coram | : MAGISTRATE E SHACKLETON | ||
| File Number |
|
[2023] WASC 19
Catchwords:
Criminal law - Appeal against conviction - Breach of misconduct restraining order - Whether miscarriage of justice resulted from change in prosecution case or non-disclosure on part of prosecution - Whether magistrate erred in fact - Whether verdict was unreasonable or unsupported by the evidence
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Investigation Act 2006 (WA)
Criminal Procedure Rule 2005 (WA)
Restraining Orders Act 1997 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Accused | : In Person |
Prosecution : D Van Nellestijn
Solicitors:
| Accused | : In Person |
Prosecution : State Solicitor's Office
[2023] WASC 19
Cases referred to in decision:
CD and EF v Chief Executive Officer, Department of Child Protection and
Family Support [2017] WASC 126
Cramphorn v Bailey [2014] WASCA 60
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hunt v Russell [2019] WASC 284
Lyndon v Lyndon [2008] WASCA 8
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR
473
Smart v Power [2019] WASCA 106
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Wells v The State of Western Australia [2017] WASCA 27
[2023] WASC 19
Table of Contents
Introduction ................................................................................................................................ 5
Leave to Appeal – legal principles ............................................................................................. 5
The trial ...................................................................................................................................... 5
Admission ............................................................................................................................... 7
Evidence of Brett Arthur Anthony King ................................................................................ 7
Evidence of Giles Nelson Graham ....................................................................................... 11
Constable Mark Eaves .......................................................................................................... 12
Constable Michael Baughan ................................................................................................. 13
The appellant ........................................................................................................................ 13
Prosecution submissions ....................................................................................................... 15
| Appellant's | submissions ........................................................................................................ 16 |
Reasons for decision ............................................................................................................. 16
Material filed on the appeal ...................................................................................................... 17
Affidavit sworn on 30 January 2022 .................................................................................... 19
Affidavit sworn on 24 February 2022 .................................................................................. 19
The application ..................................................................................................................... 20
Grounds of Appeal ................................................................................................................... 23
Ground 1 ............................................................................................................................... 24
Ground 2 ............................................................................................................................... 25
Ground 3 ............................................................................................................................... 26
Ground 4 ............................................................................................................................... 27
Ground 5 ............................................................................................................................... 38
Ground 6 ............................................................................................................................... 39
Ground 7 ............................................................................................................................... 40
Ground 8 ............................................................................................................................... 42
Ground 9 ............................................................................................................................... 45
New evidence - legal principles................................................................................................ 46
The additional evidence ........................................................................................................ 46
Conclusion on Ground 9 ....................................................................................................... 53
Application to admit new evidence .......................................................................................... 53
Conclusion ................................................................................................................................ 54
Orders ....................................................................................................................................... 54
SCHEDULE A ......................................................................................................................... 55
[2023] WASC 19
FORRESTER J
FORRESTER J:
Introduction
After a trial before a magistrate, the appellant was convicted of a charge that on 12 February 2021 at Maylands, she breached a misconduct restraining order (MRO), contrary to s 61(2) of the Restraining Orders Act 1997 (WA) (RO Act). She was ordered to pay a fine of $500.
The appellant applies for leave to appeal against her conviction. She has also made an application for leave to adduce additional evidence. Those applications are to be heard together with the appeal.
Leave to Appeal - legal principles
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[1]
[1] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[2] meaning that the ground is required to have a rational and logical prospect of succeeding.[3] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[4]
[2] CA Act s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[4] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[5]
[5] CA Act s 14(2).
The trial
At the outset of the trial, the magistrate read the charge as follows:
12 February 2021 at Maylands, having been personally served with a misconduct restraining order, being 380 of 2020, breached that order by behaving in an intimidatory, offensive or emotionally abusive manner towards the person protected.[6]
[6] Transcript, WA v Police v Dawn Alison Goulding, Magistrates Court of Western Australia, 6 October 2021,
[2023] WASC 19
FORRESTER J
His Honour asked the appellant if she understood the charge. She responded that she had not been emotionally abusive towards the complainant. When asked again if she understood the charge, the
appellant said she did not '… understand the particulars of what they
chose. I believe that they actually arrested me because they thought it was a no contact order'.[7][7] Transcript of Proceedings 6 October 2021, 4.
The magistrate read the charge again and asked if the appellant understood it, and she said she did. She then pleaded not guilty to the charge.[8]
[8] Transcript of Proceedings 6 October 2021, 3 - 4.
The prosecution opened as follows:
The victim … is employed as a maintenance and caretaker at … a unit
complex with approximately 200 units that share pathways and roadways. The accused is a resident at that complex. The victim has been employed in this role for approximately three years. And the
victim applied for and was granted a misconduct restraining order – number 380 of 2020 – that was served and in effect at the time of this
incident.
A term of the MRO is not to behave in an intimidatory, offensive or emotionally abusive manner towards the protected person who was the victim in this matter. On 12 February 2021, the victim was working in his maintenance shed when he heard banging coming from the bins. He went to investigate and observed the accused going through the bins. The accused noticed the victim and walked past him without
incident … She then turned and walked back to the victim and began
shouting at him. She was so close that when she was yelling, the victim could feel the spittle on his face. The accused shouting caught the attention of at least one resident who looked out his window and
observed the incident … during the arrest the accused made admissions
that there was an incident.[9]
[9] Transcript of Proceedings 6 October 2021, 5 - 6.
When asked to specifically particularise what the appellant was said to have done, the prosecutor replied:
It was shouting in his face. She was so close that she (sic) was feeling the spittle on his face. (indistinct) exactly what it was but, in his words, it was - it was abuse and - it was offensive because the proximity and the spittle striking him in the face. And, yes, it was all about the bins.[10]
[10] Transcript of Proceedings 6 October 2021, 18.
[2023] WASC 19
FORRESTER J
The magistrate informed the appellant of the defences set out in s 62(1)(a), (b), (c) and told her that those did not appear to apply in this case, before informing her of the content of s 61(2)(d) of the RO Act.[11]
Admission
The appellant made an admission that, as at 12 February 2021, the MRO (which became Exhibit 1 at the trial) was in force against her and had been served on her.[12]
Evidence of Brett Arthur Anthony King
[12] Transcript of Proceedings 6 October 2021, 22.
The complainant, Mr King, gave evidence that he was the caretaker at the complex, whose role was to maintain the area, which included maintaining buildings, gardening and rubbish removal and cleaning. He had worked there for over three years.[13]
[13] Transcript of Proceedings 6 October 2021, 23 - 24.
On 12 February 2021, he arrived at about 6.00 am and shortly afterwards saw his colleague speaking to the appellant. He said that he had what he called 'a boundary run'; that he walked around the complex every morning. On his return he saw the appellant still speaking to his colleague. He went over to see if things were all right and she left promptly. He then returned to the shed where he found the appellant upturning bins.[14]
[14] Transcript of Proceedings 6 October 2021, 24.
He went to see what the problem was and the appellant accused him of 'expending money and lying about the size of the bins'. He told her if she had a problem, she needed to take it up with the strata company. He continued:
She proceeded to walk away, and then turned around and carried on a little bit more. And it was about that stage that she had removed her mask and was close enough for bits of spittle and stuff to hit my face. I pulled my phone out and I was going to call the police. She accused me of recording, which I wasn't. And then I phoned the police, and [the appellant] at that stage had left.[15]
[15] Transcript of Proceedings 6 October 2021, 24. 16 Transcript of Proceedings 6 October 2021, 25.
[2023] WASC 19
FORRESTER J
The complainant said that the appellant was behaving in a manner
that was:
… fairly aggressive, what I would call aggressively. You know, she
was yelling and shouting at me. She was coming forward from time to time, and obviously had her mask removed at that stage. When the spittle started hitting my face I decided, well, enough was enough. So I pulled the phone out of my pocket and proceeded to call the police. And at that stage, [the appellant] had walked off. But the whole altercation probably went for a couple of minutes or more.16
The complainant said that the appellant came to 'definitely within a metre of him, sometimes half a metre to a metre away at times'.[17] He said he was fairly angry that it was happening and that he did not think there was any need for her conduct.[18]
[17] Transcript of Proceedings 6 October 2021, 25.
[18] Transcript of Proceedings 6 October 2021, 25 - 26.
In cross-examination, the complainant said that the spittle hit him
'all over … cheek, nose, lips, chin'.[19] A screenshot from police body
worn camera footage was produced which showed the appellant wearing glasses and a mask.[20] He was asked how he felt spittle on his cheeks and chin while wearing a mask, he said 'Well, in and around the mask and when there's area there of exposed skin'.[21] He said it landed all around his cheek area and bits of his ear.[22]
[19] Transcript of Proceedings 6 October 2021, 32.
[20] Exhibit 2.
[21] Transcript of Proceedings 6 October 2021, 34.
[22] Transcript of Proceedings 6 October 2021, 36.
It was put to him that he told the police:
She had her mask down. And, you know, I backed away. I did not want her spitting on me, obviously.[23]
[23] Transcript of Proceedings 6 October 2021, 32.
The appellant suggested that this was inconsistent with his account that spittle actually struck him but the complainant said that he backed away because spittle was hitting him.[24]
[24] Transcript of Proceedings 6 October 2021, 33.
During cross-examination of the complainant, the appellant sought particulars of the words constituting the abuse.[25] The prosecutor was not asked for particulars, but the complainant was asked what the appellant had said. In response, he said he was called a 'pathological
[25] Transcript of Proceedings 6 October 2021, 38 - 39.
[2023] WASC 19
FORRESTER J
liar' and the appellant had made accusations that he had cost the appellant thousands of dollars for the replacement of bins. He said there were comments made:
… along the lines of, you know, I should be working and doing this,
and not turning bins back up and over. And it's – it was very – it was
she never stopped, to be quite honest. It was just rattle, rattle, rattle.[26]
[26] Transcript of Proceedings 6 October 2021, 39.
When asked if she had scared him, he said 'Yes'. He denied that she made him feel timid.[27]
[27] Transcript of Proceedings 6 October 2021, 41.
The complainant admitted initially telling the police that he had had his phone in his pocket when the appellant accused him of recording her, and accepted this was different to his witness statement, in which he said that his phone was in his hand at that point.[28] He explained in evidence that he believed that it was in his hand and when she accused him, he put it in his pocket to defuse the situation.[29]
[28] Transcript of Proceedings 6 October 2021, 43 - 47.
