Grewal v Director of Public Prosecutions for Western Australia

[2024] WASC 92

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   GREWAL -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 92

CORAM:   LEMONIS J

HEARD:   12 OCTOBER 2023 & 18 JANUARY 2024

DELIVERED          :   27 MARCH 2024

FILE NO/S:   SJA 1017 of 2023

BETWEEN:   BHUPINDER SINGH GREWAL

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

For File No:   SJA 1017 of 2023

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE B AYLING

File Number            :   PE 36037/2021, PE 36038/2021 & PE 36039/2021

Catchwords:

Appellant convicted after trial before a magistrate of three offences - The victims of the offences were the appellant’s estranged wife and his son - Both victims give evidence at trial - Appellant raises numerous grounds regarding the credibility of the victims’ evidence - Appellants also contends that his trial counsel did not adequately cross-examine the prosecution witnesses - Consideration of applicable principles and of the grounds of complaint made by the appellant

Legislation:

Criminal Appeals Act 2004 (WA)

Result:

Leave to appeal declined
Appeal dismissed

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	R Arndt

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (WA)

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

Charisteas v Charisteas [2021] HCA 29

Clarke v The State of Western Australia [2018] WASCA 14

Huggins v The State of Western Australia [2018] WASCA 61

Livesy v New South Wales Bar Association (1983) 151 CLR 288

MJH v The State of Western Australia [2006] WASCA 167

Roach v The Queen [2011] HCA 12

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

LEMONIS J:

1. On 1 February 2023, the appellant (Mr Grewal) was convicted after trial of three offences. They were an offence of aggravated assault contrary to s 313 of the Criminal Code (WA), an offence of aggravated criminal damage contrary to s 444 of the Criminal Code and an offence of aggravated unlawful wounding contrary to s 301(1) of the Criminal Code.  He was later sentenced on 3 March 2023 to a total effective sentence of 8 months imprisonment suspended for 8 months.

2. Mr Grewal now applies for leave to appeal against his three convictions.  The appeal notice was filed within the time prescribed by the Criminal Appeals Act 2004 (WA) (CA Act).

3. Pursuant to s 13(b) and s 19 of the Director of Public Prosecutions Act 1991 (WA) the Director of Public Prosecutions has filed a notice taking over the appeal and has become the respondent to it. Mr Grewal represented himself at the hearing of the appeal.

4. The relevant circumstances of the conduct said to constitute the offending behaviour can be briefly stated for introductory purposes. Mr Grewal and his wife Parveen were separated. On 29 August 2021, Mr Grewal was staying at Parveen's house, following their daughter's wedding the night before. There was an altercation between Mr Grewal and Parveen. Their son Gurvir intervened. The learned magistrate found that Mr Grewal had assaulted Parveen, smashed her phone and struck Gurvir with a screwdriver which caused a wound to his hand. This conduct respectively is the conduct founding each of the three offences which I have described at [1]. Each offence was aggravated because Mr Grewal was in a family relationship with the victim, who was either Parveen or Gurvir.

5. The principal witnesses for the prosecution at the trial were Parveen and Gurvir.  Mr Grewal elected to give evidence at the trial.  Mr Grewal denied the allegations against him and said that Gurvir had assaulted him and further that Parveen's mother, who was also staying at the house at the time, was the person who had the screwdriver. 

6. The learned magistrate rejected Mr Grewal's evidence as to the key events.  Her Honour accepted Parveen's evidence and Gurvir's evidence regarding the incident and was satisfied beyond reasonable doubt that the conduct the subject of each charge had occurred. 

7. Mr Grewal appeals on 17 grounds.  The first ground of appeal is in effect a descriptive ground that summarises the overall nature of the complaints made by Mr Grewal.  It asserts the learned magistrate made an error of law or fact and that there has been a miscarriage of justice. 

8. The grounds of appeal are broad‑ranging and there is no utility in summarising them in advance of my substantive reasons. 

9. It is sufficient for introductory purposes to note the following. The miscarriage of justice ground includes assertions that Mr Grewal's counsel did not competently represent him at the trial.  A particular emphasis of Mr Grewal's complaint in this respect is that his counsel did not adequately cross-examine Parveen and Gurvir on prior statements each had made, which Mr Grewal asserts were inconsistent with their evidence at trial. 

10. On the appeal, Mr Grewal sought to adduce additional evidence in support of his grounds, which I address later in these reasons.  

11. I turn now to the principles applicable to the appeal.

Appeal

1. The appeal is brought pursuant to s 7(1) of the CA Act, Mr Grewal being a person aggrieved by the decision of the learned magistrate to convict him.  An appeal may be made on grounds that include:

   1.the learned magistrate made an error of law or fact or of both law and fact;[1]

   2.there has been a miscarriage of justice.[2]

   [1] CA Act s 8(1)(a)(i).

   [2] CA Act s 8(1)(b).

2. Leave of this court is required for each ground of appeal.  Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding.[3]  

   [3] CA Act s 9(2).

3. Section 14 of the CA Act sets out the options available to me in deciding the appeal.  These include dismissing it or allowing it.  Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of Mr Grewal, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred.  This provision is permissive, not mandatory.[4]  The Director does not seek to invoke the application of s 14(2) on this appeal.

   [4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] - [45].

4. The principles in relation to whether there is a miscarriage of justice by reason of counsel's conduct were explained in the joint judgment of the Court of Appeal in Huggins v The State of Western Australia,[5] their Honours stating:

   An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged.  This is a consequence of the adversarial nature of a criminal trial and the role played by counsel.  Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client.  It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence.  It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel.  For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant.

   In Nudd v The Queen, the court concluded that notwithstanding that counsel's conduct of the trial was incompetent to a serious degree and that some of that conduct could not be rationally justified, there was no miscarriage of justice.  That illustrates the challenging character of a ground of appeal that asserts a miscarriage of justice arising through counsel's conduct of the trial.

   Because the ground of appeal is that there was a miscarriage of justice, the focus of inquiry must be upon the consequences of the alleged incompetence, and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the incompetence alleged.  So, generally at least, the question will not turn on the adjectival characterisation of competence, such as being 'flagrant' or, with some exceptions, to the reasons for an incompetent act or omission.  The focus is on what happened or did not happen, not on why any error occurred.  (footnotes omitted)

   [5] Huggins v The State of Western Australia [2018] WASCA 61 [376] - [378].

5. The focus of the inquiry is directed to the consequences of counsel's conduct and the extent to which it caused or contributed to a miscarriage of justice.

6. In relation to prior inconsistent statements, s 21 of the Evidence Act1906 (WA) allows for cross-examination of a witness as to inconsistencies between the witness' testimony and prior statements made by the witness.

7. In MJH v The State of Western Australia,[6] McLure JA (as her Honour then was) addressed the issue of inconsistency directed to the circumstances and consequences of an assault, which was the subject of one of the counts against the appellant in that case.  Her Honour stated:[7]

   The circumstances and consequences of the assault are factually relevant to the subject matter of the proceedings. The matters were omitted from the complainant's evidence and that gives rise to an inconsistency for the purposes of s 21 of the Evidence Act.  A prior statement may be inconsistent with a witness's testimony either because it omits significant material included in the testimony or because it contains significant material omitted from that testimony. (citation omitted)

   [6] MJH v The State of Western Australia [2006] WASCA 167.

   [7] MJH [132].

8. Further, in MJH, Buss JA (as his Honour then was) stated:[8]

   A prior statement of a witness will be "inconsistent" with his or her evidence if there are discrepancies or divergences between the statement and the evidence. For example, where a witness has made a prior statement in which he or she gives an account of an event or transaction that is in issue in the proceedings, and the witness gives evidence of the event or transaction which omits material facts contained in the previous account, the prior statement will be "inconsistent" with his or her evidence. (citations omitted)

   [8] MJH [158].

9. However, just because there might be such a divergence does not mean that counsel should cross-examine on it.  There might be entirely rational reasons why trial counsel decides not to pursue a particular line of cross-examination that might be available.  Moreover, as the passage from Huggins makes clear, even if the conduct of counsel does not reflect a rational forensic decision, that does not by itself demonstrate a miscarriage of justice.   

10. Further to these matters, s 21 is directed to an inconsistency between a witness' testimony and prior statements made by the witness. It is not directed to inconsistencies between prior statements made by the witness.  Nor is it directed to an inconsistency between the witness' testimony and a prior statement made by another person.

Additional evidence

1. In relation to the additional evidence sought to be relied on by Mr Grewal, pursuant to s 40(1)(e) of the CA Act, an appeal court has the power to admit additional evidence.  Section 40 applies to all appeals, thus applies to this appeal.

2. There is a distinction between what is regarded as fresh evidence and new evidence.  This distinction was explained by Buss P in Clarke[9] as follows.  Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial.  New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.  Further, Buss P explained that ordinarily the relevant common law principles in respect of fresh evidence set a lower threshold for an appellant to establish a miscarriage of justice, compared to the relevant principles in respect of new evidence.[10] 

   [9] Clarke v The State of Western Australia [2018] WASCA 14 [237].

   [10] See Clarke [239] - [240].

3. While Clarke concerned an appeal from a conviction after trial by jury, in my view the observations made regarding fresh and new evidence also have application to an appeal from a conviction after a trial by a magistrate.  Adopting that approach, in respect of an appeal from a conviction by a magistrate, ordinarily an appellate court will not allow the appeal on the basis of fresh evidence unless there is a significant possibility that on the basis of all of the admissible evidence, that is the fresh evidence and the evidence given at trial, the appellant would have been acquitted.[11] 

   [11] Clarke [240].

4. It is not necessary on this appeal to assess whether the evidence sought to be relied on by Mr Grewal is new or fresh evidence.  As I will come to explain, even adopting the principles applicable to fresh evidence, the evidence sought to be relied on by Mr Grewal does not result in the conclusion that there was a miscarriage of justice in respect of any of the three convictions.

5. Given the approach which I took in respect of additional evidence, it was not necessary for any witnesses to give evidence on the appeal.   

6. I admitted the following evidence as exhibits. 

7. Exhibit 1 is Parveen's statement to police.  This was admitted so as to allow Mr Grewal to advance his assertions of inconsistencies between Parveen's evidence at trial and what was set out in her statement. 

8. Exhibit 2 is a video of Parveen speaking to police regarding the damage to her phone.  The video also provides a walk through by police of the premises.  This was admitted in respect of Mr Grewal's assertions directed to two matters.  First, a prior inconsistent statement made by Parveen.  Second, as to the layout of the house, in particular the proximity of the room in which Parveen's parents were staying to the main living area, and also as to which items were visible on the floor when police officers arrived.

9. Exhibit 3 is Gurvir's statement to police.  This was admitted to allow Mr Grewal to advance his assertions of inconsistencies between Gurvir's evidence at trial and what was set out in his statement.

10. Exhibit 5 is the transcript of the hearing of an application for an interim restraining order brought by Gurvir against Mr Grewal.  This was admitted to allow Mr Grewal to advance his assertions of inconsistencies between Gurvir's evidence at trial and what Gurvir said in evidence at the restraining order hearing. 

11. Exhibit 6 is a video of Gurvir being taken in a police car to a police station after the incident.  Mr Grewal submits that in the video Gurvir makes admissions of being aggressive in the past to Mr Grewal and the video was admitted so as to allow Mr Grewal to advance that assertion.

12. Exhibit 7 comprises two videos, one taken of the wedding preparations and the other taken during the wedding.  These were admitted to allow Mr Grewal to advance his assertions regarding his mother-in-law's mobility and strength. 

13. MFI 4 initially comprised two medical reports, respectively dated 29 August 2021 and 27 February 2023, which Mr Grewal relied on as suggesting that his injuries were consistent with his version of events given in evidence at trial.  At the further hearing of the appeal on 18 January 2024, Mr Grewal also sought to rely on an additional medical report dated 19 December 2023 for the same purpose.  I will make this part of MFI 4.

14. There was additional material that Mr Grewal sought to adduce during the appeal, which I did not permit.  I deal with this material below in respect of the ground or grounds to which it might relate.

