Kritskikh v Director of Public Prosecutions

[2022] WASC 130

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   KRITSKIKH -v- DIRECTOR OF PUBLIC PROSECUTIONS  [2022] WASC 130

CORAM:   HALL J

HEARD:   14 FEBRUARY 2022

DELIVERED          :   12 APRIL 2022

PUBLISHED           :   21 APRIL 2022

FILE NO/S:   SJA 1028 of 2021

BETWEEN:   KRISTINA EVGENEYEVNA KRITSKIKH

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE C ROBERTS

File Number            :   JO 480/2020 and JO 481/2020

Catchwords:

Criminal Law - Appeal against conviction - Aggravated assault causing bodily harm - Unlawful damage - Self-defence - Family violence - Evidence Act 1906 ss 37 to 39G - Whether the court’s reasoning was consistent with how a jury would be directed in respect of the family violence provisions - Whether evidence relevant to the appellants degree of intoxication was wrongly excluded

Legislation:

Evidence Act 1906 ss 37 to 39G

Result:

Leave to appeal granted
Appeal allowed

Category:    A

Representation:

Counsel:

Appellant	:	M Ajduk
Respondent	:	S Packham

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decisions:

Bannon v The Queen (1995) 185 CLR 1

Gallagher v The State of Western Australia [2016] WASCA 54

Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024

Goodwyn v The State of Western Australia [2013] WASCA 141, (2013) 45 WAR 328

HML v The Queen [2008] HCA 16; (2008) 235 CLR 334

Liberato v The Queen (1985) 159 CLR 507

R v Golightly (1997) 17 WAR 401

R v Simons (1834) 172 ER 1355

Subramaniam v Public Prosecutor (1956) 1 WLR 965

HALL J:

Background

1. The appellant was convicted after a trial in the Magistrates Court of one count of aggravated assault causing bodily harm, contrary to s 317(1)(b) of the Criminal Code and one count of unlawful damage, contrary to s 445 of the Criminal Code. The offences arose from an altercation between the appellant and her de facto partner one evening when they were driving home. She sought leave to appeal against those convictions.

2. The appellant’s grounds essentially raised two contentions.  Firstly, that the learned magistrate erred by excluding relevant evidence.  Secondly, that the magistrate erred by reasoning in a manner that was inconsistent with the family violence provisions of the Evidence Act 1906.  

3. The respondent conceded that both of those contentions had been made out and that the appeal should be allowed.  At the hearing of the appeal, I was satisfied that those concessions were properly made and, accordingly, allowed the appeal, set aside the convictions and ordered a retrial.  These are my reasons for coming to that conclusion.

The prosecution case

1. The prosecution case was that on the evening of 1 December 2020, the appellant and her then de facto partner, Matthew Williams, attended an end-of-year work function held by the appellant's employer.  Also in attendance at the function was a colleague of the appellant's, Ms Yeva Gibson.  Alcohol was consumed, though Mr Williams had less as he was the designated driver.  Later in the evening the appellant and Mr Williams decided to leave.  Although it was out of their way, they offered to give Ms Gibson a lift home.

2. On arrival at Ms Gibson's house, she invited the appellant and Mr Williams inside. The appellant consumed more alcohol.  Mr Williams offered to go to buy Ms Gibson some cigarettes. He left the house and returned a short time later.  Whilst he was away, the appellant said that she was feeling hot, took off her dress and walked around the house naked except for a G‑string. 

3. When Mr Williams returned, he saw the state of the appellant and decided that it was time to leave.  He either carried or led the appellant to the car and placed her inside.  He attempted to put towels around the appellant to cover her.  The appellant did not want to leave and resisted.  She used her feet to force the door open and there was a struggle for some minutes before Mr Williams managed to shut the door. 

4. In the course of the drive home, the appellant became agitated and started to grab the steering wheel causing the car to swerve.  She calmed down for a short time before again grabbing the steering wheel and punching and kicking Mr Williams.  He then pushed the appellant away forcefully, his hand making contact with her face.  He pushed her away in this manner four or five times. During the struggle, the appellant kicked the air conditioning unit of the car and damaged it. 

5. Mr Williams pulled over to the side of the road and called police on 000.  Two police officers attended.  They were wearing body worn cameras. Mr Williams and the appellant were separated, and the appellant was placed into the police vehicle and taken home.  A 72‑hour police order was issued, requiring the appellant and Mr Williams to remain apart for that period of time.  Photographs of the injuries sustained by Mr Williams and of the damage to the car were taken.  No charges were laid at that time.  The charges were not laid until 13 January 2021. 

The defence case

1. The defence case was that Mr Williams was the aggressor and that any injuries he sustained were the result of the appellant acting in self‑defence.  In relation to the unlawful damage, the defence case was that if the damage occurred during the incident in the car, it was caused by Mr Williams or occurred as the appellant was defending herself.  Whilst it was accepted that the appellant had been drinking, it was not accepted that she was heavily intoxicated.

2. The defence case was that when Mr Williams returned to Ms Gibson's house after purchasing cigarettes, he was angry and started grabbing the appellant and calling her names.  He then dragged her to his car.  Her dress was torn as she was being dragged. 

3. As they were driving home, Mr Williams stopped the car and the appellant told him that she wanted to leave him.  He then asked whether she liked a male work colleague and she said that she did.  Mr Williams then punched her to the nose and grabbed something with which he hit her to the head as she was trying to open the car door.  He hit her more than once with his fist.  The appellant denied hitting or kicking the air conditioning unit. 

4. The appellant consulted a doctor following the incident and photographs of the injuries she sustained were relied on.  The defence case was that the injuries shown in the photographs were consistent with the appellant's evidence and inconsistent with that of Mr Williams. 

5. The appellant also relied on a previous incident of family violence which was alleged to have occurred on 11 March 2019, during which she claimed to have been assaulted by Mr Williams.  Photographs of injuries sustained in that incident were also tendered.  This incident was relied on to support the appellant's case that she was acting in self‑defence, in that the previous incident contributed to her having a reasonable belief on 1 December 2019 that she needed to act to protect herself from harm by Mr Williams.  

The prosecution evidence

Yeva Gibson 

1. Ms Gibson was the first witness called at the trial. At the time of the alleged assault, she was a colleague of the appellant. They both worked as contractors at a firm providing taxation advice. She had known the appellant for two and a half months at the time of the incident.[1]

   [1] ts 12/4/2021, 4, 8.

2. Ms Gibson said that she and the appellant attended the work function at the Crown Casino on 1 December 2019, together with Mr Williams. Both she and the appellant consumed wine at the function, which continued from 11:30 am to 6.30 pm.  She estimated that she had 10 ‑ 12 standard drinks.[2]

   [2] ts 12/4/2021, 6.

3. Following the function, the appellant and Mr Williams gave Ms Gibson a lift back home. At Ms Gibson's premises, she invited the appellant and Mr Williams inside and offered them vodka. The appellant drank some vodka; Mr Williams asked for a glass of water. Mr Williams then left the house to purchase cigarettes for Ms Gibson.  While Mr Williams was out, Ms Gibson and the appellant were drinking vodka and joking.  The appellant complained that it was hot.  She then took off her dress and started walking around naked, save for her G‑string.  This made Ms Gibson feel very uncomfortable.[3]

   [3] ts 12/4/2021, 8 - 9.

4. Ms Gibson said that Mr Williams returned shortly after the appellant had taken her dress off. He reacted with shock on seeing the state of the appellant. Ms Gibson asked Mr Williams to take the appellant home.  The appellant picked her up, put her over his shoulder and carried her to his car. Mr Williams was hugging or kissing the appellant as he tried to put her in the car. The appellant did not say anything.  The appellant did not want to leave Ms Gibson's premises, and was pushing away from the car as Mr Williams was trying to get her in it.  Ms Gibson did not notice any abusive behaviour towards the appellant by Mr Williams.[4]

   [4] ts 12/4/2021, 9 - 10.

