Li v Skala - [2018] WASC 353

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   LI -v- SKALA [2018] WASC 353
CORAM:   PRITCHARD J
HEARD:   29 OCTOBER 2018
DELIVERED          :   29 OCTOBER 2018
PUBLISHED           :   16 NOVEMBER 2018
FILE NO/S:   SJA 1040 of 2018
BETWEEN:   SHIZHEN LI
Appellant
AND
ISABELLE SKALA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B GLUESTEIN
File Number             :   FRE 7260/2017

Catchwords:

Criminal law - Appeal against conviction - Whether miscarriage of justice - Where self-represented accused gave evidence - Where accused wanted to call witnesses to adduce evidence about matters not relevant to the issues at trial

Criminal law - Appeal against conviction - Apprehended bias - Where magistrate assisted self-represented accused to give evidence-in-chief

Criminal law - Appeal against conviction - Whether error of law - Provocation

Criminal law - Appeal against sentence - Totality principle - Aggravated common assault

Criminal law - Appeal against sentence - Spent conviction orders - Employment

Appeals - Application to adduce further evidence on appeal

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), s 313(1)(a)
Sentencing Act 1995 (WA), s 45

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr J Carroll

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office (WA)

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

Brewer v Bayans [2002] WASCA 271
Duncan v The State of Western Australia [2018] WASCA 154
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
O'Connell v The State of Western Australia [2012] WASCA 96
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Rodi v The State of Western Australia [2017] WASCA 81
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Williams v Pennuto [2016] WASC 28
Wilson v The State of Western Australia [2010] WASCA 82

PRITCHARD J:

(These reasons were delivered extemporaneously on 29 October 2018 at have been edited from the transcript.)

On 10 April 2018, Mr Li was convicted in the Magistrates Court at Fremantle of a charge that on 3 August 2017 at Langford he unlawfully assaulted Yuxia Wu in circumstances of aggravation, namely that the parties involved were in a domestic relationship contrary to s 313(1)(a) of the Criminal Code. Mr Li was fined $2000, which was ordered to be paid to Ms Wu, and ordered to pay costs of $100.
By an amended notice of appeal, Mr Li appeals against both his conviction and his sentence. In the course of the appeal, I permitted Mr Li to amend his grounds of appeal to add grounds 7 and 8, as it was apparent from his submissions that the grounds in the amended notice of appeal did not cover the matters that he wished to rely upon as errors made by the learned magistrate in relation to the sentence imposed. Counsel for the respondent did not object to the amendment of the notice of appeal.
There are now eight grounds of appeal. Some of them might more properly be considered particulars of a general contention that Mr Li's conviction constituted a miscarriage of justice. Nevertheless, it is convenient to separately deal with each of these as grounds of appeal.
In addition, in the course of dealing with grounds 4 and 5, Mr Li seeks to have the Court receive some additional evidence, which I have treated as an application under s 40(1)(e) of the Criminal Appeals Act 2004 (WA). I will deal with that issue in a moment.
Under s 9(1) of the Criminal Appeals Act, Mr Li requires leave to appeal in respect of each of the grounds of appeal. Pursuant to s 9(2) of the Criminal Appeals Act, the Court 'must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.' That means that the ground must be judged to have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[1]
[1] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (the Court).
On 22 June 2018, Archer J referred the question of leave to appeal for hearing at the same time as the appeal itself.
For the reasons which follow, leave to appeal will be refused in respect of each ground of appeal and the appeal, therefore, will be dismissed.

