Lacco v Director of Public Prosecutions (WA)
[2022] WASC 168
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: LACCO -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2022] WASC 168
CORAM: MITCHELL J
HEARD: 12 MAY 2022
DELIVERED : 12 MAY 2022
PUBLISHED : 13 MAY 2022
FILE NO/S: SJA 1027 of 2022
BETWEEN: CASSANDRA ANNE LACCO
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B TYERS
File Number : BU 983 OF 2021
Catchwords:
Criminal law - Appeal against conviction - Assault causing bodily harm - Whether magistrate's reasons adequate - Whether conviction unreasonable or unsupported by the evidence - Whether it was open for the magistrate to be satisfied beyond reasonable doubt that the appellant was not acting in self‑defence
Legislation:
Criminal Code (WA), s 317(1), s 248
Magistrates Court Act 2004 (WA), s 31
Result:
Application for an extension of time in which to appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | W C Yoo |
| Respondent | : | R P Arndt |
Solicitors:
| Appellant | : | Aboriginal Legal Service |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Chief Executive Officer, Department for Child Protection v IGR [2019] WASCA 20; (2019) 54 WAR 222
Egitmen v The State of Western Australia [2016] WASCA 214; (2014) 263 A Crim R 203
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gibbs v The State of Western Australia [2018] WASCA 68
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Hirwa [2021] WASCA 201
M v The Queen (1994) 181 CLR 487
Strahan v Brennan [2014] WASC 190
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365
Wells v The State of Western Australia [2017] WASCA 27
MITCHELL J:
At the hearing of this appeal, I made the following orders for reasons which I said would be published later:
1.The appellant's application for an extension of time in which to appeal is granted.
2.Leave to appeal is refused on both grounds of appeal.
3.The appeal is dismissed.
These are my reasons for making those orders.
Summary
On 24 January 2022, the appellant was convicted after a trial in the Magistrates Court of one count of assault causing bodily harm, contrary to s 317(1) of the Criminal Code (WA) (Code). She was sentenced to 6 months' immediate imprisonment, to be served cumulatively upon a 2-year sentence of immediate imprisonment which she was then serving. The appellant was made eligible for parole.
The appellant now appeals against her conviction on two grounds. Ground 1 contends that the magistrate erred in law because inadequate reasons were provided. Ground 2 contends that the guilty verdict was unreasonable and unsupported by the evidence.
For the following reasons, neither ground of appeal is arguably established.
Statutory context
Elements of offence
Section 222 of the Code relevantly defines 'assault' as follows:
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent … is said to assault that other person, and the act is called an assault.
Relevantly, under s 223 of the Code:
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
Under s 317(1) of the Code, any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime.
Bodily harm is defined in s 1 of the Code to mean 'any bodily injury which interferes with health or comfort'.
Self-defence
Relevantly, s 248 of the Code makes the following provision in relation to self-defence:
(1)In this section —
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2)A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).
…
(4)A person’s harmful act is done in self‑defence if —
(a)the person believes the act is necessary to defend the person or another 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.
Provisions of this kind are often referred to as giving rise to 'defences'. However, if there is some evidence capable of raising the issue, the legal or persuasive burden is on the prosecution to exclude the proposition that the accused was acting in self‑defence. The accused bears the evidentiary onus of adducing evidence, or pointing to prosecution evidence, on which a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting in self‑defence.[1]
[1] See Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 [5].
As explained by Buss JA in Goodwyn v The State of Western Australia,[2] where the accused satisfies the evidentiary onus in relation to self‑defence, then the burden is on the State to negate the defence by excluding at least one of the following four elements beyond reasonable doubt:
1.The accused subjectively believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent: s 248(4)(a).
2.The accused's harmful act is an objectively reasonable response by the accused in the circumstances as the accused subjectively believes them to be: s 248(4)(b).
3.There are objectively reasonable grounds for the accused's subjective belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent: s 248(4)(a) read with s 248(4)(c).
4.There are objectively reasonable grounds for the accused's subjective belief as to the circumstances: s 248(4)(b) read with s 248(4)(c).
Emergency
[2] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [95] - [96]; Martin CJ agreeing at [1], Mazza JA to similar effect at [170] - [174].
Section 25 of the Code provides:
(1)This section does not apply if section 32, 246, 247 or 248 applies.
(2)A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3)A person does an act or makes an omission in an emergency if —
(a)the person believes —
(i)circumstances of sudden or extraordinary emergency exist; and
(ii)doing the act or making the omission is a necessary response to the emergency;
and
(b)the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
Provocation
Section 245 of the Code relevantly defines 'provocation' in the following terms:
The term provocation used with reference to an offence of which an assault is an element, means and includes … any wrongful act or insult of such a nature as to be likely, when done to an ordinary person … to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.