[29] Transcript of Proceedings 6 October 2021, 43 - 48.
In cross-examination the complainant confirmed that the incident occurred at about 6.30 am, and that after the appellant walked away, he called the police. The appellant put to him that the records showed the complainant called the police at 6.54 am. The complainant responded that that was the second time he called the police.[30] He was asked why he called at that time, and he said that he was trying to find out how long the police would be.[31]
[30] Transcript of Proceedings 6 October 2021, 49.
[31] Transcript of Proceedings 6 October 2021, 50.
The appellant asked the complainant whether, in the first phone call he made to the police, he told them he was scared and that he was being emotionally abused and that he needed the police to come straight away. The complainant replied:
No, I don't remember those exact words. It was – I rang the police on the phone – first phone call – because you were being disruptive to
other tenants.[32]
[32] Transcript of Proceedings 6 October 2021, 55. 33 Transcript of Proceedings 6 October 2021, 55.
The appellant asked the complainant: 'So you didn't actually ring them about you being scared. You rang them about other tenants?' The complainant responded:
[2023] WASC 19
FORRESTER J
That particular stage was a – two reasons behind that phone call. One
was the disruption to the tenants and obviously the altercation that you
and I had.33
The complainant explained that, after he had arrived at work that morning, he had been approached by various residents in relation to the appellant's behaviour at the complex the night before.[34]
[34] Transcript of Proceedings 6 October 2021, 53 - 56.
The complainant was shown a document described as a 'photograph' and asked to describe where the appellant was when she turned and came back. It appears this document later became Exhibit 3 (reproduced at Schedule A to these reasons). The complainant said that they were at about number 8 on the image, when the appellant walked past him, and then turned around and approached him again.[35]
[35] Transcript of Proceedings 6 October 2021, 57.
The appellant asked again what the abusive words were. The complainant gave evidence that the appellant definitely said that he was 'nothing but a fucking pathological liar', that there was something along the lines of him costing her excessive amounts of money in regards to the bin change out and something along the lines of 'it's not fucking warranted'.[36] When asked why he did not tell the police that when they first attended, he said he did not believe it was appropriate at the time. When asked why he had not put it in his sworn statement, the complainant said 'I chose not to'.[37]
[36] Transcript of Proceedings 6 October 2021, 58.
[37] Transcript of Proceedings 6 October 2021, 58.
The complainant said, when asked, that he did not regard talking about the bins as being emotional abuse. He said it was the appellant's behaviour, her mannerism and her tone of voice and how she was portraying herself to him that caused him to call police.[38]
[38] Transcript of Proceedings 6 October 2021, 59.
In re-examination, when asked how the words 'You're nothing but a fucking pathological liar' made him feel, the complainant responded:
Pretty well downgraded to be quite honest because I pride myself on my reputation and what I do.[39]
[39] Transcript of Proceedings 6 October 2021, 61.
[2023] WASC 19
FORRESTER J
Evidence of Giles Nelson Graham
Mr Graham was a resident of the complex. He gave evidence that on 12 February 2021 at about 6.30 am he heard a commotion outside. He looked out of his bedroom window and saw the complainant standing there and the appellant 'right up in his face'. He said, 'She
looked very aggressive … gesturing and shouting and carrying on'.
They were well under a metre apart; he estimated about 60 cm. He could not make out everything, but it was emotional, and the main gist of it was that she was unhappy with the bins. The complainant was wearing his mask and the appellant had hers pulled down around her chin.[40]
[40] Transcript of Proceedings 6 October 2021, 63 - 64.In cross-examination, Mr Graham confirmed that he could hear a lot of shouting and carrying on and that he looked out the window towards the maintenance area and could see the appellant yelling at the complainant. He confirmed that he watched for a minute or two and went towards the interior of his unit to call the police. He explained this is what he meant when he said in his statement 'I walked back into my unit and called the police'.[41]
[41] Transcript of Proceedings 6 October 2021, 66 - 67.
By the time he had finished calling the police and returned to his window, the complainant was gone. The appellant was banging the bins and still shouting.[42]
[42] Transcript of Proceedings 6 October 2021, 65 - 66.
Mr Graham was cross-examined about where the incident was occurring when he observed it. He was referred to the 'photograph' (which later became Exhibit 3)[43] and asked to locate the position of the complainant and the appellant on it. Mr Graham said that what he observed was in the vicinity of numbers 3, 4 and 8.[44] He pointed out that the appellant had misidentified the location of his unit on that document.[45]
[43] Reproduced at Schedule A.
[44] Transcript of Proceedings 6 October 2021, 68.
[45] Transcript of Proceedings 6 October 2021, 68 - 69.
Mr Graham was asked whether he agreed that the appellant walked away from the confrontation at some point and came back, and he said he did not see that.[46]
[46] Transcript of Proceedings 6 October 2021, 70. 47 Transcript of Proceedings 6 October 2021, 71.
[2023] WASC 19
FORRESTER J
Mr Graham said that when he saw her talking to the complainant, she had her back towards Mr Graham's unit.47
When asked what time he called the police, Mr Graham said:
Like - so after watching you abuse [the complainant] for a minute or two, so I think it would have been just after 6.30 or, like, around about there. I think from memory because I could see my phone, obviously, the call record - record, I think it was 6.36 from memory.[48]
[48] Transcript of Proceedings 6 October 2021, 72.
He agreed that in his statement he said that the appellant was standing 'maybe a metre' away from the complainant, but said that 60 cm was probably more accurate.[49]
Constable Mark Eaves
[49] Transcript of Proceedings 6 October 2021, 73.
Constable Eaves was made available for cross-examination. He was asked about the process by which the incident report was created, and how the statement of material facts contained a reference to 'spittle' when the incident report did not. He said that he compiled the witness statements from the body worn camera footage and then the witnesses reviewed and signed them.[50] The statement of material facts was drafted after the witness statement of the complainant was signed.[51]
[50] Transcript of Proceedings 6 October 2021, 88.
[51] Transcript of Proceedings 6 October 2021, 87.
The appellant cross-examined Constable Eaves as to why she was not interviewed by police and he said they had some welfare concerns for her and therefore took her to the hospital.[52]
[52] Transcript of Proceedings 6 October 2021, 94.
He did not include the statements the appellant made on body worn camera in his statement because he thought that footage covered it.[53] He said that he checked the terms of the MRO before he arrested the appellant on suspicion.[54]
[53] Transcript of Proceedings 6 October 2021, 96.
[54] Transcript of Proceedings 6 October 2021, 97.
Constable Eaves said that the arrest was in accordance with s 128 of the Criminal Investigation Act 2006 (WA).[55]
[55] Transcript of Proceedings 6 October 2021, 98. 56 Transcript of Proceedings 6 October 2021, 102.
[2023] WASC 19
FORRESTER J
Constable Michael Baughan
Constable Baughan was also made available for cross- examination. He agreed that the appellant told him:
I was turning the bins upside down. I own part of the bins. He approached me, okay, and then he started recording me and teasing me. He has been doing that and he keeps coming and approaching me and I have not breached anything.56
He also agreed that the appellant told him that she was permitted to contact the complainant. [57]
The appellant
[57] Transcript of Proceedings 6 October 2021, 102 - 103.
The appellant elected to give evidence. She gave evidence that the day before 12 February 2021, the strata company bins were being changed out for smaller ones. She and another person tipped the bins to see if they were rusted out, because they were curious, as they had to pay for them. They had also measured their capacity and found they were a lot smaller. They tipped them up to confront the strata council about it.[58]
[58] Transcript of Proceedings 6 October 2021, 108 - 109.
She said that the next morning, she went for a walk and saw the bins had been tipped back. She went to tip them back upside down and the complainant appeared. She said she was a bit shocked, because it was only between 6.00 - 6.20 am and the complainant did not start work until 7.00 am. She had no idea he was going to be there.[59]
[59] Transcript of Proceedings 6 October 2021, 109.
The appellant said she started to tell the complainant about the capacity, and there was arguing about the capacity and then some strata stuff, and she was 'in shock about them'. She said she walked off and, as she did so, she turned and saw the complainant with his phone held out with a stretched arm. She said she was 'livid' and:
… so I turned around and came back and I said, 'I will give you
something to video' and I put my hand in front of his thing like that and I was shouting at him. And I was - I was pretty angry and loud. And I
said, 'Stop stalking me.' and 'Leave me alone. Don't touch me … Just
back off'. 'Back off, just back off.'[60]
[60] Transcript of Proceedings 6 October 2021, 109. 61 Transcript of Proceedings 6 October 2021, 109.
[2023] WASC 19
FORRESTER J
When the magistrate asked why she said, 'Don't touch me', she said that the complainant had come up behind her and got hold of her arm to stop her, and tried to stop her and she wanted to get away from him.61
The appellant admitted she yelled, 'I will give you something to video' and it was loud. She said there was about 1.5 - 2 m between them. The appellant gave evidence as to her position at certain points, by reference to what became Exhibit 3 (see Schedule A). She said:
I was walking (indistinct) number 6, 4, 3. So I was at 5 - number 5. And then I walked back and [the complainant] was at number 3 - going like that. And I went back for a minute or two, yelled something at him, and then I walked back to [my friend's] place.[62]
[62] Transcript of Proceedings 6 October 2021, 110.
The appellant said she went and spoke to another person at his house and she was ranting about the bins and it was probably a bit loud, and she suggested that was when Mr Graham heard her.[63]
[63] Transcript of Proceedings 6 October 2021, 110.
The appellant referred to Mr Graham's evidence regarding the time of his phone call to the police and she said, 'And I'm not even out there. I'm inside [my friend's] unit, you know?'[64]
[64] Transcript of Proceedings 6 October 2021, 111.
The appellant claimed that she was wearing a mask but that she may have pulled it down from her nose.[65] However, when the magistrate pointed out to the appellant that evidence was given by the complainant that her mask was hanging off her neck, the appellant said,
'Yes, well, at the time – it doesn't – it doesn't say that on the – on the
notes. It doesn't say about that'.[66]
[65] Transcript of Proceedings 6 October 2021, 112.
[66] Transcript of Proceedings 6 October 2021, 113 - 114.
In cross-examination, the appellant said that she shouted at the complainant when she told him to stop 'stalking' her.[67]
[67] Transcript of Proceedings 6 October 2021, 114.