The trial

Before dealing with each of the grounds of appeal, it is convenient to begin with an overview of the trial and the evidence adduced.
The trial was a simple one. The prosecution called one witness, namely Ms Wu. She was cross-examined by Mr Li (who was not represented by counsel at the trial). Mr Li gave evidence himself and he was cross‑examined by the police prosecutor.
The evidence of Ms Wu, in summary, was that at the time of the alleged offence, she and Mr Li were married and they lived together with their three children, two school-aged children and one who was a baby or young toddler. Ms Wu said that, at about 7.00 am on the morning of 3 August 2017, she was cooking in the kitchen of their house, and an argument developed between them over a trivial issue concerning her leaving a half-eaten apple outside the night before, which had been eaten by cockroaches overnight. She drove her two elder children to school at around 9.00 am and then she returned home. Her evidence was that she and Mr Li argued again, this time about money.
Ms Wu said that later in the same day, at about 1.00 pm, she was squatting down and cleaning the kitchen floor, when Mr Li came in and grabbed her collar at the back and dragged her a few metres along the floor from the kitchen to the front door of the house, and told her she had to get out of the house because she had been swearing at him. She said that she tried to hold onto the leg of a table, and then to hold onto a sofa, but was unable to stop him dragging her along.
As a result of being pulled by her collar, Ms Wu suffered some red marks on her neck. When Ms Wu reported the incident, the police took photos of her neck showing those red marks, and those photos were tendered in evidence.
In cross-examination, Mr Li put to Ms Wu that earlier in the morning, she had struck him and kicked him. She denied that she had done so. She said that after she had taken the children to school, she tried to explain why she had left the apple outside and that Mr Li got angry and argued with her.
In the course of cross-examination of Ms Wu, Mr Li showed her a text message and she was asked to identify it. I will return to the text message later in these reasons, as it pertains to ground 4.
Mr Li also put to Ms Wu that she had been violent in the past. Ms Wu accepted that she was verbally abusive to Mr Li and that when she was upset, she 'did not say nice words' and would get frustrated, but she maintained that he was the one who, when he got angry, would lash out and hit her.
Mr Li put to Ms Wu that, on a previous occasion, she had picked up an axe and a knife. She denied that she had ever held knives toward Mr Li. She said that an incident where she had tried to get an axe occurred many years before in 2003.
Mr Li also put to Ms Wu that, on the morning of the alleged offence, she assaulted him first. She denied that that was the case. In the course of the cross-examination of Ms Wu, the magistrate asked Mr Li whether he accepted Ms Wu's allegation that he grabbed her by the collar and dragged her along the floor. He told the learned magistrate that:[2]
Basically it's true. But a lot of things - a lot of mixed up. A lot of mix up. Basically it's true. I did dragged her, that's true. Yes. I apologise for that. I apologise for that.
[2] ts 11 (10 April 2018).
As I have said, Mr Li also gave evidence at the trial. His evidence-in-chief was that in the morning, he saw the apple on the table and asked who left it there. He said Ms Wu then exploded and started accusing him of doing nothing to support the family. He said that after 9.00 am,
She kept going, going, going. I went outside somewhere, then I went inside, and I was in the lounge at the front, she was in the kitchen. She was in the kitchen and she kept on going, going, going. So I asked her to get out. That's what happened.[3]
[3] ts 14 (10 April 2018).
The magistrate then asked Mr Li what he had to say in response to Ms Wu's allegation that, at about 1.00 pm, he grabbed her by the collar and dragged her along the floor to the front door. His evidence was:
What happened, I told her to get out. I told her get out, dragged her, really dragged her - really dragged her. Then she - what happened next is - I didn't drag her heavy. What happened next is she pulling the - she pulling the table leg. I mean, like something too heavy. Then I relaxed.[4]
[4] ts 14 (10 April 2018).
Mr Li said that this occurred at about 1.00 pm, and agreed that it was about four hours after the first incident that morning with Ms Wu. Mr Li said that after he relaxed his hold on Ms Wu, Ms Wu got up and that she would not get out. He said that he pulled her but she refused to get out of the house, and then she called the police.
Mr Li admitted that he pulled Ms Wu's collar for a short period and admitted that he pulled her from the kitchen to the front door. He said that she was swearing at him.
In cross-examination, Mr Li confirmed that when he and Ms Wu argued earlier in the morning, at around 9.00 am, Ms Wu had not hit him but that there was an argument. He said that she came into his room when he was on his computer and she accused him. It was put to him that he admitted that, at 1.00 pm, Ms Wu was in the kitchen cleaning, that nothing had occurred before that, and that he grabbed her by the collar and pulled her. Mr Li claimed Ms Wu had 'said a lot of things' and was swearing. It appears that he also alleged that Ms Wu insulted his mother.
At the conclusion of the cross-examination, Mr Li was asked by the learned magistrate whether he wished to say anything further, and he said he had nothing else to add.