5. In cross-examination, Ms Gibson agreed that the appellant had been wearing a dress with thin shoulder straps.  However, she did not agree that the appellant's dress came off as Mr Williams was dragging her to the car.  She also denied hearing Mr Williams shouting or abusing the appellant.[5] 

Matthew (Adam) Williams

[5] ts 12/4/2021, 13 - 14.

1. Mr Williams had been in a de‑facto relationship with the appellant for four years at the time of the incident.  He attended the appellant's work function as her partner.  He was the designated driver and they drove to the function in his car.  He consumed one pint of beer at the function between 11 am and 12 pm.[6]

   [6] ts 12/4/2021, 19 - 20.

2. Mr Williams said that at around 2pm, they went to a bar in the Crown Casino complex.  The appellant drank wine both at the function and then at the bar.  By 6 pm she had become 'quite intoxicated' and was starting to 'slur her words'.  He was concerned for her well-being and her safety.  He and the appellant agreed to leave, and the appellant asked him to give Ms Gibson a lift home.  Nothing eventful happened on the drive to Ms Gibson's house.[7]

   [7] ts 12/4/2021, 20 - 21.

3. Mr Williams said that at Ms Gibson's house he saw Ms Gibson pour the appellant a vodka.  He declined any alcohol because he was driving.  Ms Gibson then said she had run out of cigarettes and he offered to go and get some for her from the shop.  When he returned about 15 minutes later Ms Gibson met him at the front door and told him that the appellant was not 'in a good state'.  He went inside and saw that the appellant had taken off her dress and was only wearing a G‑string. She was highly intoxicated, stumbling and slurring her words.  He told the appellant 'look, need to get you home.  Let’s get you home and safe'.  The appellant refused to put her dress back on when he asked her to do so.[8]  

   [8] ts 12/4/2021, 23 - 24.

4. Mr Williams said that he and Ms Gibson tried to coax the appellant out to the car.  The appellant walked to the car, but then started to cause a 'stir'.  She raised her voice, stating 'I don't want to go'.  He managed to get her into the car, but she forced the door open with her feet and this continued for about five minutes until he was able to get the door closed.  He tried to cover the appellant with beach towels, but she kept throwing them off.  Mr Williams's concern at this time was 'getting the appellant home safely'.  He told her 'it's okay, I'm going to just get you home'.  She appeared to have calmed down at this stage and he was able to drive off.[9]

   [9] ts 12/4/2021, 25.

5. Mr Williams said that as he drove along the Graham Farmer Freeway, the appellant became 'quite boisterous'. She told Mr Williams, 'I hate you.  I hate you.  I love [her boss]'. She then began to grab the steering wheel, causing the car to swerve.  Mr Williams pulled over to the right-hand lane of the freeway and tried to calm her down.  Once he was satisfied it was safe, he resumed driving, approaching the Graham Farmer Freeway tunnel.  As they were driving through the tunnel, she started punching him on the side of the face and on his arm and ribs, grabbing the steering wheel and kicking him.  He said that he had to use all his strength to keep the car from hitting the wall and other cars.[10]

   [10] ts 12/4/2021, 26 - 27.

6. Mr Williams said that he drove out of the tunnel and pulled over to the right-hand side of the freeway.  When he pulled over, the appellant was 'quite violent' and 'constantly punching, kicking'. He tried to hold her legs and she bit him on the arm.  He tried to defend himself by pushing her off him at least four or five times, but she persisted in kicking and biting and punching him.  He said that this struggle at the side of the road continued for 20 to 30 minutes.

7. Mr Williams said he was becoming tired and decided that he needed the police to help him.  He called 000 on the hands-free in his car.  The operator could not hear him and asked him to ring back not on hands-free, which he did.  The audio recording of the 000 call was tendered as evidence at trial.  The appellant can be heard crying in the background of this call.[11]

   [11] ts 12/4/2021, 30 - 31, 33.

8. When the police arrived, they pulled up on the left-hand side of the freeway.  Mr Williams said that he had to drive over to police; as he was doing so, the appellant was 'still quite violent … pulling on the steering wheel and continuing to punch [him]'.  He had locked the car to prevent her getting out because he was concerned that she would be run over.  She was still 'effectively naked' at this point.[12] 

   [12] ts 12/4/2021, 33.

9. The police assisted the appellant out of Mr Williams's car and into the back of the police vehicle. Mr Williams said that he did not make a formal complaint to the police at that point because he felt disorientated and did not want to pursue any charges against his then-girlfriend.  He was also worried about her getting home safely to her children.[13]

   [13] ts 12/4/2021, 34.

10. As a result of the attack, Mr Williams said that he had 'blood pouring out of [his] left-hand eye and [his] ear'.  There was bruising and redness underneath his ribs from where the appellant had kicked him.  The shirt he was wearing at the time had blood on it from the injuries to his head.  There were bite marks on his right arm.  The following day, he was very dizzy and disorientated.  He had throbbing on his face and extremely sore ribs.  He also had bruising, headaches and dizziness that lasted for a week.  Photographs of his injuries were tendered.[14]

    [14] ts 12/4/2021, 34; Exhibit P3.

11. Mr Williams also said that the appellant kicked the dashboard of his car, smashing a heater control and a panel.  Photographs of this damage were also tendered as evidence.[15]

    [15] ts 12/4/2021, 36; Exhibit P3.

12. In cross-examination, Mr Williams said that at Ms Gibson's house he did not carry the appellant to his car, rather he walked her out with the assistance of Ms Gibson.  He denied dragging her or that a strap of her dress broke in that process.  He said that Ms Gibson would have placed the dress in the car.  He otherwise disagreed with the defence version of events that was put to him.

13. Mr Williams agreed that he attended Joondalup Police Station on 10 January 2020 for an interview.  At the police station he was arrested as a suspect for assaulting the appellant.  During the interview he stated, 'I want her charged'.  He denied that he was trying to 'get in first'.[16]

    [16] ts 12/4/2021, 50.

14. Mr Williams denied that he had abused or tried to control the appellant during their relationship. He said that they had had arguments 'as a normal couple would' and had broken up three or four times over the course of their relationship. He denied drinking heavily or to excess.[17]

    [17] ts 12/4/2021, 51 - 52.

15. Mr Williams was asked about the prior alleged incident of family violence.  It was put to him that on 11 March 2019 he grabbed the appellant by her clothes in the kitchen, then took her into a bedroom and punched her arms and her legs.  He denied this.  He said that she attacked him on that occasion, and he had to call the police.  She had been drinking.  He did not wish to provide a statement to the police about that incident at the time.[18]

    [18] ts 12/4/2021, 54 - 55.

16. As regards the incident in December 2019, Mr Williams accepted that he could have caused the bruises to the appellant when he pushed her away.  However, he said that at the time he was acting in self‑defence.[19]  

Beavan Johnston

[19] ts 12/4/2021, 55.

1. First Class Constable Beavan Johnston was one of the police officers tasked to attend the incident.  He said that when he and his colleague arrived on the scene the appellant was crying and appeared to be distressed.  She had some minor injuries and was 'half naked': that is, she was just wearing a G-string.  Officer Johnston placed the appellant inside the police van because of her state of undress and her vulnerability.[20]

   [20] ts 12/4/2021, 59 - 60.