She denied calling the complainant a 'fucking pathological liar' but said she did call him a liar.[68] She claimed to have justification for doing so, saying:
[68] Transcript of Proceedings 6 October 2021, 114 - 116.
[2023] WASC 19
FORRESTER J
I wouldn't have screamed or anything. I just said firmly, you know 'That's how it is' You know, 'This is what we have got in front of us.'
Yes … And I'm angry that he did lie about it.[69]
[69] Transcript of Proceedings 6 October 2021, 116.
When asked:
Did you shout at him that he's costing you money and that it's not fucking warranted in regard to the bins?
she answered:
I didn't say – I don't think I would say – not – no, I didn't say it like that. No. I didn't say it's costing him – costing us money. Yes I would –
they are costing us money and we don't need them. There's a few of us
not happy about them, okay? So – but I don't think I would have –
'fucking warrants', I didn't come like that to him.[70]
[70] Transcript of Proceedings 6 October 2021, 116.
When asked if she wanted to say anything else, the appellant said that the hearing:
… should have gone more into the bin thing, to see if it was a lie or if it
wasn't a lie. You know, if something is not – not the truth, it's not – it's
not abuse if you confront him about it.[71]
Prosecution submissions
In closing submissions the prosecutor submitted that the appellant approached the complainant and shouted in his face, and got close while she did so such that the victim felt spittle strike his face. It was also submitted that the appellant told the complainant he was 'nothing but a pathological liar' which was offensive. The prosecutor submitted that the appellant said 'you're costing us money. It's not fucking warranted' which the complainant found insulting, and the spittle striking his face caused him to move away. The prosecutor pointed to the complainant's evidence that the appellant scared him.
The prosecutor relied upon Mr Graham's evidence that the appellant was in the complainant's face approximately 60 cm from the complainant.
The prosecutor also relied upon the appellant's evidence that she was shouting and pretty angry and that she yelled something at the
[2023] WASC 19
FORRESTER J
complainant, probably a bit loud, but submitted that the appellant does
not appear to properly recollect what occurred.[72]
Appellant's submissions
The appellant submitted that she was not as close as 60 cm. She pointed out that the complainant was wearing a mask and glasses and was taller than her. She submitted that the complainant misled the police by telling them the MRO prevented her contacting him.
The appellant submitted that the complainant was stretching the truth when he was claiming spittle landed on his face. She said between the body worn camera footage and his witness statement he had gone from backing away to avoid the spittle to spittle landing on his face and then to claiming in an MRO hearing after the event that she was spitting in his face.
The appellant cited inconsistencies in the complainant's evidence as to where he was when he first heard what was happening, whether the phone was in his hand when she accused him of recording her, and the timing of his phone call to the police.[73]
[73] Transcript of Proceedings 6 October 2021, 118 - 119.
The appellant ultimately submitted that she did not abuse the complainant, but simply raised her voice to stop him video recording her, and it had all got out of context.[74]
Reasons for decision
[74] Transcript of Proceedings 6 October 2021, 120.
In his reasons for decision, the magistrate found:
… shouting at a person protected by a misconduct restraining order in
the circumstances alleged does amount to behaving in an offensive manner or an emotionally abusive manner towards the person protected. It might not be intimidatory as the Oxford Dictionary defines, but certainly it would seem to me that being a metre away and shouting at a person protected would constitute an offence and to that degree, in my view, even if I accept the accused's evidence, I would convict her. She effectively, in my view, confessed to the offence while she gave her evidence, but I don't accept what she said with respect to other things.[75]
[75] Transcript of Proceedings 6 October 2021, 123. 76 Transcript of Proceedings 6 October 2021, 123.
[2023] WASC 19
FORRESTER J
The magistrate found that the appellant's evidence was given in a way that seemed to be 'dishevelled' and on that basis he did not find her to be an accurate person with respect to what happened.76
The complainant did not strike the magistrate to be a man who attended court with an axe to grind or who wanted to get the appellant into any trouble. The magistrate found the complainant gave his evidence in a 'pretty straightforward manner'.[77]
[77] Transcript of Proceedings 6 October 2021, 124.
The magistrate ultimately found that he was satisfied beyond reasonable doubt that the appellant got close enough in the circumstances of shouting and behaving in a manner that was aggressive to leave no question that it constituted behaving in an offensive or emotionally abusive manner. He also found that the appellant was standing so close that when she was shouting, spittle hit the complainant's face, although he was at pains to make clear that he did not find she deliberately spat at him.[78]
[78] Transcript of Proceedings 6 October 2021, 125.
Material filed on the appeal
The appellant represented herself at the hearing of this appeal.
With respect to the appellant, it is difficult to discern the ground or grounds of appeal in this matter. While she has identified 18 different matters which she identified as 'grounds', the majority of them are in fact submissions or complaints regarding factual matters.
The appeal notice lodged on 2 November 2021 refers to all of the separate provisions of s 8 of the CA Act, as well as s 30(3)(a) and (c) and s 40, and includes the words 'See grounds on pg.2'. Section 30 relates to appeals from decisions of superior courts and thus is not relevant in this matter. Section 40 makes provision as to the powers of the court dealing with an appeal.
The five paragraphs on page 2 of the appeal notice do not clearly set out any grounds of appeal. As far as any ground can be distilled, it is that, having regard to the inconsistencies in the evidence, the magistrate erred in finding that the prosecution witnesses were credible, that the appellant engaged in the conduct alleged and that her conduct constituted an offence.
[2023] WASC 19
FORRESTER J
On 1 February 2022, a registrar of this court ordered that by 25 February 2022 the appellant file and serve a minute of proposed amended grounds of appeal which complied with s 8(1) of the CA Act.
A minute of proposed substituted grounds of appeal was filed on 25 February 2022, in which the proposed ground of appeal is articulated as:
I was not prepared for new allegations to be added[79] & my examination to be responded to with gaslighting & lies that did not match the Exhibits I was served with. Mr King approached me, then grabbed me (the accused). I (the accused) walked off. I turned around and saw Mr King recording me, I walked towards him, told him to stop, to protect myself. I was 2 metres from him, the distance is admitted in Mr Kings Sworn Statement No.16 Pg 3. The witness events of the incident are not the same as mine or Mr King's. I think I did not object & I did not submit evidence to support the Magistrates decision. I was scared of calling Mr King a liar. Details in the Affidavit.
[79] It appears that the genesis, at least in part, of the proposed amended ground that the appellant was 'notThe appellant also filed two affidavits, one sworn on 30 January 2022 (the first affidavit) and one sworn on 24 February 2022 (the second affidavit).
On 19 August 2022, with the consent of the parties, I ordered that the appellant file and serve any application to admit additional evidence, together with any additional affidavits of proposed additional evidence by 18 October 2022, together with a written outline of submissions.
Between 18 and 20 October 2022, the applicant filed documents with the following titles:
(1) Appellant's Outline of Grounds and Submissions (the
appellant's submissions);(2) Appellant admit any other evidence and exhibits served by the
respondent (the application).
The applicant has not filed any further affidavit. However, the application attaches a large number of documents. Those documents:
(1) are the same as; or
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(2) incorporate the entirety of; or (3) are additional to the documents annexed to the first and second affidavits. Accordingly, while I will consider the contents of the first and second affidavits and the application when determining the application to adduce additional evidence, the only annexures I need refer to are those annexed to the application. The appellant conceded this was the appropriate course.[80]
[80] ts 14.
The application also contains substantial written material which is in the nature of submissions rather than evidence.
Affidavit sworn on 30 January 2022
The appellant abandoned reliance on this affidavit at the hearing, given the material in it was repeated elsewhere.[81]
Affidavit sworn on 24 February 2022
[81] ts 4, 14.
In her second affidavit, the appellant set out her version of the events of 11 and 12 February 2021. The large majority of this version has no bearing on the matters which were in issue at the trial, dealing instead with the historical context of the offence and the aftermath of it. That which is relevant to the offence is largely consistent with, and adds nothing to, the evidence given by the appellant at the trial.
The appellant did add an allegation that, when she was first approached by the complainant, he grabbed her to pull her away from the bins and her back hit the fence and she banged her elbow on the ground.[82]
[82] Second affidavit [5].In summary, the appellant claimed that the complainant set her up for a breach of the MRO, that he should have carried on with the work 'we' pay him to do (being a reference to the owners of the properties in the complex). She says:
Mr King chose to approach me and chose what distance to stand from me to ask me a question. I responded to Mr King in an assertive disciplinary tone as an employer contributing to his pay, with a right to address or bring to attention matters effecting my environment. I feel the strong unwelcomed feelings Mr King alleges he experienced are not from what I said about the bins. Mr King reacted to me bringing to his
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attention lying to us by grabbing me to pull me away from the bins. Standing 1-2 metres in front of a person is not in ya face, it is a term that is used when being confronted about something. This phrase has been over reached and exaggerated in this matter. I have owned my apartment for 21 years, never have I experienced this conduct from an employee, I have been told by the Chair who has been here 46 years, there is an in house rule for employees to walk away from any altercation, not escalate it. The result was Exhibit 19.[83]
[83] Second affidavit [18]; Exhibit 19 is a picture of a bin area purporting to show overflowing bins.
In the remainder of the document, the appellant makes a number of submissions which will be addressed when dealing with the grounds of appeal.[84]
The application
The appellant has entitled the documents attached to the application as 'Exhibits'. To avoid confusion with the trial exhibits, and to enable proper cross-referencing to the appellant's submissions, I propose to label the annexures to the application as 'Proposed New Evidence' (PNE) with a number corresponding to the 'exhibit' number given by the appellant. The numbers are not consecutive and some are missing.
