Ingram v Director of Public Prosecutions (WA)

[2023] WASC 75

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   INGRAM -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2023] WASC 75

CORAM:   MCGRATH J

HEARD:   7 NOVEMBER 2022

DELIVERED          :   15 MARCH 2023

FILE NO/S:   SJA 1020 of 2022

BETWEEN:   DAVID GEORGE INGRAM

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE D SCADDAN

File Number            :   NG 421 of 2021

Catchwords:

Criminal law - Appeal against conviction for assault occasioning bodily harm - Miscarriage of justice - Conviction unreasonable and not supported by the evidence - Fresh evidence - New Evidence - Whether evidence relevant, credible and cogent - Whether there is a significant possibility that the magistrate would have acquitted the appellant if the evidence had been adduced at the trial

Legislation:

Criminal Code (WA), s 317(1)(b)

Result:

Leave to adduce evidence not granted
Leave to appeal not granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms K C Cook

Solicitors:

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

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

Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387

Burt v The State of Western Australia [2022] WASCA 150

Craig v The King [1933] HCA 41; (1933) 49 CLR 429

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

Impicciatore v The State of Western Australia [2020] WASCA 33

Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460

M v The Queen (1994) 181 CLR 487

MEN v The State of Western Australia [2020] WASCA 118

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Mickelberg v The Queen [No 2] [2004] WASCA 145; (2004) 29 WAR 13

MSK v The State of Western Australia [2022] WASCA 55

NYL v The State of Western Australia [2022] WASCA 41

PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

White v The Queen [2006] WASCA 62

MCGRATH J:

1. The appellant was convicted after trial in the Magistrates Court of one charge of assault occasioning bodily harm in circumstances of aggravation contrary to s 317(1)(a) of the Criminal Code.  The appellant seeks leave to appeal against his conviction contending that there was a miscarriage of justice, in that the conviction was unreasonable and not supported by the evidence.  The appellant seeks to adduce further evidence in support of the contention that there has been a miscarriage of justice. 

2. For the following reasons, I have determined that leave to appeal is not granted and therefore, the appeal is taken as dismissed.

The Magistrate Court proceedings

1. On 22 January 2022, the trial was held in the Perth Magistrates Court.  The appellant represented himself at trial after deciding that he did not wish to continue to engage his legal representation.[1]

The prosecution case

[1] ts 3 (24/1/2022).

1. The prosecution case was that the appellant owned a property identified as Lot 270 in Narrogin and the complainant owned the adjoining property being Lot 271.  The two properties are situation on the land adjacent to the corner of Graham Road and Lydecker Road, Narrogin. 

2. The appellant was 69 years of age at the time and is visually impaired.  The appellant manages his impairment by using a white walking pole.  The complainant, Mr Tagliaferri, was 79 years of age.  The circumstance of aggravation is in respect to the age of the complainant. 

3. Regrettably, the relationship between the two neighbours became acrimonious, in part, due to the appellant's frustrations about the lack of fencing between the two properties. The complainant's property, which comprises approximately half an acre, has a boundary line roughly 60 metres long, of which 50 metres is unfenced.  The complainant's property has a shed in which he engages in his hobbies. 

4. On 22 June 2021, the appellant and the complainant had an altercation which resulted in the appellant assaulting the complainant with his walking pole, and also by hitting and kicking him.  As a consequence of the assault, the complainant suffered bodily harm requiring medical treatment as a hospital in-patient for a three to four day period.  The prosecution case was that the offending occurred inside the boundary line of the complainant's property.

The defence case at trial

1. The appellant elected not to give evidence or to adduce evidence at his trial.  The appellant's defence case at trial was the contention that it was in fact him who was the victim of an assault by the complainant and that the complainant fabricated and self-inflicted his injuries in order to get the appellant into trouble.  The complainant was said to have caused his own injuries in the time between calling triple zero and the police officers arriving within three to five minutes after the emergency telephone call.  The appellant stated during his opening address that he acted in self-defence.[2]

   [2] ts 6 (24/1/2022).