…
A lawful act is not provocation to any person for an assault.
Section 246 of the Code provides for the defence of provocation in the following terms:
A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.
Prosecution case at trial[3]
[3] See trial ts, 13 January 2022, 5 - 7.
The prosecution case was, in essence, that two groups of people became involved in a verbal altercation in the early hours of the morning of 12 December 2020 outside a kebab shop on Victoria Street, Bunbury. After an initial altercation between the appellant, the appellant's sister and the complainant, the complainant and appellant moved along the street, continuing to verbally taunt and gesture at each other.
The appellant and complainant then stood on the street verge, throwing a number of punches at each other and striking each other in what the prosecution accepted was, at that point, a consensual fight. They then grabbed each other by the hair and moved out into the middle of the street. The appellant's sister joined in, grabbing the complainant by her hair and dragging the pair onto the road. The complainant and the appellant rolled around on the road in a struggle, punching and holding each other.
The appellant then bit the complainant on the nose, which constituted the alleged assault. The tip of the complainant's nose was severed, leaving it hanging on by a small section. The severed nose tip was the alleged bodily harm.
The complainant and the appellant were eventually separated, and the complainant was escorted away by her partner. The appellant remained in the area arguing with other people. The complainant received medical treatment, including reattachment of her nose tip by a plastic surgeon.
The appellant was arrested on 24 February 2021 and, in a recorded interview, admitted being a party to the fight and to biting the complainant on the nose.
Defence case at trial[4]
[4] Trial ts, 13 January 2022, 7 - 8.
The appellant's trial counsel said, in effect, that it was not in issue that the appellant had bitten the complainant's nose which resulted in bodily harm. The matters in issue were identified as whether the complainant consented to the biting and the whether the assault was lawful as self-defence or as a reasonable response to an emergency or provocation.
Prosecution evidence at trial
The following is a summary of the evidence led as part of the prosecution case at trial.
Evidence of the complainant
The complainant was 31 years old at the time of trial. On the night of Friday 11 December 2020, the complainant attended a Christmas work function at the 'Prince of Wales' with her partner, Carl Boylan. The complainant consumed alcohol at the venue, after not having had a drink for the previous 83 days. They arrived at the Prince of Wales Hotel between 7.00 pm and 7.30 pm and left when the venue closed at midnight. The complainant and Mr Boylan walked to the Orfa Kebabs kebab shop where other members of their group had gathered. The complainant sat down outside of the shop and waited for her kebab.[5]
[5] Trial ts, 13 January 2022, 8 - 10.
As Mr Boylan and his friend, Jacob, were assisting a young girl who was drunk on the pavement, the complainant observed a verbal altercation between the appellant and Sapphire, Jacob's partner. There was some touching and shoving. The complainant approached and engaged in a short fight with the appellant, in which a few punches were thrown. That fight was broken up, and the complainant sat back down at the kebab shop to wait for her kebab.[6]
[6] Trial ts ,13 January 2022, 10 - 13.
The complainant then saw the appellant on the phone. A white Commodore pulled up and a few women alighted the vehicle. One of those women, who was wearing a pink hoodie, asked the group, 'Who hit my sister?' The complainant started walking and said that 'they spotted me and I kind of knew it was going to be on again so I gestured to get onto the road, because I was on the kerb'. The complainant said that she did this because 'people get hit and they fall and hit their heads on kerb and get brain damage or die'. The complainant shouted to the woman in the pink hoodie, 'Get on the road for a fair go', and they engaged in a fight in the middle of the road. The appellant then became involved in that fight.[7]
[7] Trial ts, 13 January 2022 at 13 - 15.
At that point, Mr Boylan came over and attempted to break the fight up. From that point onwards, the complainant could not recall further fighting with the woman in the pink hoodie. The complainant and appellant continued fighting until they were further up the street, in front of a Chinese massage centre. The complainant felt as if she was being pulled from different directions by her hair, but she could not see who was pulling her hair. After what seemed to the complainant to be about 10 - 15 minutes, the complainant and appellant were lying on their sides in the middle of Victoria Street outside a newsagency, punching each other and holding each other's hair.[8]
[8] Trial ts, 13 January 2022, 15 - 16.