15. Further, during the first day of the appeal hearing, it became apparent that two of Mr Grewal's complaints concerning his counsel's conduct of the trial were not supported by any evidence.  The first was directed to whether Mr Grewal asked his counsel to obtain a statement from his mother-in-law.  The second was directed to conversations which Mr Grewal said he had with his counsel to the effect that the prosecution would not lead evidence of prior incidents between him and Gurvir.  I therefore directed that Mr Grewal file an affidavit in respect of those two matters and the appeal was listed for further hearing on 18 January 2024.  Mr Grewal filed an affidavit sworn 1 November 2023.  To the extent necessary, I address that affidavit in the reasons below and permit it to be adduced on this appeal only to that limited extent.

16. I turn now to the trial, the evidence at trial and her Honour's findings.

The trial

1. The trial of the charges against Mr Grewal took place on 31 January 2023 and 1 February 2023.  The learned magistrate delivered reasons for decision on 1 February 2023.

2. At trial, the prosecution called four witnesses.  They were Parveen, Gurvir, Detective First Class Constable Semetaite and Detective Senior Constable Warrener.  In addition, medical reports pertaining to Gurvir's injuries were tendered into evidence and became exhibit 7 on the trial.  The medical reports established that Gurvir had sustained puncture wounds to his left thumb.  Photographs were tendered of Parveen, which showed a mark on her neck.  These became exhibit 2.

3. Photographs were also tendered at trial which depicted the injuries Mr Grewal suffered during the incident and a medical report was tendered dated 29 August 2021 describing those injuries (exhibits 5 and 8 respectively). 

4. Mr Grewal gave evidence in his own defence.  He did not call any other witnesses. 

Summary of the evidence

1. The following introductory matters are not controversial.

2. Mr Grewal and Parveen were married.  They had two children together, being Gurvir and their daughter.

3. They separated in 2016 and remained separated at the time of the incident the subject of the three charges.  

4. Their daughter's wedding was held the night before the incident.  After the wedding, Mr Grewal had gone back to the house where Parveen lived.  Mr Grewal stayed the night and was still at the house at the time of the incident. 

5. I now turn to summarise the evidence of the witnesses at trial.

Parveen

1. Following the wedding, Parveen's daughter and son-in-law stayed the night at the Crown Casino.  Around 11.30 am to 12 noon she and Mr Grewal drove two cars to the casino for the purpose of dropping one off for their daughter.  They then returned to Parveen's house in the one car.  She had lunch and then was sitting at the table getting ready to go out for a massage because she had sore legs.[12] 

   [12] Hearing 31 January 2023, ts 7 - ts 8.

2. Mr Grewal was on the phone talking to a person who Parveen believed was his sister.  From Parveen's observation of the call, Mr Grewal's sister was talking and Mr Grewal was listening and answering yes and no.  After the call ended, Mr Grewal came and picked up his lunch from the kitchen and sat on the sofa to have lunch.[13] 

   [13] Hearing 31 January 2023, ts 8.

3. Parveen said she was sitting at the dining table looking at her phone.  Once Mr Grewal sat down, Parveen asked him what his sister said.  Mr Grewal got angry and threw the plate and said 'I never ask anything what your family talk about.  Why you want to know that?'  In respect of the plate, she said that it was not thrown in the direction of anyone.  He then got up from the chair, walked towards the table and threw Parveen's phone on the ground.  She said the phone shattered and the screen was broken.  She was asked where Mr Grewal threw the phone and she said he threw the phone to the floor.  She said Mr Grewal grabbed her from the neck and pushed her down on the chair.  She tried to stand up and screamed as well.[14] 

   [14] Hearing 31 January 2023, ts 8 - ts 10.

4. Gurvir came downstairs.  He and Mr Grewal looked at each other.  Gurvir was trying to figure out what had happened.  Mr Grewal and Gurvir walked towards each other, Gurvir tried to push Mr Grewal and Mr Grewal tried to push Gurvir.  Mr Grewal then walked backwards, there was a counter close by which had a screwdriver on it.  Mr Grewal grabbed the screwdriver.  She said Mr Grewal and Gurvir started hitting each other, saying they were fighting each other while the screwdriver was in Mr Grewal's hand.  She was in the middle stopping them.  She said Gurvir was trying to hold Mr Grewal's hand with the screwdriver and Gurvir had one hand on his head to protect himself.  She said Mr Grewal was trying to move Gurvir's hand away and was trying to hit Gurvir with the screwdriver.[15]  She later described how the screwdriver which Mr Grewal had in his hand was used to open the laundry door.[16]

   [15] Hearing 31 January 2023, ts 10 - ts 11.

   [16] Hearing 31 January 2023, ts 15.

1. The only people in the room were Parveen, Mr Grewal and Gurvir.  Parveen's parents live at the house, they were there at the time but were in their own room.  She said her mother is 76 years of age.  She also described how her mother walks with a limp.[17] 

   [17] Hearing 31 January 2023, ts 11 - ts 12.

2. She was then taken back to the incident and she described how she tried to separate Mr Grewal and Gurvir by getting in the middle of them and pushing them.  She said the screwdriver fell on the ground.  She said she picked it up and put it away.  She said when they were hitting each other, Mr Grewal fell down and then he quickly got up and ran outside which is how it stopped.  He ran to the next‑door neighbour's house.  She ran after him.  He knocked on the next‑door neighbour's door.  The neighbour's daughter came outside and Mr Grewal asked for the police to be called. Parveen said she did not want the police to be called as it is very embarrassing for her.[18] 

   [18] Hearing 31 January 2023, ts 12 - ts 13.

3. A number of photographs were then tendered through her.  Exhibit 1 comprised three photographs of her phone showing the damage to it.  Exhibit 2 comprised seven photographs of Parveen, including various photographs of a mark which she had on her neck.  Exhibit 3 comprised a photograph of the screwdriver.  Exhibit 4 comprised 11 photographs of the house tendered by consent, which included photographs of blood droplets on the tiled floor.

4. In her cross‑examination, Parveen said that she thinks Mr Grewal's friends had dropped him off at her house the day before and that he had not come in his old van.  It was put to her that she was going to drive him home in the afternoon of the day when the incident took place.  She said no, he was waiting for a lift from his friend.  She was asked about her evidence that Mr Grewal had thrown a plate and what had happened to the plate.  She said the plate broke on the floor in two pieces.[19] 

   [19] Hearing 31 January 2023, ts 17 - ts 19.

5. She was also asked about her evidence as to Mr Grewal throwing her phone.  She said that he threw it on the floor next to her chair where she was sitting.  She was then cross‑examined as to where she said Mr Grewal had grabbed her around the neck.  She described and visually demonstrated how Mr Grewal had grabbed her at the back of her neck using his right hand and put her neck down.  She said this happened once.[20]    

   [20] Hearing 31 January 2023, ts 20.

6. She was asked about the screwdriver.  She said there were two screwdrivers that they used to help open the laundry door, one was green and one was yellow.  She said she did not know which one Mr Grewal grabbed.  She was then taken to her statement given to police and asked whether she remembered telling police that the screwdriver was green.  She said that she does not remember the colour at all.  She also said even that day she did not remember what colour exactly the screwdriver was.  She accepted that she said in the statement that it was green but that she did not remember the colour at the time of giving evidence.  She maintained in cross‑examination that the screwdriver depicted in the photograph which became exhibit 3 was the screwdriver that Mr Grewal had used.  That screwdriver was yellow.[21]

   [21] Hearing 31 January 2023, ts 21 - ts 23.

7. She said her parents were home at the time.  She was cross‑examined about the location of their room.  She described the layout of the house is that the lounge is attached to the kitchen, and her parents' room is attached to the lounge.  She also said at the time of the incident her parents were in their room.[22]

   [22] Hearing 31 January 2023, ts 23.

8. In relation to the screwdriver, she said that after she picked it up she put it on the table next to the dining table.  She was asked why she ran after Mr Grewal.  She said that she wanted to see what happened to him and  she did not want him to call the police.  She explained that this was to save herself 'from this day when I have to tell everyone in front of everyone what happened that day'.[23] 

   [23] Hearing 31 January 2023, ts 23.

9. She was cross‑examined that she did not want him to call police because she did not want her son to get in trouble for what he had done and she said no.  She said Mr Grewal has assaulted her and her son and daughter so many times, and every time she stops him going to the police because of the embarrassment of telling everyone.[24] 

   [24] Hearing 31 January 2023, ts 24.

10. It was put to her that the mark on her neck depicted in the photographs was in fact from a skin infection and not a bruise.  Her response was that it was a bruise and she was denied it was a skin infection.  She said the bruise was there when she went to the police station and described how Mr Grewal held her really tightly from the neck.[25] 

    [25] Hearing 31 January 2023, ts 24 - ts 25.

11. Parveen was asked questions about Mr Grewal's phone.  Parveen said that she did not know where Mr Grewal put his phone and said that 'we' gave the phone afterwards to the police station the next day.  She said she did not remember where the phone was.  It was put to her that Mr Grewal's phone was in the bedroom he was using upstairs.  The learned magistrate intervened at that point, however Parveen still answered 'I don't remember where --- his phone was but we collected everything and gave to the police.' [26]

    [26] Hearing 31 January 2023, ts 25 - ts 26.

12. Parveen accepted that her phone was broken before the incident, saying the screen was smashed but it was working.  It was also put to her that Mr Grewal did not smash the screen.  She said Mr Grewal smashed the screen, he threw the phone.  She was asked whether the screen was smashed before the incident.  She said no, Mr Grewal threw the phone and screen was smashed.  She was then taken to Family Court proceedings between her and Mr Grewal.  She was asked whether she thought making up this story about Mr Grewal will help her win in the Family Court proceedings.  She said no the Family Court proceedings have nothing to do with this one.  She also said that there were no Family Court proceedings at the time of the incident.[27] 

    [27] Hearing 31 January 2023, ts 26 - ts 28.

13. It was then put to her that her mother brought the yellow screwdriver into the kitchen during the incident.  She responded by saying that her mother was not even there.  It was put to her that her son got angry at Mr Grewal and actually punched him multiple times to the face and she said no that is not true.  It was put to her that she held Mr Grewal back while her son punched him.  She described this as being a lie, postulating 'how I can hold him' referring to how tall he is and that she is shorter than him.  It was also put to her that she made this story up about the screwdriver to protect her son because it was her son who assaulted Mr Grewal.  She said no, the screwdriver was there and Mr Grewal hit her son with the screwdriver.[28]

    [28] Hearing 31 January 2023, ts 28.

14. In re‑examination she changed her evidence regarding the phone.  She said that before the incident there was nothing wrong with the phone and it was a new phone.[29]

Detective First Class Constable Semetaite

[29] Hearing 31 January 2023, ts 29.

1. Detective Semetaite was one of the police officers who attended in response to the 000 call to police.

2. She gave evidence that she met Mr Grewal at the property and observed injuries on him.  Detective Semetaite was shown the photographs which were exhibit 5 and agreed that Mr Grewal's injuries as depicted in the photographs were those that she observed on the day. [30] 

   [30] Hearing 31 January 2023, ts 30 - ts 31.

3. In cross-examination, she said when she arrived she could see two males, being Mr Grewal and a man called Simon, who was the person who made the 000 call.  She agreed that the injuries which she observed on Mr Grewal on the day included a laceration or a cut to the face, some bruising and some blood.  At this point her Honour intervened, pointing out that her Honour had already heard this evidence and had the photographs depicting the injuries.  Mr Grewal's counsel did not continue with that line of questioning.[31]

   [31] Hearing 31 January 2023, ts 31 - ts 32.

4. Detective Semetaite arranged for an ambulance to take Mr Grewal to hospital.  She went to the hospital with Mr Grewal, she saw him sign a medical release form and her colleague seized Mr Grewal's clothing.[32]

Gurvir Grewal Singh

[32] Hearing 31 January 2023, ts 32 - ts 33.

1. At the time of the incident, Gurvir was living at the house where the incident occurred with his mother, grandparents and his sister who had just got married.  He said that Mr Grewal slept in the guest bedroom that night.  He said he was in his bedroom and the other people in the house were his mum, his grandparents and his dad.  His bedroom is upstairs.  He said around noon he heard screams from downstairs, which he then expanded on, saying he heard screams from his mum and yelling from his dad.  He said this lasted for about 30 seconds and as a result he went downstairs after a while to see what happened.[33] 

   [33] Hearing 31 January 2023, ts 34 - ts 35.

