Herron v Field
[2022] WASC 149
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HERRON -v- FIELD [2022] WASC 149
CORAM: DERRICK J
HEARD: 19 APRIL 2022
DELIVERED : 5 MAY 2022
FILE NO/S: SJA 1005 of 2022
BETWEEN: BRETT DOUGLAS HERRON
Appellant
AND
LAUREN FIELD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D POTTER
File Number : PE 57712 OF 2020
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted of aggravated unlawful assault - Whether magistrate made an error in failing to make a specific finding of fact - Whether magistrate's failure to make a specific finding of fact resulted in his reasons being inadequate - Whether magistrate made an error in failing to take into account an inconsistency in the evidence - Whether magistrate's failure to take into account an inconsistency in the evidence resulted in his reasons being inadequate - Whether magistrate made an error in making a finding of fact adverse to the appellant - Miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Restraining Orders Act 1997 (WA)
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr M R Gunning |
| Respondent | : | Mr T E Ledger |
Solicitors:
| Appellant | : | Gunning Young |
| Respondent | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
DL v R [2018] HCA 26; (2018) 356 ALR 197
Liberato v R [1985] HCA 66; (1985) 159 CLR 507
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
Mifsud v Campbell (1991) 21 NSWLR 725
PYN v The State of Western Australia [2020] WASCA 116
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Wells v The State of Western Australia [2017] WASCA 27
DERRICK J:
Introduction
On 29 December 2020 the appellant was charged with an offence of unlawfully assaulting Ms Annie Erica Hawkins (the complainant) in a circumstance of aggravation contrary to s 313(1)(a) of the Criminal Code (WA) (the Code). The alleged circumstance of aggravation was that the appellant and the complainant had been in a 'family relationship' as defined in s 4(1) of the Restraining Orders Act 1997 (WA).[1]
[1] Code, s 221(1)(a).
The appellant pleaded not guilty to the charge.
The appellant's trial took place before Magistrate Potter on 8 October 2021, 16 December 2021 and 17 December 2021. The appellant was represented by counsel at his trial.
On the afternoon of 17 December 2021 the magistrate delivered his oral reasons for decision. His Honour found the appellant guilty of the charged offence. His Honour fined the appellant for the offence. His Honour also made a spent conviction order.
The appellant applies for leave to appeal against the decision of the magistrate convicting him of the offence on five grounds which are referred to further below.[2] In essence, the appellant alleges that the magistrate erred in failing to make a specific finding of fact which resulted in his reasons being inadequate, erred in failing to take into account a specific inconsistency in the evidence which resulted in his reasons being inadequate and erred in making a specific finding of fact adverse to the appellant. [3]
[2] The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to convict the appellant is a decision that may be appealed by the appellant: CAA, s 6(c) and s 7(1).
[3] An application for leave to appeal can be made on the ground that the primary court made an error of law or an error of fact or both: CAA, s 8(1)(a)(i).
On 4 February 2022 a registrar of this court ordered that the application for leave to appeal be heard together with the appeal.
Leave to appeal - principles
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[4] The ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[5] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[6]
[4] CAA, s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[6] CAA, s 9(3).
The offence - summary
A brief summary of the facts of the appellant's offence as found by the magistrate were as follows.
The appellant and the complainant had been in an 'on again off again' type relationship.
At about 3.30 pm on 28 December 2020 the appellant attended the complainant's unit. The appellant had with him a bag of lemons.
The appellant requested the complainant to return his house keys. An argument developed. In the course of the argument the complainant opened her security door. As she opened the security door the appellant pushed her outside to the courtyard and onto the ground. The appellant then went inside the complainant's unit and took keys from a hook in the kitchen. The complaint followed the appellant inside her unit. The appellant shoved the complainant onto the floor. The appellant walked into the courtyard. The complainant followed the appellant. The appellant shoved the complainant down again. The appellant again went into the appellant's unit. The complainant picked up a clothing rack pole to defend herself from the appellant. The appellant came out of the unit, grabbed the pole and held it up against the complainant's throat. The appellant kicked the complainant's legs and she fell to the ground. The appellant then left.
The witnesses called at trial
During the trial the prosecution called three witnesses, the complainant, and the two investigating police officers, Sergeant Gregory Thomas and Constable Lauren Field.
The appellant elected to give evidence. He also called as part of his case Mr Richard Boddington, a 'forensic practitioner' who undertook a forensic examination of the appellant's mobile phone.
The grounds of appeal
The grounds of appeal as pleaded are as follows:
Ground 1:
His Honour erred in not taking into account the contradictions between the evidence of the complainant … and that of:
(i)Sergeant Thomas;
(ii)Constable Field; and
(iii)Forensic Expert Witness Boddington.
And as such, his Honour erred in finding the complainant's evidence credible and reliable and therefore erred in finding it open for [the appellant] to be convicted of the alleged offence.
Ground 2:
The learned presiding magistrate made a wrong decision on a question of law in holding that it was speculative to determine whether [the complainant] manipulated her phone at a particular time, and, in doing so, failed to consider the critical question of whether she had done so at all.
Ground 3:
The learned presiding magistrate made a wrong decision on a question of law in determining that a particular text message sent by the appellant;
(a)Makes no sense at all; and
(b)Undermined the credibility of the appellant.
and in doing so engaged in circular reasoning.
Ground 4:
The learned presiding magistrate made a wrong decision on a question of law by failing to take into account, at all, the inconsistencies between the evidence of [the complainant], with that of prosecution witnesses, Sergeant THOMAS and Constable FIELD which were relevant to a material fact in issue.
Ground 5:
In an oath-on-oath hearing which required the resolution of credibility questions, the learned presiding magistrate made a wrong decision on a question of law by failing to take into account relevant considerations bearing upon the credibility of the two key witnesses, namely [the complainant] and the Appellant….
And in doing so there was a miscarriage of justice.
Pleaded as part of ground 5 are 17 'particulars'. It is not necessary for me to set out the particulars herein. The particulars consist of statements of certain aspects of the evidence adduced at trial, statements of the appellant's defence at trial and assertions as to what various aspects of the evidence demonstrated or should have been found by the magistrate to have demonstrated.
It must be said that the grounds of appeal as pleaded contain a significant degree of overlap and do not articulate as clearly as they might the contentions advanced by the appellant in support of his appeal. However, and as was confirmed by the appellant's counsel in response to questioning by me during the hearing of the appeal, the appellant's contentions are follows:
1.The magistrate made an error in holding that it was speculative to determine whether the complainant had manipulated her phone at a particular time with the result that his Honour's reasons for decision were inadequate and productive of a miscarriage of justice: grounds 1(iii), 2 and 5;
2.The magistrate made an error in determining adversely to the appellant that a particular text message sent by the appellant made no sense and undermined the appellant's credibility with the result that a miscarriage of justice occurred: grounds 3 and 5; and
3.The magistrate made an error in failing to take into account a specific inconsistency between the evidence of the complainant on the one hand and the evidence of police officers Thomas and Field on the other, with the result that his Honour's reasons for decision were inadequate and productive of a miscarriage of justice: grounds 1(i), 1(ii), 4 and 5.
The trial
In order to properly deal with the appellant's contentions it is necessary to set out in some detail the evidence adduced at the trial, and also to make some further reference to the magistrate's findings.
Prosecution witnesses
The complainant[7]
[7] ts 7 - 82, 8 October 2021.
The complainant testified that at about 3.30 pm on 28 December 2020 she was lying on her bed in her unit at Scarborough. She heard a loud bang at the rear door of her unit. She got up to see what the noise was. When she got up she saw the appellant at her rear door. She was surprised to see the appellant because she had stayed at his house two nights earlier.
The complainant asked the appellant, 'What are you doing here?' The appellant replied, 'I've brought some lemons' and said, 'I want a key to my house'. She said, 'Okay, but you seem upset and angry' and 'I will bring the key to you when you have calmed down, but I'm not opening the door'. The appellant said, 'I want that key now' and kicked the security door three times with the sole of his shoe. She asked the appellant to stop. The appellant said, 'Give me the fucking key now'. She said, 'You need to leave'. The appellant said, 'I'm not leaving until I get my key'.
With respect to the issue of the key, the complainant testified that she and the appellant had been separated a number of times, that on each occasion there had been a change of locks at the appellant's house and that when she and the appellant reunited she was given a new set of keys.