The complainant then felt the appellant latch onto and bite her nose. The complainant said, 'If you let go, I'll let go' and they both began releasing their hands from each other's hair. Blood from the complainant was dripping onto the appellant, and 'things [the fight] seemed to stop after that'. The complainant said that she also observed a bite mark on her lower inside right forearm but could not recall the appellant biting her there. The complainant denied biting the appellant, or doing anything other than punching her and grabbing her by the hair.[9]
[9] Trial ts, 13 January 2022, 17 - 18.
The complainant described the treatment she received for the injury she sustained in the incident.[10]
[10] Trial ts, 13 January 2022, 19 - 20.
The complainant maintained this account in cross-examination.[11]
Evidence of Carl Boylan
[11] Trial ts, 13 January 2022, 20 - 38.
The evidence of Mr Boylan, the complainant's partner, was not entirely clear. He accepted that he was intoxicated at the time of the incident and that his memory was a blur.[12]
[12] Trial ts, 13 January 2022, 40, 42, 50 - 51.
Mr Boylan described walking to the kebab shop. He, Jacob and Sapphire attempted to assist a young girl who was about 18 - 20 years old and looked to have passed out. A woman whom he did not know (now known to be the appellant) was shouting at them, calling them paedophiles and perverts. The complainant and the appellant ended up in a fight.[13]
[13] Trial ts, 13 January 2022, 40 - 42.
Mr Boylan recalled observing the appellant on the phone. After this time, a car arrived and three women and one man alighted the vehicle. A blond woman in a pink shirt was yelling, 'You hit my sister', and the complainant and appellant were 'still tussling on the ground'. They were 'entangled in each other' and he heard the complainant yell. Mr Boylan went to assist and was pulling the complainant and appellant apart when he was bitten on his right little finger. He did not see who bit him but did not think it was the complainant.[14]
Evidence of Shirley Woods
[14] Trial ts, 13 January 2022, 43 - 46, 50.
Shirley Woods gave evidence of attending the kebab shop around the time of the incident with a friend and three children and observing some of the events from her car.[15] Her evidence was often confusing, vague and inconsistent with the CCTV footage. Although called as a prosecution witness, she was declared hostile, ultimately without objection by the appellant's trial counsel.[16] The magistrate ultimately did not regard her evidence to be credible, and it was clearly open to the magistrate not to give her evidence any weight.[17] In the circumstances, it is unnecessary to summarise the effect of her evidence.
Evidence of Senior Constable Martin Campbell
[15] Trial ts, 13 January 2022, 52 - 53.
[16] Trial ts, 13 January 2022, 60.
[17] Trial ts, 24 January 2022, 4.
Senior Constable Martin Campbell was on duty at the Bunbury Police Station when the complainant attended on 14 December 2020 and reported the incident.[18] He produced photographs taken at that time, which showed a stitched cut to the complainant's nose.[19]
CCTV footage outside the kebab shop
[18] Trial ts, 13 January 2022, 78.
[19] Exhibit 4.
Senior Constable Campbell also produced CCTV footage of the altercation outside the kebab shop on Victoria Street, recorded by a camera on the opposite side of the road.[20] It shows a group of people standing outside of the shop, and a fight erupting between the complainant and the appellant's sister (at about 1.15.13 am). The appellant can be seen pulling the complainant's hair (from about 1.15.17 am - 1.15.24 am).
[20] Exhibit 6.1.
The women are separated by others in the group. The complainant can then be seen speaking to the appellant (at about 1.15.38 am), and then throwing a punch which connects with the appellant's left cheek (at about 1.15.39 am). The appellant then walks towards the complainant, who backs away (at about 1.15.41 am). The two women disappear from view of the camera at the bottom of the screen at this time. The appellant can be seen walking back into view of the camera (at about 1.17.18 am and 1.17.33 am). She is walked away by her sister after having a verbal altercation with other people (at about 1.17.53 am).
CCTV footage of the biting incident
Another CCTV camera located further down Victoria Street recorded parts of the altercation.[21] At about 1.18.18 am, the complainant can be seen walking down the centre of Victoria Street towards the camera, away from the kebab shop. The appellant and her sister are walking in the same direction down the footpath. The three women can be seen shouting and gesturing at each other.
[21] Exhibit 6.3.
At about 1.18.41 am, the complainant and appellant can be seen shouting at each other a few metres apart. The complainant rushes at the appellant and throws a punch, which does not appear to connect (at about 1.18.51 - 1.18.53 am). The complainant and appellant are separated, and the complainant, the appellant and the appellant's sister continue remonstrating with each other. The complainant walks away towards the centre of the road (at about 1.19.05 am). The complainant (on the road) and appellant (on the path) can be seen in a verbal altercation (at about 1.19.18 am). The complainant appears to gesture for the appellant to come out onto the road (at about 1.19.36 am).