PNE Description 2 Annotated copy of Exhibit 2 6
(a)
three coloured photographs with captions describing them as photos of bruises on the appellant's body on 15 February 2021;
(b)
copy of notes purporting to be from the appellant's medical practitioner from an attendance by the appellant on an unknown date, but referring to an alleged assault by the appellant's 'employee' (later amended to 'employer') on 12 February 2021, and including diagrams which set out the location of bruises on the complainant's right forearm, left elbow and left lower back on the left
7
Composite document containing an extract of a police document, extract from the trial transcript and arguments made by the appellant about the evidence
8
(a)
colour photo of a male, taken through foliage, entitled 'On 24 May 2021 Mr King Besetting & Stalking me';
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PNE Description
(b)
series of colour photos, taken through foliage, showing a male, allegedly taken from within the appellant's home in 2021-2022
9
(a)
colour photo, with annotations by the appellant, of a male and a plumbing plan;
(b)
colour photo, taken through foliage, of a male, dated 11 June
10
Screenshot of a mobile phone log from 12 February 2021, annotated by the appellant
11
Extract of the witness statement of the complainant, annotated by the appellant
13 Extract of Mr Graham's statement, annotated by the appellant 14
Composite document containing an extract of a police document and a trial transcript, annotated by the appellant
15
(a)
Incident Report 1202210710 15160 annotated by the appellant;
(b)
Extract of statement of Michael John Baughan annotated by the appellant
16
Transcript from matter PE/RO 1729/2021 annotated by the appellant
17
Aerial image of the scene annotated by the appellant. While similar to Exhibit 3, the locations are differently numbered
18 Extracts of trial transcript annotated by appellant 18A Composite document containing extract from police documents,
phone log from 12 February 2021 and annotations by appellant19
Document entitled: The result of being obstructed from saving our property
20 Extracts of trial transcripts annotated by appellant 22 Image of part of scene from height annotated by appellant 23
Document entitled 3 versions of the chronology of the event by 4 parties
24 Document entitled Chronology of relevant facts stated at the
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PNE Description trial 26 Extracts of trial transcript annotated by the appellant 27 Extracts of trial transcript annotated by the appellant 28 Extracts of trial transcript annotated by the appellant 29 Document entitled BWC - Verbal Interview _ Graham Giles _ 12-2-2021 _ 7.15am annotated by the appellant 30 Document entitled Mr King's 3 versions of the incident annotated by the appellant 31 Visual recording of the scene taken by the appellant (undated)
Many of the documents sought to be adduced by the appellant are not evidence, but submissions on the evidence adduced at trial. The documents which do constitute additional evidence were available to the appellant at the time of the trial and as such constitute new, not fresh, evidence.[85]
[85] Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [204]; Cramphorn v Bailey [2014]
The complainant makes numerous assertions in the application and submissions regarding the content of police body worn camera footage. However, there is no application to adduce the body worn camera footage as new evidence and it is not part of the additional evidence submitted by the appellant.
At the hearing of the appeal, the appellant sought to adduce evidence from two additional witnesses. No application had been filed in relation to that evidence, and no notice had been given to the respondent as to the content of the proposed additional evidence.
The appellant advised that her witnesses were to give evidence about 'where the bins are and where it happened',[86] their capacity[87] and the complainant 'constantly provoking' her.[88] She indicated one witness was to give evidence regarding the fact that she was the person the appellant telephoned after the incident the subject of the conviction[89]
[86] ts 7.
[87] ts 45.
[88] ts 10.
[89] ts 6.
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and that another would give evidence about the length of time 'the boundary run' would have taken the complainant.[90] The State did not take issue with the phone log,[91] or the location of the bins.[92] I formed the view that the remainder of the additional evidence sought to be led by the appellant through the two witnesses was irrelevant and inadmissible, and I refused leave to the appellant to adduce it.[93]
[90] ts 17, 29 - 31, 35 - 37.[91] ts 42.
[92] ts 41.
[93] ts 46.
At the hearing of the appeal, I received the appellant's affidavits and the application on a provisional basis, reserving the final decision on the application to admit the evidence on the appeal. This enabled the appellant to complete her arguments in support of her appeal.
The respondent did not seek to cross-examine the appellant on her
affidavits.[94]
[94] ts 3.It is, in my view, appropriate to deal with the merits of the appeal having regard to the additional evidence and then determine whether the application to adduce additional evidence should be allowed.
Grounds of Appeal
From all of the material, it is possible to discern the following grounds of appeal:
(1) a miscarriage of justice resulted from a change in the
prosecution case for which the appellant was unprepared;(2) a miscarriage of justice resulted from non-disclosure on the part
of the prosecution;(3)
the trial was unfair due to the appellant's state of health during the trial, which meant that she was unable to argue her case sufficiently;
(4)
the magistrate erred in accepting that the evidence of the complainant and Mr Graham as to the conduct of the appellant on 12 February 2022 was credible and reliable;
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(5)
the magistrate erred in fact in finding that the appellant was sufficiently close to the complainant and speaking in such a manner as to get spittle on his face;
(6)
the magistrate erred in fact in finding that the appellant's behaviour towards the complainant constituted behaviour that was offensive or emotionally abusive;
(7) the police investigation was inadequate such that there was a
miscarriage of justice;(8) the magistrate's verdict was unreasonable or cannot be
supported by the evidence; and(9) additional evidence establishes that there was a miscarriage of
justice.
Ground 1
The appellant submits that a miscarriage of justice resulted from a change in the prosecution case for which the appellant was unprepared.
At the hearing of the trial, the appellant suggested that the particulars of the charge were different to the basis on which she was arrested.[95] However, the prosecution notice, dated 12 February 2021, specifically stated the details of the offence to be that the appellant breached the MRO 'by engaging in an intimidatory, offensive or emotionally abusive manner'. That being the case put against the appellant at trial, there was no change in the prosecution case.
[95] Transcript of Proceedings 6 October 2021, 4.Further, and in any event, at no point did the appellant claim she was unable to continue, or seek an adjournment to address the fact that she was unprepared to meet the prosecution case. At one point in the trial the magistrate told the appellant that the prosecution had to prove that the conduct was intimidatory, offensive or emotionally abusive, and in response, the appellant twice informed the magistrate that she 'came well prepared'.[96]
[96] Transcript of Proceedings 6 October 2021, 42.No miscarriage of justice has been established.
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Ground 2
The appellant submits that a miscarriage of justice resulted from non-disclosure on the part of the prosecution.
The appellant claims she was not served with evidence regarding the complainant's report to police of the offence committed by her towards him.[97] She claims there was no reference to the particulars of the verbal abuse or the 'spittle allegation' in the body worn camera footage or the 'Sworn Statements'.[98] At the appeal, she also complained that no particulars were ever given of the gestures Mr Graham described.[99]
[97] Second affidavit [10].[98] Second affidavit [14] - [15].
[99] ts 61.
The appellant did not explain what the complainant's 'report to police' was which was not disclosed.
In the case of the 'particulars of the verbal abuse', being the words said to have been used by the appellant during the alleged offence, it appears clear that they were not stated until the complainant was cross-examined.[100] However, the actual words used were not relied upon by the prosecution to prove its case; the prosecution case was that the appellant was shouting and was so close to the complainant that he could feel spittle on his face.[101]
[100] Transcript of Proceedings 6 October 2021, 38.
[101] Transcript of Proceedings 6 October 2021, 6.
While the magistrate did refer to the evidence of the words said to have been used by the appellant,[102] the magistrate's decision that the appellant's conduct breached the MRO did not rely upon the specific words used; his Honour relied upon the behaviour of the appellant.[103]
[102] Transcript of Proceedings 6 October 2021, 124.
[103] Transcript of Proceedings 6 October 2021, 125.
There is no evidence that the 'spittle allegation' was not disclosed prior to trial. Indeed, the trial transcript suggests that it was contained in the complainant's witness statement, taken on 12 February 2021.[104]
[104] Transcript of Proceedings 6 October 2021, 90 - 91.On the available evidence, I do not accept there was material non-disclosure in this case. Further, and in any event, the appellant was unable to point to any steps she would have taken differently had the information been provided. At the trial, she admitted she had used some of the words, and denied others. There would have been no other
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step she could have reasonably taken had she had more notice of this
evidence.
It appears that the fact that the 'verbal abuse particulars' and the 'spittle allegation' were not included in various documents is also alleged to be an inconsistency relied upon in relation to ground 4, and I will deal with that submission below.
Ground 3
The appellant argued that she was in a poor state of health at the time of the trial. She alleged that, together with the manner in which the prosecutor and the magistrate conducted the hearing, meant that she was unable to present her case properly, and the magistrate was therefore unable to fully understand the evidence.
At times during the hearing, the appellant claimed she was a bit light-headed, that she had high blood pressure and needed to take some medication, that she was having problems with her hands, or that she was a little dizzy. On each occasion, the magistrate asked her if she needed a break, and invited her to tell him if she needed to stop. She repeatedly insisted on continuing.[105]
[105] See, for example, Transcript of Proceedings 6 October 2021, 99 - 100, 101, 105, 117.The transcript reveals that, after the appellant complained of these symptoms, she continued to question witnesses or give evidence in the same manner as she had earlier in the trial. There was no discernible change in her conduct of the matter or her grasp of the materials.
The appellant submitted that the magistrate and prosecutor 'kept butting in' and she felt 'oppressed' when she was trying to draw out what she needed in cross-examination.[106] She complained that the prosecutor would not bring information out of his file, and ignored her, and the magistrate kept saying he was 'lost'.[107] She submitted that she did not understand the charge and was misled into focussing on the wrong matters.[108]
[106] ts 47.
[107] ts 16.
[108] ts 24.Like many self-represented accused, the appellant appeared to have difficulty with a number of aspects of the trial. It is unsurprising the experience was a stressful one for her. However, the magistrate ensured that the appellant was provided with appropriate information at
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the commencement of the trial.[109] The prosecutor was entitled to object, but in my view exercised appropriate restraint, doing so infrequently. The magistrate also interjected at times, primarily in order to keep the appellant's questioning limited to relevant issues or to assist to clarify the issues. This was entirely proper.
[109] Transcript of Proceedings 6 October 2021, 6 - 15.
The effect of the appellant's submission on the appeal was that the magistrate did not accept the points she made because he had not understood them, and that was because she had not been able to make them, or develop them more fully, not because they were unmeritorious.
However, in my view, it is clear from the transcript that where the questioning was relevant, the appellant was able to, and did in fact make, the points she sought to make. While at times she was not permitted to develop the point more fully, this did not mean she was not given a fair opportunity to present her case.
On a review of the whole of the proceeding, I am not satisfied that the appellant was deprived, either by her state of health or the conduct of the prosecutor or the magistrate, of a fair trial.
Ground 4
The appellant contends that the magistrate made an error in accepting that the evidence of the complainant and Mr Graham as to the conduct of the appellant on 12 February 2022 was credible and reliable because, she says:
(1)
the timing of the phone calls made by the complainant, Mr Graham and the appellant show that Mr Graham cannot have witnessed the offence as he described;[110]
(2)
in his statement, Mr Graham said that after he had heard the appellant yelling, he went back into his unit, but in evidence he said that he had never left his unit;
(3) there were inconsistencies in the complainant's evidence as to
the proximity of the appellant to him;[111](4) there were inconsistencies in Mr Graham's evidence as to the
proximity of the appellant to the complainant;112[110] Second affidavit [7], [9] - [10]; the application [10], [14].