The learned magistrate's reasons

I turn next to the learned magistrate's reasons for decision.
The learned magistrate found the charge and the circumstance of aggravation had been proved. After reminding himself about the standard of proof, he then went on to deal with the elements of the offence and the evidence led:[5]
The prosecution case is a very simple one, and that is that around about 1 pm on 3 August 2017, at the then family home, Mr Li, without the victim's consent, grabbed her around the collar and dragged her some metres from the kitchen to the front door. Eventually, Mr Li was to agree and acknowledge that's what he did, and he, to his credit, is apologetic for that incident.
The case, it would seem, centres around - from the point of view of Mr Li, the accused - centres around what he would call provocation, and that is the provocative behaviour he alleges occurring about four hours earlier in the home, and whereby, he alleges, Ms Wu strikes out at him on two occasions. This is vehemently denied by Ms Wu. She says the limit of her interaction with her husband that morning is by way of argument and trying to defend herself.
And it would seem there is quite some difference of opinion between these two parties as to their responsibilities and the level of the work ethic and effort performed, in particular by Mr Li, in the household, while Ms Wu is, it would seem, a full-time nurse working all sorts of hours. I am satisfied that there was an assault by way of the grabbing by Mr Li of Ms Wu around the collar and dragging her some metres along the floor, and causing the bruising or red marks to her neck that is shown, in particular, in exhibit 2, the two photos comprising exhibit 2.
In terms of the assault, that constitutes an assault. It was against her will, she being dragged unwillingly. In terms of the issue of unlawfulness, the only possible defence that could be raised by Mr Li is some form of provocation. There's no allegation of self-defence for this incident at 1 pm. There is simple heated argument going on. But there is the issue of provocation raised earlier in the morning, around about 9 am, whereby, Mr Li says, he was assaulted by Ms Wu, but that is denied.
And in any event, if I were satisfied there was such an earlier assault by Ms Wu on Mr Li, there is the period of about four hours for passions to be cooled and, in particular, for Mr Li to calm down, and accordingly, I find that the issue of provocation cannot be sustained four hours later with the assault that is the subject of the prosecution case before this court today. What I'm left with is the evidence of Ms Wu, which I can accept.
She came across as a witness to the truth. She was unrelenting in terms of how she dealt with questioning to the point of badgering by Mr Li. Mr Li would want to raise a lot of matters earlier in the relationship. He mentioned that there is a daughter who could come to court and say certain things; may have witnessed certain things, but no one has called the daughter to give evidence and, therefore, there is no evidence before me giving any contrary view to that of the witness, Ms Wu.
I am easily satisfied the prosecution has proved its case beyond reasonable doubt of the assault, constituted by way of the grabbing of Ms Wu by the collar, dragging her along the floor, and causing her some discomfort. She mentioned the word “choking” and, of course, ending up with the quite distinctive red mark to her neck shown in exhibit 2. I find the charge proved and record a conviction.
[5] ts 16 - 17 (10 April 2018).
The learned magistrate proceeded immediately to sentence Mr Li in respect of the offence he had found proven. He made inquiries of Mr Li about whether he was working, and then he said he intended to deal with the matter by way of imposing a fine:[6]
What I'm doing, Mr Li, by way of penalty, I'm imposing a fine on you, and I'm going to direct that the fine is payable to Ms Wu, the victim. Given the circumstances and the maximum fine available of $36,000, the appropriate penalty, in my view, is a fine of $2000, costs of $100, with the fine payable to Ms Wu.
[6] ts 18 (10 April 2018).