2. During the cross-examination of the complainant, the appellant suggested that there was another man on the property or nearby in a wool shed who tried to break up the fight.  The complainant stated that he did not observe any other person present.  The appellant did not adduce evidence from that person.  Further, the appellant contended during cross-examination that the altercation occurred on his side of the property boundary line.  The complainant maintained that the altercation occurred on his side of the boundary line.  During his opening address, the appellant stated that the altercation occurred on the property next door and that the complainant followed him and commenced assaulting him.[3] 

The evidence at trial

[3] ts 6 (24/1/2022).

1. The prosecution called four witnesses at trial, namely the complainant Mr Tagliaferri,[4] Dr Adeleye,[5] a medical practitioner, and police officers Senior Constable Menschelyi[6] and Constable Cordiner.[7]  As I have observed, the appellant did not give evidence nor adduce evidence on his own behalf.

   [4] ts 11 - 46 (24/1/2022).

   [5] ts 52 - 56 (24/1/2022).

   [6] ts 56 - 62 (24/1/2022).

   [7] ts 62 - 70 (24/1/2022).

2. The complainant's evidence at trial was that he was working on his property and that he heard noises from outside of his shed.[8]  The complainant then observed that the appellant was on his property turning things over and poking things with his cane.  The complainant continued watching the appellant from behind a tractor before approaching him saying 'what the hell are you doing here, David.  I want you off my property'.[9]  The complainant said the appellant stopped, half turned and laughed at him.  The complainant then stated that next time he would not let the appellant off 'quite so easily'.  The complainant's utterance was reference to prior disagreements between the two gentlemen, during which, the complainant had told the appellant that he would contact the police if the appellant came onto his property again.

   [8] ts 16 & 26 (24/1/2022).

   [9] ts 17 (24/1/2022).

3. The complainant gave testimony that the appellant then turned around and began hitting him with the walking pole, described as being similar to a tent pole made of metal and about 1.2 metres in length.[10]  The complainant gave evidence that the appellant struck him first to the side of the neck, and then a further six or seven times to the head region.  The complainant stated that he put his arm up to protect his head and one blow hit his left forearm as a consequence.[11]  The complainant said he did not retaliate at any stage but after this blow, grabbed the pole and bent it backwards.

   [10] ts 18 (24/1/2022).

   [11] ts 20 (24/1/2022).

4. The appellant was still holding the other piece of the pole and started punching the complainant to the face with the piece of cane in his hand.  He punched the complainant about four to five times, causing the complainant to over balance and fall onto his knees.  The complainant stated that the appellant continued his assault kicking him under the chin and knocking him to the ground.  The appellant then kicked him to the left rib area, abdomen and to the face.  The appellant told the complainant to let go of the walking stick, which he did, causing it to fling back on the retractable elastic and hit the appellant.  The complainant then walked off towards his shed where he telephoned the emergency services.[12]

   [12] ts 25 (24/1/2022).

5. The police arrived within two to three minutes of the emergency telephone call and St John Ambulance arrived shortly thereafter.

6. In cross-examination, the complainant denied that there was a third person present at the scene who stated to him 'give him his cane back' during the assault.[13]  Further, in cross-examination, the complainant denied head-butting and grabbing the appellant's hair.[14]  The complainant denied self-inflicting his own injuries prior to the ambulance arriving at the property.[15]  The complainant maintained that the assault occurred on his property, being Lot 271.

   [13] ts 46 (24/1/2022).

   [14] ts 42 (24/1/2022).

   [15] ts 42 (24/1/2022).

7. The complainant was taken to Narrogin Hospital where he remained for three to four days for the treatment of his injuries, which included abrasions to his head, black eyes, cuts to his elbow and bruising to his rib.[16]

   [16] Exhibit 3 photographs of injuries taken on the day of the alleged offence.

8. Dr Adeleye gave evidence concerning the complainant's injuries and his medical treatment at the Narrogin Hospital.[17]  Dr Adeleye stated that the complainant had injuries to his head, back, his chest and to the abdomen and legs.  The injuries included a haematoma to the left side of his forehead and to the right side of his scalp.  The complainant was tender under the left ribs and had an abrasion on the left upper quadrant of his abdomen.  Further, there was an abrasion to the skin over his left knee with spinal tenderness in the lower part of his neck.[18]  A chest x-ray and a CT scan of the head and neck were conducted.[19]

   [17] ts 52 - 56 (24/1/2022).