After more gesturing by each woman, the complainant walks towards the appellant and both start punching each other (at about 1.19.57 am). The fight moves out to the roadway. The appellant's sister appears to try and hold the complainant but is separated from the pair by a man. The appellant and complainant fall to the ground (at about 1.20.05 am) and continue grappling with each other. The complainant's arm can be seen striking the appellant at least five times (at about 1.20.25 am ‑ 1.20.27 am). Other people are standing around them and separate the two women (at about 1.21.40 am). The appellant walks away from the complainant, towards the camera and sits down at the bottom of the screen, and the complainant, holding her face and assisted by others, walks in the opposite direction.
EROI on 24 February 2021
The following is a summary of the electronic record of interview (EROI) of the appellant which police conducted on 24 February 2021.
The appellant had been drinking at the Burley Hotel and left to go and get a kebab (9:59). She agreed with the police that she was 'quite drunk' (38:53). She did not remember what happened before she arrived at the kebab shop but remembered feeling dizzy and feeling 'lumps' on her head (13:20). The appellant thought that a group of people had hit her with a pool ball and that is why she had lumps on her head (14:07, 18:45, 30:18). The appellant said that her sister approached the group and asked them why they had hit the appellant (18:00).
At some point, a fight broke out. The appellant said that she did not leave because 'they had just bashed me' (27:23). The appellant admitted to biting the complainant (32:26, 36:13, 41:21). She said that the complainant was biting her finger (32:26, 36:13, 41:30) and that she warned the complainant she would bite her if the complainant did not let go (36:15). The appellant said that she bit the complainant's nose with similar force to that of 'biting a bit of steak' (41:36), but that she thought she only broke the skin (41:54).
The appellant seemed to display remorse when confronted with the fact that she 'just about took the tip of [the complainant's] nose off'. She stated that this was 'never [her] intention' but was an act of 'last resort' (42:00, 42:18, 42:30, 46:14).
When asked why she did not report the incident to police, the appellant stated, 'Because I'll get blamed for it straight away anyway' (27:35). When asked why she did not go to a doctor after the incident, the appellant said that she was embarrassed, her 'face looked disgusting' and was covered in bruises, and she did not want to go out in public as she had been in a domestic violence relationship before (35:30, 36:30, 37.09).
Medical evidence
A medical report from Dr Donna Thomas was tendered by consent,[22] and described the complainant presenting to the emergency department of Bunbury Regional Hospital at 1.49 am on 12 December 2020. The medical report documented that she had sustained injuries which included a large flap laceration of the tip of her nose and right nostril to the nares ala side wall of approximately 2 cm x 2 cm.[23]
[22] Trial ts, 13 January 2022, 7.
[23] Exhibit 1.
Defence evidence at trial
The appellant elected not to give evidence but called evidence of Natalie Sell. Ms Sell is the appellant's aunt, with whom the appellant was living at the time of the incident. She described the appellant coming home in December 2020 covered in blood, with torn clothes, a black eye, a sore hand, swelling over her face and a gash at the back of her head.[24]
[24] Trial ts, 14 January 2022, 101 - 102.
Magistrate's approach
Assessment of witnesses
The magistrate regarded both the complainant and Mr Boylan as honest witnesses. His Honour noted that there were some inconsistencies between their evidence and the CCTV footage, noting in particular:
(a)the complainant's evidence that there was one continuous fight with the appellant can be seen from the CCTV footage to be incorrect; and
(b)there was inconsistency regarding the presence of other people who had some part to play in the incident.
However, in general, the magistrate regarded the complainant's evidence as forthright.[25]
[25] Trial ts, 24 January 2022, 3 - 4.
As noted above, the magistrate did not regard Ms Woods to be a credible witness and rejected her evidence.[26]
[26] Trial ts, 24 January 2022, 4.
The magistrate regarded Ms Sell to be an honest witness and noted her evidence that she observed that the appellant sustained injuries consistent with being involved in several fights the previous evening. The magistrate also noted that Ms Sell did not specifically note any injury to the appellant's finger but heard a complaint of something being wrong with the appellant's hand. His Honour also noted that she noticed blood on the appellant's clothes but could not say whose blood.[27]
Findings of primary fact
[27] Trial ts, 24 January 2022, 5 - 6.
The magistrate made the following findings of primary fact from his review of the CCTV footage and the witness' evidence.