[111] See, for example, ts 108.
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(5) Mr Graham's view of the incident was obscured;113 (6) there were inconsistencies in the complainant's various accounts
about getting 'spittle' on his face;114(7) the complainant gave four different versions of the incident.115
The timing of phone calls
I have carefully reviewed the evidence at trial and the proposed new evidence regarding the phone calls.
The appellant submits that PNE 7 establishes that the phone call Mr Graham initially made to the police was made at 6.45 am and not 6.36 am. The appellant asserts that the evidence was that the incident had concluded by 6.45 am and this proves that Mr Graham did not witness the offence. The appellant argues that the complainant and Mr Graham conspired to make a false report to police about her conduct and the reason the call was made at 6.45 am was he called the police after the complainant told him what to say.
The extract of the police document does not on its face establish what the appellant claims. The extract records a time of 6:45:03 on 12/02/2021, under which is stated:
Resident - [appellant] - has returned to the units, she is still continuing behaviour from CAD 129028. She is yelling in the street and was abusing the grounds keeper which has a MRO on [the appellant].
Under that section, is a second section, with the same time and date. It records Mr Graham's details and cites his role as 'initial caller'.
It is apparent from this extract that there was already a previous call, the subject of CAD 129028. It is also not clear whether the time indicated, of 6:45:03, is the time the information was entered or was indicating the time of the call.
In short, the extract does not establish that the phone call Mr Graham described in his evidence as having been made during the incident was made at 6.45 am and accordingly, is incapable of sustaining the conclusion the appellant seeks the court to draw from it.
112 See, for example, ts 21.
113 The application [17].
114 See, for example, second affidavit [14]; the application [15].
115 ts 52, 66.
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PNE 10 is sought to be adduced on the basis that it is said to impact on the credibility of Mr Graham. It is said to be a snapshot of the appellant's mobile phone log and shows an outgoing call by her at 6.30 am on 12 February 2021, of six minutes' duration.
The appellant asserts that this new evidence establishes that she was on a telephone call on her mobile phone between 6.30 am and 6.36 am. The appellant submits that, as Mr Graham claimed he called the police at 6.36 am, he cannot have been telling the truth that immediately before that call he had observed the appellant engaging in the alleged behaviour and that the incident was continuing while he was on the phone.
Mr Graham gave evidence that he observed the appellant's conduct towards the complainant for a minute and turned away to call the police. When he returned, the complainant had left.[116] He gave evidence that his call record showed the time of his call as 'just after
6.30 or, like around about there … 6.36 from memory'.[117] The
appellant then read out part of Mr Graham's witness statement in which he had said he called 'about 6.36' but Mr Graham was not asked to, and did not, adopt that part of his statement.[118]
[116] Transcript of Proceedings 6 October 2021, 63 - 64, 65.[117] Transcript of Proceedings 6 October 2021, 72.
[118] Transcript of Proceedings 6 October 2021, 72.The evidence as to both the time of the incident and the time of Mr Graham's call to police was far from precise. There was no other evidence as to the time his initial phone call was made apart from Mr Graham's evidence. He was not asked what his 'call record' was or how it recorded information. It is not possible to know whether his call record showed the time his call started or ended and he was not asked how long his call to police lasted.
It was not actually suggested to Mr Graham in any way that he had not observed the events himself. In this regard I bear in mind that the appellant was representing herself at trial, and while it was not directly put to Mr Graham, the appellant did attempt to address the issue of timing of the phone call in cross-examination of him with the aim of establishing that he had not seen what he described in his evidence.
However, the imprecision of Mr Graham's evidence as to the time of his call to the police, and the lack of any other evidence as to the time of the incident or the time of Mr Graham's call to the police,
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means that it is not possible to pinpoint with certainty the time that the
incident occurred, or its duration.
In those circumstances, in my view the new evidence does not establish that Mr Graham could not have witnessed the event as he claimed.
PNE 14 contains an extract of a police document and is said to relate to the timing of a phone call the complainant made to the police. It is submitted by the appellant that the complainant did not call the police until 6.54 am, which was some time after the incident. The appellant submits that the complainant would not have delayed calling the police had the incident happened as he said.
The document shows a time of 6:54:33 on 12/02/2021. Under it is relevantly recorded:
Dup: X King: [the appellant] 50's Abusing residents at the A/A. She
lives in the units …
It is not clear that the document records that the complainant's phone call was made at 6.54 pm. However, even if it does, it was put to the complainant during cross-examination that he called the police at 6.54 am and he said that was his second call to police.[119]
[119] ts 49 - 56.Accordingly, the document does not support the appellant's
contention.
Mr Graham's movements at the time of the incident
Mr Graham initially gave evidence that he observed the offence out of his bedroom window.[120] He was cross-examined on the basis that his statement said that after that he 'walked back into [his] unit and called the police'.[121]
[120] ts 63.
[121] Transcript of Proceedings 6 October 2021, 65.As with the phone logs, the appellant claims that this shows that Mr Graham was inadvertently disclosing that he was outside of his unit speaking with the complainant before he rang the police.
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However, in evidence Mr Graham explained that by 'walking back into' his unit, he meant into the interior of his unit, from his bedroom to his loungeroom.[122]
[122] Transcript of Proceedings 6 October 2021, 66 - 67.While it might be accepted that Mr Graham's statement was not well expressed in this regard, I do not accept that it must have the meaning attributed to it by the appellant. There is nothing inherently implausible in Mr Graham's explanation of the meaning of his words, and that meaning is consistent with the remainder of his evidence.
The appellant also points to Mr Graham's evidence that he was not outside at any point before the police arrived,[123] contrasted with the evidence of Constable Eaves, who said he and his colleague 'rocked up. Saw Mr King with Mr Graham at the maintenance shed'.[124] Constable Eaves was not asked any further detail about exactly when he first saw Mr Graham in relation to when the police arrived at the complex.
[123] Transcript of Proceedings 6 October 2021, 66 - 67.
[124] Transcript of Proceedings 6 October 2021, 86.
The appellant submits that these accounts are irreconcilable and therefore this shows that Mr Graham is lying and that he did in fact conspire with the complainant.
In my view, the two accounts are not irreconcilable. Constable Eaves' evidence did not necessarily mean that he saw Mr Graham immediately on arrival. Further, it did not exclude the possibility that Mr Graham left his apartment at some point after the police car arrived but before Constable Eaves first saw him.
The complainant's evidence as to the proximity of the appellant to him
In evidence, the complainant said that the appellant came 'definitely within a metre, sometimes half a metre to a metre away at times'.[125]
[125] Transcript of Proceedings 6 October 2021, 25.
At trial, the appellant submitted that the complainant's statement said that the appellant was 2 - 3 m away. However, that part of the statement was referring to a different stage of the incident. Further, the complainant was not actually given the opportunity to address the alleged difference.[126]
[126] Transcript of Proceedings 6 October 2021, 32.
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The appellant now relies on the complainant's witness statement, which says that the appellant 'came right up to me within a metre'.[127]
[127] PNE 11.In my view, there is no material inconsistency between the complainant's evidence and his witness statement.
Mr Graham's evidence as to the proximity of the appellant to the complainant
In evidence, Mr Graham said that the appellant got to within '…
well under a metre. I don't know, maybe 60 cm kind of thing' of the complainant.[128] He said in cross-examination 'it would have been within 60 cm'.[129]
[128] Transcript of Proceedings 6 October 2021, 64.
[129] Transcript of Proceedings 6 October 2021, 71.
The appellant points to Mr Graham's witness statement, in which he stated 'maybe a metre away'. This was put to Mr Graham in cross-examination, and he said:
I said 'maybe a metre' so that was the … longest distance … so that
would be the longest distance that I estimate, but yes, I think 60cm is
probably more accurate.[130][130] Transcript of Proceedings 6 October 2021, 73.
In my view, while there is some difference between Mr Graham's evidence and his witness statement, it is not a material inconsistency in the circumstances.
Was Mr Graham's view obscured?
In PNE 17, the appellant asserts that Mr Graham's residence was in a location 28m from where the offence occurred. Using PNE 17, PNE 22, and PNE 31, the appellant asserts that Mr Graham's view must have been obscured by a carport roof.
There is no explanation as to why the appellant has moved the numbers on PNE 17 from where they were on Exhibit 3. As a result of this, PNE 17 is prone to mislead, as it suggests different locations to those described by the witnesses. Accordingly, for the purposes of resolving this issue, I have referred to Exhibit 3 and not PNE 17.
Mr Graham said his bedroom was on the 'first floor'.[131] He later clarified said he was 'one floor up'132 from where the appellant and the
[131] Transcript of Proceedings 6 October 2021, 64. 138 Transcript of Proceedings 6 October 2021, 34.
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complainant were. He said that that he had an unobscured view straight out onto the maintenance area.133 This was not challenged in any way by the appellant.134
PNE 22 is taken from an external stairwell to Mr Graham's unit. It is from an entirely different angle and viewpoint than Mr Graham would have had. Similarly, PNE 31 shows a view looking back towards Mr Graham's unit, but not from locations 3, 4 or 8 as shown on Exhibit 3, which Mr Graham had nominated as the possible positions where the incident occurred.
Accordingly, the new evidence is not capable of showing that Mr Graham's view was obscured.
The appellant also referred to Mr Graham's evidence that when the appellant was shouting at the complainant, her back was to his unit and the complainant was generally straight in front of her.135 The appellant submits that this, and the fact that she was wearing a big hat, meant that Mr Graham would not have been able to tell whether she had her mask up or down.136 Again, she submits this demonstrates he did not actually see what he described.
Mr Graham was not asked about this, so it is impossible to know whether he had an explanation in response. However, as a matter of common sense, the fact that the appellant's back was generally towards Mr Graham's unit did not mean that he could not see the side of her face, at least from time to time, and whether she was wearing a mask.
Inconsistencies in the complainant's accounts as to the 'spittle' getting on his face
The complainant initially gave evidence that he had felt spittle on his 'cheek, nose, lips, chin'.137 However, he agreed in cross-examination that he was wearing a mask at the time and that he
132 Transcript of Proceedings 6 October 2021, 71.
133 Transcript of Proceedings 6 October 2021, 64.
134 Indeed, while her comments did not constitute evidence, the appellant seemed to accept during
cross-examination that Mr Graham did have an unobscured view: Transcript of Proceedings 6 October 2021,
68 - 69.