   [18] ts 53 (24/1/2022).

   [19] ts 53 (24/1/2022); Exhibit 5 medical report of Dr Adeleye.

9. Senior Constable Menschelyi gave evidence that upon his arrival of the property the complainant was inside his shed which he estimated to be 100 metres inside the property boundary line.[20]  The officer observed the appellant was sitting on a big pile of steel when police arrived which he was described as being adjacent to the complainant's shed.[21]  The officer stated that the appellant held a red and white pole that 'was roughly six feet in length'.[22]  He also observed the complainant's walking pole was 'pretty much broken in half' and had blood on the shaft.  The officer seized the appellant's walking aid.[23]

   [20] ts 61 (24/1/2022).

   [21] ts 57 (24/1/2022)

   [22] ts 58 (24/1/2022).

   [23] ts 58 (24/1/2022).

10. Senior Constable Menschelyi activated his body worn camera and spoke with the appellant.[24] Whilst the appellant was sitting on a steel object inside the boundary of the complainant's property he told the police that he was defending himself.[25]  Senior Constable Menschelyi stated to the appellant 'I can see blood on your stick' and to which the appellant admitted he hit him with it before stating 'to get him off, I told him to get off me and if I got hold of you and tried to pull you off balance you wouldn't tell me to get off, wouldn't you?'.[26]  The appellant also stated '[h]e knows I am a blind man and I apologise to him.  I said "I am very sorry for being on your property"'.[27]  The appellant then identified his property on the other side of the wire fence at the boundary.[28]

    [24] Exhibit 6 body worn camera footage; ts 58 - 61 (24/1/2022).

    [25] ts 9 (3/2/2022).

    [26] ts 9 (3/2/2022).

    [27] Exhibit 6 body worn camera footage; ts 61 (24/1/2022).

    [28] ts 9 (3/2/2022).

11. Constable Cordiner gave evidence that when he arrived at the property he observed the appellant who appeared 'quite relaxed', and not in distress or harmed in any way.[29]  The appellant was holding his white metal pole and was about 30 to 40 metres distance from the complainant's green shed.  On entering the shed, Constable Cordiner found the complainant sitting inside a caravan that was stored within the green shed.  Constable Cordiner observed that the complainant was bleeding, had swelling around his eye and was very upset and out of breath.[30]  Constable Cordiner spoke to the complainant briefly before the St John Ambulance officers arrived. 

    [29] ts 63 (24/11/2022).

    [30] ts 62 - 63 (24/1/2022).

12. As a consequence, Constable Cordiner located the area described as being where the alleged assault had occurred and took photographs of the scene on his mobile telephone.  Constable Cordiner returned to the complainant and showed him the photographs at which time the complainant confirmed that was the place where the assault took place.[31]

    [31] ts 65 - 66 (24/1/2022); Exhibit 7, four photographs of location.

13. Constable Cordiner described the area identified as being a clearing nearby to a tyre stack.  Constable Cordiner gave evidence that the ground appeared disturbed, that there were footprints in the clearing and the ground looked very different to the rest of the surrounding area.[32]  Constable Cordiner estimated the area to be about 20 metres walk from the green shed due to the clutter and scrap in the area, although he noted it was only 10 to 15 metres 'as the crow flys'.[33] That is, within the boundary of the complainant's property, being Lot 171.

    [32] ts 63 - 64 (24/1/2022).

    [33] ts 70 (24/1/2022).

14. Constable Cordiner stated that there were no other persons present at the scene.[34]  Constable Cordiner assisted the paramedics in taking the complainant to the Narrogin hospital.

    [34] ts 66 (24/1/2022).