2. Officer Johnston said that the appellant was visibly upset and appeared to be intoxicated.  His view that she was intoxicated was based on four factors: that she appeared to be upset; that her speech was difficult to understand; that she was undressed; and that she was unsteady on her feet. He could not remember anything about Mr Williams's demeanour as he was primarily dealing with the appellant.[21]

   [21] ts 12/4/2021, 60.

3. Officer Johnston issued the appellant with a 72-hour police order on the basis of a brief conversation with his colleague, Senior Constable Corcoran, as it appeared to him that she was more likely to be the primary aggressor.[22]

   [22] ts 12/4/2021, 60.

4. In cross-examination Officer Johnston accepted that he and his colleague may have expressed a view at the time that they did not know whether the appellant or Mr Williams was at fault.  Officer Johnston also agreed that it was possible that the appellant's heavy Russian accent was the reason he could not understand her speech, rather than any slurring. However, he maintained that he believed she was intoxicated, given his experience as a police officer with intoxicated people.  The appellant was not breathalysed at the scene by him (or by anyone else to his knowledge).[23]

   [23] ts 12/4/2021, 61.

5. The appellant's counsel sought to play the police body worn camera footage to show whether or not the appellant was slurring her words.  The magistrate held that this footage was inadmissible.  That ruling will be referred to in more detail later.[24]

   [24] ts 12/4/2021, 69.

6. Officer Johnston said that he noticed bruising on the appellant's face and accepted that he had also said in his statement that she had bruising on her forehead.[25]

Paul Corcoran

[25] ts 12/4/2021, 69.

1. Sergeant Paul Corcoran[26] attended the incident together with Officer Johnston.  He said that when Mr Williams drove over to them, he could see that the appellant was naked from the waist up.  He and Officer Johnston escorted her to the police vehicle. She was not particularly aggressive but was 'just all over the place'. She was shouting and her movements and actions indicated to him that she was intoxicated.   Although he heard the appellant speaking, he could not make out what she was saying because of her accent.[27]

   [26] He was a senior Constable at the time of the incident.

   [27] ts 12/4/2021, 71 - 72.

2. Officer Corcoran observed that Mr Williams had some reddening to his head and some scratches on his chest.  The appellant had some reddening to her face.[28]

   [28] ts 12/4/2021, 72 - 73.

3. In cross-examination Officer Corcoran accepted that the appellant was upset and had a very heavy Russian accent.  However, he denied that this could have contributed to his view that she was intoxicated.  He also accepted that the appellant had attended the Joondalup Police Station on 3 December 2019 and that photographs were taken of her.  The photographs were tendered and show bruising to both eyes, a bruise on the back of the right arm, a bruise on the chin, reddening of the right elbow, bruising on both legs, patches of reddening on the back and a small bruise on the left buttock.[29]

   [29] ts 12/4/2021, 73 - 74; Exhibit D3.

The defence evidence

Kristina Kritskikh

1. The appellant gave evidence with the assistance of a Russian interpreter.  She was born in Kazakhstan and came to Australia in 2011.  She is now an Australian citizen.  She works as a contractor to a taxation consulting firm and is studying for a Bachelor of Accounting and Finance at Edith Cowan University.  She is aged 39 and has two daughters.  She has no criminal record. She denied having a problem with alcohol.[30] 

   [30] ts 12/4/2021, 79 - 80.

2. The appellant said that she had been in a relationship with Mr Williams for about three years.  She met him through the classified advertising website Gumtree: she was looking for extra work cleaning houses and he engaged her as a cleaner.[31]

   [31] ts 12/4/2021, 81 - 82.

3. The appellant said that Mr Williams was a 'very terrible man' who abused her emotionally throughout the course of their relationship.  He tried to isolate her from her children. She said that he called her a 'slut', a 'gold digger' and a 'prostitute'.  She said that he drank alcohol all the time, mostly Bacardi.[32]

   [32] ts 12/4/2021, 83 - 84.

4. The appellant said that, on another earlier occasion, Mr Williams had abused her physically.  In March 2019, she told him that she was leaving him.  He responded by swearing at her and then dragging her down a corridor into his room.  He then he hit her on the legs and around her back.  She denied hitting him. Photographs of the appellant's injuries taken after this incident became an exhibit in the trial.[33]  The photographs were taken about two days later and show bruising to the appellant's legs.[34]

   [33] Exhibit D2.

   [34] ts 12/4/2021, 86 - 92.

5. The appellant said that at the function on 1 December 2019 she had one drink at the party, and another drink at the pub. Her boss Darren had bought the second drink for her.  She said that Mr Williams was 'very jealous'.  She denied being intoxicated at the casino.  She did not know how much Mr Williams had to drink.  She said that Ms Gibson was more drunk than her.[35]

   [35] ts 12/4/2021, 94 - 97.

6. When Mr Williams and the appellant left the casino complex, they gave Ms Gibson a lift back to her house.  When they arrived at Ms Gibson's house, Ms Gibson invited Mr Williams and the appellant in. They immediately went into Ms Gibson's back yard. Ms Gibson offered them vodka.  The appellant could not remember whether she drank any vodka.  If she did it would have been no more than one.[36]

   [36] ts 12/4/2021, 99.

7. The appellant said that Ms Gibson asked her whether she would ask Mr Williams to go to the shops to get her some cigarettes.  Mr Williams left to get the cigarettes.  When he came back, he was angry and started grabbing the appellant and swearing.  He called her a prostitute, a slut and a leech.  The appellant maintained that she did not take her dress off at any point.[37]

   [37] ts 12/4/2021, 101 - 102.

8. The appellant said that Mr Williams 'just started dragging [her]' to his car.  Ms Gibson helped Mr Williams to drag her. Mr Williams was holding Ms Gibson under her arms and was dragging her from behind. The appellant said that her dress tore at that stage.  Mr Williams 'dropped' the appellant in the car against her will and locked the doors.[38]

   [38] ts 12/4/2021, 101 - 102.

9. The appellant said that, while Mr Williams was driving, he punched her on the face.  He also grabbed something from the car which he used to hit her on the head.  He then drove a bit further and pulled over.  She recalls being punched two separate times and being hit with an object, but the rest of the evening was just a blur.[39]

   [39] ts 12/4/2021, 106 - 108.

10. The appellant said that it is was possible she scratched Mr Williams and stuck him while in the car, as she tried to defend herself.  She maintained that Mr Williams hit her first.  She said that she did not grab the steering wheel as alleged.[40]

    [40] ts 12/4/2021, 115.

11. In cross-examination, the appellant said that she had two or three drinks of alcohol that day.  She denied vomiting in the car or telling a doctor that she had done so.  She agreed that she only made a complaint to the police about the previous incident (in March 2019) on 15 October 2020, after she had been charged in respect of the present matter.  She said that she decided to make the complaint to let the police know what had happened in the past.  It was put to her that the delay was explained by her being vindictive and seeking to get back at Mr Williams.  She rejected that suggestion.  She said that it was a mistake not to report the March 2019 incident earlier.  It was suggested that the complaint was vexatious.  She denied that and said that she was at a loss because she had been the victim and could not understand why she was being accused of assault.[41]

Victoria Gullotti

[41] ts 12/4/2021, 124 - 125.

1. Ms Gullotti is a friend of the appellant and has known her for 10 years.  She has socialised with the appellant and has had the opportunity to see her when affected by alcohol.  In Ms Gullotti's experience the appellant would drink one or two drinks at a maximum.  When drinking she would laugh a lot.  Her good opinion of the appellant had not been affected by the charges.[42]

Yana Budyak

[42] ts 13/4/2021, 10 - 12.

1. Ms Budyak is the appellant's daughter. She was 18 years old at the time of trial.   She lived with her mother, her sister, Mr Williams and his two sons at times throughout the appellant's relationship with Mr Williams.[43]

   [43] ts 13/4/2021, 12.