The complainant and Mr Boylan proceeded from the Prince of Wales Hotel to the Orfa Kebab store. Others proceeded with them or met them at the store. An altercation occurred between the complainant and the appellant at the kebab store. Punches were thrown and the incident ended. The magistrate found it unnecessary to determine who threw the first punch during that initial fight.[28]
[28] Trial ts, 24 January 2022, 6.
There was a significant gap in time until anything further happened. The appellant called her sister and the complainant waited for and received her kebab. Upon the arrival of the appellant's sister, Ms Nicki Lacco, and others, there was a confrontation. The confrontation was largely between the appellant's sister and men in the complainant's group. The complainant was at the back of the group, away from the appellant's sister, and had started to move off in the direction of a taxi. The appellant's sister was making various accusations and, as a result, the complainant and the appellant's sister commenced a fight. This was a consensual fight in which the complainant was willing to engage.[29]
[29] Trial ts, 24 January 2022, 6.
The appellant joined in the fight between her sister and the complainant. The melee continued across the road. There was a further break in the violence, during which arguments continued and the complainant's group and the appellant's group continued to taunt each other. Both the complainant and appellant had the opportunity to leave after the melee had finished but neither did so. They continued to taunt each other. The complainant clearly wanted at this point to fight the appellant. The appellant was also being aggressive at this time. She had the opportunity to move away, and did so, but then moved back towards the complainant. Mr Boylan was shadowing the complainant and was separating the two.[30]
[30] Trial ts, 24 January 2022, 7.
The appellant and complainant both challenged each other to a fight and then they did indeed have a fight. There was a consensual fight between the pair at this stage. Both the appellant and the complainant threw punches and wrestled each other to the ground in the middle of the street. During this fight, the appellant bit hard on the complainant's nose, causing a significant injury requiring surgery. In her EROI with police, the appellant stated that she had bit as hard as she would bite into a steak. The complainant also suffered a bite to her arm, but it was unclear when this occurred or who inflicted it.[31]
[31] Trial ts, 24 January 2022, 7.
The magistrate noted the appellant's account to police that the complainant had bitten her finger. His Honour said that it was difficult to find that such a bite to the appellant's finger occurred. However, the magistrate was prepared to treat the matter in a manner that was most favourable to the appellant and proceed on the basis that the complainant did bite the accused's finger.[32]
[32] Trial ts, 24 January 2022, 9.
Others in the area stopped people from getting involved in the fight, while others appeared happy to deter others from trying to stop any fight. The incident stopped after the complainant was bitten on the nose. The complainant was helped up and left the area. The appellant walked off and returned to commence two brief violent altercations. Despite her intoxication, the appellant was walking ably and did not appear, to the naked eye observing the CCTV footage, to be significantly injured.[33]
Consent
[33] Trial ts, 24 January 2022, 7 - 8.
The magistrate found that the last fight between the appellant and the complainant commenced by consent. The complainant challenged the appellant to that fight, and both were willing participants. However, biting, and in particular such an extreme biting of the nose, was outside of what must have been contemplated by the parties. The magistrate was satisfied beyond reasonable doubt that the biting of the nose was not done with the complainant's consent.[34]
Self-defence
[34] Trial ts, 24 January 2022, 8.
The magistrate observed that there were four ways in which the prosecution could prove that the appellant was not acting in self-defence when she bit the complainant's nose:
1.The prosecution may prove that any assault or anticipated assault from the complainant that the appellant was purporting to defend herself from was a lawful assault on the part of the complainant.
2.The prosecution may prove that the appellant did not believe that biting the complainant's nose was necessary to defend herself from the acts of the complainant.
3.The prosecution may prove that any beliefs that the appellant held that it was necessary to defend herself were not objectively reasonable beliefs; in other words, were not beliefs held on reasonable grounds.
4.The prosecution may prove that the appellant's actions in biting the complainant's nose were not objectively a reasonable response to the circumstances that the appellant believed she was faced with.
The magistrate noted that, if the prosecution proved any one of those matters beyond reasonable doubt, then they would have proved that the appellant was not acting in self-defence.[35]
[35] Trial ts, 24 January 2022, 10.
As to the first matter, the magistrate concluded that, because there was consent to fight, aspects 'such as punching and the like' were lawful acts by the complainant. His Honour concluded, however, that a biting of the appellant's finger would have been unlawful and that, therefore, the prosecution had not negatived the first component of self-defence.[36]
[36] Trial ts, 24 January 2022, 10.
As to the second matter, the magistrate noted that the appellant did not tell police that she bit the complainant's nose in order to defend herself, and the action described in the EROI appeared to be one of retaliation rather than self-defence. However, his Honour proceeded on the basis that the prosecution had not disproved that the appellant believed it was necessary to bite the complainant on the nose in order to defend herself.[37]
[37] Trial ts, 24 January 2022, 10 - 11.