The learned Magistrate's decision

1. The learned Magistrate stated that the complainant was a forthright witness who did not embellish his evidence, which was consistent with other evidence including the medical evidence.  Her Honour found that the complainant did not fabricate his own injuries to incriminate the appellant.  The learned Magistrate found that the appellant went onto the complainant's property.  The complainant then asked the appellant to leave the property and in response, the altercation commenced, resulting in the appellant assaulting the complainant using his walking pole and striking the complainant with his hands and feet.[35]  The learned Magistrate stated the testimony of the complainant was consistent with the objective evidence, namely the medical evidence, the observations of the police officers, and the admissions of the appellant.

   [35] ts 10 (3/2/2002).

2. The learned Magistrate observed that the appellant disputed that the offending occurred on the complainant's property but did not give evidence.  The learned Magistrate found that the complainant's evidence was consistent with the evidence of the police officers who identified the location of the incident and further, the position of the two men when they arrived at the scene, being complainant's property.  In that regard, the learned Magistrate observed that the appellant, on the body worn camera footage, stated 'I'm very sorry for being on your property' and that he identified his property to the police officer as being on the other side of the wire fence.[36]

   [36] ts 9 (3/2/2022).

3. The learned Magistrate stated that whilst the appellant contended in submissions that he acted in self-defence, there was no evidence upon which self-defence arises.[37]  Further, the learned Magistrate did not accept the appellant's contention that the injuries to the complainant were self-inflicted during the few minutes prior to the police officers arriving after the emergency telephone call.[38] Moreover, the learned Magistrate accepted the police officers' evidence that there were no visible injuries on the appellant.

   [37] ts 10 (3/2/2022).

   [38] ts 9 (3/2/2022).

4. Accordingly, the learned Magistrate convicted the appellant.

Appeal - Legal Principles

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[39]

   [39] Criminal Appeals Act 2004 (WA), s 9(1).

2. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[40]  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[41]

   [40] Criminal Appeals Act 2004 (WA), s 9(2).

   [41] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [56] (Steytler P, Wheeler & Roberts-Smith JJA).

3. The appellant relies upon the following ground of appeal:

   I was set up by the victim.  He is the guilty party.  The magistrate failed to see I was set up.  The policeman had his mind clouded by an ambulance officer who I am pursuing legally for defamation.[42]

Unreasonable verdict - legal principles

[42] Notice of Appeal filed 1 July 2022.

1. In NYL v The State of Western Australia,[43] the Court of Appeal summarised the applicable principles as stated by the High Court in M v The Queen.[44]  The conclusion that a verdict is unreasonable or not supported by the evidence does not depend upon the prior conclusion that there has been some error.  The question as to whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported, is a question of fact that is not dependent upon any such error.[45]  Rather, in determining whether a verdict is unreasonable or cannot be supported having regard to the evidence, an appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence.  The appeal court must determine, whether, in all the circumstances, it would be dangerous to permit the verdict to stand.[46]

   [43] NYL v The State of Western Australia [2022] WASCA 41.

   [44] M v The Queen (1994) 181 CLR 487.

   [45] MSK v The State of Western Australia [2022] WASCA 55, [71].

   [46] MEN v The State of Western Australia [2020] WASCA 118, [403] - [410].

2. The question for the court is whether it was open to the learned Magistrate to be satisfied beyond a reasonable doubt that the accused was guilty.  This involves an assessment of the whole of the evidence, bearing in mind the learned Magistrate's advantage in observing and hearing the various witnesses, and in particular, the complainant.[47]

Application to adduce evidence on an appeal - legal principles

[47] MSK v The State of Western Australia [2022] WASCA 55, [72].

1. The appellant seeks to adduce further evidence, namely the proposed testimony of a witness, Mr Gumprich.  I will outline that proposed evidence below.

2. An appeal alleging that there is fresh evidence warranting the quashing of a conviction is an appeal based on s 30(3)(c) of the Criminal Appeals Act.  That section provides that the court must allow an appeal if, in its opinion, there was a miscarriage of justice (subject to the proviso in s 30(4) of the Act).

3. Where an appeal is brought on the basis of fresh evidence, a miscarriage of justice will be established if the appeal court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial.[48]

   [48] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ).