2. He said when he went downstairs he saw his dad holding his mum which he described as 'on the hands, holding, and standing really close to her'. He asked what was going on.  Mr Grewal turned and came towards him very aggressively.  Gurvir pushed him away.  As Mr Grewal was coming towards him, Mr Grewal said 'your turn'.  He was then asked what 'your turn' meant.  Mr Grewal's counsel raised an objection which was addressed in the absence of Gurvir.[34] 

   [34] Hearing 31 January 2023, ts 36.

3. The objection went to the use of the evidence, Mr Grewal's counsel explaining that the prosecutor had confirmed to her that the prosecutor would not be relying on former incidents involving Mr Grewal for any propensity evidence at the trial.[35]  The prosecutor clarified that the use sought to be made of the evidence was to explain what the phrase 'your turn' meant to Gurvir and the objection was not pressed.[36]  Gurvir described how growing up both he and his mother suffered a lot of domestic and physical violence.  It would usually start with his mother and then Mr Grewal would turn to him and use the phrase 'your turn'.[37]

   [35] Hearing 31 January 2023, ts 37.

   [36] Hearing 31 January 2023, ts 37 - ts 38.

   [37] Hearing 31 January 2023, ts 38.

4. Gurvir said that as Mr Grewal approached him, Gurvir pushed him back with two hands towards his shoulders.  He said his grandmother was not there at the time and that she requires a wheelchair and help getting out of bed in the morning.[38] 

   [38] Hearing 31 January 2023, ts 39.

5. After he had pushed Mr Grewal, Gurvir said Mr Grewal went towards the kitchen counter, grabbed a screwdriver and came at Gurvir again with the screwdriver.  He said Mr Grewal was holding the screwdriver as if he was going to stab Gurvir with it.  He said Mr Grewal started stabbing him with it on his thumb as he was holding his hand up, and on his head.  Gurvir began striking Mr Grewal to get away from him.  He said he struck Mr Grewal anywhere he could, on the chest and on the face to get him away.  He described the incident as lasting probably 3 seconds to a minute, he was not too sure.  He said it eventually stopped when 'My mum come in between us and tried to pull us apart' which she was able to do.  Mr Grewal was asked 'once you two were apart, what did you do and what did your dad do?' The transcript records his answer as being 'I just sort of run towards the door, and I went into the bathroom to have a look at my wounds'.  I think this answer is meant to convey that it was Mr Grewal who ran towards the door, not Gurvir.  Otherwise, it does not make sense given Gurvir said in the second part of the answer that he went into the bathroom.[39]

   [39] Hearing 31 January 2023, ts 39 - ts 40.

6. Gurvir said he went into the bathroom to have a look at his wounds.  He said he was bleeding from his head, his thumb and he was cut on his leg.  He identified his injuries as being a stab wound to his thumb, a stab wound to the back of his head, a wound to his leg and a hole in his pants.[40] 

   [40] Hearing 31 January 2023, ts 40.

7. The nine photographs depicting his injuries and two medical reports describing his injuries became exhibits 6 and 7 respectively at the trial.

8. In cross‑examination, he said that he did not hear the sound of anything smashing on the floor.[41] 

   [41] Hearing 31 January 2023, ts 42.

9. He was asked how Mr Grewal stabbed him with the screwdriver on his thumb and on his head.  He answered 'I'm not too sure… I was looking down'.  He said that the injuries happened during the attack.  He was then cross‑examined about his actions during the incident.  He described how he pushed his father anywhere to get him away and he struck his father with closed fists. He said he could not remember if he was wearing a ring at the time. [42]  

   [42] Hearing 31 January 2023, ts 42 - ts 44.

10. He was then cross‑examined about an interview that he gave to police on 29 August 2021, prior to which interview the police officer told him he did not have to say anything unless he wanted to.  He was asked whether in the interview he told the police officer that he hit Mr Grewal with the base of his fist and whether he demonstrated doing so to the police officer.  He answered that he thinks he did.  He was also asked whether he remembered telling the police officer that he had a ring on at the time and he answered yes and that 'I don't remember if I had one on then now, but, obviously, just asked then I would have remembered it, because it would have been on me'.[43] 

    [43] Hearing 31 January 2023, ts 44 - ts 45.

11. He was then cross‑examined on a written statement that he gave to police, in which he said he ducked his head down and hit Mr Grewal with the base of his fists and he responded 'I guess if it's on there, then yes'.  He was then asked to demonstrate how he actually punched Mr Grewal and it appears from the learned magistrate's description that he demonstrated that his fists were clenched.  He was asked how long after the incident the police arrived and he said he was not sure.[44]  

    [44] Hearing 31 January 2023, ts 45 - ts 46.

12. Mr Grewal's case was then put to Gurvir in cross‑examination.  It was put to Gurvir that he came downstairs, was angry with his dad, approached him and punched him multiple times to the face with a closed fist.  As a result Mr Grewal fell on the ground, Gurvir continued to punch him to the face and Gurvir hit the side of his head on the kitchen bench as he was punching his dad to the face.  He said no to these propositions.  He was asked if it was possible he cut his thumb on a broken plate that was on the ground and he said no.  It was then put to him that after Mr Grewal left the house he spoke to his mum and they came up with a story about the screwdriver, to which he said no.  He said he cannot remember whether there was anything else on the ground in the kitchen or lounge room area and he cannot remember seeing his father's phone anywhere.  He also said he had no idea where his father's phone would have been.[45] 

    [45] Hearing 31 January 2023, ts 47.

13. In re‑examination, he was asked what he meant by saying he was looking down and he said he was trying to protect his head as much as possible and trying to get Mr Grewal away from him.[46]

Detective Senior Constable Warrener

[46] Hearing 31 January 2023, ts 47 - ts 48.

1. It would appear that the prosecution called Detective Warrener to enable defence counsel to cross‑examine her.  She was at work on 29 August 2021 at the Mirrabooka Detectives Office and conducted an investigation into the matter regarding the Grewal family. 

2. In cross‑examination, she explained that she was not the primary investigating officer initially, that person left the job and then she took over the carriage of the matter after Mr Grewal had been charged.  She was then asked whether she was aware which of Mr Grewal's possessions were returned to the police station on the day after the incident.  The prosecutor objected to this question.  Defence counsel explained that the question was directed to the location of Mr Grewal's phone after the incident.  After further submissions her Honour did not allow the question to be put.[47] I deal with this aspect of the case in more detail at [123] - [127] below.

   [47] Hearing 31 January 2023, ts 49 - ts 50.

3. Detective Warrener was asked whether she was aware how long it took for police to attend the house after the 000 call.  She said she was not aware of what that length of time was.  Detective Warrener was then asked about attempts to obtain a statement from Mr Grewal's mother‑in‑law.  The question (quite properly) was framed in the way of 'I don't want you to tell me what Mr Grewal's mother‑in‑law has said, but is it the case that you have attempted to obtain a statement from her in this matter?'  The detective answered 'I have not spoken to her'.[48] 

Mr Grewal

[48] Hearing 31 January 2023, ts 50 - ts 51.

1. Mr Grewal described how he and Parveen had separated in 2016.

2. He described how on the morning of the incident he had cleaned his daughter's car.  He said he and Parveen then drove to where his daughter was staying, dropped the car off and both came back to the house.  He said he was expecting Parveen to drop him home but she told him that she was going for a massage so he went to the room he was staying in and had a nap.  He said he woke up at 2 pm, his daughter's father‑in‑law came and dropped a cake and stayed for 45 minutes.  As soon as his daughter's father‑in‑law left, Parveen started asking what Mr Grewal's family had done for the wedding.[49] 

   [49] Hearing 31 January 2023, ts 53 - ts 54.

3. She told him 'Fuck you', he realised 'I'm in trouble' because 'my son is on my face'.  Mr Grewal said he had a plate from which he was eating. It would appear his evidence is that he either 'dropped' or 'threw' the plate because of Gurvir's actions, although the word he used in conjunction with what happened to the plate appears as 'indistinct' in the transcript.  Mr Grewal said his son punched him 15 times to the face.  He said he had no chance because then Parveen went to his hand on one side and his mother‑in‑law on the other side.  He said he then got unconscious,  fell down and his nose was broken.  He said he felt it break.  He thought at that stage if he did not leave the house he would die.  He pushed his son, who hit his head on the corner of the bench.[50]

   [50] Hearing 31 January 2023, ts 54.

4. He ran outside and went to the neighbour's house, Parveen was following him and saying repeatedly 'Don't call the police'.  A girl came out from the neighbour's house.  He said 'Can you please call the police?' and the girl said 'Well, I have lost my parents'.  He then tried to stop the cars.  One stopped and he asked the driver to take him to a police station.  The driver said he could not.  Mr Grewal asked the driver to call the police and he said yes.  Then the police came.[51] 

   [51] Hearing 31 January 2023, ts 54 - ts 55.

5. Mr Grewal was taken to the photographs which were exhibit 5 and indicated the injuries he suffered as depicted in those photographs. Mr Grewal said these included a fractured nose.  Further, a medical report of an examination of Mr Grewal was tendered by consent and became exhibit 8.  Mr Grewal was asked whether at any point he grabbed Parveen by the neck and he said no.[52] 

   [52] Hearing 31 January 2023, ts 55 - ts 57.

6. Mr Grewal said that his mother‑in‑law was holding a yellow screwdriver.  He said that the day before the incident he used a green screwdriver to open paint but the screwdriver went back to the toolbox.  He said there was no screwdriver on the bench at the time of the incident.  He also said that at the time of the incident his phone was upstairs in the bedroom and prior to the incident he did not have any conversations with anyone on his phone.[53]

   [53] Hearing 31 January 2023, ts 57 - ts 58.

1. He was asked why he flagged someone down to call police and he said because he did not have a phone on him.  He said he got his possessions back when he collected them from the police station. [54]

   [54] Hearing 31 January 2023, ts 58.

2. He was shown a photograph of Parveen's phone and said he had never seen that phone with her ever.  He also said he did not touch that phone on the day of the incident.  He was then taken to the photographs of Parveen's neck.  He said that she had mentioned to him before that she had got a fungus and he suggested she put mustard oil on it.[55] 

   [55] Hearing 31 January 2023, ts 58.

3. He said there were Family Court proceedings on foot and they were going to a trial sometime that year in relation to the house in Dianella.[56] 

   [56] Hearing 31 January 2023, ts 58 - ts 59.

4. In respect of his cross‑examination, he was questioned about his evidence regarding Parveen asking what his family had done for the wedding.  He said his response was that his sister(s) gave him money and he gave the money to his daughter.  He accepted that was a good thing that his family had done that.  He was then queried about his evidence that Parveen then got angry and said 'fuck you'.  He said she said this because she does not want the money to go to their daughter 'because they feel insulted'.[57] 

   [57] Hearing 31 January 2023 ts 59 - ts 62.  From the transcript, it appears that Mr Grewal has interchangeably used 'sister' and 'sisters' in terms of who paid the money.

5. He explained what happened next. He described throwing the plate.  He said that as soon as Parveen said 'fuck off', he looked and Gurvir was there and straight on his face.  His wife was on one arm and his mother‑in‑law was there, although it is not clear initially what he says his mother‑in‑law did.  As to their respective positioning prior to the incident, he said he was sitting on a sofa chair, his wife was sitting on a round table which was 3 m away and his mother‑in‑law was at a door which was 6 m away. Initially he said that Gurvir was 4 m away when Parveen said 'fuck off'.[58]   

   [58] Hearing 31 January 2023, ts 63 - ts 64.

6. Mr Grewal then agreed that Gurvir was upstairs and not part of the conversation.  Mr Grewal said that Parveen was speaking loudly.  Mr Grewal accepted that his evidence was that when Parveen said 'fuck off', she said it loudly and then Gurvir came downstairs.  Mr Grewal said he threw the plate as he needed to free his hand.  He described how his wife was straight on his arms and his mother‑in‑law came and she was holding his other hand.  He described how Parveen was holding his right arm, his left arm was initially free but was then grabbed after a few seconds.  He said he had no opportunity to block Gurvir's punches with his left hand.[59] 

   [59] Hearing 31 January 2023, ts 64 - ts 66.

7. He described how his mother‑in‑law was a strong lady.  He said she does not use a wheelchair.  He also said he had not seen a wheelchair in the house, saying further that if there is one there it is maybe for the father‑in‑law, not the mother‑in‑law.[60] 

   [60] Hearing 31 January 2023, ts 66 - ts 67.