The magistrate said that, as there was no direct evidence of any belief held by the appellant, the third matter relevant to self-defence was 'somewhat redundant'.[38]
[38] Trial ts, 24 January 2022, 11.
The magistrate found that the prosecution had proven the fourth matter referred to above, in the following terms:[39]
Finally, the significant question arises, was the reaction; actions of the [appellant] in biting the nose hard of [the complainant], was that an objectively reasonable response.
In the circumstances that the [appellant] was faced with, being, initially, a consensual fight with others around, and which ultimately could have assisted, including persons on the [appellant's] side, given little evidence regarding the severity of any bite to her finger and that the [appellant] was, indeed, initially a willing participant within the fight, objectively, I have no difficulty in finding that to bite hard on such a susceptible part of the body, being the nose, so hard as to almost sever the nose, I find that is not a reasonable response to the circumstances in which the [appellant] found herself. I find that the prosecution have negatived self-defence.
Emergency and provocation
[39] Trial ts, 24 January 2022, 11.
The magistrate also noted that the defence had raised, rather peripherally, issues of emergency and provocation.[40]
[40] Trial ts, 24 January 2022, 11.
As to emergency, the magistrate said that there was no evidence that any emergency, if one existed, was sudden or unexpected. His Honour also said that in any event, biting of the nose would not have been a reasonable response to any such emergency, if one existed.[41]
[41] Trial ts, 24 January 2022, 11.
As to provocation, the magistrate noted that he had found as a fact that there was a challenge to fight by both parties that both accepted. His Honour said that the only provocation that could potentially arise would be the biting of the appellant's finger. The magistrate further said that there was no evidence of a loss of self-control and, in any event, biting the complainant's nose would be a disproportionate response.[42]
[42] Trial ts, 24 January 2022, 11 - 12.
Ground 1: inadequate reasons
Ground 1 contends that the magistrate erred in law because inadequate reasons were provided.
Appellant's submissions
As explained in particulars and submissions, the appellant's contention is that the magistrate's reasons are inadequate because his Honour failed to make a finding as to whether the complainant delivered 5 - 6 punches to the appellant's head at around the time the appellant bit the complainant's nose.[43] The magistrate also failed to deal with the appellant's argument that the bite was reasonable because 'she had no ability to weigh the options of her response, could not retreat, there were other altercations that night, the victim was not willing to let the matter go and the victim's partner was stopping others to come to the appellant's aid'.[44]
[43] Appellant's written submissions, par 2; particulars d and f to ground 1.
[44] Appellant's written submissions, par 11; particular g to ground 1.
The appellant contends that these matters constitute non‑compliance with s 31 of the Magistrates Court Act 2004 (WA) because of the importance of the issues.[45] The appellant submits that, had these matters been considered, the magistrate would have concluded that there was significant doubt about whether the prosecution had proved that the complainant did not consent and that the appellant was not acting in self-defence.
General principles
[45] Appellant's written submissions, par 12; particular h to ground 1.
The general principles governing the evaluation of reasons for decision were summarised by the Court of Appeal in Chief Executive Officer, Department for Child Protection v IGR:[46]
(1)Reasons for decision need not be lengthy or elaborate.
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3)It is not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails.
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's or tribunal's consideration.
(citations omitted)
[46] Chief Executive Officer, Department for Child Protection v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112].
In the case of the Magistrates Court, the general obligation to give reasons is qualified by s 31 of the Magistrates Court Act, which provides:
(1)The Court’s reasons for a judgment in a case —
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
In Strahan v Brennan,[47] Martin CJ made the following observations in relation to reasons in the Magistrates Court, which have been repeatedly applied by decisions of this court:
Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions. It is also clear that the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made.
Further, the adequacy of the magistrate's reasons in any particular case must be assessed in the context of that particular case so that what might appear to be unacceptable economy of language might be justified by the manner in which the case was conducted or by the evidence that was adduced.
(citations omitted)
Disposition
[47] Strahan v Brennan [2014] WASC 190 [90] - [92].
In my view, there is no merit in ground 1. The magistrate's reasons disclose his Honour's intellectual process in a way that enables this court to perform its appellate function and the appellant to understand why she was convicted. The reasons satisfy the requirements summarised above.
Adopting the process of reasoning which he did, in light of the other factual findings which his Honour made, there was no imperative for the magistrate to make a finding about how many times the complainant punched the appellant before the appellant bit the complainant's nose.