4. The appeal court has the responsibility of examining the fresh evidence in order to satisfy itself that the evidence is relevant, credible and cogent.[49]  If the evidence is not credible and cogent, it may be rejected.  The role of this Court on a fresh evidence application is to determine whether the evidence is capable of being accepted as true by a reasonable factfinder, be it a jury or a judge sitting alone.[50]

   [49] Mickelberg v The Queen [No 2] [2004] WASCA 145; (2004) 29 WAR 13, [432] (Steytler J); White v The Queen [2006] WASCA 62; PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546, [54] ‑ [56] (Buss JA, Owen and Wheeler JJA agreeing).

   [50] Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387, [14] (McLure JA).

1. Cogency is necessary but not in itself sufficient.  The evidence must also be material in the sense that it is reasonably capable of affecting the outcome.[51]  This requires an assessment of the fresh evidence in the context of the whole of the evidence given at the trial.[52]

   [51] Gallagher, (395 - 396) (Gibbs CJ).

   [52] Craig v The King [1933] HCA 41; (1933) 49 CLR 429, 439.

2. Those principles apply equally to a trial by judge alone.  In such a trial, the trial judge is obliged to approach the task of finding facts in the same way as would a jury at a jury trial.  Accordingly, in such a trial the question is whether there is a significant possibility that the trial judge, acting reasonably, would have acquitted the appellant if the fresh evidence had been before the trial judge at the trial.

3. An appellate court will not allow an appeal on the basis of new (as distinct from fresh) evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[53]

   [53] Impicciatore v The State of Western Australia [2020] WASCA 33, [69] - [70].

4. In exercising its discretion whether to admit additional evidence, the court is ultimately concerned with whether it is just, in all of the circumstances, to admit the further evidence on appeal.[54]  In the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence remain relevant to the exercise of the discretion and to the determination of whether there was a miscarriage of justice, although the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles. 

   [54] Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460, [114]; Burt v The State of Western Australia [2022] WASCA 150.

The affidavit and testimony of Mr Gumprich

1. The appellant seeks to rely upon the affidavit of Mr Gumprich sworn 20 September 2022.  Mr Gumprich's affidavit is in the following terms:

   On the morning of Friday 18^th of June.  I was working in my wool store on the corner of Lydeker Way, Narrogin, next to 270 Lydeker Way, Narrogin, where the altercation took place. I heard a commotion, thinking it was the apprentice plumber getting yelled at across the road.

   Next thing I heard one of the gentleman say 'get off me' which piqued my interest.  I stepped out of the back of my shed and looked through the fence across at 270 Lydeker Way, Narrogin and looked across to see one person hitting the other with a walking stick, whether or not this was in retaliation to what I had heard I cannot say.

   I then saw the other gentleman push the one with the walking stick to the ground and lay a couple of kicks in at which point I intervened.

   I yelled out 'oi you bastards what the fuck is going on?' in my loud 'DAD' voice, to which one gentleman quickly went back to his block on the corner.  The other gentleman went to his shed to lick his wounds.

   I saw the police and an ambulance arrive. I stood on one side of my block, thinking that the police would see me and may come and get a statement which they did not.

2. Mr Gumprich gave evidence at the hearing of the appeal.  During his examination in chief, Mr Gumprich stated that he heard an argument commence whilst he was in his shed on Lot 49 Graham Road, Narrogin.[55]  Mr Gumprich marked a map of the area showing the location of his property.[56]  He recalls hearing one male voice say 'get off me' and when he went outside of his shed he observed Mr Ingram hitting the other male with his walking stick.  He then observed the other gentlemen push Mr Ingram to the ground and kick at this ribs. 

   [55] ts 35 (7/11/2022).

   [56] Exhibit 1 (Appeal hearing) Scale map of properties at Graham Road, Narrogin.

3. Mr Gumprich stated that the incident occurred about 15 to 20 metres from where he was standing.  The incident occurred on the property directly across the fence from Mr Gumprich's shed, which is on Lot 49 Graham Road, Narrogin.  Mr Gumprich marked a street map of the area identifying an area in close proximity to the shed on Lot 271.[57]

   [57] Exhibit 1 Map of Narrogin area; ts 30 (7/11/2022).