The complainant said that outside her unit, next to the security door, was a rack of clothes. She had gone through her clothes during the day and was airing them on the rack. After the appellant kicked the door he knocked over the bag of lemons and then began pulling her clothes off the rack. The appellant knocked the rack over. The clothing rack fell apart.
The complainant said that while this was happening she went through a thought process. She decided to open the security door. She made this decision to stop the appellant damaging her clothing. However, she also thought that she could calm the appellant down by giving him a hug which had worked before.
The complainant testified that as soon as she opened the door the appellant grabbed the door and opened it towards him. She then began to panic. She tried to pull the door closed but the appellant also had hold of the door and was trying to pull it open. She caught her right middle finger in between the door and the door frame.
The complainant said that the appellant got behind her and pushed her outside into the courtyard and shoved her into a corner where there was another clothes rack standing on the other side of the courtyard. She fell onto the rack and onto the brick paving near a stone or a pebble garden and grazed her right knee. She picked herself up to see that the appellant had gone inside her unit and had made his way to a small rack where she kept keys.
The complainant said that she followed the appellant inside her unit. The appellant turned towards her and shoved her down and she fell to the floor. She was terrified and urinated on the floor. The appellant then went outside. She followed the appellant into the courtyard where he shoved her down onto the ground again.
The complainant said that the appellant then went back inside her unit. At this point she went out of her unit's courtyard via a rear gate and into a common area of the units. She began calling for help. Nobody seemed to hear her and nobody was around.
The complainant said that she realised that for the appellant to leave her unit he would have to leave by the rear gate. She picked up a pole from the first clothing rack that the appellant had pushed over, the clothing rack that was near her rear door. The pole was near the gate. It was between the door and the gate. She picked up the pole to defend herself in case the appellant came at her again.
The complainant said that the appellant came towards her. She said, 'Stay away, can't you see I'm a mess'. However, the appellant approached her again, grabbed the pole and twisted her around so that he was behind her. He held the pole against her throat. He called her a slut and then pushed into the back of her legs which caused her to fall to the ground. She fell onto her bottom. At this point the appellant left. She returned to her unit, began to pick up clothes and obtained a towel to clean up the urine in the lounge room.
The complainant said that she called the police who arrived about 10 minutes later. The attending police were Sergeant Thomas and Constable Field. They took a number of photographs, some of which showed the bruising to her finger, the swelling to her hand, the graze on her knee, a towel, and the broader scene of the unit and courtyard, including the broken clothing racks and scattered lemons.
The complainant said that the police asked her whether she would like to make a statement. She followed the police to the police station to make a statement.
The complainant testified that when she arrived at the police station and while she was waiting outside for the police officers to 'go around the back and let her in' she received a text message from the appellant in which the appellant said that he had just dropped some lemons at her door. She received the message as 'the constable' opened the door. She said to the constable, 'I don’t believe this. I've just got a message from [the appellant] and it says that he has just dropped lemons…at my door'. She said to the constable that the appellant had left the lemons at her door 'way before that'. She also received a text message from the appellant, 'Oh dear She was fine when I dropped off the lemons'. She asked 'the constable' if she should reply and 'he' (apparently a reference to Sergeant Thomas) suggested that she reply by asking the appellant whether that was before or after he had tried to strangle her. She then sent a text message that said, 'Yes I know you did. That when we had a fight and you tried to strangle me'. She then received a text message from the appellant in which he said that they had had an argument, that he had never attempted to strangle her, that he had pushed her over because she had hit him over the head with a clothes rack, that it was just another argument and that it never ends. The complainant gave this evidence by reference to a photograph that had been taken of the messages on her phone by the police.[8]
[8] Exhibit 1 (photographs LF 20 and LF 21).
The complainant said that the police recommended that she take photographs of her injuries two weeks later once the bruising had materialised. She arranged for this to occur. One of her friends took the photographs. She took the photographs to the police station.
During her evidence-in-chief the complainant was shown and authenticated the photographs taken by Sergeant Thomas and Constable Field of the scene of the incident and her injuries.[9] She was also shown and identified the photographs that she arranged to be taken of her injuries two weeks after the incident.[10]
[9] Exhibit 1 (photographs LF 1 - LF 19).
[10] Exhibit 2 (11 photographs).
The complainant was cross‑examined at length. It was put to her that she had fabricated her evidence and that what had actually occurred was that the appellant had come to drop off the lemons, that she had quickly flung open the rear security door, and that she had lunged at him and struck him with the pole from the dismantled clothes rack. The complainant denied that this was what had occurred and said that it would not have been possible for her to hit the appellant with the pole because she would have had to walk around him to get to the clothes rack.
It was put to the complainant that she did not detail some of her injuries in her original statement to the police. The complainant accepted that there may have been some variances between her statement to the police and her evidence but said that she was still in a state of shock and was upset at the time. She said that her statement reflected the questions asked of her by the police and that over time she had reflected and recalled other details.
The complainant denied that she had fallen over and maintained that the appellant had pushed her. She said that the second clothes rack only fell apart because she was pushed into it and that she only used the pole in self-defence. She denied that the appellant had to restrain her from hitting him. She accepted that at some point the pole may have struck the appellant in the head but denied that this was intentional.
The complainant agreed that she had received from the appellant the text message stating that he had just dropped some lemons at her door while she was waiting for the police to drive into their secure area, park their car at the back of the police station and open the door to the police station for her. She said that she showed this message to the police as she was walking through the front door, that she asked the male constable who she had already spoken to, 'What do I do?' and that he said, 'Ask him was that before he tried - tried to strangle with the bar - the clothing rack'. She confirmed that it was for this reason that she sent to the appellant the message, 'Yes I know you did. That when we had a fight and you tried to strangle me'. She confirmed that there was no one who went with her to the police station who could have used her phone. She said that she was shocked when she received the appellant's message stating that he had just dropped off the lemons because this statement was obviously a lie.
The complainant was asked whether when she had shown her phone to the police she had sent a text message from her phone to the appellant that said, 'Annie is been [sic] taken to hospital'. The complainant denied sending this message at 4.49 pm or at all saying that she 'certainly didn't text [the appellant] and tell him that I was taken to hospital'. The complainant also denied sending a text message that said, 'We saw it all'. The complainant said that she could not remember 'sending anything' (apart from the text which she asserted she sent at the suggestion of the police officer) and that she knew 'nothing at all' about the text, 'We saw it all'. The complainant said that she did not send these two messages or delete them from her phone to mislead the police. The complainant said that at some point her phone was 'in front of' the police.
Sergeant Thomas[11]
[11] ts 84 - 92, 8 October 2021.
In his evidence-in-chief Sergeant Thomas confirmed that on 28 December 2020 he and Constable Field attended the complainant's unit and that on their return to the police station Constable Field took the complainant's statement. He testified that he did not have any involvement in or observe text messages on the complainant's phone. He said that given he was the station supervisor he had other roles to perform when he and Constable Field returned to the station and that he therefore left Constable Field to deal with the complainant.
In cross-examination Sergeant Thomas was questioned about whether he had, on his attendance at the complainant's unit, been able to see any marks on the complainant's neck. He said that he would not disagree with the proposition that he had, at the time that he was at the complainant's unit, said that he could not see any marks on the complainant's neck. He said that he agreed that looking at the photographs that were taken of the complainant's injuries by Constable Field at the time of their attendance at the complainant's unit it was difficult to see if there were any marks on the complainant's neck.[12]
Constable Field[13]
[12] Exhibit 1 (photograph LF 8).
[13] ts 17 - 26, 16 December 2021.
In her evidence Constable Field confirmed that she and Sergeant Thomas had attended the complainant's unit shortly after 4.00 pm on 28 December 2020. She said that she took photographs of the complainant's injuries. She recalled that the complainant had some bruising to her arm, had a scratch on her knee, a scratch on her ankle and a scratch on her neck. She believed these to be fresh injuries.
Constable Field said that she and Sergeant Thomas returned to the Scarborough Police Station at about 4.45 pm. The complainant followed them to the station in her own vehicle.
Constable Field said that once back at the station she proceeded to obtain a statement from the complainant. During this process she was typing on her computer and taking notes in her notebook. Therefore, she was not monitoring what the complainant was doing at all times.