8. He said by the time his mother‑in‑law reached him, Gurvir had already thrown four or five punches, also saying she moves very quickly.[61] 

   [61] Hearing 31 January 2023, ts 68.

9. He was then cross‑examined on a statement he gave to police.  He was taken through parts of the statement.  He accepted that what was read out was in the statement.  He was asked whether, by the statement, he was saying he was being held before Gurvir came and started punching him.  He said no.  Mr Grewal said that what happened was Gurvir started punching him.  As Gurvir started punching him, Parveen grabbed Mr Grewal and then his mother‑in‑law held him.  He also said his mother-in-law held him after Gurvir started punching him.  The learned magistrate then asked the prosecutor to move on from this line of questioning, noting that Mr Grewal did not agree that his evidence was inconsistent with his statement.[62]

   [62] Hearing 31 January 2023, ts 68 - ts 70.

10. He was cross-examined about the comparative strength between him and Parveen and his mother-in-law respectively.  He described his mother-in-law as being very strong, said she gardens all day and her hands are like a rock.[63]

    [63] Hearing 31 January 2023, ts 70.

11. He agreed that he fell to the floor as a result of being punched by Gurvir.  He said he went unconscious, was on the floor and then everyone started hitting him on the head, so that is, Gurvir, Parveen and his mother‑in‑law.  He accepted that in his statement he did not refer to Parveen and his mother‑in‑law hitting him.  He said he pushed Gurvir aside as he ran to the front door and Gurvir's head hit the counter.[64] 

    [64] Hearing 31 January 2023, ts 71 - ts 72.

12. He said that Parveen had raised the issue of the fungus on her neck about four or five weeks before.[65]

    [65] Hearing 31 January 2023, ts 75.

13. He accepted that he did not refer in his statement to throwing a plate, nor does it mention that he was eating food.  However, he said he was eating food.[66]

    [66] Hearing 31 January 2023, ts 75.

14. The initial part of the incident as described by Parveen in her evidence was put to him and he said that did not happen.  Further, in effect, a summary of Parveen and Gurvir's evidence regarding Gurvir's involvement was then put to him and his answers were to the effect that it had never happened in that way.  Also he said he had never used the phrase 'your turn' and he reiterated that there was no screwdriver in the room.  When it was put to him that he stabbed Gurvir to the back of the head, his hand and his leg with the screwdriver, he said that never happened.  He also reiterated that when he fell down they all started to hit him.[67]

    [67] Hearing 31 January 2023, ts 76.

15. In re‑examination he was asked what happened to the plate and he said it's broken.  He also described the incident lasting maybe 30 or 40 seconds, saying it happened so fast.[68]

    [68] Hearing 31 January 2023, ts 77.

Learned magistrate's reasons

1. Her Honour's reasons correctly set out the applicable principles regarding the burden and standard of proof.  Further, her Honour stated that if Mr Grewal's evidence raises a reasonable doubt as to his guilt on any of the counts alleged, then he is entitled to the benefit of that doubt.  Her Honour also said that if she rejected Mr Grewal's evidence, it does not follow automatically that he ought be convicted. 

2. Her Honour summarised the evidence of Parveen, Gurvir and Mr Grewal and observed Mr Grewal's evidence was quite different to that of Gurvir and Parveen. 

3. Her Honour found that Mr Grewal was an entirely unsatisfactory witness whose account of what occurred 'made absolutely no sense'.  Her Honour therefore rejected Mr Grewal's evidence and put it to one side.[69]  Her Honour then reviewed the balance of the evidence and was satisfied beyond reasonable doubt that Mr Grewal had deliberately thrown Parveen's phone causing damage to it and had assaulted her by grabbing the back of her neck and moving her neck forward.[70]

   [69] Hearing 1 February 2023, ts 109 - ts 110.

   [70] Hearing 1 February 2023, ts 112 - ts 113.

4. Her Honour was also satisfied beyond reasonable doubt that Mr Grewal had armed himself with a screwdriver and was satisfied beyond reasonable doubt that the wound to Gurvir's thumb was caused by the screwdriver during the course of the fight.[71] 

   [71] Hearing 1 February 2023, ts 114.

5. Her Honour reasoned to guilt in respect of the unlawful wounding offence via s 266 of the Criminal Code.  Her Honour was satisfied beyond reasonable doubt that Mr Grewal armed himself with a screwdriver during the course of the fight with Gurvir.[72]  Her Honour reasoned as follows:[73]

   That duty within the Criminal Code indicates that when anyone has armed themselves with a potentially dangerous instrument, they need to take reasonable precaution to avoid injury to anyone within their vicinity. And if anyone within their vicinity is injured as a consequence of them holding that dangerous implement, they are deemed to be responsible for the injuries that flow as a natural consequence of their having armed themselves with that implement.

   Considering that I've made that finding that I'm satisfied beyond reasonable doubt that the accused armed himself with a screwdriver and that the two men were then on their feet fighting in close quarters, with the complainant Guvi putting his arms forward in blows in front of him with close fists in a multiple-blow fashion, it seems to me that in those circumstances, in the absence of any other evidence inferring some other cause for the deep laceration to Guvi's thumb, which is apparent from the photographs that I've seen which shows a deep cut supported by the medical evidence, that I can be satisfied beyond reasonable doubt that it was the accused who unlawfully inflicted a wound on his son during the course of their fight.

   [72] Hearing 1 February 2023, ts 114.

   [73] Hearing 1 February 2023, ts 114 - ts 115.

6. While the second part of this passage does not directly engage with s 266, it is clear that her Honour was satisfied Mr Grewal had not taken reasonable precautions to avoid the danger of Gurvir being injured by the screwdriver and therefore Mr Grewal was held to have caused the injuries to Gurvir.  This finding was clearly open to her Honour, having regard to the findings of fact which her Honour made.

7. I turn now to the grounds of appeal.  As I have already mentioned, ground 1 is in effect a summary characterisation of Mr Grewal's complaints.  As such, it is not necessary to separately deal with it.

Ground 2

1. Ground 2 arises out of the learned magistrate having heard the application for an interim violence restraining order brought by Gurvir against Mr Grewal. 

2. Mr Grewal contends that he should have been informed by his counsel that he could have requested another judge (magistrate) to hear the trial of the charges against him.  This ground raises the apprehension of bias principle.  This principle was recently considered by the High Court in Charisteas v Charisteas[74]  In the joint judgment of the court, their Honours stated:[75]

   Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute.  The apprehension of bias principle is that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".  The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits.  Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed. (footnotes omitted)

   [74] Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289.

   [75] Charisteas [11].

3. Gurvir's application for a restraining order came before the learned magistrate on 2 September 2021.  Gurvir attended and gave evidence upon affirmation.  I have read through the transcript of that hearing.  Her Honour made no finding as to the credibility of Gurvir's evidence.  Rather, her Honour was satisfied on the basis of that evidence that a restraining order ought be made.[76]

   [76] Restraining order hearing, ts 5.

4. At the commencement of the trial, Mr Grewal's counsel brought this to the attention of the learned magistrate.  Mr Grewal's counsel did not seek for the learned magistrate to recuse herself, his counsel saying that she had spoken with Mr Grewal and they had no issue with her Honour hearing the trial.  The learned magistrate noted that she had no recollection of hearing the application for an interim restraining order.[77]  Further, in the learned magistrate's reasons for decision, her Honour said she did not recall that application. Her Honour also said the application was brought by Parveen.[78]  However it was Gurvir who brought the application, although ultimately an order was made in favour of both of them.

   [77] Hearing 31 January 2023, ts 2 - ts 3.

   [78] Hearing 1 February 2023, ts 104 - ts 105.

5. The application for the interim violence restraining order was held ex parte, meaning that Mr Grewal did not participate.  Her Honour was not called upon to make findings of fact.  Her Honour did not make any finding as to whether or not Gurvir was a credible witness.[79]  Rather, her Honour's consideration was directed to whether the matters of fact raised by Gurvir in his evidence were sufficient to ground the making of an interim order. 

   [79] This is to be contrasted with the position as illustrated in Livesy v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 300.

6. Accordingly, given the limited nature of the previous task undertaken by her Honour, it could not be said that a fair-minded lay observer might reasonably apprehend that the learned magistrate might not bring an impartial mind to the resolution of the question the learned magistrate was required to decide.  There was therefore no basis upon which Mr Grewal's counsel could seek to have the learned magistrate stand aside from hearing the trial of the charges against Mr Grewal.  There is therefore no error or miscarriage of justice by reason of the learned magistrate presiding over the trial.  For completeness, I also note that it is clear from her Honour's reasons that her Honour did not have regard to the evidence that was given at the hearing of the application for a restraining order.  Her Honour's reasons focus solely on the evidence before her Honour at trial.

7. In Mr Grewal's submissions in reply, he took a different approach to how he had initially presented this ground.  He asserted that his counsel should not have raised the issue with the learned magistrate, because it reminded the learned magistrate of having granted the order and her Honour was then prejudiced against Mr Grewal and in effect pre-judged the case against him.  In my view, it was appropriate for Mr Grewal's counsel to raise that the learned magistrate had granted the interim violence restraining order, so that her Honour was aware of having had a prior involvement with the matter. 

8. Furthermore, the asserted prejudice or pre‑judgment that Mr Grewal pointed to in his submissions does not arguably demonstrate any prejudice or pre‑judgment.  I will deal with each matter separately.

9. Mr Grewal submits that during Parveen's evidence, the learned magistrate interrupted to describe Parveen's demonstration of where she said Mr Grewal's hand was on her neck.[80]  It was entirely appropriate for her Honour to do so to make sure there was no uncertainty as to the area being described. 

   [80] Hearing 31 January 2023, ts 20.

10. Mr Grewal submits that during Detective Semetaite's evidence, her Honour intervened when the detective was being cross‑examined regarding her observations of Mr Grewal's injuries.  Her Honour was however merely pointing out that the injuries were already in evidence in the photographs that had become an exhibit and it was unnecessary to go through that again.[81]

    [81] Hearing 31 January 2023, ts 32.

11. Mr Grewal submits that during the cross‑examination of Gurvir, her Honour intervened in respect of the questioning as to what Gurvir had said in examination in chief.  Her Honour suggested that counsel ask questions in relation to what counsel suggests might have happened.  Following this intervention, trial counsel then directed questions to Gurvir describing how he said the incident transpired in terms of the physical interactions that took place.  Her Honour's intervention was directed to avoiding debate as to what Gurvir had said in his examination in chief, there being no transcript readily available.  Quite properly, Mr Grewal's counsel then focussed on having Gurvir describe again what he said occurred.[82]  There is no prejudice or pre‑judgment arising from the learned magistrate's intervention. 

    [82] Hearing 31 January 2023, ts 43.

12. Further in relation to the cross‑examination of Gurvir, her Honour intervened when Gurvir was being questioned about what he remembered being asked by the police officers when they interviewed him.  Her Honour directed defence counsel to put to Gurvir any such inconsistencies between what he said in the interview and his evidence.  Defence counsel rightly pointed out that she was leading up to that point and then did put the asserted inconsistencies.  The learned magistrate's intervention does not reflect any pre‑judgment or prejudice; rather it was directed to having the questions focus on what Gurvir had said to the police officers, as opposed to what he was asked.[83]

    [83] Hearing 31 January 2023, ts 44 - ts 45.

13. The final matter raised was directed to the cross‑examination of Detective Warrener regarding which of Mr Grewal's possessions were returned to the police station the following day.  The police prosecutor queried the relevance.  Defence counsel pointed to the relevance being that Mr Grewal did not have his phone in his possession after the incident.[84]  The learned magistrate said that whether the phone was collected from upstairs or downstairs, the answer was not going to affect her determination one way or the other.  Her Honour also said that she can't see how the existence of the phone is going to be relevant to the determination of credit or reliability of the prosecution witnesses to date.[85]

    [84] Hearing 31 January 2023, ts 49.

    [85] Hearing 31 January 2021, ts 49 - ts 50.