2. Ms Budyak said that in March 2019 one of Mr Williams' sons was having a birthday party at their house and the appellant left to go to a friend's house nearby.  Ms Budyak went to check on the appellant and saw that she was sad and being comforted by her friend.  The appellant and her friend then left to go back to Mr Williams' house.  When they returned, Ms Budyak observed that the appellant had red marks and bruises on her neck, arms and legs.  The marks she saw were consistent with those depicted in the photographs taken shortly afterwards.[44]  The next day she and the appellant attended a doctor and the photographs were taken.  Following the incident, the appellant would 'stay at home and cry all day'.[45]

   [44] Exhibit D2.

   [45] ts 13/4/2021, 13 - 14.

3. Ms Budyak gave evidence that the appellant and Mr Williams would argue throughout the course of their relationship, with Mr Williams 'using inappropriate language' and 'swear-words' towards the appellant.[46]

Dr Jade Jagoe-Banks

[46] ts 13/4/2021, 15.

1. Dr Jagoe-Banks is a General Practitioner at the Joondalup Drive Medical Centre.  She saw the appellant on 2 December 2019.  She was asked by the police to prepare a medical report.[47]

   [47] ts 13/4/2021, 18.

2. Dr Jagoe-Banks said that when she examined the appellant she noted a mark on the bridge of the nose, purplish bruising beneath both eyes and dark bruising beneath her chin on both sides.  The appellant had a contusion on the back of her head(that is, a red swollen area) and a small bruise on her left buttock.  She had scrapes on both elbows, bruises on both arms and multiple bruises on both of her legs and feet. The injuries are consistent with the photographs taken at the time.[48]

   [48] ts 13/4/2021, 19.

3. Dr Jagoe-Banks described the injuries as consistent with blunt-force trauma. She could not comment on the degree of force required to inflict such injuries.  She said it was common to get black eyes if a person is hit on the nose.  She observed that the injuries were consistent with the account of assault provided by the appellant.[49]

   [49] ts 13/4/2021, 20.

4. Dr Jagoe-Banks said that the appellant told her that she had vomited in the car and that this occurred before the assault. The impression she got from the appellant was that this had triggered the assault.[50]

   [50] ts 13/4/2021, 22.

The ruling on the body worn camera footage

1. During cross‑examination of Constable Johnson, defence counsel sought to tender a recording of the body worn camera footage.  The prosecution had not sought to adduce that footage.  Defence counsel submitted that the footage was relevant because the prosecution case was that the appellant was intoxicated: Mr Williams had given evidence that the appellant was intoxicated to the point that she was slurring her words, and  Constable Johnson could not recall whether or not she was slurring her words. 

2. Defence counsel submitted that the footage would assist in determining the level of the appellant's intoxication and the reliability of the evidence given by Mr Williams.  Defence counsel submitted that the appellant has a heavy Russian accent.  Taking this into account, the footage would show that she was not slurring her words: she was enunciating clearly but in a highly upset and excited state.[51] 

   [51] ts 12/4/2021, 65 - 68.

3. The prosecution objected to the footage on the basis that whatever was said by the appellant at the time were merely self‑serving out of court statements and, thus, inadmissible hearsay. Further, the prosecutor submitted that the footage was taken after the incident had ended and therefore not admissible as part of the res gestae.[52] 

   [52] ts 12/4/2021, 68.

4. The magistrate watched the footage for the purpose of determining admissibility.  He then made the following ruling:[53]

   I uphold the prosecution submissions.  It doesn't form part of the res gestae.  It is hearsay and the prosecution hasn't sought to rely upon it; therefore I find it inadmissible.

   [53] ts 12/4/2021, 68.

The magistrate's reasons

1. The learned magistrate gave oral reasons immediately following closing submissions.  In summarising the evidence, his Honour said that Mr Williams gave good evidence, did not try to embellish that evidence and was consistent in what he said. One of the matters referred to was the fact that Mr Williams made the 000 call. In this regard, his Honour asked, rhetorically, why Mr Williams would have made such a call unless he was really concerned about 'the state of affairs that confronted him'. His Honour noted that in that call Mr Williams had said that the appellant had been very violent and had attacked him and that this was consistent with his evidence.[54]

   [54] ts 13/4/2021, 32 - 34.

2. The magistrate noted that Mr Williams had been cross‑examined as to the earlier incident, that is the incident that occurred on 11 March 2019.  His Honour said in this regard:[55]

   It's quite apparent that the accused did suffer injuries as evident by the photos which have been tendered. There's no doubt about that whatsoever. But I don't really know about the causation of that.  According to the - to Mr Williams, it was the accused that attacked him on that occasion as well and I do note that, according to Mr Williams, he and his son both rang the police on that day.  Again, one wonders why the police were called by the alleged perpetrator of an assault.

   [55] ts 13/4/2021, 35 - 36.

3. The magistrate said that it was open to infer in respect of the incident the subject of the charges that either the appellant had attacked Mr Williams and he retaliated and caused injuries to her or, alternatively, that he attacked the appellant without any proper reason.  His Honour said that the fact that Mr Williams called the police was 'not entirely consistent with him being the perpetrator' but there was a question as to how the incident occurred and what actually happened on the day.  His Honour acknowledged that assault cases are the most difficult for magistrates to determine where the truth lies.  Nonetheless, his Honour was convinced that the appellant was guilty of the offences.[56] 

   [56] ts 13/4/2021, 36, 38.

4. In referring to the appellant's evidence, the magistrate said that she was evasive and tried to reconstruct events.  He did not accept her evidence as to the amount of alcohol she had drunk.  Whilst he could not definitively say how much alcohol the appellant had consumed, his Honour found ‑ on the basis of her behaviour as described by Mr Williams and Ms Gibson - that she was 'heavily intoxicated' and her actions were those of a person in a 'drunken stupor'.  His Honour said that the appellant's failure to admit consuming the amount of alcohol that she did was one of the factors that caused him to disbelieve her.[57]

   [57] ts 13/4/2021, 36 - 37.

5. The magistrate also discounted the appellant's evidence about the previous incident of family violence.  He noted that the appellant had only complained about that previous incident after she was charged with the present offences.  He said in that regard:[58]

   It was only then that she went to complain about an incident that happened 17 months previous.  Went to the police to make a complaint.

   [58] ts 13/4/2021, 37.

6. His Honour then said:[59]

   I have no doubt whatsoever that for reasons best known to her, she started off arguing with Mr Williams about being in love with Darren and that transpired into her erratically trying to grab the car wheel and almost causing a crash.  The fact that he had to stop on at least two occasions indicates her behaviour. The fact that Mr Williams had to ring 000 indicates her behaviour.

   The audio that can be heard that was played - I'm not talking about the police camera footage, I'm talking about the audio [this appears to be a reference to the 000 call] - indicates a woman in distress and, again, whilst it's also consistent with a person that has been assaulted, in my view it's also very consistent with a woman who has totally lost control in a drunken stupor and is causing all sorts of problems for a man trying to control a motor vehicle.  One has to ask the question why would (indistinct) suddenly, when driving a motor vehicle and all the danger and in a tunnel, why would he want to lash out for reasons best known to him and start assaulting his partner?  Quite clearly, it was the other way around. 

   The accused, about the dress - the issue about the dress, trying to maintain this fiction that it came off when he was - she was dragged to the car.  Entirely inconsistent with what Yeva Gibson and the - Mr Williams said.  Why would they make that up?  It's bizarre.  They didn’t make that up.  It happened.  She took her dress off for reasons only known to her and the only reason I can think of is if she was so drunk she was totally out of control with her actions and that transpired later in the car, being in that condition, lashed out and poor Mr Williams did his best to control the car and his actions and was so concerned that he called police to try and help him out and he was parked at the time.  It's not consistent with the accused's version that he was the aggressor. 