Constable Field said that while she was taking the complainant's statement she recalled that the complainant drew her attention to some text messages that the complainant had received from the appellant. At 5.16 pm she took a photograph of the text message chain (that is, a photograph of the screen of the complainant's phone that showed the text messages)[14] as well as a photograph of a screen of the complainant's phone showing the appellant's contact details including his mobile phone number.[15] The photograph of the text message chain shows the messages as she saw them. She did not see any other messages on the complainant's phone.
[14] Exhibit 1 (photograph LF 20).
[15] Exhibit 1 (photograph LF 21).
Constable Field said that the complainant signed her statement at 5.55 pm and then left the station in her own vehicle.
Constable Field confirmed that she and Sergeant Thomas attended the appellant's address at 8.45 pm and arrested the appellant.
In cross-examination Constable Field testified that she commenced taking the complainant's statement in the interview room at 5.00 pm and that Sergeant Thomas was not present during this time. It was during this time that the complainant showed her the text messages. This was the first she knew of the text messages exchanged between the complainant and the appellant. She did not tell the complainant how to respond to the appellant and did not tell the complainant what to write in reply. She did not witness Sergeant Thomas telling the complainant how to reply to any of the text messages.
During cross-examination Constable Field was shown a copy of a screenshot from the appellant's phone which included the message, 'Annie is been [sic] taken to hospital'. She said that she had not seen this message on the complainant's phone.
Constable Field was also referred to another message shown on the copy of the screenshot from the appellant's phone which read, 'We saw it all' and which, on the appellant's phone, appeared between the message 'Oh dear She was fine when I dropped off the lemons' and the message, 'Yes I know you did. That when we had a fight and you tried to strangle me'. Constable Field said that she had not seen this message on the complainant's phone when the complainant had shown her phone to her.
Constable Field was also shown three photographs of the appellant's injuries which had been taken by Sergeant Thomas.[16] She said that she had not included these photographs in the prosecution brief because she was not, at the time of compiling the brief, aware that the photographs had been taken.
[16] Exhibits 4A - 4C.
Constable Field said that she recalled that during the interview conducted with the appellant he 'made mention of some blood in the photographs which [she] had obtained in the interview' and which the appellant stated he believed was his.
Defence witnesses
The appellant[17]
[17] ts 26 - 76, 16 December 2021.
The appellant testified that on the morning of 28 December 2020 the complainant had left his house abruptly and without warning.
The appellant said that at around 3.00 pm he drove to the complainant's unit with a bag of lemons as a gift for her. He had a lemon tree in his back yard and he would often provide lemons to her.
The appellant said that upon arriving at the complainant's unit he went to the back door. He knocked and waited for a short while but did not hear any response or movement. He knocked again. He thought that the complainant must have gone out for a walk. He put the bag of lemons on the ground at the back door. As he turned to leave he heard the complainant inside and heard her say, 'What do you want? Go away'. He did not understand why the complainant had asked him to leave.
The appellant said that he turned to leave and that as he did so he accidentally knocked over the clothes rack. The clothes rack was flimsy and it came apart. He tried to bend down to pick up the clothes. At this point the complainant came flying out of the security door and he got 'whacked' on the head with one of the poles from the clothes rack. He turned to face the complainant and could see that she had the pole raised as if she was about to hit him again. He therefore pushed the complainant away and she fell to the ground.
The appellant said that he was still 'a bit befuddled' but that he was moving towards the courtyard gate to exit. As he was doing this the complainant 'whacked' him for a second time on the arm.
The appellant said that at this time he grabbed the complainant in a bear hug and restrained her. He had his arms around the top part of the complainant's arms and body. The complainant's back was to him.
The appellant said that by this time he and the complainant had moved to outside the courtyard gate. The complainant 'got the pole' and swung it up over her head and hit him with the open end of the pole on the top of his head. He wrestled the pole away from the complainant and cast it aside. He again grabbed the complainant in a bear hug because she kept attacking him and he did not know what she was going to do. He carried the complainant through the gateway into the courtyard and then to just inside the door of her unit. He then released the complainant and she fell to the ground. The complainant was exhausted by this stage. He then walked out of the apartment door, through the courtyard and left.
The appellant said that the whole incident lasted 2 - 3 minutes. He did not strike the complainant at all.
The appellant said that after he left the complainant's unit he sent her a text. He was 'absolutely bamboozled' by the whole thing and he sent the complainant a text saying, 'I left the lemons' or 'I dropped the lemons off' or 'I left the lemons at the door' or something like that.
The appellant testified that he received a text in response from the complainant that said, 'Annie is been [sic] taken to hospital'. He replied, 'Oh dear She was fine when I dropped off the lemons'.
The appellant said that he then received two further texts from the complainant, the first which stated, 'We saw it all' and the second which stated, 'Yes, I know you did. That when we had a fight and you tried to strangle me'. He then sent a responsive text to the complainant in which he said:
We had an argument, I never attempted to strangle you, I pushed you over because you hit me over the head with a clothes rack. Just another argument. It never ends.[18]
[18] The appellant gave his evidence relating to the content of the text messages by reference to the photograph that had been taken by Constable Field of the messages on the complainant's phone (Exhibit 1, photograph LF 20) and a screenshot of the messages that were on his phone (Exhibit 3).
The appellant said that the times of the texts as shown on his phone are the times that the texts were sent and received by him and that the order of the messages as shown on his phone is the order in which they were sent and received.
The appellant said that he did not alter or change anything on his phone and that he did not alter or change any of the text messages. He did not manipulate his mobile phone. As far as he knew all that could be done was to delete messages, not add things.
The appellant said that after leaving the complainant's unit he drove home. He had to clean himself up when he got home because he had blood all over his shirt and face.
The appellant said the police arrived and he asked if he could contact a lawyer. He did contact a lawyer. He was taken to the police station and charged.
The appellant testified that he did suffer injuries as a result of the incident. He suffered a head wound and he was concerned about his arm. He went to his doctor about his arm and was advised to get an x-ray.
The appellant said that he was asked by the police about the blood on the floor of the complainant's unit. He told the police that the blood could have been his. During the incident with the complainant he did not see any injuries on her or any blood.
The appellant identified and authenticated the three photographs of his injuries taken by Sergeant Thomas while he was at the police station.[19]
[19] Exhibits 4A - 4C.
The appellant said that at no stage during the incident did the complainant yell for help. The units that are in the complainant's complex are about 10 metres away from her unit.
The appellant said that there was no 'key incident'. He did not have any of the complainant's keys and she did not have any of his keys.
The appellant was cross‑examined at length. He did not shift from his version of events.
In cross-examination the appellant said that when he released the complainant from the bear hug and she fell to the floor inside her unit she was 'quite exhausted'. He said that she was a 'very frail girl' and 'wasn't struggling'.
In cross-examination the appellant said that the message that he received from the complainant's phone to the effect that the complainant was being taken to hospital was in the third person. He said that the message was clearly not from the complainant but was sent on the complainant's phone and that this was quite confusing. He said that he responded to this message in the terms that he did because the message appeared to have been written by a third person, not the complainant. He said that he was talking to the complainant's phone as opposed to the complainant.
In cross-examination the appellant agreed that he had not made a report to the police that he had been assaulted by the complainant. He said that he never thought to make a report, that he was not familiar with the legal system, that he did not know he needed to make a report, that he should have made a report and that he did not know he was able to make a report.
Mr Boddington[20]
[20] ts 76 - 91, 16 December 2021.
Mr Boddington was the forensic practitioner.[21]
[21] Mr Boddington apparently prepared a report setting out the substance of the evidence that he ultimately gave which, although not tendered, was disclosed by the appellant to the prosecution prior to the trial: ts 109, 17 December 2021. Despite being provided with Mr Boddington's report in advance of the trial the prosecution did not adduce as part of its case expert evidence dealing with the issues the subject of the report.
Mr Boddington analysed the appellant's mobile phone. He did not analyse the complainant's mobile phone.
Mr Boddington was shown the photograph taken by the police of the screen of the complainant's phone showing a text message exchange between the appellant and the complainant on 28 December 2020.[22] He testified that when he compared the appellant's phone to the photograph taken of the complainant's phone he could see that messages were missing from the photograph of the complainant's phone. He said that one possible explanation for this is that the complainant deleted the messages from her phone. He identified another possible explanation to be that there was some application or software on the appellant's phone that would allow the user of the phone to alter communication threads. He said he found no evidence of any such application or software on the appellant's phone. He said that another possibility 'was that this was accidental…[and] could have been created by…malware'. He expressed the view that it is more likely than not that the explanation for the missing messages is that they were deleted from the complainant's phone.