14. Her Honour went on to say that the answer from Detective Warrener is not going to determine whether the phone was downstairs consistent with Parveen's evidence, or upstairs consistent with Mr Grewal's expected account of what happened.[86]  I think her Honour was correct to say that Detective Warrener could not give evidence that was going to determine that issue.  To state the obvious, Detective Warrener was not there at the time of the incident and therefore did not observe what occurred.

    [86] Hearing 31 January 2021, ts 50.

15. I think her Honour was also correct in saying that who handed the phone into the police would not help resolve that issue.  Similarly, in my view, where the phone was ultimately collected from after the incident would not help resolve the issues raised by the evidence as it is plausible that if Mr Grewal's phone was collected from upstairs, it was put there with the rest of his belongings following the incident. 

16. With the benefit of hindsight, it may have been preferrable for her Honour not to have used language such as 'the answer is not going to affect my determination one way or the other' during the cross‑examination of the prosecution witnesses and before any evidence had been led by Mr Grewal.  However, that does not reveal any prejudice or pre‑judgment.  In this respect, her Honour was correct to say that the identity of the person who handed the phone in to police did not help resolve the expected conflict on the evidence as to whether Mr Grewal was on the phone immediately prior to the incident.

17. For completeness in dealing with this aspect of Mr Grewal's complaints, both Gurvir and Parveen were cross-examined on this topic.  Gurvir's evidence was he could not remember seeing Mr Grewal's phone anywhere and had no idea where Mr Grewal's phone would have been.[87]  Parveen's evidence was that she did not remember where Mr Grewal's phone was but 'we' collected everything and gave it to the police - see [61] above.   Accordingly, the only two witnesses with direct knowledge of where Mr Grewal's phone was collected from were cross-examined on that topic.  Also, Parveen's evidence was that 'we' handed Mr Grewal's phone in to the police station the next day, which evidence established that Mr Grewal did not have his phone on him when he left the house after the incident.

    [87] Hearing 31 January 2023, ts 47.

1. Ground 2 is not made out.

Ground 3

1. In relation to ground 3, Mr Grewal complains that his counsel did not cross-examine Gurvir on prior statements he had made, which Mr Grewal asserts were inconsistent with Gurvir's evidence. 

2. The principal ground of complaint related to Gurvir's evidence at the hearing of the application for the restraining order, which Mr Grewal says is inconsistent with Gurvir's evidence at trial. 

3. In Gurvir's evidence at the restraining order hearing, the learned magistrate asked Gurvir whether or not Mr Grewal had been drinking, to which Gurvir answered yes.  The learned magistrate then asked whether it was usual for Mr Grewal to drink to excess, to which Gurvir answered 'I would say so, yes'.[88]

   [88] Restraining order hearing, ts 3.

4. Gurvir did not give evidence at the trial that Mr Grewal had been drinking.  He was not asked any questions on that topic.  Accordingly, there is no inconsistency between Gurvir's evidence at trial and on the hearing of the application for a restraining order.  Also, if Gurvir had been cross-examined on this topic, there was a risk that he answered Mr Grewal had been drinking.  Any such evidence, if accepted, ran counter to Mr Grewal's evidence as to what had happened. 

5. Another topic raised by Mr Grewal was that in Gurvir's evidence on the restraining order hearing he said that Mr Grewal had been charged with assault for both him and his mother.  In the restraining order hearing, the learned magistrate asked 'And where did he hit her?' and Gurvir answered 'In the back of her neck'.[89]  His evidence at the trial was that when he came downstairs he saw Mr Grewal holding Parveen.

   [89] Restraining order hearing, ts 4.

6. Gurvir's evidence at the restraining order hearing reflects his understanding of the basis for the assault charge involving Parveen.  It does not convey that he saw Mr Grewal hit Parveen.  He does not say that he saw this happen.  In this respect, Gurvir's evidence is that he came downstairs after hearing his mum screaming and his dad yelling - see [69] - [70] above.  Self-evidently, while Gurvir was still upstairs, he would not have seen what was happening between Mr Grewal and Parveen.

7. Accordingly, there is no inconsistency between his evidence at the trial and his evidence at the restraining order hearing.

8. Mr Grewal also raised that there was an inconsistency between what Gurvir said on the restraining order hearing about being struck in the head, compared to his evidence at trial.  In his evidence at trial, Gurvir said that Mr Grewal had stabbed him on his head with the screwdriver and  he also described having a head wound - see [73] and [74] above.  Accordingly, in both Gurvir's evidence at the restraining order hearing and at trial, Gurvir described Mr Grewal striking him to the head.  Accordingly, there is no inconsistency.

9. Ground 3 is not made out.

Ground 4

1. Ground 4 asserts that Mr Grewal's counsel had an agreement with the prosecutor without Mr Grewal's consent that issues from the past would not be raised.  However, that is not correct.  During Gurvir's evidence, when the prosecutor asked what the phrase 'your turn' meant to him, Mr Grewal's counsel objected and said the following:[90]

   Your Honour, I anticipate that my learned friend's line of questioning in respect to the complainant's understanding of what "your turn" means is that he was going to provide some evidence about prior incidents where he alleges Mr Grewal has been physically abusive towards him.  That's just because it's referred to in his statement.  Prior to trial we received some further disclosures of further statements in respect to some prior incidents.  Those incidents are disputes from my client's perspective, and he also has a version in respect of those.  I did raise it with my learned friend, to confirm that he wouldn't be relying on those for any former propensity evidence at this trial.

   [90] Hearing 31 January 2023, ts 36 - ts 37.

2. As can be seen, the relevant agreement was that the prosecutor would not be relying on prior incidents as propensity evidence.  That is, the prosecutor would not suggest the evidence could be used by the learned magistrate to reason that Mr Grewal had a propensity for violence against his family members, which made it more likely that he had engaged in the conduct alleged on this occasion.

3. The prosecutor clarified that the evidence was not led for that purpose and was only led for the purpose of giving meaning to the phrase 'your turn' - see [71] above.  This was an entirely appropriate way to proceed.  

4. Mr Grewal also complains that his counsel failed to bring to the attention of the learned magistrate that in the past it was Gurvir who had been the aggressor.  Mr Grewal referred to the video of when Gurvir was in the police vehicle being taken to the police station following the incident.  This became exhibit 6 on the appeal.  In that recording, Gurvir said he had been to the lock up another time when he had an altercation with Mr Grewal.  He said it was a while ago and he was 17 or 18 years of age at the time.  One of the officers asked Gurvir if it was a similar narrative, to which he answered yes. [91]   

   [91] Video (exhibit 6 on the appeal) at 13:42 to 14:24.

5. What Gurvir said to the police officers does not necessarily convey that Gurvir was the assailant on that prior occasion.  Moreover, in Gurvir's subsequent interview with police he said that the last time he was at the police station was because Mr Grewal beat him and Gurvir called the police and the police came.[92]  Gurvir also said in the interview that he had photos from 'the previous beatings from my dad'.[93] 

   [92] Transcript of police interview of Gurvir, ts 6.

   [93] Transcript of police interview of Gurvir, ts 18.

6. Furthermore, in addition to what Gurvir said in the interview, during the restraining order hearing, Gurvir had said that he had received a lot of physical abuse and verbal abuse throughout his childhood from Mr Grewal.[94]  

   [94] Restraining order hearing, ts 3.

7. Mr Grewal seemed to suggest that what Gurvir said in the police car  reflected a pattern of violent behaviour on Gurvir's part towards Mr Grewal, which was consistent with Mr Grewal's evidence. However, as I have explained, Gurvir in his statements prior to trial had consistently maintained that Mr Grewal was the perpetrator of violence against him and Parveen.  Accordingly, there was little if any prospect Gurvir would have accepted in cross-examination that in the past he was the initiator of violent behaviour against Mr Grewal.    

8. Moreover, as the Director points out in counsel's written submissions, it is unlikely that such evidence was admissible in any event. [95]  In this respect, Mr Grewal's evidence was that the person armed with the screwdriver was not him, but his mother‑in‑law.  On Parveen's and Gurvir's evidence, Mr Grewal confronted Gurvir, who pushed Mr Grewal away, Mr Grewal then armed himself with the screwdriver and started striking Gurvir with it.  Accordingly, self‑defence did not arise in relation to the use of the screwdriver on the differing accounts of the incident given in evidence at trial. 

   [95] Written submissions dated 31 August 2023, pars 65 - 66.

9. Even if evidence of the past incidents between Mr Grewal and Gurvir was admissible, to endeavour to bring them up in the trial posed a substantial risk to Mr Grewal that Gurvir would give evidence at trial similar to what he had said at the restraining order hearing and during the police interview.  If accepted, this evidence may have been used by the learned magistrate in evaluating Gurvir's evidence of the incident itself.  A trier of fact such as the learned magistrate might naturally have questions about whether the charged offences were isolated events.  If Gurvir gave evidence of Mr Grewal's prior violence towards the family, this would have allowed Gurvir to give a full account of their relationship, so that Gurvir's evidence of Mr Grewal's conduct on the day in question would not appear to be conduct 'out of the blue' and inexplicable as such.[96]

   [96] Roach v The Queen [2011] HCA 12 [42].

10. Mr Grewal says in his affidavit sworn 1 November 2023 that shortly before the trial started his counsel told him that 'we are not going to discuss any things of the past', saying he was in total shock when told this.[97]  However, even if this were to be accepted, for the reasons I have already given in relation to this ground, it was a sound forensic decision by counsel not to attempt to introduce evidence relating to past incidents, whether by way of cross-examination of Gurvir or otherwise.

    [97] Affidavit of Mr Grewal sworn 1 November 2023, par 10.

11. Ground 4 is not made out.

Ground 5

1. Ground 5 asserts that Mr Grewal's counsel failed to bring to the attention of the learned magistrate there were three versions from Parveen and Gurvir as to what Mr Grewal had done prior to the incident. 

2. Mr Grewal refers to Parveen's statement not describing him sitting down having lunch prior to smashing her phone, compared to her evidence that he was sitting down having lunch.  There might be a potential inconsistency by omission in that Parveen's witness statement did not refer to Mr Grewal sitting down having lunch prior to him smashing her phone. 

3. However, any such potential inconsistency is not of such significance that the failure to put it in cross‑examination gives rise to a miscarriage of justice.  In this respect, it is not unusual that someone in their evidence expands upon their recollection of matters, contrasted to a witness statement which sets out their recollection of what they might understand to be the key events.

4. Mr Grewal also raised in respect of this ground the asserted  inconsistency arising from Gurvir's evidence at the restraining order hearing that Mr Grewal had been drinking.  I have already addressed this in respect of ground 3.

5. Ground 5 is not made out.

Ground 6

1. This ground appears to suggest that Mr Grewal's lawyer did not cross‑examine Parveen and Gurvir on the basis that the screwdriver had been used by his mother‑in‑law and not by him. 

2. However, Mr Grewal's counsel in cross‑examination put to Parveen that 'Isn't it the case that your mother brought the yellow screwdriver … into the kitchen during the incident?' to which Parveen responded 'My mother wasn't even there'.  Further, it was put to Gurvir that he and his mother had come up with the story about the screwdriver, which he denied.[98]  While it might have been preferable for the specific allegation to have been put to Gurvir that his grandmother brought the screwdriver in, it was specifically put to Gurvir that he had made up the story about being attacked.  This question encapsulated that it was not Mr Grewal with the screwdriver.

   [98] Hearing 31 January 2023, ts 47.

3. Mr Grewal also appears to suggest the photographs that were exhibit 5 in the trial, and the medical reports that are MFI 4 on the appeal, support the proposition that he was injured by the screwdriver, which in turn supports the proposition that he was not holding it. 

4. Mr Grewal's injuries depicted in the photographs could have been caused in a number of ways, having regard to all different versions of the altercation that were given in evidence. 

5. The medical reports and medical certificate which comprise MFI 4 do not support his contention that he was injured by a screwdriver.

6. The medical report dated 29 August 2021 (also exhibit 8 at the trial) makes no reference to Mr Grewal being harmed with a screwdriver. 

7. The medical report dated 27 February 2023 sets out that Mr Grewal's account was he was assaulted with a screwdriver, however makes no reference to who was using it.  Further, that medical report does not state that Mr Grewal's injuries were consistent with being struck with a screwdriver.  Before leaving that report, I think the date of the report is likely to be an error.  The report refers to an assault on 29 August 2023, which is clearly wrong as the incident occurred on 29 August 2021.  The final sentence of the report sets out the author's impression at '6 months post assault'.  I think the correct date for this report is 27 February 2022, which is consistent with the incident occurring on 29 August 2021.  However, in any event, as I have explained, the report does not support Mr Grewal's contention that his injuries were caused by his mother‑in‑law holding the screwdriver.