   I have no hesitation finding the case proved beyond reasonable doubt in respect of both the assault, bodily harm, in circumstances of aggravation and that she also with the damage in relation to when she was kicking at Mr Williams to the air conditioning unit. Now, I appreciate there needs to be a Liberato direction.  If the accused's version is plausible, then I must acquit.  Well, the accused's version is not plausible at all.  As I said, I am totally convinced that she did what the prosecution said she did and was the attacker and aggressor on the night in question. 

   [59] ts 13/4/2021, 37 - 38.

Grounds of appeal

1. The amended grounds of appeal are as follows:

   1.The learned magistrate erred in law in not admitting into evidence the body worn camera footage recorded by First Class Constable Beavan Johnson.

   2.There was a miscarriage of justice as a result of all of the body worn camera footage recorded by First Class Constable Beavan Johnson not being led in evidence.

   3.The learned magistrate erred in law by failing to direct himself in accordance with ss 39F(1)(b)(ii) ‑ (iv) of the Evidence Act 1906 as required by s 39G of the Evidence Act 1906.

   4.The learned magistrate erred in law by failing to direct himself in relation to whether the prosecution had proven beyond reasonable doubt that the appellant was not acting in self‑defence.

   5.The learned magistrate erred in law by failing to direct himself in accordance with ss 39F(1)(c) and 39E (and thus 39C) of the Evidence Act.

2. At the hearing of the appeal, the appellant abandoned ground 2.  Ground 1 relates to the failure to admit into evidence the body worn camera footage and grounds 3, 4 and 5 relate to self-defence and the family violence provisions of the Evidence Act.  Grounds 3, 4 and 5 will be dealt with together.  It is convenient to deal with those grounds first.

Grounds 3, 4 and 5 - relevant legal principles – self-defence generally

1. Section 222 of the Criminal Code provides, inter alia, that a person who strikes, touches or otherwise applies force to another person is said to assault that other person. Section 223 of the Criminal Code provides that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

2. Section 248 of the Criminal Code provides that a harmful act done by a person is lawful if the act is done in self-defence.  A harmful act is an act that is an element of an offence under Part V of the Criminal Code (other than Chapter XXXV). That includes an offence of unlawfully assaulting another person thereby doing the person bodily harm contrary to s 317(1)(b) of the Criminal Code.

3. Section 248(4) of the Criminal Code relevantly provides that an act is done in self-defence if:

   (a)the person believes the act is necessary to defend the person from a harmful act, including a harmful act that is not imminent; and

   (b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

   (c) there are reasonable grounds for those beliefs.

4. Section 445 of the Criminal Code provides that a person who unlawfully destroys or damages the property of another person without that person’s consent is guilty of an offence. Section 441 of the Criminal Code provides that an act which causes injury to the property of another, and which is done without the consent of the other person, is unlawful unless it is authorised, or justified, or excused by law. 

5. Section 441(3) provides that a person is not criminally responsible for an act that causes injury to property if the person believes the act is necessary to defend or protect the person from injury that the person believes is imminent and the act is a reasonable response by the person in the circumstances as the person believes them to be and there are reasonable grounds for those beliefs.

6. Although the terms of s 248(4) and s 441(3) are not precisely identical, they essentially provide that acts which cause harm to another person or injury to property will not be unlawful if done in self-defence. Unlawfulness of the harm or injury is, respectively, an element of the offences charged in this case. The onus is on the prosecution to prove that each element of each offence is proven beyond reasonable doubt.

7. Where there is evidence that raises self‑defence the onus is on the prosecution to exclude beyond reasonable doubt that the alleged offender was acting in self‑defence.  The prosecution can do this by excluding to that standard one of the elements of self‑defence.  If the prosecution fails in this regard, and self‑defence remains a reasonable possibility, then the prosecution has failed to establish that the act was unlawful and the accused must be found not guilty.[60]

   [60] Goodwyn v The State of Western Australia [2013] WASCA 141, (2013) 45 WAR 328; Gallagher v The State of Western Australia [2016] WASCA 54. [20]

Grounds 3, 4 and 5 - relevant legal principles - the family violence provisions

1. The Evidence Act 1906 was amended by the Family Violence Legislation Reform Act 2020 (WA). Section 94 of the amending act introduced ss 37 to 39G of the Evidence Act and those sections commenced on 1 October 2020.  I will refer to those sections as the family violence provisions.

2. The family violence provisions were operative at the time of the trial in this matter, which occurred on 12 and 13 April 2021.  It is not material that they were not operative at the time of the incident as the provisions are procedural in nature and relate to the conduct of criminal proceedings in a court.  The provisions have not yet been the subject of consideration by the Court of Appeal or in any other single judge appeal. 

1. The purpose of the family violence provisions is to ensure that evidence, including expert evidence, of family violence is admissible in criminal proceedings when relevant to issues before the court, including self-defence.  The amendments are also intended to address stereotypes, myths and misconceptions about family violence by introducing a requirement to give specified jury directions in relevant circumstances.[61]   

   [61] Western Australia, Parliamentary Debates, Legislative Assembly, Second Reading Speech, 29 November 2019, 6.

2. Section 37 provides that in ss 38 to 39G the term 'family violence' has the meaning given in s 5A of the Restraining Orders Act 1997. That section provides that family violence refers to violence, or a threat of violence, by a person towards a family member of the person or any other behaviour by the person that coerces or controls the family member or causes the member to be fearful. The section goes on to provide examples of family violence, including an assault against a family member or repeated derogatory remarks against the family member. The term 'family member' is defined in s 4 of the Restraining Orders Act 1997 to mean someone with whom a person is in a family relationship.  A family relationship includes two persons who are in a de facto relationship or who have, or had, an intimate personal relationship, or other personal relationship with each other.

3. Section 38 of the family violence provisions provides that for the purposes of those provisions evidence of family violence includes, inter alia, the history of a relationship between a person and a family member, including violence by either of them towards the other or towards any other family member.  It may also include evidence of social, cultural or other factors that impact on a person affected by family violence. 

4. Section 39 makes provision for the admissibility of expert evidence regarding the nature and effect of family violence.  As there was no expert evidence of that nature in this case it is unnecessary to refer to that section further.

5. Section 39A provides that evidence of family violence more generally is admissible if it is relevant to a fact in issue.  This provision appears to do no more than confirm the existing test for admissibility of evidence based on relevance. 

6. Where there is an issue of self‑defence, evidence of family violence may be relevant. Section 39B of the Evidence Act1906 provides as follows:

   39B. Evidence of family violence - self-defence

   Without limiting any other evidence that may be adduced, in criminal proceedings in which self-defence in response to family violence is an issue, evidence of family violence may be relevant to determining whether -

   (a) a person has a belief that an act was necessary to defend the person or another person from a harmful act, including a harmful act that was not imminent; or

   (b) a person's act was a reasonable response by the person in the circumstances as the person believed them to be; or

   (c) there are reasonable grounds for a particular belief by a person.

7. Section 39B contemplates that a past history of family violence may cause a person to believe that they need to act to defend themself from an impending threat of harm. It may also be relevant to a belief by the person as to the circumstances, whether the act was a reasonable response and whether there were reasonable grounds for the belief of the person who was acting to defend themself.

8. Section 39C provides:

   39C. Request for direction on family violence - self-defence

   (1) In criminal proceedings in which self-defence in response to family violence is an issue, defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with section 39E and all or specified parts of section 39F.