[22] Exhibit 1 (photograph LF 20).
Mr Boddington made the point that it is important to look at the message thread. He pointed out that there were a few messages on 28 December 2020. He stated that assuming the message exchange occurred in the police station while the complainant was in possession of her phone, and looking at the timeline of events, the legitimacy of the evidence on the appellant's phone is supported. He said that the timeline was so close that it would be impracticable for there to have been manipulation by someone on the appellant's phone. He expressed the view that given that the messages were exchanged very close in time it is more difficult to manipulate the phone data.
Mr Boddington said that iPhones talking to each other using iMessage synchronise very neatly. He noted that in his research he had found nothing to suggest this sort of communication being contaminated or manipulated.
Mr Boddington said that iMessage is a reliable means of recording the communications between two or more parties. He said that he cannot say that the integrity of the evidence is '100% good or satisfactory, but it's certainly at a higher level of reliability, less likely to have been manipulated or altered'.[23] He said that if an iPhone is talking to an iPhone using iMessage and one phone has something on it and the other phone does not, it is more than likely that the user of the phone that does not have the thing on it has deleted that thing. Mr Boddington continued:[24]
But it wouldn't delete it on, say, [the appellant's] phone. It's still there. So it sounds a bit complex, but it's not really. It just means that the other party could have deleted it. It could have malware that deleted it. It could have been overloaded with data so that the messages sort of get pulled off. But the point is there's messages before and after. They weren't deleted but they are on [the appellant's] phone so that makes me - it makes my opinion stronger in favour of relying what's on [the appellant's] phone if that makes sense.
[23] ts 84, 16 December 2021.
[24] ts 84, 16 December 2021.
Mr Boddington said that when he examined the appellant's phone he did not identify any evidence of tampering or of anti-forensic applications used to alter text messages or the digital evidence. He said that there was no evidence of any malware being on the appellant's phone. He said that he therefore thinks that there is a high likelihood that the appellant's phone represents the true situation as to the text messages that went between the appellant and the complainant.
Mr Boddington made the point that if the police had checked the prosecution's call charge records this would clearly show whether or not the additional missing messages were sent from the complainant's phone.
Mr Boddington accepted that it is possible that if a person was aware of another's user details and login they could, if they had time, manually remove messages from iMessage and make it appear that the user of the device had removed the messages.
With respect to the possibility of the messages being removed from the complainant's phone due to data overload, Mr Boddington said that he had seen through his own observations and experiments that if a database is overloaded what went in first will go out first. He said that the deletion in such circumstances will not be random and that the deletion will not pick something that is at the top. He said that 'the new stuff comes in and it just pushes it off and it gets removed'.[25] The deletion occurs chronologically.
[25] ts 88, 16 December 2021.
Mr Boddington said, in effect, that if another person had obtained the complainant's user details and login and had manually removed messages that were on the complainant's phone, given the limited time period in which the messages were sent the complainant, if she was looking at the screen, may well have been alerted to the fact that something was missing.
The magistrate's reasons
The magistrate commenced his reasons for decision by stating a number of applicable general principles. In particular, his Honour said the following:
1.The prosecution bore the burden of proving the charge beyond reasonable doubt;[26]
2.The appellant did not have to prove anything;[27]
3.If the court accepted the appellant's version of events, or if the court found that the appellant's version of events might be true, the appellant must be found not guilty;[28]
4.In undertaking its task the court will look at inconsistencies in the evidence. Some inconsistencies will be immaterial to the process of analysis and fact finding because they can be rationally explained with little to no impact upon the overall assessment of the evidence. Other inconsistencies will be so dramatic or incredulous that they cannot be explained away and will fundamentally undermine a witness's account or version of events. The vast majority of inconsistencies will fall somewhere in the middle of this broad spectrum and may individually or collectively raise a reasonable doubt or, alternatively, have a limited impact on the critical issues for determination;[29] and
5.In a criminal trial it is not just a matter of preferring one version of events over another.[30]
[26] ts 114 - 116, 17 December 2021.
[27] ts 114 - 116, 17 December 2021.
[28] ts 116 - 117, 17 December 2021. Thus his Honour directed himself in accordance with the decision in Liberato v R [1985] HCA 66; (1985) 159 CLR 507, 515.
[29] ts 117, 17 December 2021.
[30] ts 117, 17 December 2021.
After stating the above general principles the magistrate proceeded to summarise in a relatively detailed way the evidence given by the complainant and the appellant.[31] His Honour also made reference, albeit in relatively brief terms, to the evidence given by Sergeant Thomas, Constable Field and Mr Boddington.[32]
[31] ts 118 - 129, 17 December 2021.
[32] ts 129 - 130, 17 December 2021.
In the course of summarising the complainant's evidence the magistrate stated that the complainant had been cross-examined at length and at times repetitively but 'did not waver from her testimony'.[33] The magistrate also stated in this context that it was to the complainant's credit that she was able to accept and explain in a rational and plausible way some differences between her evidence and the witness statement that she had provided to the police.[34]
[33] ts 123, 17 December 2021
[34] ts 123 - 124, 17 December 2021
Having summarised the evidence the magistrate proceeded to in effect state his reasons for arriving at his ultimate conclusion that he was satisfied beyond reasonable doubt of the credibility, that is, the honesty and reliability of the complainant's evidence as to what occurred during the incident the subject of the charged offence. The reasons given by the magistrate for coming to this conclusion were as follows:
1.The appellant's evidence was a minimalist account of what occurred. He did not give any detail about conversations that were had, responses to anything that was done or the heightened emotions 'that were necessarily flying in this very confined space';[35]
[35] ts 131, 17 December 2021.
2.Unlike the appellant's account, the complainant's account as to what occurred was very clear and detailed;[36]
[36] ts 131, 17 December 2021.
3.It '[seemed] unusual' that the appellant did not say in his evidence that he responded to the complainant's question, 'Why are you here?' This was particularly so given that on the appellant's account the complainant had left his house on the sudden without explanation only a number of hours earlier;[37]
[37] ts 131, 17 December 2021.
4.The fact that the clothes rack by the rear door fell apart as it did is 'much more consistent' with the way that the complainant described the clothes rack falling apart, that is, after the appellant had begun pulling it apart, pulling the clothes off it and then throwing it on the ground;[38]
[38] ts 131, 17 December 2021.
5.The appellant's account that he had accidentally knocked over the clothes rack when he turned to leave and that this caused the clothes rack to fall away and fall apart in the way that it did, did not have a 'ring of truth' about it;[39]
6.The appellant's version of events that as he was leaning over to pick the clothes up the complainant flew out the door and hit him with the pole means that the complainant would had to have pushed the lemons out of the way and in a direction 'opposite to the way that they ultimately seem to have fallen' as shown in the photographs of the scene;[40]
7.The photographs that depict the location of the lemons, the rock garden and the second clothes rack that had fallen apart were entirely consistent with the complainant's version of events;[41]
8.The injury to the complainant's 'index' finger was consistent with the complainant's evidence that there was a tug of war over the security door and that her finger got jammed in the door in that process.[42] He did not accept that the 'very specific' injury to the complainant's finger was caused by anything other than her finger being jammed between the door and the doorframe during a struggle over the door; [43]
9.Although it was 'hard to understand' why the complainant did not mention the injury to her finger in her witness statement, the complainant had given an explanation for any difference between the contents of her statement and her evidence, specifically that she was in a state of shock and upset at the time of providing the statement, that in giving her statement she had responded to the questions asked of her by the police officer and that over time she had had the opportunity to reflect on what had happened.[44] In any event, the complainant must have drawn the injury to her finger to the attention of the police officers at the time they attended her unit because a photograph of the injury was taken by the officers;[45]
10.The appellant's text message stating that the complainant was fine when he dropped off the lemons did not reflect the very serious nature of the incident that on his version of events had occurred less than an hour or two earlier.[46] On the appellant's evidence he and the complainant had been in an 'emotive, agitated and heightened state' and the complainant was not 'fine' when he left her unit.[47] Indeed, on the appellant's version of events the complainant had fallen to the floor and was exhausted, frail and unwell.[48] Accordingly, the terms of the text message that the appellant sent to the complainant's phone in which he stated that the complainant was fine when he dropped off the lemons made no sense and undermined the credibility of his account as to what occurred;[49]
11.The appellant's statement in his text message to the complainant that he had pushed the complainant over because she had hit him over the head with a clothes rack was not inconsistent with what the complainant said had occurred.[50] The complainant in her evidence conceded that when the appellant was holding her from behind she 'may have struck back up and hit [the appellant] on the head with the…clothes rack' and stated that this was when she was pushed down onto the ground on her bottom;[51]
12.The injuries sustained by the complainant and the smearing of blood inside the unit was consistent with her account of having been pushed over onto the brick paving and into the stone garden.[52] The smearing of blood had come from either the injury to the complainant's ankle or the injury to her knee 'but certainly from one of those deeper grazes that can be seen';[53]
13.Even though photographs may not be the best indicators of bruising type injuries particularly when the injuries are fresh, the photograph that was taken by the attending police officers of the complainant's neck was taken because the complainant drew their attention to what she said was an area of injury to her neck caused by the appellant holding the clothes rack pole up against her neck before pushing her down onto her bottom;[54] and
14.All the complainant's injuries were 'entirely consistent' with the complainant's account of events.[55]
[39] ts 131, 17 December 2021.