8. Accordingly, the medical reports do not support the proposition that Mr Grewal was injured by being struck with a screwdriver.  If anything, the medical reports are neutral as to whether or not that was the case. 

9. The medical certificate dated 19 December 2023 makes no reference to Mr Grewal having injuries consistent with being struck by a screwdriver. I deal with this medical certificate later in these reasons at [253] - [254] below.

10. Ground 6 is not made out.

Ground 7

1. Ground 7 asserts that Mr Grewal's counsel should have cross‑examined Gurvir to 'reveal the truth'. 

2. Gurvir's account of what happened was challenged in cross-examination.  The core propositions regarding the incident between Mr Grewal and Gurvir were put to Gurvir.  It was put to him that Gurvir approached Mr Grewal and punched him multiple times to the face with a closed fist and further that Gurvir had made up the story about the screwdriver - see [80] above.

3. Mr Grewal also referred to there being an inconsistency between what Gurvir said in his interview with police, and in evidence, as to how he punched Mr Grewal.  Gurvir was cross-examined on this.  He said that he thinks he said in the interview that he struck Mr Grewal with the base of his fist.  Gurvir also accepted that in his statement to police he said that he stuck Mr Grewal with the base of his fists.  In his evidence, he said he struck Mr Grewal with closed fists - see [77] - [79] above. 

4. Even if what Gurvir said in evidence on this topic was inconsistent with what he said in his interview and in his statement, the learned magistrate dealt with this in her Honour's reasons, saying:[99]

   And the way the evidence has panned out, although Guvi did not accept this, there was no dispute from his perspective as to the injuries having been caused.  He readily conceded that he punched several times, more times than he could count, towards his father for the purposes of getting his father away.  The inconsistency was raised by defence counsel in terms of pointing out that he had not said to police, when spoken to, that he had punched with closed fists in a forward motion as he demonstrated over the video link.

   In his statement to police, he had indicated that he had struck out at his father with the base of his closed fist, rather than the front of his fist.  And so the point was made that there was an inconsistency about the manner in which his father had been struck; that the witness had attempted at first interview to minimise his version but then had changed his account in trial.  On an assessment of that inconsistency, I don't accept that it's an inconsistency that impacts on his credit in a negative way.

   In fact, it bolsters his credibility where he is prepared to concede that he was punching upon his father in a manner that was multiple times by punching with a closed fist in a forward motion.  The fact that he was prepared to concede that actually serves to support his account. 

   [99] Hearing 1 February 2023, ts 113 - ts 114.

5. As can be seen, her Honour found that the inconsistency bolstered the credibility of Gurvir's evidence, which finding was clearly open to her Honour for the reasons that her Honour set out.

6. Ground 7 is not made out.

Ground 8

1. Ground 8 is that Mr Grewal's counsel failed to explain to the learned magistrate that the screwdriver that Parveen mentioned in her statement is different to the screwdriver that was the subject of the photograph tendered in the trial (exhibit 3).

2. As I have set out at [56] above, Mr Grewal's counsel cross-examined Parveen on this topic. The relevant evidence was therefore before the learned magistrate to consider.

3. Mr Grewal also emphasised Parveen's evidence that 'I said green because I saw - because it was green and yellow screwdriver we're using'.[100]  He said this suggests that she made up a story about the screwdriver. However, all Parveen's evidence suggests is that she knew the screwdriver was either green or yellow because they were the colour of the two screwdrivers being used to open the laundry door.  The evidence does not support Mr Grewal's proposition.

   [100] Hearing 31 January 2023, ts 23.

4. Further, Mr Grewal's counsel also dealt with this topic in her closing address saying:[101]

   In cross-examination, she accepted that she told police that the screwdriver was green; bearing in mind that police did not find a green screwdriver.  She then said she couldn't remember the colour of the screwdriver and then went on to say that it was the one in the photograph.  Now, I suggest her evidence in respect to the screwdriver was internally inconsistent because it was an aspect of her evidence that she was making up to protect her son and to explain some of the injuries that he sustained and to cast blame on Mr Grewal.

   [101] Hearing 1 February 2023, ts 94.

5. The topic of Parveen's evidence in relation to the screwdriver was therefore specifically raised by Mr Grewal's counsel.  Further, the learned magistrate addressed this topic in her Honour's reasons.  Specifically, the learned magistrate said:[102]

   As to the inconsistency as to the colour of the screwdriver, it was put to her that she told the police that it was a green screwdriver, and yet she was firm on her evidence that the screwdriver depicted in the photograph at exhibit 3 was the screwdriver that had stabbed her son.  That screwdriver depicted in exhibit 3 had a yellow handle.  Given the change in colour, it was indicated that her account simply couldn't be relied upon if she couldn't get the colour straight as to what colour the screwdriver was.

   In terms of an assessment of her evidence and what she described about the screwdriver, it really was that the accused had grabbed a screwdriver and that the men had been fighting together and she had got in the middle of them.  She had not given any specific evidence as to the screwdriver impacting upon the body of the son in terms of the actual wound being inflicted.  And so whilst there was a discrepancy in the colour of the screwdriver, her position was that a screwdriver had been used and had been used by the accused.

   And in the circumstances, whilst I acknowledge there was an inconsistency as to her depiction of the colour, I did not consider that inconsistency to be so great as to impact on her credibility or reliability.

   [102] Hearing 1 February 2023, ts 111.

6. As can be seen, her Honour observed that Parveen's position remained consistent on the key issue, namely that it was Mr Grewal who had used a screwdriver in the altercation.  That being so, her Honour was of the view that the inconsistency as to colour was not so great as to impact on the credibility or reliability of Parveen's evidence.  This finding was clearly open to her Honour on an evaluation of the entirety of Parveen's evidence regarding the screwdriver.

7. Ground 8 is not made out.

Ground 9

1. Mr Grewal asserts that his counsel failed to bring to the attention of the learned magistrate that there was a premeditated plan to attack him. 

2. In Mr Grewal's submissions in reply, he suggested that the premeditated plan was that of Parveen only, namely to in effect engineer a situation that he argued with her, which would then encourage their son to violently assault Mr Grewal. 

3. Mr Grewal also referred to Parveen's evidence in cross‑examination that Mr Grewal was waiting for a lift from his friend to leave the house.  Parveen denied that she was going to drive him home that afternoon.[103]  Mr Grewal seems to suggest that Parveen saying she was not driving him home was part of a plan to agitate him and cause an argument and therefore supports his proposition there was a premeditated plan to assault him.

   [103] Hearing 31 January 2023, ts 18.

1. The obvious difficulty with this ground is that it is directly contradicted by Mr Grewal's own evidence.  Mr Grewal in cross-examination accepted that his evidence was that Parveen was 'angry because she found out money has been given to her daughter' by Mr Grewal's family.[104]  That is, on his evidence, she became angry because of something that he told her immediately preceding the incident.  This does not reflect, or allow for, any premeditation on Parveen's part.  Accordingly, Mr Grewal's evidence is not consistent with Parveen having a premeditated plan for Gurvir to assault him.  The suggestion of a premeditated plan is also not consistent with the evidence of Parveen and Gurvir.

   [104] Hearing 31 January 2023, ts 62.

2. Mr Grewal also put this ground slightly differently, in that he contended that by Parveen telling him to 'fuck off' with his mother-in-law and Gurvir close by, Parveen was encouraging them to attack him.[105]  Even if those words were spoken by Parveen, they do not, even arguably, amount to an encouragement to engage in violence.  In this respect, the words make no mention of any physical action being taken. 

   [105] Appeal hearing 18 January 2024, ts 159 - ts 163.

3. Mr Grewal also submitted that Parveen had done these sorts of things before.  He pointed to par 11 of Parveen's statement in which she described how she had previously applied for a restraining order 'after a really bad incident of him hitting me in 2000, but he had a really good lawyer and he was allowed to walk away without an order or any convictions'.  That extract reflects Parveen's fear of Mr Grewal.  It does not provide any arguable basis to suggest that Parveen either had a plan, or encouraged others, to assault Mr Grewal.

4. Finally on this ground, Mr Grewal sought to rely on an affidavit of a Mr Sezer, who says he is a family friend.  Mr Sezar's proposed evidence was that he had not arranged to pick Mr Grewal up from Parveen's house.  Mr Grewal suggested this evidence demonstrated that Parveen's evidence was false.  However, Parveen's evidence was that Mr Grewal's friend was picking him up, not that it was Mr Sezer.  Accordingly, any evidence from Mr Sezer to the effect that he had not arranged to pick up Mr Grewal does not prove that Parveen's evidence was wrong.

5. Mr Grewal's counsel's decision not to raise the topic of premeditation, either in cross-examination or in closing, was a sensible and rational forensic decision.

6. Ground 9 is not made out.

Ground 10

1. The substance of ground 10 is that the prosecutor distorted the truth about Mr Grewal's mother‑in‑law being restricted to a wheelchair. 

2. The prosecutor addressed that issue in his closing submissions.[106]  The prosecutor did so predominantly directed to the inconsistencies in Mr Grewal's evidence, in particular Mr Grewal initially saying there was no wheelchair in the house and then conceding that his father‑in‑law might have had a wheelchair. 

   [106] Hearing 1 February 2023, ts 88 ‑ ts 89.

3. In Parveen's evidence at trial, she made no mention of her mother requiring a wheelchair.  She described that her mother walked with a limp after knee surgery two years earlier.[107]  In Gurvir's evidence he said that his grandmother 'requires a wheelchair and help getting out of bed in the mornings'.[108]  However, Gurvir's evidence is not to the effect that his grandmother requires a wheelchair at all times, nor is it that she is unable to move without the use of a wheelchair.  Further, her Honour did not make any finding that Mr Grewal's mother‑in‑law required a wheelchair, nor did her Honour make any finding as to the physical capabilities of Mr Grewal's mother‑in‑law.

   [107] Hearing 31 January 2023, ts 12.

   [108] Hearing 31 January 2023, ts 39.

4. Accordingly, when regard is had to the nature of the prosecutor's submissions and her Honour's findings, Mr Grewal's complaint is not made out.

5. In respect of the additional material that Mr Grewal relied on, as I have explained earlier, on the appeal I received as exhibit 7 two videos of Mr Grewal's mother‑in‑law's movements on the day of, and during, the wedding.  Mr Grewal suggests that the videos show that his mother-in-law was able to move quickly and was strong enough to hold Mr Grewal, which he suggests supports his version of events.  However, the videos do not demonstrate that Mr Grewal's mother‑in‑law was able to move with the speed that he alleges, nor do they demonstrate that she had the strength that he alleges.  While they demonstrate she is able to move without a wheelchair, this does not mean that she does not require a wheelchair every now and then.

6. Mr Grewal also relied on Mr Sezer's affidavit that in his dealings with the family he had not seen the mother‑in‑law in a wheelchair and also he had seen her doing cooking, cleaning and gardening many times.  I did not allow this evidence to be adduced on the appeal.  It is very general and does not mean Mr Grewal's mother-in-law did not need a wheelchair at times, nor does it mean that she had the strength and mobility to do what Mr Grewal asserts. 

7. Moreover in respect of the matters I have addressed at [192] and [193], as I have explained, the learned magistrate did not find that Mr Grewal's mother-in-law was incapable of acting in the manner that Mr Grewal asserted in his evidence.

8. Ground 10 is not made out.

Ground 11

1. Mr Grewal sought to put into evidence a letter to him from Gurvir proposing a resolution of the Family Court proceedings.  The letter is annexure 13 to Mr Grewal's affidavit sworn 30 March 2023 and I will mark it for identification MFI 8.  The letter is not dated, although there is a signature of a Justice of the Peace on it accompanied by the date of 5 August 2022, presumably attesting to it being a true copy.  On that basis the letter would have been sent prior to the trial. 