   (2) The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 39F if so requested, unless there are good reasons for not doing so.

   (3) If a direction on family violence is not requested, the trial judge may give the direction if the trial judge considers that it is in the interests of justice to do so.

   (4) The trial judge -

   (a) must give the direction as soon as practicable after the request is made; and

   (b) may give the direction before any evidence is adduced in the trial.

   (5) The trial judge may repeat a direction at any time in the trial.

   (6) This section, and sections 39E and 39F, do not limit what the trial judge may include in any other direction to the jury, including in relation to evidence given by an expert witness.

9. Section 39D provides:

   39D. Request for direction on family violence - general provision

   (1) In criminal proceedings in which family violence is an issue, prosecution or defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with all or specified parts of section 39F.

   (2) The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 39F if so requested, unless there are good reasons for not doing so.

   (3) If a direction on family violence is not requested, the trial judge may give the direction if the trial judge considers that it is in the interests of justice to do so.

   (4) The trial judge –

   (a) must give the direction as soon as practicable after the request is made; and

   (b) may give the direction before any evidence is adduced in the trial.

   (5) The trial judge may repeat a direction at any time in the trial.

   (6) This section, and section 39F, do not limit what the trial judge may include in any other direction to the jury, including in relation to evidence given by an expert witness.

10. Section 39E provides:

    39E. Content of direction on family violence

    In giving a direction under section 39C, the trial judge must inform the jury that -

    (a) self-defence is, or is likely to be, an issue in the trial; and

    (b) as a matter of law, evidence of family violence may be relevant to determining whether the accused acted in self-defence; and

    (c) evidence in the trial is likely to include evidence of family violence committed by the victim against the accused or another person whom the accused was defending.

11. Section 39F provides:

    39F. Additional matters for direction on family violence

    (1) In giving a direction requested under section 39C or 39D, the trial judge may include any of the following matters in the direction -

    (a) that family violence –

    (i) is not limited to physical abuse and may, for example, include sexual abuse, psychological abuse or financial abuse;

    (ii) may amount to violence against a person even though it is immediately directed at another person;

    (iii) may consist of a single act;

    (iv) may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial;

    (b) if relevant, that experience shows that –

    (i) people may react differently to family violence and there is no typical, proper or normal response to family violence;

    (ii) it is not uncommon for a person who has been subjected to family violence to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner;

    (iii) it is not uncommon for a person who has been subjected to family violence not to report family violence to police or seek assistance to stop family violence;

    (iv) decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by a variety of factors;

    (v) it is not uncommon for a decision to leave an abusive partner, or to seek assistance, to increase apprehension about, or the actual risk of, harm;

    (c) in the case of self-defence, that, as a matter of law, evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting in self-defence in relation to the offence charged.

    (2)In making a direction under subsection (1), the trial judge may also indicate that behaviour, or patterns of behaviour, that may constitute family violence may include (but are not limited to) –

    (a) placing or keeping a person in a dependent or subordinate relationship;

    (b) isolating a person from family, friends or other sources of support;

    (c) controlling, regulating or monitoring a person's day‑to‑day activities;

    (d) depriving or restricting a person's freedom of movement or action;

    (e) restricting a person's ability to resist violence;

    (f) frightening, humiliating, degrading or punishing a person, including punishing a person for resisting violence;

    (g) compelling a person to engage in unlawful or harmful conduct.

    (3) If the trial judge makes a direction that relates to subsection (1)(b)(iv), the trial judge may also indicate that decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by such things as the following -

    (a) the family violence itself;

    (b) social, cultural, economic or personal factors, or inequities experienced by the person, including inequities associated with (but not limited to) race, poverty, gender, disability or age;

    (c) responses by family, community or agencies to the family violence or to any help-seeking behaviour or use of safety options by the person;

    (d) the provision of, or failure in the provision of, safety options that might realistically have provided ongoing safety to the person, and the person's perceptions of how effective those safety options might have been to prevent further harm;

    (e) further violence, or the threat of further violence, used by a family member to prevent, or in retaliation to, any help-seeking behaviour or use of safety options by the person.

12. The effect of s 39C(2) is that where self-defence in response to family violence is an issue in a trial and directions in accordance with s 39E and s 39F are requested by the accused or their lawyer those directions must be given unless there are good reasons not to do so. The effect of s 39D(2) is that where family violence is an issue in a trial in some other way and directions in accordance with s 39F are requested by the accused or their lawyer those directions must be given unless there are good reasons not to do so.

13. The family violence provisions do not provide any indication of what may constitute good reasons for not giving a requested direction. It is possible that such reasons could include that the issue of family violence is a peripheral or minor issue in the trial and that the giving of the directions could, by placing undue emphasis on the issue, deflect or distract the jury from their task. Another possibility is that the request may relate to parts of s 39F that are not relevant to the circumstances of the particular case (that is, that are not raised on the evidence).

14. There is a tension between s 39C(2) and s 39D(2) on the one hand, which speak in mandatory terms, and s 39F on the other, which uses the word 'may', thereby implying that the directions referred to are discretionary. This tension can be resolved by an interpretation that, whilst a direction is required in the circumstances referred to, the content of that direction can be adjusted to meet the circumstances of the case. That is to say, the matters referred to in s 39F will not necessarily all be relevant in every case and the trial judge can select those directions that are relevant to the particular circumstances. This interpretation is also supported by the reference to the possible existence of good reasons not to give a requested direction in s 39C(2) and s 39D(2).

15. The effect of s 39C(3) and s 39D(3) is that, where no request is made, a judge may give a direction in accordance with s 39E and/or s 39F if the judge considers that it is in the interests of justice to do so. Although the word 'may' is used it is hard to imagine that a judge who was satisfied that it was in the interests of justice to give a direction would not do so. The word 'may' is used in this context to make clear that a judge has the authority to give a direction even though no such direction has been requested.

16. Sections 39C, 39D, 39E and 39F refer to directions to a jury. They have no direct application to cases which are not determined by a jury, such as in all trials in the Magistrates Court and trials by judge alone in superior courts. However, s 39E and s 39F are given an extended scope by s 39G.

17. Section 39G provides:

    39G. Application of s. 39E and 39F to criminal proceedings without juries

    If a court is sitting without a jury, the court's reasoning with respect to any matter in relation to which sections 39E and 39F make provision must, to such extent as the court thinks fit, be consistent with how a jury would be directed in accordance with those sections in the particular case.

18. Section 39G appears intended to ensure that the effect of directions that would normally be given to a jury are taken into account by courts sitting without a jury. Magistrates, of course, always sit without a jury. There can be no serious doubt that s 39G applies to magistrates. Bearing in mind that the subject matter of these provisions is family violence, and that cases involving family violence are commonly dealt with in the Magistrates Court, it would be unlikely that this provision was intended to apply in trials by judge alone in superior courts but not in the Magistrates Court. Furthermore, the word 'court' is defined in s 3 to include the Magistrates Court. Thus, I am satisfied that s 39G applies to magistrates.

19. Accepting that s 39G applies to Magistrates Courts, the more difficult question is what the provision requires a magistrate to do. It does not, in terms, require the magistrate to articulate the directions that would be given to a jury. Rather, it requires that the court's reasoning be consistent with directions that would be given pursuant to ss 39E and 39F, to such extent as the court thinks fit.

20. The reference to 'reasoning' must be to the process by which the court reaches a conclusion. That process will only be evident from the content of any oral or written reasons given by the magistrate. Section 31 of the Magistrates Court Act 2004 provides that the reasons for judgment in a case need only identify the facts that the court has accepted and the law that the court has applied in coming to its decision and give the reasons for accepting those facts and applying that law.  The reasons do not need to canvass all the evidence given in the case and do not need to canvass all the factual and legal arguments arising in the case.[62]

    [62] In the case of trial by judge alone in superior courts see Criminal Procedure Act 2004 s 120.