[40] ts 131 ‑ 132, 17 December 2021; Exhibit 1 (photographs LF 10, LF 11, LF 13 and LF 14).
[41] ts 132, 17 December 2021.
[42] ts 132, 17 December 2021. As previously noted, the relevant injury was actually to the middle finger of the complainant's right hand.
[43] ts 132, 17 December 2021.
[44] ts 123 and 132, 17 December 2021.
[45] ts 132, 17 December 2021; Exhibit 1 (photographs LF 2 and LF 3)
[46] ts 134, 17 December 2021.
[47] ts 133, 17 December 2021.
[48] ts 133 and 134; 17 December 2021.
[49] ts 133, 17 December 2021.
[50] ts 133 and 134, 17 December 2021.
[51] ts 133, 17 December 2021.
[52] ts 133, 17 December 2021.
[53] ts 133, 17 December 2021; Exhibit 1 (photographs LF 4 and LF 6).
[54] ts 133, 17 December 2021; Exhibit 1 (photograph LF 8).
[55] ts 134, 17 December 2021.
In relation to the evidence that established that there were two messages on the appellant's phone which appeared to have been sent from the complainant's phone, but which were not shown on the screen of the complainant's phone at the time that her phone was photographed by Constable Field, the magistrate said the following:[56]
The [sic] Sergeant Thomas and Constable Field gave their evidence about their investigation and of course, Mr Boddington gave his evidence about data process and the ability to manipulate or not manipulate data on a mobile phone, and a great deal is taken with those messages that can be seen on [the appellant's] phone, compared to the photographs that were taken at the police station by the police officer from [the complainant's] phone.
So as I said, Mr Boddington, I think, is a well‑qualified expert to speak on these matters about data extraction and manipulation, how material can be put on and taken off phones, but the problem with his report, of course, and he wasn't extensive in his evidence, is that he only had access to the one phone, and that was [the appellant's] phone. So a complete analysis, in terms of forensic exercise of real probative value for the court, would be analysis of both phones.
Because, you know, the court could then really make some definitive findings as to who or whether there had been manipulation of the messages on the phones. Clearly, they're different. That's obvious from the two photographs or screenshots that are in evidence. But to draw inferences about how they came to be is very difficult, because it really is speculation to go down a path that says [the complainant] must have manipulated her phone while she was in the interview room with Constable Field with the phone in her hand.
But that is entirely speculative. …
[56] ts 129 - 131, 17 December 2021.
Having made the above remarks his Honour proceeded to immediately state that he had found the complainant 'very clear' on the point about why she had sent her message, specifically that it had been suggested to her by the police officer that she send the message.[57]
[57] ts 130, 17 December 2021.
A little later in his reasons the magistrate returned to the issue of the two text messages by saying the following:[58]
…The text messages, even though I accept Mr Boddington's – as an expert on this point, ultimately, those two text messages have to be seen as something of a red herring.
Because the court can't make any determinations about those text messages. They seem to be out of context and they seem to be written by someone else. It's - the court simply can't make any assessments about those particular matters. Those:
Annie has been taken to hospital. We saw it all.
They don't appear on [the complainant's] phone, but they appear on [the appellant's] phone. But as I say, all that seems to be contemporaneous. I mean, the - in the sense that [the complainant] is in the police station when the photograph of her phone was taken. So ability to manipulate, I don't know. That, again, is speculation.
[58] ts 134, 17 December 2021.
The magistrate concluded his reasons by saying that when he weighed and analysed the whole of the evidence he was satisfied beyond reasonable doubt that the appellant had assaulted the complainant in the way alleged and as described by the complainant in giving her evidence.[59]
[59] ts 134, 17 December 2021.
The text messages
As is apparent from my above summary of the evidence, the evidence adduced at trial established that there were on the appellant's phone two text messages apparently sent from the complainant's phone that were not visible on the screen of the complainant's phone that the complainant showed to Constable Field and which was photographed by Constable Field. The discrepancy in this respect is reflected in the below table with the two text messages that were on the appellant's phone but which were not visible on the screen of the complainant's phone (the disputed messages) italicised:[60]
[60] Exhibit 1 (photographs LF 20 and LF 21) and exhibit 3.
Appellant's mobile phone Complainant's mobile phone (Time not shown) Appellant: I've just dropped some lemons off at your rear door. (Time not shown) Appellant: I've just dropped some lemons off at your rear door. (4:49pm) Complainant: Annie is been [sic] taken to hospital. (4:50pm) Appellant: Oh dear She was fine when I dropped off the lemons.
(4:50pm) Complainant: We saw it all
(4:56pm) Complainant: Yes I know you did. That when we had a fight and you tried to strangle me.
(4.50pm) Appellant: Oh dear She was fine when I dropped off the lemons.
(4:56pm) Complainant: Yes I know you did. That when we had a fight and you tried to strangle me.
(Time not shown) Appellant: We had an argument. I never attempted to strangle you. I pushed you over because you hit me over the head with a clothes rack. Just another argument. It never ends. (Time not shown) Appellant: We had an argument. I never attempted to strangle you. I pushed you over because you hit me over the head with a clothes rack. Just another argument. It never ends.
Grounds 1(iii), 2 and 5
As is apparent from what I have already said, grounds 1(iii), 2 and 5 when read together encompass two essential contentions. First, that the magistrate made an error in holding that it was speculative to determine whether the complainant had manipulated her phone by sending and then deleting the disputed messages. Second, that the magistrate's error resulted in his Honour's reasons being inadequate and consequently productive of a miscarriage of justice. I will deal with each of these contentions in turn.
Did the magistrate make an error in holding that it was speculative to determine whether the complainant had manipulated her phone by sending and deleting the disputed messages?
The parties' submissions
The appellant submits that the only inference that can reasonably be drawn from the evidence adduced at trial is that the complainant sent the disputed messages to the appellant and then deleted them from her phone 'so as to manipulate the appellant's response and the narrative surrounding the incident'.[61] The appellant therefore submits that the magistrate ought to have found that the complainant sent the disputed messages to the appellant and then deleted them from her phone and that his Honour made an error in failing to make this finding.
[61] Appellant's Outline of Submissions undated but filed 31 March 2022 (Appellant's Submissions), par 23.
The respondent accepts that one explanation for the disputed messages being on the appellant's phone but not being on the complainant's phone is that the complainant sent the disputed messages from her phone, perhaps to incriminate the appellant or to instil fear in him, and then deleted the disputed messages from her phone. However, the respondent submits that given the complainant's denial of this possible explanation and the other evidence before the magistrate, there are other rational explanations for why the disputed messages appeared on the appellant's phone but not on the complainant's phone. The respondent submits that although the magistrate did not refer to these other rational explanations they include (but are not limited to) the following:[62]
1.The complainant sent the disputed messages from her phone and the phone deleted the messages without her knowledge (for example, as a result of malware or data overload);
2.Sergeant Thomas, Constable Field or someone else sent the disputed messages from the complainant's phone and then deleted them; and
3.Sergeant Thomas, Constable Field or someone else sent the disputed messages from the complainant's phone and the phone deleted the messages without their knowledge (for example, as a result of malware or data overload).