135 Transcript of Proceedings 6 October 2021, 71.
136 ts 105; the appellant acknowledged in her evidence that she would have pulled her mask down, or thought
she might have done so see Transcript of Proceedings 6 October 2021, 112.
137 Transcript of Proceedings 6 October 2021, 32.
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only felt 'in and around the mask and when there's area there of exposed
skin'.138
In the circumstances, while this did constitute an inconsistency in the complainant's evidence, I do not regard this as a matter which substantially affected the complainant's credit. The substance of the evidence was that he could feel the spittle striking on various parts of his face, and it was apparent that the fact that he was wearing a mask did not feature heavily in his recollection of the sensation.
The complainant was cross-examined on the body worn camera footage of his initial interview with the attending police, in which he agreed that he said 'I backed away. I did not want her spitting on me, obviously'.[139] It was suggested this was different to his witness statement and his evidence in which he said he could feel the spittle hitting him. The complainant responded that he 'backed away because she was having spittle hitting me'.[140]
[139] Transcript of Proceedings 6 October 2021, 32.
[140] Transcript of Proceedings 6 October 2021, 33.
I do not consider the complainant's statement that he did not want the appellant spitting on him as meaning that he had not at that point felt spittle hitting him. In my view, no inconsistency has been identified.
The investigating officer was asked why PNE 15, which is the Police Incident Report, did not mention the fact that the complainant felt spittle on his face when the appellant was 'shouting and abusing' the complainant, yet the Statement of Material Facts did mention it.[141] The investigating officer said he believed the complainant mentioned it in his initial account.[142] He accepted that it was not shown on the body worn camera footage, but said it must have been said before the camera was activated.[143] It was included in the complainant's witness statement which was signed before the Statement of Material Facts.[144]
[141] Transcript of Proceedings 6 October 2021, 86.
[142] Transcript of Proceedings 6 October 2021, 89.
[143] Transcript of Proceedings 6 October 2021, 86 - 91.
[144] Transcript of Proceedings 6 October 2021, 87.The fact that the allegation was not mentioned in the Incident Report did not establish that the complainant did not make the allegation in his initial account to the police. The investigating officer's evidence was that it was mentioned, but not recorded. PNE 15 was simply not capable of taking the matter further.
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General inconsistencies in the complainant's account
The appellant submits that the complainant gave a number of different accounts of the incident. In the second affidavit and the application, she has highlighted, on extracts of witness statements, various statements she identified as being inconsistent.
The complainant was cross-examined on the majority of the alleged inconsistencies at trial, but not all.
The appellant has sought to put some, but not all, of the complainant's accounts before me as additional evidence. I will deal with their admissibility later in these reasons.
I will address the alleged inconsistencies not dealt with elsewhere.
The appellant submits that the fact that the words she was said to have used towards the complainant were not disclosed prior to the trial was proof that the complainant was exaggerating and fabricating his evidence.[145] It is not clear exactly what words the appellant says were not disclosed, but it at least appears she complains that the words 'pathological liar' and 'not fucking warranted' were not disclosed.
[145] Second affidavit [14]; ts 34.The complainant was asked why he did not tell the police what the appellant had said in his initial account, and he said that he did not believe it was appropriate at the time.[146] He said he chose not to put it in his statement. The transcript records that the complainant explained this by saying:
[146] Transcript of Proceedings 6 October 2021, 58.
So I believe you're trying to defuse the situation … and it's about as far
as I was ready to go at that particular stage.[147]
[147] Transcript of Proceedings 6 October 2021, 58.
When he was challenged as to what his complaint to the police at the time was, he said:
Describing it was your behaviour, your mannerism and your tone of voice and how you were portraying yourself to me that caused me to call the police.[148]
[148] Transcript of Proceedings 6 October 2021, 59. 149 Transcript of Proceedings 6 October 2021, 25.
It is also apparent from the manner in which the complainant gave his evidence that it was the fact that the appellant was yelling and shouting at him, and that spittle hit his face, that was the focus of his
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complaint.149 It was only when the appellant asked for the actual words
that the complainant gave evidence of them.[150][150] Transcript of Proceedings 6 October 2021, 39.
In my view, the complainant's explanation for not including the words in his statement was a credible one and it was consistent with the manner in which he gave evidence.
The lack of importance of the omission was reinforced when the appellant admitted in her evidence that she called the complainant a 'liar',[151] and that she said, 'they're not warranted' but could not recall whether she said 'fuck' or 'fucking'.[152]
[151] Transcript of Proceedings 6 October 2021, 115 - 116.
[152] Transcript of Proceedings 6 October 2021, 58 - 59.
It should be noted that the complainant did give evidence that the appellant accused him of recording her,[153] but the appellant's version of the words said were not otherwise put to him.
[153] Transcript of Proceedings 6 October 2021, 43.
The complainant agreed his witness statement said that when the appellant accused him of recording her he had his phone in his hand, but that he told police when they first attended that his phone was in his pocket when she accused him of recording her. He said that he had not relayed that correctly in his statement.[154]
[154] Transcript of Proceedings 6 October 2021, 43 - 48.
At the hearing of the appeal, the appellant referred to the complainant's evidence suggesting that he had done a 'boundary run'. The appellant had sought to adduce evidence from a third party that a 'boundary run' took an hour and given the complainant commenced it at 6.00 am, he could not have concluded it until 7.00 am. She submitted this would show he did not go on a 'boundary run' before he saw her.[155]
[155] ts 35 - 37.Quite apart from the fact that the complainant was never asked what he meant by 'boundary run', and thus it was not possible to know whether the evidence sought to be led referred to the same 'boundary run' referred to by the complainant, the appellant was unable to explain what relevance this evidence could have. In my view, it could have had no conceivable bearing on the complainant's credibility and it had no importance in determining what occurred during the incident.
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Conclusion as to Ground 4
While the documents on which the appellant relies as to the timing of phone calls were not before the magistrate, all of the relevant matters which the appellant raises in support of this ground were before the magistrate, although not in as much detail as is now put before me.
The magistrate was plainly aware that the principal issue he was being called upon to consider was the credibility of the complainant and Mr Graham as to their accounts of the offence.
The magistrate rejected the appellant's evidence, other than that she agreed she was shouting at the complainant, on the basis of the manner in which it was given.[156] He went on to find that the complainant and Mr Graham were credible witnesses and that the inconsistencies in their evidence were explicable as being realistically imprecise as to time and distance.[157] As such, the magistrate found that the inconsistencies raised by the appellant did not materially affect his assessment of the credit of the witnesses.
[156] ts 123 - 124.[157] Transcript of Proceedings 6 October 2021, 124 - 125.
There was no obligation on the magistrate to deal with the inconsistencies individually or more extensively.
An appeal of this kind is to be by way of rehearing.[158] That means that, within the constraints of the appellate process, the court is required to conduct a real review of the trial and the magistrate's reasons. A judgment is required on the facts and the law.[159]
[158] Criminal Procedure Rules 2005 (WA) r 64.
[159] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25], [29]
A trial magistrate's assessment of the credibility of a witness should not be interfered with unless that finding is demonstrated to be wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contrary to compelling inferences, or because it appears that the magistrate failed to use or has palpably misused their advantage as a trial judge.[160]
[160] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] - [29]; Smart v Power [2019] WASCA 106 [104].In my view, having reviewed all of the evidence, including the new evidence, there is nothing which demonstrates that the magistrate's findings as to credibility were in error. His Honour had the advantage of seeing and hearing the witnesses, and he cited his impressions of the complainant and the appellant as, in part, explaining his reasons for his
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decision to reject the appellant's evidence and accept the evidence of the complainant. Further, there is no glaring improbability or inconsistency which has emerged from the new evidence which warrants interfering with the magistrate's finding in this regard.
It is understandable that the appellant raised many of the queries she did. However, the evidence adduced (including the additional evidence) is incomplete as to the issues which the appellant seeks to address and further, does not establish the facts the appellant submits it does.
Ground 5
The appellant submits the magistrate erred in fact in finding that the appellant was sufficiently close to the complainant and speaking in such a manner as to get spittle on his face.
The appellant argues that the following factors make it clear that the magistrate erred:
(1) the disparity in height of the appellant and complainant; (2) the fact that the complainant was wearing a mask and glasses; (3) the appellant's evidence that she does not have 'spittle issues'; (4) the appellant's evidence that she was more than 2 arms' length
away from the complainant; and(5) the matters raised in ground 4.
The evidence that spittle hit the complainant's face relied solely upon the evidence of the complainant. However, the evidence of Mr Graham was used by the magistrate to support the complainant's evidence in finding that the appellant was close enough to the complainant for that to occur.[161]
[161] Transcript of Proceedings 6 October 2021, 124 - 125.I have already addressed the appellant's submissions regarding the credibility and reliability of the complainant and Mr Graham in dealing with ground 4.
Once he was satisfied that the appellant was sufficiently close to the complainant while she was shouting abuse at him, his assessment of the credibility of the complainant and the appellant meant that it was
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also open to the magistrate to make the finding that spittle landed on the
complainant's face as alleged.
None of the matters raised by the appellant, including the additional evidence, establishes that the complainant's evidence that spittle got on his face is improbable, or even unlikely.
The magistrate did not err in making the finding.
Ground 6
The appellant submits that the magistrate erred in fact in finding that the appellant's behaviour towards the complainant constituted behaviour that was offensive or emotionally abusive.
The MRO against the appellant provided that she must not:
… behave in an intimidatory, offensive or emotionally abusive manner
towards the Person Protected.
The charge alleged that the appellant had behaved in an intimidatory, offensive or emotionally abusive manner towards the complainant.
The magistrate found that the appellant's admitted behaviour in shouting at the complainant amounted to behaving in an offensive manner or an emotionally abusive manner.[162] His Honour also held that the appellant was:
[162] Transcript of Proceedings 6 October 2021, 123.… close enough in the circumstances of shouting and shouting (sic) and
behaving in a manner that was aggressive enough without any question
in my mind whatsoever to constitute … behaving in an offensive or
emotionally abusive manner towards the person protected. I do find that she was standing so close when she was shouting that there was spittle hitting the face of the person protected.[163]
[163] Transcript of Proceedings 6 October 2021, 125.