4. In cross-examination, Mr Gumprich states that he did not know the names of the two men but that he had seen both men before because he had been operating out of the industrial area for about 11 years.[58]

   [58] ts 35 (7/11/2022).

5. Mr Gumprich stated that he understood that Mr Ingram owned the white shed at Lot 270.[59]  Mr Gumprich observed Mr Ingram on the property 'quite regularly'.[60]

   [59] ts 36 (7/11/2022).

   [60] ts 36 (7/11/2022).

6. The respondent disputes that the proposed evidence is fresh because the evidence existed at the time of the trial and the possibility that Mr Gumprich may have had relevant information was known or possibly known to the appellant prior to trial.  In these circumstances, the respondent submits that whilst the nature of the evidence may have been unknown, it could, with reasonable diligence, have been discovered. 

7. Counsel submitted that the appellant was familiar with the prosecution brief and understood the witnesses to be called at the trial.  Therefore, it was incumbent upon him to make to make inquiries to ensure that Mr Gumprich gave evidence at trial or that Mr Gumprich gave a statement to the police.[61]  The absence of legal representation for the appellant at trial makes it very difficult to discern what his state of knowledge was at the time of the trial and what enquiries he could have made with reasonable diligence. 

   [61] ts 44 (7/11/2022).

8. However, it is clear that the appellant was aware that Mr Gumprich was in the vicinity of the scene given that he cross-examined and made submissions to the learned Magistrate with reference to the other man in the wool shed.  Further, on appeal, the appellant readily identified Mr Gumprich, his neighbour, and therefore was able to obtain an affidavit.

9. The respondent submitted that in any event, the proposed evidence does not establish that the appellant should not have been convicted.  The respondent submits that the additional evidence is, on the whole, consistent with the evidence of the complainant and the prosecution case at trial.  The respondent further submits that the testimony of Mr Gumprich is evidence that could only be relevant to the credibility of the complainant.

10. Accordingly, in assessing the fresh evidence I must consider the extent to which the prosecution case depended upon the evidence of the complainant and whether that evidence could materially affect an assessment of the complainant's evidence that he was assaulted and suffered bodily harm.  In making that assessment, I must consider the extent to which there was other evidence that supported the complainant.

Assessment of appeal

1. I understand that the ground of appeal contends a miscarriage of justice relying on two bases.  First, that there has been a miscarriage of justice, in that the conviction was unreasonable and not supported by the evidence.  Second, that there has been a miscarriage of justice given that the further evidence adduced demonstrates that there is a significant possibility that the learned Magistrate would have acquitted the appellant if the evidence had been adduced at trial.

2. Turning first to whether the conviction was unreasonable and not supported by the evidence, having considered all the evidence at trial, I am satisfied that it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the accused was guilty of assault occasioning bodily harm.

3. The complainant gave evidence that the learned Magistrate found was both cogent and reliable.  The appellant has not demonstrated that the learned Magistrate's finding that the complainant was a credible and reliable witness is erroneous by reference to incontrovertible facts or uncontested evidence.  The learned Magistrate found that the complainant's recollection of the events was consistent with the other evidence adduced at trial.[62]  That finding is unimpeachable.  

   [62] ts 7 (3/2/2022).

4. The officers gave evidence identifying the location of the incident and the position of the appellant and the complainant when the officers arrived at the scene.  The officers confirmed that the complainant was injured and that the appellant appeared to be not injured.  Further, the appellant made admissions when asked 'I can see blood on your stick', stating to the officer he hit him with it and then 'to get him off, I told him to get off me and I got hold of you and tried to pull you off balance, you wouldn't tell me to get off, wouldn't you?'.  The appellant then stated, '[h]e knows I'm a blind man and I apologised to him.  I said "I'm very sorry for being on your property"' and that he identified his property on the side of the wire fence.  The officers seized the white walking pole, which was damaged and had blood on the shaft.[63]

   [63] ts 58 (24/1/2022).