[62] Respondent's Outline of Submissions dated 11 April 2022 (Respondent's Submissions), par 87(b), 87(d) and 87(e).
The respondent submits that in light of these other rational explanations for the disputed messages being on the appellant's phone but not on the complainant's phone, the magistrate did not make an error by failing to draw the inference contended for by the appellant.
Analysis and decision
In my opinion none of the explanations put forward by the respondent for the disputed messages being on the appellant's phone but not on the complainant's phone are, in light of the evidence adduced at the appellant's trial, rational.
As to the suggestion that a rational explanation for the disputed messages not being on the complainant's phone is that the messages may have been sent by the complainant and then deleted by malware on the complainant's phone or as a result of data overload, the immediate difficulty with such a suggestion is that the complainant's evidence was not that she had sent the disputed messages and later noticed that they had been inexplicably deleted from her phone. Her evidence was that she did not send the disputed messages. In other words, the complainant's evidence excluded the asserted rational hypothesis.[63] Further and in any event, in my view the evidence given by Mr Boddington establishes that the respondent's proffered explanation is not rational. Mr Boddington's evidence was that iPhones talking to each other using iMessage synchronise very neatly, that in his research he has found nothing to suggest these sort of communications being contaminated or manipulated, that iMessage is a reliable means of recording the communications between two or more parties, and that if an iPhone is talking to an iPhone using iMessage and one phone has something on it and the other phone does not, it is more than likely that the user of the phone that does not have the thing on it has deleted that thing. Mr Boddington's evidence was also that if there had been an instance of data overload, the data deletion would not have been random but rather would have resulted in the deletion of the oldest data on the complainant's phone, not messages that formed part of a recent message thread (that is, the disputed messages). In short, Mr Boddington's evidence, taken in conjunction with the evidence of the complainant, left no room for it to be reasonably or rationally inferred that the disputed messages may have been deleted from the complainant's phone by malware or as a result of data overload. If the magistrate had concluded that these things might have occurred his Honour would have made the error of engaging in conjecture and advancing theories unsupported by the evidence.[64]
[63] The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [54], [57] - [58].
[64] The Queen v Baden-Clay [46] - [47].
I turn to the suggestion that the disputed messages may have been sent by Sergeant Thomas, or Constable Field or some other unidentified person and then deleted by them.
The complainant's evidence was that there was no one who went with her to the police station who could have used her phone. The complainant did not give evidence that her phone was at any relevant time in the possession of anyone other than herself.
The evidence of the two police officers was similarly clear. Sergeant Thomas's unchallenged evidence was that he did not have any involvement with the complainant's phone or observe any text message on the complainant's phone.[65] Indeed, his evidence was that once he and Constable Field were back at the police station he, as the supervising officer at the station, left Constable Field to attend to the interviewing of the complainant because he had other roles to perform.[66] Constable Field's unchallenged evidence was that although while she was interviewing the complainant the complainant showed her some text messages that were on her phone which she photographed, she did not see the disputed messages and did not suggest to the complainant how she should respond to any message sent by the appellant.[67] Constable Field's unchallenged evidence was also that while she was in the process of obtaining and preparing the complainant's statement she was not monitoring what the complainant was doing at all times.[68] It was never suggested to Constable Field that she had sent any messages from the complainant's phone or had deleted any messages from the complainant's phone, and the clear effect of her evidence was that she did no such thing.
[65] ts 85, 8 October 2021.
[66] ts 85, 8 October 2021.
[67] ts 18 and 21 - 23, 16 December 2021.
[68] ts 18, 16 December 2021.
In summary, the combined effect of the evidence given by the complainant, Sergeant Thomas and Constable Field precluded a finding that it was reasonably possible that Sergeant Thomas or Constable Field or some other police officer or some other unidentified person had obtained possession of the complainant's phone and then sent and deleted the disputed messages. If the magistrate had concluded that these things might have occurred his Honour would have made the error of engaging in conjecture and advancing theories unsupported by the evidence.
As to the third of the respondent's above suggested rational explanations, even if it is accepted, contrary to my above expressed conclusion, that it is reasonably possible that Sergeant Thomas or Constable Field or some other police officer or some other unidentified person did send the disputed text messages, the evidence adduced at trial did not, for the reasons I have given in dealing with the first of the respondent's suggested rational explanations, leave open as a reasonable possibility that the messages were deleted from the complainant's phone by malware or as a result of data overload.
As I have indicated, the respondent's contention is that the rational explanations for the disputed messages being on the appellant's phone but not on the complainant's phone are not limited to those that she has expressly identified. Despite this contention the respondent's counsel did not during the hearing of the appeal specifically identify any other asserted rational explanations. Nonetheless, I will raise and deal with other 'possible' explanations that were in effect raised during the evidence of Mr Boddington.
A 'possible' explanation for the existence of the disputed messages that was canvassed in the evidence of Mr Boddington is that malware operated on the appellant's phone so that the disputed messages were added to his phone without his knowledge. However, in my opinion the evidence of Mr Boddington established that this scenario does not provide a reasonable or rational explanation for the existence of the disputed messages on the appellant's phone. Mr Boddington's evidence was that on examining the appellant's phone he found no evidence of there being any malware on the appellant's phone that could have 'accidentally' added the disputed messages to the message thread on the appellant's phone. His evidence was that when messages are exchanged very close in time, as occurred in the present case, it is more difficult to manipulate the phone data. His evidence was also, as I have already pointed out and for the reasons that he gave, that if an iPhone is talking to an iPhone using iMessage and one phone has something on it and the other phone does not, it is more than likely that the user of the phone that does not have the thing on it has deleted that thing. In short, Mr Boddington's evidence, considered as a whole, left no room for it to be reasonably or rationally inferred that malware may have operated on the appellant's phone so that the disputed messages were added to the phone without his knowledge and without any action by him. If the magistrate had concluded that malware might have caused the disputed messages to be added to the appellant's phone his Honour would, in my opinion, have made the error of engaging in conjecture and advancing theories unsupported by the evidence.
Another 'possibility' canvassed in Mr Boddington's evidence was that some person who was aware of the complainant's user details and login could have remotely accessed the complainant's phone and manually removed the disputed messages. Again, in my opinion the evidence adduced at trial did not permit the conclusion that this was a reasonable or rational possibility. There was no evidence adduced that anyone did know the complainant's user details and login. Further, and as Mr Boddington testified, if some other person did have the complainant's user details and login and had manually removed messages that were on the complainant's phone, given the limited time period in which the relevant text messages were sent, the complainant, if she was looking at the screen, may well have been alerted to the fact that something was missing. The complainant, as I have pointed out, did not give evidence that she had sent the disputed messages and then noticed that they were no longer on her phone. Her evidence was that she had never sent or for that matter seen the disputed messages. Accordingly, if the magistrate had concluded that malware might have caused the disputed messages to be added to the appellant's phone his Honour would, in my opinion, have made the error of engaging in conjecture and advancing theories unsupported by the evidence.
Finally, I note that in the respondent's written submissions filed in advance of the appeal hearing it was asserted that a further rational explanation for the disputed messages appearing on the appellant's phone but not on the complainant's phone is that the appellant manipulated his phone so that it appeared that the disputed messages had been sent to him.[69] However, during the appeal hearing the respondent's counsel, in the course of exchanges with me, expressly conceded that there was no evidence adduced at trial capable of supporting the drawing of a reasonable inference that the appellant had manipulated his phone and therefore resiled from the submission that this was a possible rational explanation for the existence of the disputed messages.[70] In any event, the above referred to evidence of Mr Boddington which excluded as a rational explanation for the existence of the disputed messages that some malware may have operated on the appellant's phone so that the messages were 'accidentally' added to the phone, together with Mr Boddington's evidence that on examining the appellant's phone he found no evidence of there being any software or any application on the phone that would enable the user of the phone to interfere with communication threads, established that the suggestion that the appellant might, despite his denials, have manipulated his phone and inserted the disputed messages was not a reasonable or rational explanation for the existence of the disputed messages. In other words, Mr Boddington's evidence, considered as a whole, left no room for it to be reasonably or rationally inferred that the appellant, despite his denials, may have manipulated his phone to make it look as though the complainant had sent the disputed messages to him. Once again, if the magistrate had concluded that this might have occurred his Honour would have made the error of engaging in conjecture and advancing theories unsupported by the evidence.