21. The application of the family violence provisions in a trial without a jury is plainly different than is the case in a trial with a jury.  In a jury trial the focus is on the directions given because, of course, the reasoning of a jury is not made public or exposed to scrutiny. The assumption in a jury trial is that the jury will follow the directions given by the trial judge.  In an appeal the adequacy of the directions may be in issue.  The question in such a case will be whether the directions could have led the jury to adopt an erroneous course of reasoning.  In contrast, in a trial by judge alone or by a magistrate the reasons will be available and the question of whether an erroneous course of reasoning has been taken can be decided as a matter of fact by examining the content of those reasons.

22. The requirement imposed by s 39G is that the reasons be consistent with how a jury would be directed in the particular case in accordance with ss 39E and 39F. The word 'consistent' relevantly means 'agreeing in substance or form; congruous, compatible with, not contradictory; marked by uniformity or regularity'.[63]  Reasons may be consistent with directions even though they are expressed in a different way.  Indeed, it would not be expected that reasons would be in the same form as directions.  Thus, consistency does not require formulaic words, rather it requires that the reasons be compatible with the directions that would be given to a jury in the particular case.

    [63] Shorter Oxford English Dictionary, 5^th edition.

23. The evident purpose of these provisions is to ensure that common misconceptions about the way in which victims of family violence may behave, for example that they will promptly report family violence to the police or will not remain with the perpetrator of the violence, are dispelled and not taken into account in the reasoning process. 

24. There may be a question as to the extent to which it is necessary for such misconceptions to be dispelled in the case of judicial officers, who are more accustomed to dealing with such matters than the lay members of the public who constitute juries. However, the existence of s 39G allows for the possibility that judges and magistrates may also, consciously or unconsciously, hold such misconceptions and need to guard against the use of them in their reasoning.

25. This would suggest that it would be an error for a magistrate to reason in a way that is inconsistent with ss 39E and 39F. For example, if a magistrate was to make an adverse finding as to credibility on the basis that the person claiming self‑defence had not complained of past family violence, without taking into account that it is not uncommon for a person who has been subjected to family violence not to report it to the police, that would arguably be inconsistent with s 39F(1)(b)(iii). This, of course, does not necessarily mean that a failure to complain, or a delay in complaining, is irrelevant. It simply means that in assessing the significance of any failure or delay it is important to take into account that there may be explanations for it that do not detract from the credibility of the witness.

26. The words 'to such extent as the court thinks fit' in s 39G are problematic. They cannot mean that a court may reason in a way that is consistent to only a limited extent. That literal meaning of the phrase would deprive the provision of any real effect by rendering the principles contained in 39E and 39F effectively optional. In this context consistency is not a value that lends itself to differing degrees of compliance. It would be expected that the reasoning would either be consistent or not consistent with how a jury would be directed.

27. In my view, the phrase 'to such extent as the court thinks fit' must mean that there is no set formula for the words that must be used when reasoning in a way that is consistent with the provisions. It may not be necessary in a particular case, for example, to refer to all of the individual subsections of s 39F. Whether the matters raised in s 39E and s 39F are relevant in a particular case will depend on the context. The phrase is intended to ensure that judges and magistrates only need to take into account such of the principles in their reasoning process as are relevant and raised by the evidence in the particular matter. However, if a principle is relevant on the evidence raised in a trial it is not open to a judge or magistrate to reason in a way that is plainly inconsistent with that principle. That would, for example, arise if the reasons drew on an assumption or misconception that is identified in s 39F.

1. Returning, then, to what a magistrate must do in order to comply with s 39G, the following approach is required:

   1.Determine whether family violence is an issue in the case (either to self-defence or in some other way);

   2.Determine whether in the circumstances of the case a jury would be directed pursuant to s 39E and/or s 39F (either because the parties would request directions or because the interests of justice would require it);

   3.Determine what the content of those directions would be (that is, what parts of s 39E and/or s 39F are relevant in the particular case); and

   4.Ensure that the reasons for decision are consistent with those directions (that is, that they are compatible with those directions and do not contradict them).

Grounds 3, 4 and 5 - the appellant's submissions

1. The appellant submits that the issue of self-defence was clearly raised on the evidence.  This was not merely on the evidence given by the appellant, but on other uncontested evidence.  In particular, the appellant refers to the evidence of the appellant being forced against her will into the car, the evidence of the significant injuries sustained by the appellant during the incident and the evidence of the prior incident of family violence.

2. In these circumstances it was insufficient for the magistrate to find that the appellant's evidence was not plausible.  It was necessary for the magistrate to consider whether, even if the appellant's evidence was rejected, the prosecution had proven beyond reasonable doubt that the appellant's act was unlawful.  This required consideration of whether the appellant was acting in self-defence.  The reasons do not contain any reference to such a consideration having occurred. The brief reference to Liberato v The Queen[64] at the end of the reasons did not discharge this obligation.

   [64] Liberato v The Queen (1985) 159 CLR 507.

3. The appellant further submits that, in circumstances where self-defence was raised and there were allegations of prior family violence, the magistrate was required to assess the evidence in light of, and to reason in accordance with 'the known dynamics relating to the reporting of family violence'.[65] In particular, the magistrate should have reasoned in a way that was consistent with s 39F(1)(c) and 39F(1)(b)(ii)-(iv).

   [65] Appellant’s outline of submissions dated 24 December 2021, [90].

4. It is submitted that the magistrate's reasons were inconsistent with those provisions because the magistrate failed to direct himself that evidence that the appellant may have assaulted Mr Williams on a previous occasion did not mean that she could not have been acting in self-defence on this occasion (s 39F(1)(c)).  Further, that the magistrate did not refer to the fact that experience shows that it is not uncommon for a person to stay with an abusive partner (s 39F(1)(b)(ii)), that it is not uncommon for a person who has been subjected to family violence not to report it to police (s 39F(1)(b)(iii)) and that decisions made by a person subjected to family violence about how to address or respond may be influenced by a variety of factors (s 39F(1)(b)(iv)).  Rather, the magistrate relied on the delay in the appellant reporting the earlier incident of family violence to impugn the appellant's credit.

Grounds 3,4 and 5 – the respondent's submissions

1. The respondent accepts (in relation to ground 4) that the magistrate did not direct himself in relation to the standard and onus of proof concerning the issue of self-defence.  Given the comments made in the reasons, the respondent accepts that his Honour may not have turned his mind to whether he was satisfied that the prosecution had negated self-defence beyond reasonable doubt.

2. In relation to grounds 3 and 5, the respondent submits that the magistrate was not obliged to direct himself in accordance with the family violence provisions, however, given the circumstances of the case, it was in the interests of justice to do so. Given the magistrate's conclusions about the appellant's evidence regarding the prior incident and the relevance this had to the issue of self-defence, there was a miscarriage of justice. This is because those conclusions did not take into account the relevant provisions of s 39F.

Grounds 3, 4 and 5 - the merits

1. In this case, the issue of self‑defence was raised on the evidence and was critical in determining whether the appellant was guilty of the offences charged.  It was the central plank of the defence case: the appellant did not deny that she hit Mr Williams and that in doing so she may have caused bodily harm and injury to property, claiming that these acts were lawful because they were done in self-defence.