2. Mr Grewal submits that Gurvir would not have written such a letter if Mr Grewal had engaged in the conduct alleged by Parveen and Gurvir.  However, Mr Grewal's submission does not take account of the fact that it is invariably in the interests of parties to resolve Family Court proceedings without the need for a court hearing.  The approach taken by Gurvir in the letter reflects that he considered it was in the family interests overall to resolve the Family Court proceedings without a contested hearing.  The letter does not suggest that the conduct the subject of Parveen's and Gurvir's evidence did not occur.

3. The letter therefore does not arguably advance Mr Grewal's position and I decline to grant Mr Grewal leave to rely on it as evidence in the appeal. 

4. Ground 11 is not made out.

Ground 12

1. Mr Grewal complains that his counsel failed to cross‑examine 'the detective' as to why the detective rushed to charge him and did not examine his relevant injuries, which Mr Grewal says were caused by the screwdriver.

2. Detective Warrener gave evidence that the primary investigating officer had left the job since the incident and that Detective Warrener took over the carriage of the matter at a point in time after Mr Grewal had been charged.  The clear implication from this evidence is that it was the previous investigating officer who had charged Mr Grewal.  Accordingly, this was not a topic on which Mr Grewal's counsel could have cross‑examined Detective Warrener.

3. In respect of Mr Grewal's injuries, his counsel cross-examined Detective Semetaite on the topic of his injuries - see [67] above.  That cross-examination extracted that Mr Grewal's injuries included a laceration or a cut to the face, some bruising and some blood.  These are injuries which might be consistent with a blow from a screwdriver.  However, Detective Semetaite did not have the relevant medical expertise to assess whether that was the case.  Therefore, Mr Grewal's counsel could not have asked Detective Semetaite to provide her opinion as to what caused Mr Grewal's injuries.

4. Mr Grewal also asserts that the decision was made to charge him without the police officers asking him about his injuries when he was in the hospital.  Mr Grewal relied on a statement of Detective Senior Constable Driscoll for this proposition, which I will mark for identification MFI 9.  The statement does not make out Mr Grewal's proposition.  The statement says that there was a change of decision to not continue to deal with Mr Grewal as a victim and to treat him as a suspect.  In any event, the process which the police officers undertook in charging Mr Grewal does not undermine the learned magistrate's findings and reasoning to guilt.

5. Ground 12 is not made out.

Ground 13

1. At ground 13 Mr Grewal complained that police failed to obtain a statement from his mother‑in‑law and further, that his counsel failed to follow up with the police about getting such a statement. 

2. It was initially unclear from the first day of the appeal hearing whether Mr Grewal was suggesting that he expected his counsel to obtain a statement herself from his mother‑in‑law.  Mr Grewal's subsequent affidavit sworn 1 November 2023 did not demonstrate that Mr Grewal had asked his counsel to obtain a statement from his mother-in-law.  At the further hearing of the appeal on 18 January 2024, Mr Grewal clarified that he was not suggesting his counsel do so.  Rather, his expectation was that the police officers involved would obtain the statement and he expected his counsel to follow this up.[109] 

   [109] Appeal hearing 18 January 2024, ts 179 - ts 180.

3. There is no evidence before me that Mr Grewal's mother‑in‑law would have given evidence that in any way assisted Mr Grewal at the trial.  Specifically, there is no evidence before me that her position was as Mr Grewal had indicated in his evidence, namely that she was a perpetrator of violence against him.

4. Further, to the extent that Mr Grewal presses any complaint against his counsel under this ground, Mr Grewal's counsel had no ability to compel the police officers to obtain a statement from any particular person, including his mother-in-law.  For completeness, I will add that it would have been a process fraught with danger for Mr Grewal's counsel to have summonsed his mother-in-law to give evidence without knowing in advance what she was likely to say. 

5. Ground 13 is not made out.

Ground 14

1. This ground is directed to Parveen's statement which became exhibit 1 on the appeal.  In that statement, Parveen says that 'In March 2020, when Covid was becoming a large issue, my parents moved over from India to live with me'.[110] 

   [110] Statement of Parveen Kaur Grewal, par 21.

2. Mr Grewal asserts that Parveen's parents have lived with her since 2009.  Parveen did not give any evidence directed to when her parents started to live with her.  In her examination in chief she was asked 'Your parents live with you.  Is that correct?' and she answered 'That's right'.  She did not say when that started.  Accordingly, what was said in the statement as to when her parents came to live with her is not inconsistent with her evidence. 

3. Further, this topic was not relevant to any of the issues raised in the trial.

4. Ground 14 is not made out.

Ground 15

1. Ground 15 alleges that Parveen made contradictory statements in her statement to police compared to the video taken by police on the day of the incident. 

2. As I understand it, this ground is directed to what Parveen said as to the circumstances leading up to Mr Grewal grabbing her phone.

3. In Parveen's statement to police, she said that she was sitting at the table on her phone, there was an exchange between her and Mr Grewal regarding his sister, and Mr Grewal charged towards her and 'picked up my phone and threw it across the tiles'.[111]  In the video recording which is exhibit 2 on the appeal, Parveen said Mr Grewal grabbed her phone and smashed it.[112]  Parveen's evidence was that she was sitting at the dining table looking at her phone.  After Mr Grewal threw the plate, he walked towards the table where she was and he threw her phone on the ground.[113] 

   [111] Statement of Parveen Kaur Grewal, par 64.

   [112] Video (exhibit 2 on the appeal) at 4:20 to 4:27.

   [113] Hearing 31 January 2023, ts 9.

4. Mr Grewal says that Parveen's evidence does not refer to him picking up or grabbing the phone.  However, the effect of what Parveen said in evidence is that Mr Grewal took her phone from her.  Her evidence was she was looking at her phone, he came to the table where she was, and then threw the phone on the floor.  The clear implication from this must be that he took the phone from her without her consent.  There is therefore no inconsistency of any significance. 

5. Further, to the extent that Mr Grewal relies on an inconsistency between what Parveen said in the video and in her statement, there is no inconsistency. Both are to the effect that Mr Grewal forcefully took the phone from her and then damaged it. Finally on that topic, as I have explained at [17] and [21] above, s 21 of the Evidence Act allows for cross-examination of a witness as to inconsistencies between the witness' testimony and prior statements made by the witness. Section 21 is not directed to inconsistencies between prior statements made by the witness. 

6. Ground 15 is not made out.

Ground 16

1. This ground refers to Mr Sezer, who was willing to give evidence regarding the mobility of Mr Grewal's mother‑in‑law.  I have already addressed the issues regarding Mr Grewal's mother‑in‑law at ground 10 - see [188] - [194] above. For the same reasons given there, ground 16 is not made out.

Ground 17[114]

[114] Ground 17 was included in the amended grounds of appeal dated 17 July 2023.

1. This ground is that Mr Grewal's counsel failed to explain to the learned magistrate that the curve in Parveen's phone suggests that someone has stepped on it.  Mr Grewal asserts that the phone would not get a curve in it by being thrown.  In support of this ground, Mr Grewal produced a photograph of the phone.  There were three photographs of the phone tendered as exhibit 1 at the trial.  These photographs included the photograph which Mr Grewal relied on in the appeal.  That photograph shows that the top of the phone is bent backwards.  Another one of the photos comprising exhibit 1 shows the screen is smashed.

2. The potential relevance of Mr Grewal's proposition is that if the damage to the phone was not caused by him throwing it, this would affect the verdict on the criminal damage offence and also undermine Parveen's evidence.

3. The photographs of the phone were in evidence before the learned magistrate for her Honour to consider.  Common sense suggests two propositions.  First, Mr Grewal throwing the phone on to a tiled floor as Parveen described in her evidence would cause damage to it.  Second, the nature and extent of that damage would likely depend on how the phone landed when it hit the floor, including the angle at which it landed.  Accordingly, that there is a bend in the phone does not by itself support Mr Grewal's proposition.  Furthermore, there was no evidence before the learned magistrate that throwing the phone to the floor could not cause it to have a bend in it.

4. Finally, even if the phone was stepped on as Mr Grewal suggests, this does not mean that he did not throw it.  It is possible that the phone was thrown and then stepped on accidentally during the altercation that ensued.

5. For these reasons, Mr Grewal's emphasis in the appeal on the photograph which shows a bend in the phone does not advance Mr Grewal's appeal.

6. Ground 17 is not made out.

Additional matters

1. In his oral submissions on the hearing of the appeal Mr Grewal raised a number of additional matters.  These were not directly linked to any particular grounds of appeal.  For completeness I will address them.

When Mr Grewal finished lunch

1. Mr Grewal complains that his counsel should have asked Parveen whether he had finished eating lunch at the point in time that the incident occurred.  Mr Grewal said his point was that he had finished his lunch.[115]  However, in his evidence, he had said that immediately prior to the incident 'I had a plate I was eating'.[116]

   [115] Appeal hearing 12 October 2023, ts 29.

   [116] Hearing 31 January 2023, ts 54.

2. This matter does not advance Mr Grewal's appeal.

What Gurvir heard and saw

1. Mr Grewal points to Gurvir's evidence being to the effect that he did not hear a plate or phone smashing, contrasted to Parveen's evidence that Mr Grewal threw a plate and smashed her phone.  Mr Grewal also points to Gurvir's evidence being to the effect that he had not seen anything on the ground. 

2. Gurvir's evidence is that he was initially upstairs, so it is entirely plausible that he did not hear anything associated with the plate and Parveen's phone.  Accordingly, there is not necessarily any conflict between the evidence of Parveen and Gurvir.  Further, given the speed at which matters progressed on all different versions of what occurred, it is not surprising that Gurvir did not notice anything on the ground.  Also in that respect, Gurvir's evidence is that once Mr Grewal left, Gurvir went to the bathroom to check his injuries.

3. Furthermore, all the evidence was there before her Honour to consider in coming to the ultimate findings of fact which her Honour made.

4. This matter does not advance Mr Grewal's appeal.

Whether Mr Grewal was on the phone to his sister

1. In Parveen's statement at par 59, she said 'It was clear that his sister was asking him if we'd made up and he was staying or if he'd be returning home'. 

2. In her evidence, Parveen said she heard Mr Grewal talking to his sister on the phone but she did not hear what they were talking about, his sister was talking and he was listening and answering yes and no.[117]  In Mr Grewal's evidence he denied being on the phone to anyone prior to the incident.[118] 

   [117] Hearing 31 January 2023, ts 8.

   [118] Hearing 31 January 2023, ts 58.

3. Mr Grewal suggests there was an inconsistency between Parveen's statement and her evidence which should have been put to her in cross‑examination.

4. Parveen's statement could be understood as conveying what Parveen thought Mr Grewal and his sister were talking about, rather than that she actually heard what they were saying.  On that understanding, there would not be an inconsistency between Parveen's statement and her evidence.

5. In any event, to the extent there is such an inconsistency, it is inconsequential.  On both accounts, Parveen said Mr Grewal was talking on the phone to his sister, who was asking him questions.  Accordingly, that any such inconsistency was not put to Parveen in cross‑examination does not have the capacity to affect the learned magistrate's findings of guilt.  

6. This matter does not advance Mr Grewal's appeal.

Evidence regarding Mr Grewal grabbing Parveen's neck

1. Mr Grewal said that Parveen's evidence was that he grabbed her neck using his right hand.  He says the photograph (exhibit 2 in the trial) showed the mark on her neck was on her right side.  He says that if he grabbed her with his right hand then the mark would be on her left side.  However, Parveen's evidence did not describe where Mr Grewal was when he grabbed her neck.  Accordingly, the bruise in the photograph could well be consistent with him doing this if he was positioned to the right side of Parveen, or positioned behind her on an angle towards the right. 

2. This matter does not advance Mr Grewal's appeal.

Gurvir's positioning when he pushed Mr Grewal

1. Gurvir's statement to police is exhibit 3 on the appeal.  In that statement, he said he was still at the bottom of the stairs and pushed Mr Grewal towards the kitchen bench.  Mr Grewal submits that Parveen's evidence was Gurvir pushed Mr Grewal in the lounge. The effect of Parveen's evidence in examination in chief was that Gurvir had walked forward after coming downstairs.[119] That evidence would be inconsistent with what is in Gurvir's statement. However, as I have explained at [21] above, the fact that person A gives a statement to police does not mean that statement can be used to contradict the evidence of person B. Gurvir did not give evidence addressing his location when Mr Grewal first pushed him. Accordingly, there is no inconsistency between his evidence and his statement.