The Oxford Dictionary defines 'offensive' as 'giving or meant or likely to give offence; insulting'.[164]
[164] Oxford English Dictionary (3rd ed, 2004).
In Lydon v Lydon,[165] Le Miere J and Pullin JA said, of the term
[165] Lyndon v Lyndon [2008] WASCA 8, [49] - [50].
'emotionally abusive' as it appears in s 6(1) of the RO Act:
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Emotional abuse involves improper or inappropriate behaviour, verbal or non-verbal, that adversely impacts upon another person's emotional wellbeing. Emotional abuse improperly excites strong unwelcome feelings in another. Emotional abuse may involve coercion by intimidation, inducing fear, stalking, or harassment, that is words, conduct or action, usually repeated or persistent that, being directed at a specific person, annoys, alarms or causes substantial emotional distress to that person.
There are two aspects to emotional abuse. The first is the adverse impact upon another person's emotional wellbeing. The second is the behaviour that causes the negative impact upon the emotional wellbeing of another.
The complainant gave evidence that during the incident the appellant scared him,[166] he was 'fairly angry that this was happening'[167] and that he was made to feel 'pretty well downgraded' by her conduct.[168]
[166] Transcript of Proceedings 6 October 2021, 41.
[167] Transcript of Proceedings 6 October 2021, 25 - 26.
[168] Transcript of Proceedings 6 October 2021, 61.
On the facts as found by the magistrate, the conduct of the appellant could properly be described as insulting, and giving or likely to give offence. On the evidence of the complainant, the conduct also negatively affected his emotional wellbeing. In my view, it was objectively capable of doing so.
The magistrate did not err.
Ground 7
The appellant also submits that the police investigation was inadequate such that there was a miscarriage of justice.
The appellant's particular complaints are that the police:
(a)
misunderstood the terms and conditions of the MRO before arresting the appellant;[169]
(b) should not have arrested the appellant;[170] (c) did not interview other relevant witnesses;[171] [169] Second affidavit [14], Transcript of Proceedings 6 October 2021, 97 - 98.
[170] Second affidavit [13].
[171] Second affidavit [15]. 172 Second affidavit [17].
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(d) did not interview her, and refused to take a statement from her about the bruises she sustained in the incident, saying they were inflicted in self-defence;172 and (e) did not forensically test the complainant's mask for the appellant's DNA.[173] [173] Appellant's Outline of Grounds and Submissions filed 18 October 2022 [41].
(a) and (b) - Police misunderstood the terms and conditions of the MRO before arresting the appellant and should not have arrested the complainant
It is correct that the Incident Report did not accurately record the terms of the MRO. The appellant's submission that s 128 of the Criminal Investigation Act 2006 did not authorise the police to arrest the appellant for breaching an MRO is also correct.
However, neither of these matters could have had any bearing on the outcome of the trial as it ultimately proceeded.
(c) - Police did not interview other relevant witnesses
The witnesses the appellant submitted should have been interviewed were witnesses to events after the altercation between the appellant and the complainant. There was no matter in dispute at the trial upon which the evidence they were said to be able to give could have had any bearing on the outcome of the trial.
(d) and (e) - Police did not interview the appellant or allow her to make a
statement
The complainant was not interviewed on the date of the incident. While preliminary questions were being asked, she became unwell and was taken to hospital for assessment, at which point she was unarrested.[174] The appellant claims she went to the local police station but the police officer to whom she spoke (not involved in the investigation) told her she could not provide a statement because she had already been charged. Further, the appellant says that the officer told her that he had read the report of the incident and the bruises were from the complainant defending herself and suggested she attend a medical practitioner instead.[175] At trial, the investigating officer indicated he was never made aware of this.[176]
[174] Transcript of Proceedings 6 October 2021, 94.
[175] Second affidavit [17].
[176] Transcript of Proceedings 6 October 2021, 95.
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While there may well be good reason not to take a statement from an accused person after charge, the mere fact that they have been charged does not prevent a statement being taken from them. In this case, it would have at least been appropriate for the investigating officer to have been told of the appellant's approach so he could make an informed decision as to the proper steps to take.
However, I am unable to conclude that the failure to conduct a record of interview with the appellant, or to take a statement from her resulted in a miscarriage of justice. The appellant had not had any legal advice, and she had not had any evidence disclosed to her at that stage. There is no evidence that the appellant's defence would have been advanced in any way by her providing an account to the police, or that she was disadvantaged by having not done so.
(f) - Police did not forensically test the complainant's mask for the
appellant's DNA
This was a summary offence which had as its maximum penalty a fine. Resource considerations must factor into police investigative decisions, and it is not reasonable to expect that forensic testing will be routinely conducted in relation to more minor offending.
Conclusion as to Ground 7
The additional evidence sought to be adduced by the appellant does not demonstrate that any different decision would have been likely, or even possible, had the police conducted the investigations which the appellant submits should have been carried out. Accordingly, in my view, the fact that the police did not conduct a more thorough investigation in relation to this matter does not lead to a conclusion that there was a miscarriage of justice.
Ground 8
The appellant submits that the verdict was unreasonable or unsupported by the evidence and that was therefore a miscarriage of justice. She argues that the magistrate failed to take into account inconsistencies in the evidence and made findings as to the credibility of the witnesses which were not open on the evidence.
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The general principles governing an appeal on the ground of unreasonable verdict are well established. In Wells v The State of Western Australia,[177] the court summarised them as follows:
[177] Wells v The State of Western Australia [2017] WASCA 27 [13].
(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 jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)
that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)
in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)
a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)
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 jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)
the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[178]
[178] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 495.
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Subject to appropriate modifications being made to accommodate the fact that the decision maker in this case was a magistrate, these principles apply in the present case.[179]
[179] The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA withHaving reviewed the record, I am satisfied that it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty in this case.
The complainant's evidence was cogent and credible. He clearly described the appellant's behaviour. The appellant did make some inroads in cross examination. I have addressed those inconsistencies when dealing with ground 4.
In my view, the inconsistencies did not materially affect the credibility of the complainant's evidence. It is to be expected that there will be discrepancies in the recounting of detail of an event such as this some time after the event. In my view, the discrepancies were minor and did not render the complainant's evidence incapable of acceptance, or even less likely to be true.
Mr Graham's evidence was also clear and concise. He frankly admitted that he was not certain about exact times, locations and distances, and did not claim to have heard what the appellant said to the complainant. In my view, his evidence was also consistent, cogent and credible. Further, it was consistent with the complainant's evidence in relation to fundamental details.
On the appellant's own account, she called the complainant a 'liar'.[180] She said she 'confronted him about lying about the size of the bins' and said, 'if something is not the truth, it's not abuse if you confront him about it'.[181] She said she walked past him and turned and saw his phone in his hand with his arm stretched out and said she was 'livid'. She walked back and shouted at him and she was angry and loud.[182]
[180] Transcript of Proceedings 6 October 2021, 114.
[181] Transcript of Proceedings 6 October 2021, 116.
[182] Transcript of Proceedings 6 October 2021, 109.In short, the appellant in effect admitted a substantial part of the conduct alleged against her. She did deny that, when she was shouting at the complainant, she was close enough for spittle to get on his face and at times minimised the level of aggression she displayed.
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However, the majority of her evidence was focused on the nature of her original grievance regarding the bins and establishing that her conduct towards the complainant was justified. Her focus on those matters to the exclusion of others was to the detriment of her case.
I am conscious it is what occurred after the appellant walked back that was the conduct which was alleged to have constituted the breach of the MRO. The appellant submitted that the magistrate had conflated the first part of the incident at the bins, and the second part on the roadway. However, I do not accept that he did so. He simply did not refer to the first part of the incident in his reasons for decision.
The question is whether the magistrate must have had a reasonable doubt as to the appellant's guilt. In answering that question, 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 he had of seeing and hearing the witnesses.
A review of the trial record establishes that the magistrate was entitled to find beyond reasonable doubt that the appellant had engaged in the conduct alleged and that it constituted behaviour which was offensive and emotionally abusive. There is no basis for a finding that the magistrate must have entertained a doubt about the appellant's guilt, and I do not experience any doubt in this regard.
The verdict of guilty was not unreasonable or unsupported by the evidence. Indeed, the evidence as to the commission of the offence by the appellant was compelling.
I am not satisfied that it would be dangerous to allow the verdict to stand or that there is a significant possibility that an innocent person has been convicted.
Ground 9
The appellant submits that the combination of the evidence at trial and the additional evidence establishes that her conviction was a miscarriage of justice.
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New evidence - legal principles
In CD and EF v Chief Executive Officer, Department of Child Protection and Family Support,[183] Pritchard J summarised the principles applicable in considering whether to admit new evidence in a criminal appeal as follows:
[183] CD and EF v Chief Executive Officer, Department of Child Protection and Family SupportUnder the CA Act, an appeal court must decide an appeal on the evidence and material that were before the lower court. However, that requirement does not affect the power of the appeal court to admit additional evidence. Under the CA Act, the Court has a discretion to permit evidence, other than that which was adduced at the trial, to be relied upon.
In Cramphorn v Bailey, Mazza JA observed that:
The discretion … is wide and is designed to serve the demands
of justice. It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially. However, because Parliament conferred an appellate jurisdiction on this court, it is highly unlikely that it intended to abolish the distinction between original and appellate jurisdictions.
The exercise of the statutory discretion to admit new evidence will be informed (although not necessarily determined) by the principles concerning new and fresh evidence. In the context of a criminal trial,
where an appellant seeks to rely on new evidence – that is, evidence
which was available at the time of the trial, or could, with reasonable
diligence, have been discovered – no miscarriage of justice will arise
simply because the new evidence was not adduced. Rather, new evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the accused should not have been convicted, and it is not sufficient that the new evidence reveals only a likelihood that the court below would have returned a verdict of not guilty. An appellant thus faces a high hurdle in overturning a finding of guilt based on new evidence.
The additional evidence
I have already referred to the majority of the additional evidence insofar as it relates to the various grounds of appeal. However, it is appropriate to briefly deal with the admissibility of each item of proposed additional evidence.
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PNE 2
PNE 2 was Exhibit 2 at the trial. The annotations are in the nature of submissions and add nothing to the evidence. Accordingly, this is not additional evidence.