That was not a fact that logically informed the question of whether the complainant consented to being bitten on the nose.
In relation to the issue of self-defence, it was significant that the magistrate found that the appellant and complainant engaged in a consensual fight in which each implicitly agreed to being punched by the other. The appeal grounds do not challenge that finding. It follows that the punches which the magistrate found the complainant delivered to the appellant were not a 'harmful act' for the purposes of s 248 of the Code. The only harmful act of which there was evidence was the alleged biting of the appellant's finger. Having found that the punches were consensual, the magistrate appropriately focussed on whether the prosecution had proved that the appellant was not defending herself against being bitten on the finger. In that context, there was no imperative for the magistrate to make any finding about how many times the complainant punched the appellant, where the punches were directed or when they occurred.
The complaint about the magistrate's failure to address the arguments advanced by the appellant at trial relates to the following passage in trial counsel's closing address:[48]
But this was a street fight. It was a dirty dog fight, as your Honour has heard. [The complainant] accepted there was no sitting down at any stage to set out what the rules were going to be. If [the complainant] bit, then [the appellant] was entitled to bite, arguably. Even if she didn't bite, there were no rules. [The complainant] was the one that instigated this very last fight. She wanted to get into this fight. Not only that, your Honour, [the appellant] was entitled to defend herself, and she was entitled to mount an effectual defence.
She had very limited options, and, as I said at the outset, I do accept that biting is extreme, but [the appellant] was not in a position to be able to weigh the niceties of her response. She was trying to defend herself in a situation where we've seen, moments before, she's clearly unsteady on her feet and almost falling over. She has obviously been in previous altercations that evening. She had very little options available to her. [The complainant] was not taking no for an answer.
[The complainant]'s partner was stopping others coming to [the appellant]'s aid to even simply separate the pair, and [the appellant] had very limited options, and she was entitled to defend herself. She was entitled to make an effectual defence, and there may not have been much else that was actually effectual at that point in time. And, as I said, she wasn't really in a position to weigh the niceties. She was very frank in her interview, saying that she bit like a piece of steak.
It wasn't something that she could simply go, well, I'm going to bite just hard enough to stop this person from continuing to assault me. She wasn't in that kind of position. Ultimately, it's for your Honour to consider all of these issues, but what we say is that there's insufficient evidence to disprove these defences, and there's insufficient evidence to prove beyond reasonable doubt that [the complainant] didn't consent to this.
[48] Trial ts, 14 January 2022, 112 - 113.
To a large extent, these generalised submissions do not go to the basis on which the prosecution was ultimately held to have disproved self‑defence. The magistrate's conclusion that self-defence was disproven was based on a finding, in effect, that biting hard on the complainant's nose was not an objectively reasonable response in the circumstances as the appellant subjectively believed them to be. That conclusion was reached on the assumption, in the appellant's favour, that the State had not disproved that the appellant believed, on reasonable grounds, that the act was necessary to defend herself against a harmful act. The matters raised in the passage quoted above appear directed to the question of a belief as to necessity rather than the objective reasonableness of the response in the circumstances believed to exist by the appellant. It was not an argument that needed to be dealt with for the purposes of reaching the conclusion at which the magistrate ultimately arrived.
Further, this aspect of the appellant's submissions is inconsistent with s 31 of the Magistrates Court Act, which expressly provides that reasons need not canvass all the factual and legal arguments or issues arising in the case. As I have noted, rejecting all of the submissions reproduced at [76] above was not an essential step in the magistrate's reasoning process. At least in these circumstances, there was no imperative for the magistrate to specifically address each of the matters put by trial counsel.
In my view, this ground of appeal has no reasonable prospects of succeeding, so that leave to appeal should be refused on this ground.
Ground 2: unreasonable verdict
Ground 2 contends that the guilty verdict for assault causing bodily harm was unreasonable and unsupported by the evidence. The particulars and submissions in support of that ground in substance challenge one aspect of the magistrate's reasoning. The appellant contends that it was not open to the magistrate to be satisfied, beyond reasonable doubt, that biting hard on the complainant's nose was not an objectively reasonable response in the circumstances as the appellant subjectively believed them to be.
General principles
The general principles governing an appeal on the ground of unreasonable verdict delivered by a jury, derived from the decision of the High Court of Australia in M v The Queen,[49] are well established. In summary:[50]
1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
3.That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
4.In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
5.A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
6.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
7.The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.
[49] M v The Queen (1994) 181 CLR 487.
[50] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] - [34].