   [119] Hearing 31 January 2023, ts 10.

1. This matter does not advance Mr Grewal's appeal.

How Gurvir suffered the injury to his hand

1. In cross-examination, Gurvir gave evidence that at the time Mr Grewal attacked him with the screwdriver, Gurvir was looking down.  Gurvir also gave evidence that in relation to the cut on his finger 'I was stabbed with a screwdriver.  I wasn't too sure how'.[120]  Mr Grewal suggests that if he had attacked Gurvir with a screwdriver then Gurvir would not be looking down and would not be uncertain as to how the injury was caused.  However, Gurvir said in re-examination that he was looking down trying to protect his head.[121]  This evidence was entirely plausible and was before the learned magistrate to consider and make her own assessment of it.  It is also entirely plausible that while looking down, Gurvir would not have appreciated how the screwdriver came into contact with his finger. 

   [120] Hearing 31 January 2023, ts 42.

   [121] Hearing 31 January 2023, ts 47 - ts 48.

2. This matter does not advance Mr Grewal's appeal.

How the altercation ended

1. In Parveen's statement, she said 'Eventually [Mr Grewal] stepped back and walked outside'.[122]  In her evidence, she said Mr Grewal 'fell down and then he quickly get up and ran outside the door'.[123]  There is an inconsistency here, however it is not of any great significance to Parveen's credibility.  It reflects Parveen's appreciation of what was a fast, fluid and intense scenario and there is always a likelihood that a person's recollection of such a scenario will vary over time.  Furthermore, this topic does not reflect an inconsistency in Parveen's evidence as to whether or not Mr Grewal used a screwdriver in the altercation with Gurvir.

   [122] Statement of Parveen Kaur Grewal, par 82.

   [123] Hearing 31 January 2023, ts 12.

2. Furthermore, Parveen's evidence at trial was more advantageous to Mr Grewal than what Parveen had said in her statement.  The reference in her statement that Mr Grewal stepped back and walked outside does not reflect that Mr Grewal was under attack, as he suggests in his evidence.  On the other hand, Parveen's evidence at trial could be understood as conveying Mr Grewal was under attack, by referring to him falling down and running outside.  Thus, her evidence at trial could be understood as assisting Mr Grewal's position.  If Parveen was cross‑examined to the effect that her evidence was inconsistent with her statement, there was a risk that Parveen then adopted what she had said in her statement.  If she did so, Mr Grewal could potentially lose the benefit of her evidence at trial that he fell down and ran outside.

3. This matter does not advance Mr Grewal's appeal.

Presence of grandparents

1. The video which became exhibit 2 on the appeal includes a video 'pan' of the house.  It shows the location of the relevant rooms.  It was played during the appeal.  Mr Grewal asserts that if the incident happened as suggested by Parveen and Gurvir, then Parveen's parents would have heard it and come into the kitchen area. 

2. I do not see how this advances Mr Grewal's appeal.  Mr Grewal's evidence was that Parveen's mother was a participant in the attack on him, so on his evidence, she was there.  Putting Mr Grewal's evidence to one side, there was no evidence as to whether or not, or when, Parveen's parents came into the kitchen following the incident. 

3. Furthermore, Mr Grewal points to Parveen saying in the video (exhibit 2 on the appeal) that her mother had cleaned up the mess.  While that was not part of the evidence at trial, it reflects that at some point proximate to the incident, her mother was in the kitchen area.  That she was in the kitchen area after the incident is no more consistent with Mr Grewal's version of events, than it is with Parveen's and Gurvir's versions of events.  If anything, it is neutral.

4. This matter does not advance Mr Grewal's appeal. 

Further medical evidence

1. At the further hearing of the appeal, Mr Grewal sought to tender a medical certificate dated 19 December 2023.  It referred to the photos which were exhibit 5 in the trial.  The author of the certificate expressed the opinion that the photos 'would appear to show early signs of bruising that may be consistent with a firm grip'.  I will mark the relevant medical certificate for identification and it can form part of MFI 4 which contains the two medical reports that Mr Grewal relied on.  However, I do not grant Mr Grewal leave to adduce the certificate as evidence on the appeal. 

2. Mr Grewal seeks to rely on the medical certificate as supporting his contention that his arms were held by Parveen and his mother‑in‑law.  However, the letter does not arguably do so.  This is principally for three reasons.  First, it says the photographs 'would appear' to show early signs of bruising.  Second, it says that 'may be' consistent with a firm grip.  Third, it does not address other possible causes of any such bruising.  Accordingly, the certificate does not arguably support Mr Grewal's evidence of the incident given at trial.  The certificate is neutral in that respect, in effect conveying that Mr Grewal's injuries could have been caused by being held in a firm grip.  For completeness, the certificate makes no mention of Mr Grewal's injuries being caused by a screwdriver and thus has no possible application to ground 6.

Whether Gurvir was wearing a ring

1. Mr Grewal also raised a matter regarding Gurvir's evidence about whether or not he was wearing a ring.  In cross‑examination, he had initially said he could not remember if he was or was not wearing a ring at the time.[124]  He was subsequently taken to his interview in cross‑examination.  He accepted that in his interview he said he did have a ring on at the time.  He then said 'I don't remember if I had one on then now, but, obviously, just asked then I would have remembered it, because it would have been on me'.[125]  If anything, this evidence supports the credibility of Gurvir's evidence rather than detracts from it.  In particular, Gurvir points out that what he said in the interview must have been right because he would have had the ring on him at the time. 

   [124] Hearing 31 January 2023, ts 44.

   [125] Hearing 31 January 2023, ts 45.

2. This matter does not advance Mr Grewal's position on the appeal.

When the 000 call was made

1. Mr Grewal also complains that his counsel did not press for further information as to the length of time between when the 000 call was made and when the police officers arrived.  He says the length of time would demonstrate that Parveen and Gurvir had an opportunity to come up with a story together that implicated Mr Grewal as the wrongdoer.  However, the evidence before the learned magistrate was that the police officers did not arrive immediately after the 000 call was made.  Accordingly, on the evidence before the learned magistrate, there was sufficient time for Parveen and Gurvir to have the opportunity to concoct a story implicating Mr Grewal.

2. Accordingly, this matter does not advance Mr Grewal's position on the appeal.

Further matters regarding the interview

1. In reply submissions, Mr Grewal raised a number of additional matters regarding Gurvir's interview with police.  The interview itself was not before me and Mr Grewal had not applied for it to be adduced into evidence.  After the hearing, I asked that it be provided so that I could have it before me in assessing the further matters that Mr Grewal raised.  I will mark the transcript for identification MFI 10.

2. The possible relevance of the matters raised by Mr Grewal is that they reflect prior inconsistent statements made by Gurvir on which he could have been cross-examined.

3. The first additional matter raised by Mr Grewal was that during the interview Gurvir did not mention looking down and being in danger.[126] Mr Grewal says this contradicts Gurvir's evidence.  However, in the interview, Gurvir described how Mr Grewal was hitting him while holding a screwdriver, and Gurvir said 'my head was really down at this point'.[127]  Shortly after giving this answer, Gurvir said he was trying to keep Mr Grewal away.[128]  There is little if any difference between Gurvir looking down as he said in evidence, and Gurvir's head being 'really down' as he said in the interview.  Further, Gurvir's answers in the interview clearly convey that he positioned his head to protect himself.

   [126] Appeal hearing 18 January 2024, ts 173.

   [127] Transcript of police interview of Gurvir, ts 11.

   [128] Transcript of police interview of Gurvir, ts 11.

4. Allied to this topic, Mr Grewal points to Gurvir saying in the interview that he was hitting Mr Grewal mostly on the face,[129] as being inconsistent with Gurvir's evidence that he was looking down.  As I understand it, Mr Grewal's proposition is that if Gurvir was looking down, he would not know on what part of the body he hit Mr Grewal.  I do not accept that proposition.  Gurvir would still be able to assess what part of Mr Grewal's body he was striking, having regard to both the direction of Gurvir's punches and the physical sensation of the contact when the punches landed.

   [129] Transcript of police interview of Gurvir, ts 13.

5. Accordingly, I am not satisfied that his counsel ought to have cross-examined on this topic.  Nor am I satisfied that the absence of cross-examination gives rise to a miscarriage of justice.

1. The second additional matter Mr Grewal points to is the passage in the interview where Gurvir said that Parveen was holding Mr Grewal.[130]  The police officers asked if Parveen was holding Mr Grewal at any point.  Gurvir answered that she 'was holding him not to hit me and holding me as well'.[131]  Earlier in the interview, Gurvir said that Parveen 'was in the middle trying to break us up'.[132]  These answers reflect that Parveen was trying to break up the altercation between Mr Grewal and Gurvir.  They are not inconsistent with Gurvir's evidence, which was that the altercation eventually stopped when 'My mum come in between us and tried to pull us apart' which she was able to do - see [73] above.

   [130] Appeal hearing 18 January 2024, ts 173.

   [131] Transcript of police interview of Gurvir, ts 16. 

   [132] Transcript of police interview of Gurvir, ts 13.

2. Moreover on this topic, Gurvir was asked in the interview whether at any time Parveen was holding both of Mr Grewal's arms and Gurvir was hitting him, to which Gurvir answered no.[133]  Gurvir also said that physically Parveen would not be able to do that.[134]

   [133] Transcript of police interview of Gurvir, ts 17.

   [134] Transcript of police interview of Gurvir, ts 17.

3. Accordingly, I am not satisfied that his counsel ought to have cross-examined on this topic.  Nor am I satisfied that the absence of cross-examination gives rise to a miscarriage of justice.

4. The third additional matter is that Mr Grewal suggests that in the interview Gurvir said he used excessive force, which Mr Grewal contends supports his version of what occurred.  

5. Towards the end of the interview and after Gurvir had given his version of what happened, one of the officers asked Gurvir if he thought what he did was excessive.  Gurvir replied 'Yes I do'.  The officer asked why he thought that.  Gurvir explained that he feels like Mr Grewal is still an older guy and is not fit and young like Gurvir and he felt like he could have walked away after Mr Grewal initially pushed him.[135]  Gurvir was asked when he could have walked away and said 'I guess when my mum was trying to pull us apart'. 

   [135] Transcript of police interview of Gurvir, ts 15.

6. In the interview on a number of occasions, Gurvir also said to the effect that what he did was wrong, saying 'I know what I did wasn't right, I shouldn't have done what I did'.[136] He also said 'I know it was wrong what I did' and 'I shouldn't have done it'.[137]

   [136] Transcript of police interview of Gurvir, ts 8.

   [137] Transcript of police interview of Gurvir, ts 14.

7. What Gurvir said in the interview reflected his own characterisation of his conduct, bearing in mind that he had punched his own father multiple times.  At the point in time when Gurvir was asked whether he thought what he did was excessive, he had already explained what he said occurred in the altercation.  Gurvir's characterisation of his behaviour did not reflect a withdrawal or alteration of what he said earlier in the interview as to what had occurred between him and Mr Grewal.  Further, if cross-examined on this topic, it was likely to add to the credibility of his evidence as it does not seek to minimise his responsibility for the injuries that Mr Grewal suffered.    

8. Accordingly, I am not satisfied that his counsel ought to have cross-examined on this topic.  Nor am I satisfied that the absence of cross-examination gives rise to a miscarriage of justice.

Conclusion

1. Her Honour carefully considered the evidence and gave substantive reasons for the findings of fact that were made.  The many matters of complaint that Mr Grewal raises do not arguably demonstrate error by the learned magistrate.  The finding of guilt on each offence was plainly open to the learned magistrate on the evidence at trial.

2. The further evidentiary matters which Mr Grewal sought to rely on in the appeal do not, even arguably, demonstrate there is a significant possibility that on the basis of the further evidence and the evidence given at trial, Mr Grewal would have been acquitted of any of the three offences.  Further, the complaints which Mr Grewal makes against his counsel do not give rise to a miscarriage of justice in respect of any of the three offences, nor is there any other basis upon which a miscarriage of justice arises. 

3. In my view, none of the grounds of appeal, or the additional matters raised by Mr Grewal, give rise to an arguable basis upon which his conviction on any of the offences ought be set aside. 

4. Accordingly, I decline to grant leave in respect of each of the 17 grounds of appeal and I dismiss the appeal.

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 Lemonis

27 MARCH 2024