PNE 6(a) and (b)
Items PNE 6(a) and (b) relate to injuries the appellant claimed she sustained in the course of the confrontation with the complainant. She said that, when he initially confronted her, she and the complainant were in the bins area and he grabbed her to stop her tipping the bins. As a result, her back hit the fence and she banged her elbow on the ground. Item 6(a) is a series of photos of the injuries and item 6(b) purports to be medical records documenting the injuries.
It was never put to the complainant in his evidence that he had grabbed the appellant, and the appellant did not mention her injuries in her evidence at the trial. She did mention being grabbed by the complainant, but part of the transcript as to what was happening at that point reads 'indistinct'.[184]
[184] Transcript of Proceedings 6 October 2021, 109.
The appellant now says that she told the appellant he ought to be ashamed of himself and walked away. She says she then turned and saw the appellant recording her. She was livid. She walked back towards him with her arm stretched out with her palm facing the lens of his phone 'speaking in a loud assertive tone':
I will give you something to record, stop fucking stalking me, don't ever touch me again, back off, leave me alone, you ought to be ashamed of yourself.[185]
[185] Second affidavit [5] - [6].
She goes on to say:
Then I walked North East away from him … this was 10-15 seconds. I
was defending and protecting myself standing up to being intimidated and bullied. I did not turn back to repeat anything about the bins, I had already made my point before he assaulted me.[186]
[186] Second affidavit [6].
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The appellant claimed she tried to make a statement to Bayswater Police Station regarding the injuries she suffered, but was told that she could not, because she had already been charged.[187]
[187] Second affidavit [17].The only new aspect of this evidence is that the appellant claimed that she suffered an injury when the complainant grabbed her. She gave evidence at the trial that he had done so.[188]
[188] Transcript of Proceedings 6 October 2021, 109.
While admissible, the fact that the complainant suffered an injury in the preliminary incident does not constitute a defence to the charge, and does not establish that she is innocent of the charge.
| PNE 7 | |
| 232 | PNE 7 is said to contain an extract of a Running Sheet which refers to a phone call made by Mr Graham. Otherwise it contains an extract of the trial transcript and submissions by the appellant. |
| 233 | This document appears to have been made in the course of the investigation of the alleged offence being dealt with in the proceedings. Accordingly, it is not admissible as a business record[189] and there is no other apparent basis for its admission. Despite this, I have dealt with its substance when considering ground 4. |
[189] Evidence Act 1906 s 79C(4)(a).
PNE 8 and PNE 9
PNE 8 and PNE 9 are all visually recorded images of a person. The appellant asserts that they are all of the complainant, and asserts they establish he has been stalking her.
The appellant acknowledged in her submissions that all of the images were taken by her, using her mobile phone camera, after the date of the offence.[190] As such, they have no relevance to this matter. Further, and in any event, the images in no way support the appellant's contention.
[190] I note that PNE 8(b) is captioned 'these photos were taken inside [the appellant's] home in2021-2022'.
PNE 10
I have already dealt with this document under ground 4.
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PNE 11
PNE 11 is an extract of the complainant's witness statement with annotations made by the appellant.
The extract of the complainant's witness statement is not admissible. In the circumstances of this case, it could only be admissible as a prior inconsistent statement if the complainant had denied or at least did not remember saying the things contained in the extract. However, he did not do so.
The fact that only parts of the statement are sought to be adduced is a further barrier; the omission of parts of the statement prevent proper account to be taken of context.
The annotations made by the appellant as to factual matters do not add to or detract from the evidence of the appellant given at trial and are not additional evidence.
PNE 13
PNE 13 is an extract of Mr Graham's witness statement, with annotations made by the appellant. For the same reasons as with PNE 11, the extract of the witness statement is not admissible.
To the extent that the appellant's annotations relate to factual matters, they do not add to or detract from the evidence of the appellant given at trial. The remaining annotations are submissions, and not evidence.
PNE 14
PNE 14 is a document which is a composite of an extract of a police document, parts of pages 50, 51, 55 and 56 of the trial transcript and annotations made by the appellant.
This document appears to have been made in the course of the investigation of the alleged offence being dealt with in the proceedings. Accordingly, it is not admissible as a business record[191] and there is no other apparent basis for its admission.
[191] Evidence Act 1906 s 79C(4)(a). 192 Evidence Act 1906 s 79C(4)(a).
The trial transcript in the document is already before me on the appeal and the annotations of the appellant are submissions on the evidence. Neither of these parts contain additional evidence.
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PNE 15
PNE 15 is a copy of the Police Incident Report, annotated by the
appellant.
This document appears to have been made in the course of the investigation of the alleged offence being dealt with in the proceedings. Accordingly, it is not admissible as a business record192 and there is no other apparent basis for its admission. Despite this, I have dealt with the substance of the document under ground 4.
PNE 15 is not capable of establishing that the allegation relating to spittle was not made by the complainant during his initial conversation with police. It establishes only that the allegation was not recorded in that document.
The appellant also complains that PNE 15 shows that the conditions of the MRO were misrepresented.
The appellant cross-examined the complainant as to what he told the police about the conditions of the MRO, and noted that his words were recorded on the body worn camera footage. It appears the appellant's complaint is that PNE 15 contains an incorrect statement of the conditions.
While that may impact on the appropriateness of the actions of the police at the time, it has no bearing on whether the appellant committed the offence for which she was prosecuted.
The annotations of the appellant on PNE 15 are submissions as to the evidence and not evidence.
The back of PNE 15 is an extract of the statement of Constable Baughan with annotations on it from the appellant. The extract could only be admissible if there were a relevant inconsistent statement, and there is no such inconsistency. To the extent that the annotations relate to allegations of fact, they are not relevant to the proceedings.
PNE 16
PNE 16 is said to be a transcript of a hearing in which the complainant sought a MRO against the appellant on 26 May 2021. It is
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edited. The appellant points to a statement attributed to the complainant that the appellant 'was in my face spitting' and submits that this demonstrates that the complainant was prone to exaggeration and the magistrate should not have accepted his evidence at the trial.
The appellant cross-examined the complainant about his statement in the other proceedings and he accepted he said it. He said 'spittle, spit to me is very similar, or the same'.[193]
[193] Transcript of Proceedings 6 October 2021, 36.
As the complainant agreed he made the out of court statement, PNE 16 is not admissible. In any event, it is not additional evidence.
PNE 17
This document is similar to, but not the same as, Exhibit 3. The appellant has added an account of what happened on the date in question, which is in some respects different to, or at least additional to, the evidence she gave at trial.
I have already dealt with this document under ground 4.
| PNE 18 |
PNE 18 is a composite document containing parts of pages 64, 67, 71 and 80 of the transcript of Mr Graham's evidence. The transcript is not additional evidence, and the annotations by the appellant are submissions.
PNE 18A
There is a duplicate of PNE 18, which I have labelled PNE 18A.
The additional facts stated are that the appellant was on a phone call between 6.30 - 6.36 am and that she saw Mr Graham and the complainant talking near the shed area at 6.47 am.
I have already addressed this under ground 4.
| PNE 19 |
This document is a picture of the old strata company bins and the new ones. The appellant has included in it claims about the reason she was upset about the bin changeover and problems she had with the strata company.
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It is perhaps understandable that the appellant continues to focus on what she considers to be the reason she was engaging in the conduct she was when she first encountered the complainant on this day. However, it does not have any bearing on whether she engaged in the conduct as found by the magistrate. As it was not suggested her reasons for engaging in that conduct would justify it or constitute a defence for it, it could not be taken into account in relation to any matter in issue in the trial or on this appeal.
PNE 20
This document contains extracts from pages 5, 6 and 24 of the trial transcript with submissions and factual allegations by the appellant which in some cases add to her evidence at the trial.
The additions are that the appellant says:
(1) she said to the complainant, 'leave me alone and don't ever
touch me again';(2) she was defending/protecting herself against the complainant; (3) she has a dry mouth so does not have spittle issues.
PNE 22
This document is an annotated photo from a part of the complex. I have dealt with this in relation to ground 4.
PNE 23 and 24
These documents are extracts of the trial transcript. Otherwise, the documents contain some submissions by the appellant. They do not contain additional evidence.
PNE 26
This document contains extracts from the trial transcript with annotations by the appellant which constitute submissions on the evidence. It does not contain any additional evidence.
PNE 27
This document contains extracts from the trial transcript with annotations by the appellant which constitute submissions on the evidence. It does not contain any additional evidence.
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PNE 28
This document contains extracts from the trial transcript with annotations by the appellant which constitute submissions on the evidence. It does not contain any additional evidence.
PNE 29
This document is asserted to be a transcript of some body worn camera footage of the police speaking to Mr Graham, annotated by the appellant. The appellant has not sought to adduce the footage itself. The document is inadmissible. In any event, there is nothing in the transcript which is inconsistent with Mr Graham's evidence which was not put to him in evidence.
PNE 30
This document sets out purported extracts from body worn camera footage of the complainant speaking to police, his written witness statement, and the complainant's evidence at trial, annotated by the appellant.
PNE 31
This evidence was a video recording of parts of the scene. At one point Mr Graham's first floor window was briefly shown. I have already addressed this in dealing with ground 4.
The appellant has not sought to adduce the body worn camera footage itself. The trial transcript is not additional evidence. The annotations by the appellant primarily make the allegation that evidence was adduced which had not been disclosed. This allegation is addressed in dealing with grounds 1 and 2.
Conclusion on Ground 9
The additional materials sought to be admitted by the appellant do not establish that the appellant was innocent, or should not have been convicted. In combination with the evidence given at trial, they do not establish that there was any miscarriage of justice.
Application to admit new evidence
Having regard to my findings as to the additional evidence, even if the evidence would otherwise be admissible, I decline to admit it.
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Conclusion
The application to admit the new evidence is refused. The application for leave to appeal is refused and the appeal is dismissed.
Orders
The application to adduce additional evidence is dismissed.
Leave to appeal is refused on all grounds.
The appeal is dismissed.
[2023] WASC 19
FORRESTER J
SCHEDULE A
[2023] WASC 19
FORRESTER J
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Forrester
6 FEBRUARY 2023
3 (Transcript of Proceedings 6 October 2021).
prepared for the new allegations to be added', is the exchange at the commencement of the trial referred to
above at [7].
WASCA 60 [54].
whom McLure P & Mazza J agreed).
[2017] WASC 126 [117] - [119]; see also Hunt v Russell [2019] WASC 284 [11] (Smith J).
0
9
4