Substantively the same principles apply to a ground of appeal that a verdict by a judicial officer sitting alone is unreasonable or unsupported by the evidence.[51]
Disposition
[51] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [11] - [12]; Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [485] - [493], [601].
Having reviewed the record, I am left in no doubt that the appellant was properly convicted of the offence of assault causing bodily harm.
The evidence clearly established that the appellant bit the complainant hard on the nose, severing a significant part of the nose tip. The inference that the complainant did not consent to such a disfiguring injury was compelling and was the only inference reasonably open on all of the evidence. The evidence clearly established an application of force by the appellant to the complainant's nose, to which the complainant did not consent, that caused bodily harm to the complainant.
Counsel for the appellant in effect identified the following relevant circumstances which the appellant may have subjectively believed to exist at the time of biting the complainant's nose:
1.The appellant had previously been assaulted by others who were still in the vicinity.
2.The appellant was engaged in a consensual fight involving punching, grappling and wrestling with the complainant.
3.Before the fight, the complainant had been following the appellant down the street and had refused to go away when gestured to do so by the appellant.
4.The complainant had bitten the appellant on her finger.
I agree with the magistrate's conclusion, in effect, that the prosecution had proved that biting the complainant hard on the nose was not an objectively reasonable response to the circumstances as the appellant subjectively believed them to be.
There was no evidence suggesting that the appellant may have believed the circumstances to be such as to make biting hard on the complainant's nose an objectively reasonable response. In my view the appellant's action in biting hard on the complainant's nose would not be an objectively reasonable response in the circumstances identified by the appellant's counsel which are summarised at [85] above.
The appellant and complainant were engaged in a consensual fight which involved punching and grappling with each other. While the appellant did make shooing gestures in the course of gesticulating at the complainant just prior to the ultimate fight, she did so in the course of remonstrating with the appellant and was clearly a willing participant in the fight.
The appellant's account to police was that she bit the complainant in response to being bitten on the finger, not in response to some other circumstance. If the complainant bit the appellant on the finger, there was no evidence suggesting that the bite caused any significant injury. By contrast, the injury likely to be inflicted by biting hard on the complainant's nose was serious and permanently disfiguring. The response of almost biting the tip of the complainant's nose off was a disproportionate response in the circumstances.
As to proportionality, counsel for the appellant relied on a passage from my reasons for decision in Egitmen v The State of Western Australia,[52] in which I observed:
[T]he proportionality of the response will be a relevant matter to consider in determining the reasonableness of the response. That is not to say that the concept of reasonableness requires that the response be proportionate. Rather, the proportionality of the response is one of the matters to which the jury may have regard in considering whether a response is reasonable. A jury might also regard a response as unreasonable if it involved a greater degree of force than was needed in the circumstances as the accused believed them to be. There is no warrant for confining the circumstances to which the jury may have regard in assessing the reasonableness of a response, so long as they are satisfied that the accused may have believed those circumstances to exist.
While I remain of that view, the present is a case in which I would regard the disproportionality of biting the tip of the complainant's nose almost off as a significant factor in assessing the reasonableness of the appellant's response to the complainant biting her finger in the course of their consensual fight. There was no evidence that the appellant believed the complainant had done anything to which almost biting off a significant section of her nose would be anything other than an objectively unreasonable response.
[52] Egitmen v The State of Western Australia [2016] WASCA 214; (2014) 263 A Crim R 203 [286].
The appellant also submitted that the prosecution could not disprove that the appellant subjectively believed that the complainant consented to the use of force equivalent to the nose bite.[53] However, there was no evidence suggesting that this might be the case, or that there were any objectively reasonable grounds for believing that the complainant consented to such a serious disfiguring application of force.
[53] Appellant's written submissions, par 47.4.
In my view, the magistrate, acting reasonably, was entitled to conclude beyond reasonable doubt, on the basis of the evidence considered as a whole, that the appellant unlawfully assaulted the complainant and caused her bodily harm. The trial record does not support the conclusion that the magistrate must have entertained a doubt about the appellant's guilt of that offence. The verdict of guilty was not unreasonable and was supported by evidence that the magistrate was entitled to accept. I am not satisfied that it would be dangerous to permit the verdict of guilty to stand, or that there is a significant possibility that an innocent person has been convicted.
In my view, there is no merit in ground 2.
Orders
The appellant required an extension of time in which to appeal. The delay, which largely arose from difficulties in the appellant's solicitors obtaining the transcript of proceedings, has been adequately explained.
For the above reasons, at the hearing of the appeal I granted an extension of time, refused leave to appeal on both grounds and dismissed the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
13 MAY 2022
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