[69] Respondent's Submissions, par 87(a).
[70] Appeal ts 12, 19 April 2022.
In summary, when the evidence to which I have referred is considered as a whole, it is my opinion that the only inference that can be rationally drawn is that the complainant did send the disputed messages to the appellant while she was at the police station or very shortly before she was at the police station and then, having sent the messages, deleted them. The fact that the complainant's phone was not analysed by Mr Boddington or any other suitably qualified expert does not prevent the drawing of this inference. Nor does the fact that the disputed messages were written in the third person. In my opinion, the respondent's suggested alternative explanations for why the disputed messages appeared on the appellant's phone but not on the complainant's phone, and the other 'possible' explanations for this occurrence are, when regard is had to the evidence that was adduced at trial, neither rational nor reasonable but rather speculative theories that are unsupported by the evidence.
It necessarily follows from the views I have expressed in the previous paragraph, that in my opinion the magistrate did make an error in concluding that it would be speculative to find that the complainant sent and deleted the disputed messages. In my opinion this is the finding that his Honour should have made.
Did the error render the magistrate's reasons inadequate?
The respondent submits that even if, contrary to her primary submission, the magistrate did make the error alleged, a finding by the magistrate that the complainant did send and delete the disputed messages could only have impacted on his Honour's assessment of the complainant's credibility and would not have related directly to an element of the charged offence. Accordingly, the respondent submits, the alleged error, even if established, cannot be said to render the magistrate's reasons inadequate.
It is clear that not every failure by a court to make a finding of fact that is open to be made on the evidence will render the court's reasons inadequate and consequently constitute an appealable error. Thus in DL v R[71] Kiefel CJ, Keane and Edelman JJ said the following (citations omitted):
The content and detail of reasons 'will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision'. In the absence of an express statutory provision, 'a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied'. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge's failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake 'a minute explanation of every step in the reasoning process that leads to the judge's conclusion'. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
'Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.'
[71] DL v R [2018] HCA 26; (2018) 356 ALR 197 [32] - [33].
Similarly Nettle J (dissenting) said the following (citations omitted):[72]
There was a time past when trial judges sitting in civil causes involving substantial conflicts of evidence sometimes delivered reasons for judgment that consisted of no more than a recitation of the evidence, an assertion of preference for the credibility of one witness over another -usually justified by incantation of the mantra of having seen and heard the witnesses in the witness box - and an asseveration of conclusion according to the preferred witness's version of events. As recently as 1983, the Privy Council gave its apparent approval to the practice. But, if the law of this country ever countenanced the practice, it does so no longer. As early as 1947, the Supreme Court of New South Wales, in a judgment delivered by Jordan CJ, stated in Carlson v King that a court of first instance from which an appeal lies to a higher court had a duty 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.' A plethora of cases since then has established that, although the extent of reasons may depend on the circumstances of the case, reasons must identify the relevant principles of law, refer to relevant evidence, state the judge's findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.
Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.
The trial of an indictable offence (or, as it is called in South Australia, an offence charged on information) by judge alone is an extraordinary procedure fundamentally at odds with the deep seated conviction of Anglo-Australian criminal justice that a man or woman accused of a serious offence should be tried by a jury of peers[. Due as much, therefore, to the extraordinary nature of the procedure as, in some States, to specific legislative requirements, a judge who tries an indictable offence without a jury is bound to produce reasons for judgment of at least the quality expected of his or her civil brethren. It is, however, even more important in criminal proceedings than in civil that a trial judge's reasons meet the standard required. It follows that a judge's failure to deliver adequate reasons is an error of law productive of a miscarriage of justice which, subject to application of the proviso, will necessitate that a conviction be set aside.[73]
[72] DL v R [130] - [132].
[73] Substantially similar statements to those made by Kiefel CJ, Keane, Edelman and Nettle JJ in DL v R have been made in other cases: see, for example, Mifsud v Campbell (1991) 21 NSWLR 725, 728 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442 - 445.
At trial the appellant relied on the evidence relating to the disputed messages in support of his contention that the complainant's evidence as to what occurred at her unit should not be believed. More specifically, the appellant's argument at trial was, in essence, that the complainant had, by sending and then deleting the disputed messages, deliberately manipulated her text message exchange with the appellant and that her conduct in this respect, and her evidence denying that she had done so, reflected adversely on the credibility of her evidence as to what occurred between her and the appellant at her unit.[74]
[74] ts 106 - 108, 17 December 2021.
In my opinion it is beyond question that if the magistrate had drawn the inference that I have found he should have drawn and consequently made a finding that the complainant did send the disputed messages to the appellant and then deleted them from her phone, it would have been open to his Honour to find that her conduct in doing so reflected adversely on the honesty and/or reliability of her evidence as to what occurred at the unit. This is particularly so given the unusual third person terminology used in the messages. Further, if the magistrate had also found that the complainant in denying under oath that she had sent and deleted the messages was being deliberately dishonest, this would also have been highly relevant to his Honour's assessment of the credibility of her evidence as to what occurred at the unit and generally.
The complainant was the only witness who gave evidence of the alleged conduct of the appellant that formed the basis of the charged offence. There was no other direct evidence of the appellant's alleged conduct. As the magistrate stated in his reasons, the case was 'oath on oath'.[75] The credibility of the complainant was therefore central to the issue in the case, specifically whether the appellant had assaulted her as alleged. The appellant placed weight on the disputed text messages in support of his case that the complainant's evidence as to the alleged assault should not be believed.[76] In these circumstances it is my opinion that it was incumbent on the magistrate to make the finding to which I have referred, this being the only finding that was reasonably open on the evidence, to explain how the finding impacted on his assessment of the honesty and reliability of the complainant's evidence as to the alleged assault and to explain why, despite making this finding, he was satisfied beyond reasonable doubt of the honesty and reliability of the complainant's evidence as to the alleged assault (if this was ultimately the conclusion that his Honour came to). The magistrate's failure to undertake this task resulted, in my respectful opinion, in his Honour's reasons being inadequate. This is particularly so given that the evidence as to the appearance of the scene at the time of the arrival of Sergeant Thomas and Constable Field at the complainant's unit, the evidence as to the complainant's injuries and the evidence as to the appellant's injuries was, in my view, broadly consistent with both the complainant's account and the appellant's account.
Summary
[75] ts 117, 17 December 2021.
[76] ts 107 - 109, 17 December 2021.
For the reasons I have given I am satisfied that the magistrate did make the alleged error, that the error was such as to render his Honour's reasons inadequate and that consequently a miscarriage of justice has occurred. I grant leave to appeal on this ground and uphold the ground of appeal.
Grounds 1(i), 1(ii), 4 and 5
I turn to deal next with the essential contentions encompassed by a combined reading of grounds 1(i), 1(ii), 4 and 5.
Similarly to the grounds which I have thus far dealt with, these grounds of appeal encompass two essential contentions. First, that the magistrate made an error in failing to take into account a specific inconsistency between the evidence of the complainant on the one hand and the evidence of Sergeant Thomas and Constable Field on the other. Second, that the magistrate's error resulted in his Honour's reasons being inadequate and consequently productive of a miscarriage of justice.
The parties' submissions
The appellant submits that the magistrate did not in his reasons address the discrepancy between the evidence of the complainant on the one hand, and the evidence of Sergeant Thomas and Constable Field on the other, relating to whether or not Sergeant Thomas or Constable Field did, as asserted by the complainant, suggest to the complainant that she send a text message to the appellant in terms similar to the text that she ultimately sent, that is, the text, 'Yes I know you did. That's when we had a fight and you tried to strangle me'. The appellant submits that the magistrate ought to have addressed this discrepancy because if his Honour had ultimately accepted the evidence of the two police officers and consequently found that neither of them did suggest to the complainant that she should send the text message, this would have been highly relevant to his Honour's assessment of the complainant's credibility. The appellant therefore submits that the magistrate's failure to address and determine the question whether the complainant did send the text in response to the suggestion of either of the police officers meant that the magistrate's reasons were inadequate and productive of a miscarriage of justice. The appellant makes the point in this context that his counsel in his closing submissions at the trial did argue that the inconsistency between the evidence of the complainant and the two police officers 'would cause' the magistrate 'concern about the credibility and truthfulness' of the complainant.[77]
[77] ts 108 - 109, 17 December 2021.