5. The complainant's evidence was consistent with the medical evidence of the treating medical practitioner.  The complainant had injuries that required medical treatment as a patient in hospital for three to four days.  The suggestion that the complainant fabricated his injuries in the few minutes prior to the paramedics arriving is without merit.

6. There is an insufficient evidentiary basis to support self-defence nor any other defence.  Based upon the evidence before the learned Magistrate the conviction was reasonable and supported by the evidence.

7. I now turn to consider whether the further evidence sought to be adduced establishes that there has been a miscarriage of justice.  I have outlined the affidavit and testimony of Mr Gumprich.  I will approach the proposed evidence on the basis that it is fresh evidence.  I do so, for the reason that the appellant is a self-represented litigant.  Therefore, I must determine whether on the basis of the proposed further evidence, a miscarriage of justice is established. That is, there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at the trial.

8. The appellant appears to submit that the testimony of Mr Gumprich establishes that the location of the offending occurred on Lot 170, not Lot 171.  As I have observed, Lot 170 and 171 are adjacent with Lot 170, being adjacent to Mr Gumprich's property, namely Lot 269, which is on the corner of Graham Road and Lydecker Road, Narrogin.  Therefore, the appellant contends that the complainant has followed him on to his property and then assaulted him.

9. The presence of  'a man in the wool shed' formed part of the appellant's case at trial, including during cross-examination of the complainant to the effect that the man in the wool shed had intervened in the fight and shouted at the complainant to give the appellant his cane back.[64]  Mr Gumprich's affidavit makes no mention of instructing one of the men to give the other his cane back, with the only reference to Mr Gumprich stating anything to the men is his recollection that he stated 'oi you bastards what the fuck is going on? in my loud DAD voice'.

   [64] ts 41 - 42 (24/1/2022).

10. Mr Gumprich did not observe the beginning of the altercation between the complainant and the appellant.  Rather, he heard shouting and then looked outside of his shed.  Mr Gumprich marked the location of the altercation on a map which indicated a position close to the boundary between Lot 170 and Lot 171.[65]  That marked position is certainly further than seven to eight metres from his shed.  Mr Gumprich identified that Mr Ingram lived at Lot 171 and the other man (the complainant) property was Lot 170.  The objective evidence is that the appellant owns Lot 170.

    [65] Exhibit 1, Map marked by Mr Gumprich (7/11/2022).

11. I do not accept that the testimony of Mr Gumprich concerning the exact location of the assault establishes a miscarriage of justice, nor would that evidence affect the credibility of the complainant.  At trial, the evidence supported strongly a finding that the offending occurred on Lot 171, being the complainant's property.  I have outlined that evidence.  Even if the altercation occurred on Lot 170, I am satisfied that would not establish a miscarriage of justice given the entirety of the evidence.  Whether the two neighbours came together on Lot 170 or Lot 171 does not affect the finding that, based on the evidence led at trial, the appellant assaulted the complainant causing bodily harm.

12. One other part of the proposed evidence is the observation of Mr Gumprich that, after the appellant was hitting the complainant with the walking stick, the appellant fell to the ground and the complainant kicked him whilst on the ground.  I do not accept that this proposed evidence establishes a miscarriage of justice.  It is consistent with the appellant initiating the assault using his walking stick as a weapon to inflict bodily harm on the complainant. 

13. In assessing the weight of the proposed fresh testimony, the probative value and nature of the evidence adduced at trial must be a matter of significant importance.  I have undertaken the assessment of the proposed fresh evidence in light of the entire evidence led at trial.  Having done so, I find that the learned Magistrate, acting reasonably, would not have acquitted the appellant if the evidence sought to be adduced had been before the court at trial.  In making that determination, I have also assessed whether the proposed evidence to be adduced would affect the credibility of the complainant, and thereby whether there has been a miscarriage of justice.  I am satisfied that there has not been a miscarriage of justice.

Conclusion

1. Accordingly, leave to adduce the further evidence is not granted, leave to appeal is not granted and the appeal is therefore, taken as dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NA

Associate to the Honourable Justice McGrath

15 MARCH 2023