2. The learned magistrate did not specifically refer to self-defence.  It was implicit in his reasons that, if he rejected the appellant's evidence and accepted that of Mr Williams, any issue of self-defence fell away.  However, there was other uncontested evidence that was capable of supporting self-defence.  That included uncontested evidence that the appellant had been forced into the car, that the appellant had incurred significant injuries and that the appellant had suffered injuries on a previous occasion (though how they had been caused was disputed).

3. The circumstances of this case required that express consideration be given to self-defence and that, in dealing with that issue, the reasons be consistent with s 39E and s 39F. That did not mean that the magistrate had to direct himself in some formulaic way by reciting the terms of those provisions. But it did require an awareness of the applicability of the provisions to the circumstances of the case and that consideration be given to them in making findings of fact.

4. The prosecutor and defence counsel did not refer to the family violence provisions, either in submissions or at any other point in the trial. The magistrate did not refer to them in his reasons. he likelihood is that the applicability of the provisions, being relatively new at the time, was simply overlooked. Be that as it may, the question is whether the reasons were consistent with s 39E and s39F.

5. In considering the credibility and reliability of the evidence given by the appellant and Mr Williams, the magistrate made the following findings:

   1.That the fact Mr Williams made the 000 call, rather than any complaint being made by the appellant, enhanced Mr Williams' credibility and made it less likely that he was the aggressor on that occasion.

   2.That the fact that Mr Williams called police at the time of the earlier incident, rather than a complaint being made by the appellant, enhanced Mr Williams's credibility and made it less likely that he was the aggressor on that occasion.

   3.That the claim by the appellant that she had previously been the victim of domestic violence lacked credibility because she had not made a complaint about that earlier incident until after she was charged with the present charges.

6. The first and second findings contain an assumption that a victim of family violence will call the police. The third finding builds upon that assumption and also seeks to draw significance from a delay in complaining to the police. His Honour's reasoning in that regard was inconsistent with how a jury would be directed pursuant to s 39F.

7. That is not to say that the matters referred to by the magistrate cannot ever be taken into account in assessing credibility. A failure to report to the police, for example, may be a relevant consideration. However, before drawing any conclusions from such a failure the principles referred to s 39F must be considered. The fact that victims of family violence often do not report to the police may deprive the failure of any significance.

8. To apply the approach referred to at [111]:

   1.Family violence was an issue in this case as it was relevant to self-defence;

   2.In the circumstances of this case a jury would be directed in accordance with s 39E and s 39F (either because such a direction would be requested or because, in any event, the interests of justice would require it);

   3.The directions appropriate to this case would include reference to the matters referred to s 39E(a), (b) and (c), s 39F(1)(a)(i)(iii) and (iv), s 39F(1)(c) and s 39F(1)(b)(i),(ii),(iii) and (iv) (and may incorporate some of the matters referred to in s 39F(2) and (3));

   4.The reasons were inconsistent with the directions that would be given pursuant to s 39F(1)(b)(i) and (iii) and s 39F(1)(c).

9. For those reasons, I accepted that grounds 3, 4 and 5 had been made out. However, that is not because the magistrate failed to direct himself (as the grounds assert) but because he failed to address the issue of self-defence and reasoned in a way that was inconsistent with the family violence provisions.

Ground 1 – the body-worn camera footage - relevant legal principles

1. For evidence to be admissible, it must be relevant. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[66] 

   [66] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2], [3]; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [5] - [6].

2. Evidence of out of court statements is generally inadmissible because it is hearsay evidence of what a person has said on another occasion.  There is an exception in the case of admissions against interest by an accused person.[67] 

   [67] Subramaniam v Public Prosecutor (1956) 1 WLR 965 (Subramaniam), 6; R v Simons (1834) 172 ER 1355; Bannon v The Queen (1995) 185 CLR 1.

3. Evidence of the behaviour or statements of a person may, however, be admissible to prove not the truth of what was said but rather the fact that things were said or that the person behaved in a particular way.  In such a case, the words spoken by the person are not relied upon for the truth of what was said but rather because there is some significance in the fact it was said or the way in which it was said.[68]

   [68] Subramaniam, 6.

4. Evidence of res gestae is evidence of things that were said as part of the commission of the acts said to constitute the offence.  These are usually statements made which accompany the acts or are so close in time as to form an integral part of the relevant conduct.  Evidence of this type can be admitted notwithstanding the general rule against hearsay evidence.[69]

   [69] R v Golightly (1997) 17 WAR 401, [411] (Owen J).

Ground 1 – the appellant's submissions

1. The appellant submits that a central issue at the trial was the appellant's level of intoxication.  The defence contention was that the appellant was not heavily intoxicated and that assessments by the police were influenced by her heavy Russian accent. The magistrate's conclusions in regard to both the likelihood that the appellant behaved as alleged and her credibility as a witness were influenced by his conclusions about how much she had drunk.

2. The appellant submits that the body worn camera footage provided direct evidence of her demeanour and speech and was relevant to a fact in issue, namely her level of intoxication.  The evidence was not relied on for the truth of anything said by the appellant, nor that it formed part of the res gestae.  Further, it was not relevant that the prosecution had not sought to rely on it.  Accordingly, the appellant says that the evidence was properly admissible and the magistrate's reasons for rejecting it were in error.

Ground 1 - the respondent's submissions

1. The respondent submits that the body worn camera footage was not relied on as falling under an exception to the rule against hearsay, but rather as evidence relevant to a fact in issue, namely whether the appellant was highly intoxicated at the time of the incident. The respondent accepts that the magistrate erred by not admitting the evidence. However, it is submitted that there was no substantial miscarriage of justice as a result of the magistrate refusing to admit the evidence.  This is said to be because the conclusion as to intoxication was supported by the findings as to credibility and other evidence before the court.   

Ground 1 - the merits

1. The body worn camera footage was potentially cogent evidence of the appearance and condition of the appellant close in time to the alleged incident.  The relevance of that evidence was that it went to the question of how intoxicated the appellant was. This was, as the magistrate noted, a matter of significance both to the likelihood that the appellant had behaved in the way alleged and in regard to the reliability of her memory of the events. 

2. It must be said that the submissions made to the magistrate by both defence counsel and the prosecutor were not a model of clarity.  Although defence counsel did refer to the fact that the footage was relied on as being relevant to the issue of whether the appellant was slurring her words and was heavily intoxicated, reference was also made to case law relating to the admissibility of self‑serving statements where they form part of an interview with the police.  Those cases would only be relevant if the evidence was being relied upon for the truth of its contents, which it clearly was not. 

3. This was not a case where any of the statements made by the appellant in the footage were relied on for the truth of what was said.  Rather, the issue was what was the condition of the appellant and, in particular, whether she was slurring her words.  There was also some footage that showed the appellant walking when she was taken home.  Accordingly, no question of hearsay arose.  There was no suggestion that the evidence was admissible under the res gestae exception.  The fact that the prosecution had not sought to rely on the footage was irrelevant.  The evidence was relevant and admissible for the purposes for which it was tendered.  The magistrate was in error in excluding it.

4. It is inappropriate to say more about the evidence as there may be a retrial and the interpretation of the evidence and the weight to be accorded to it are properly matters for the magistrate who hears the evidence.

5. The question of whether there was no substantial miscarriage of justice[70] does not arise as this evidence must be viewed in the light of other evidence, including evidence the assessment of which is affected by the outcome in relation to grounds 3, 4 and 5.

   [70] s 14(2) Criminal Appeals Act 2004.

Conclusion

1. For those reasons, at the hearing of the appeal I made the following orders.

   1.Leave to appeal is granted.

   2.The appeal is allowed.

   3.The convictions are set aside.

   4.The matter is remitted to the Magistrates Court for a retrial before a different magistrate.

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

JS

Associate to the Honourable Justice Hall

21 APRIL 2022