The respondent concedes that the magistrate did not address the identified discrepancy between the complainant's evidence on the one hand and the evidence of Sergeant Thomas and Constable Field on the other. However, the respondent submits that even if the magistrate had addressed the discrepancy, and even if the magistrate had accepted the evidence of the police officers in preference to the evidence of the complainant and consequently found that neither officer suggested to the complainant that she send the text message that she did, the finding could only have gone to the complainant's credibility as opposed to an element of the charged offence. Accordingly, the respondent submits, the alleged error, even if established, cannot be said to render the magistrate's reasons inadequate.
Analysis and decision
In his reasons for decision the magistrate, in the course of reciting the complainant's evidence and on two separate occasions, expressly referred to her evidence that the police officer had told her to reply to the appellant by sending the text message in question.[78] However, when referring to the evidence of Sergeant Thomas and Constable Field, the magistrate confined himself to saying that 'they gave…evidence about their investigation'.[79] Further, and as I have already indicated, immediately after making brief reference to the evidence of Mr Boddington the magistrate stated that he found the complainant 'very clear on the point' about why she sent the message, 'Yes I know you did. That when we had a fight and you tried to strangle me', specifically that the police officer had suggested to her that she send the message in response to the appellant's message, 'Oh dear She was fine when I dropped off the lemons'.[80]
[78] ts 123 and 126, 17 December 2021.
[79] ts 129, 17 December 2021.
[80] ts 130, 17 December 2021
The magistrate did not at any point in his reasons refer to the evidence of Sergeant Thomas and Constable Field to the effect that they did not have any involvement in the complainant's conduct in sending texts to the appellant and did not make any suggestion to the complainant that she should respond in a particular way or at all. Accordingly the magistrate did not in his reasons address the clear inconsistency between the evidence of the complainant on the one hand and the evidence of Sergeant Thomas and Constable Field on the other. I note in this respect, and the respondent did not attempt to suggest to the contrary, that the evidence adduced did not leave open the possibility that some unidentified police officer other than Sergeant Thomas or Constable Field could have made the relevant suggestion to the complainant. Indeed, on the complainant's evidence it could only have been Sergeant Thomas who made the suggestion given that she described the officer as the male officer who she had already spoken to.
The question that remains is whether the magistrate's failure to address the relevant inconsistency renders his reasons inadequate. In my opinion it does.
The magistrate's assessment of the complainant's credibility, as his Honour in effect recognised, was crucial to his determination of whether the prosecution had proved the appellant's guilt beyond reasonable doubt. The resolution of the dispute between the complainant on the one hand and the police officers on the other as to whether the officers had suggested to the complainant that she send the relevant message to the appellant had the potential to impact materially on the magistrate's assessment of the complainant's credibility. That is, if his Honour had found that the evidence of the two police officers was correct and that, contrary to the complainant's evidence, neither of them had suggested to the complainant that she respond to the appellant's text message in the way that she did or at all, this finding may well have impacted on his Honour's assessment of the honesty and reliability of the complainant's evidence generally. This is particularly so given that the magistrate made a point of stating that he had found the complainant was 'very clear' as to why she had sent the message in question, specifically that the police officer had suggested to her that she send the message. In these circumstances, and bearing in mind the reliance placed by the appellant on the evidential discrepancy in support of his case at trial, it was, in my opinion, incumbent on the magistrate to directly address the discrepancy by making a finding in relation thereto and, if the finding was that the police officers did not do what the complainant alleged, explain how that finding impacted on his assessment of the credibility of the complainant's evidence as to the alleged assault and why, notwithstanding the finding, he found the complainant's evidence as to the alleged assault to be honest and reliable (if that was ultimately the conclusion that his Honour came to). His Honour's failure to perform this task meant that the appellant was unable to see the extent to which his argument had been understood and either accepted or rejected.
For the reasons I have given I am satisfied that the magistrate did make the alleged error, that the error was such as to render his Honour's reasons inadequate and that consequently a miscarriage of justice has occurred. I grant leave to appeal on this ground and uphold the ground of appeal.
Grounds 3 and 5
I turn finally to deal with the contention revealed by a combined reading of grounds 3 and 5.
By these grounds the appellant alleges that the magistrate, in finding that the text message sent by him in the terms, 'Oh dear. She was fine when I dropped off the lemons' made no sense and undermined his credibility, made an error of law. The alleged error is perhaps more properly characterised as an error of fact but nothing turns on this point.[81]
The parties' submissions
[81] As I have already pointed out, an application for leave to appeal can be made on the ground that a magistrate made an error of fact: CAA, s 8(1)(a)(i).
The appellant points out that his evidence at trial was that the relevant text message was sent by him in response to the complainant's text message, 'Annie is been [sic] taken to hospital'. The appellant submits that on his version of events at the time that he left the complainant's unit there was no indication that she needed to go to hospital and that he could not have appreciated that she needed to go to hospital. The appellant submits that in these circumstances his text message made sense and did not undermine his credibility, and that it was therefore not open to the magistrate to make the finding that he did.
The respondent submits that the magistrate's finding that the relevant text message did not make sense and reflected adversely on the appellant's credibility was sound and logical.
Analysis and decision
On the appellant's evidence the complainant had without provocation attacked him with a clothes rack pole, had needed to be restrained by him holding her in a bear hug and, at the time that he left the unit, had dropped to the floor in an exhausted state. In these circumstances it was, in my opinion, reasonably open to the magistrate to conclude, as his Honour in substance did, that the complainant was not, even on the appellant's version of events, fine when he left her unit, and that the text message did not, even on the appellant's version of events, reflect the serious nature of the incident. It was therefore also, in my opinion, reasonably open to the magistrate to conclude that the text message was inconsistent with the appellant's evidence as to what occurred at the complainant's unit and consequently undermined, or reflected adversely on, the credibility of this aspect of his evidence. In my opinion the fact that the message was sent in response to the complainant's text, 'Annie is been [sic] taken to hospital' does not alter the position.
For the reasons I have given I am not persuaded that the magistrate made the alleged error. I would dismiss this ground of appeal.
Of course, it cannot be said to follow from my finding that the alleged error has not been established that the magistrate, even if he had not made the established errors the subject of the other grounds of appeal, would necessarily have concluded on the whole of the evidence that the appellant's guilt had been proved beyond reasonable doubt. If the magistrate had not made the established errors his Honour's finding that the terms of the appellant's text message reflected adversely on the credibility of his evidence as to the alleged incident the subject of the charged offence would be just one finding which, together with all other relevant findings of fact, would need to have been taken into account by his Honour in determining if the prosecution had proved the appellant's guilt beyond reasonable doubt.
Conclusion and orders
I have found that the magistrate's reasons were inadequate and that this has resulted in a miscarriage of justice. The respondent did not attempt to suggest that if I found the magistrate's reasons to be inadequate the proviso contained in s 14(2) of the CAA could be applied. As is apparent from my reasons for finding that the magistrate's reasons were inadequate, the proviso cannot be applied.
The appellant did not ultimately contend that if I allow the appeal I should quash the appellant's conviction and enter a judgment of acquittal. This is unsurprising. Given that the assessment of the credibility of the complainant and the appellant is central to the determination of the charge, this is not a case in which I could conceivably, in the absence of seeing and hearing the complainant and the appellant give evidence, conclude that the magistrate, if he had not made the errors that I have found his Honour did, must have entertained a reasonable doubt about the appellant's guilt.[82]
[82] Wells v The State of Western Australia [2017] WASCA 27 [13]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [41] - [43]; PYN v The State of Western Australia [2020] WASCA 116 [46] - [48]; MEN v The State of Western Australia [2020] WASCA 118 [403] - [406].
I will hear the parties as to the precise terms of the orders I should make to give effect to my decision. However, I would propose to make orders in the following terms:
1.Leave to appeal is granted;
2.The appeal is allowed;
3.The appellant's conviction on 17 December 2021 for the offence of aggravated unlawful assault the subject of charge PE 57712/2020, the sentence imposed for the offence and other orders imposed by the Magistrates Court in relation to the offence are set aside; and
4.The matter is remitted to the Magistrates Court for the appellant to be retried on charge PE 57712/2020 before a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LK
Associate
5 MAY 2022
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