Disposition

I turn then to deal with each of the grounds of appeal.

Ground 1

Ground 1 of the appeal is that the learned magistrate asked Mr Li to 'take [the] witness stand without stating [the] consequence[s] and giving [him] no option.'
In his written submissions, Mr Li submitted that the:
Magistrate was in charge of the whole court, is familiar with related laws and procedures [and that he should have] indicate[d the] option [for Mr Li] other than standing in [the] witness box [and he] should [have] give[n a] warning of taking [the] witness stand.
In his oral submissions today, Mr Li said that if the magistrate had told him that he did not have to give evidence, he may 'have had a think about' it and maybe may not have given any evidence at all.[7] He said he had no idea of the legal procedure, and that he was unable to get any legal assistance.
[7] ts 5 - 6 (29 October 2018).
Ground 1 has no reasonable prospect of success. The learned magistrate did not, in fact, ask Mr Li to take the witness stand without giving him the option not to give evidence. At the beginning of the trial, the learned magistrate told Mr Li that the prosecution proposed to call one or two witnesses to try and prove the charge against him. He then said:[8]
You will have an opportunity to put questions to those witnesses, and then at the end of the prosecution case you can give evidence yourself if you wish to. (emphasis added)
The learned magistrate then asked Mr Li whether he understood that, and Mr Li replied that he did.
[8] ts 3 (10 April 2018).
In addition, at the conclusion of the prosecution case, the learned magistrate asked Mr Li, 'Do you wish to give evidence yourself?'[9] There was then a discussion about calling Mr Li's son and daughter, to which I will return later in these reasons, and then the learned magistrate said, 'Do you wish to give evidence? Do you wish to tell me your story?'[10] After Mr Li then started to tell the learned magistrate his version of events, the learned magistrate said, 'Come up to the witness box. We will swear you in.'[11]
[9] ts 13 (10 April 2018).
[10] ts 13 (10 April 2018).
[11] ts 13 (10 April 2018).
Under s 144(3) of the Criminal Procedure Act2004 (WA), a magistrate is obliged to ask an accused if the accused intends to give or adduce evidence. The learned magistrate did that. At no stage did the learned magistrate tell Mr Li that he was obliged to give evidence. On the contrary, he made it clear that it was up to Mr Li whether he chose to do so or not. It was only when Mr Li made it clear that he did wish to give evidence as to his version of events that the learned magistrate then asked Mr Li to take the oath in the witness box and to give his evidence under oath.
Mr Li submitted that the learned magistrate should have indicated to him that he had an option other than giving his evidence in the witness box. Given the nature of the case against him, and the fact that there was nothing to suggest that there were any witnesses to the incident between Mr Li and Ms Wu at around 1.00 pm, other than their young child, there was no way in which Mr Li could put his version of events before the Court in an admissible form, other than by giving evidence himself.
As to whether the learned magistrate had to give Mr Li some advice as to the consequences of his taking the witness stand, I am not persuaded that, in this case, the learned magistrate was obliged to do so. Mr Li had seen the process of Ms Wu giving evidence and had cross‑examined her. He was thus aware of the process of a witness giving evidence and being cross-examined. That that is so is confirmed by the fact that when he was cross-examined by the prosecutor, he did not indicate any surprise or make any objection to that course. Furthermore, it is apparent that Mr Li wished to give evidence, and that he wished to put his version of events before the Court.
The guiding principle is that a trial judge or magistrate is under an obligation to give an unrepresented accused such information and advice as is necessary to ensure that he or she has a fair trial. The scope of the assistance depends on the particular litigant and the nature of the case. However, the touchstones are fairness and balance.[12] In MacPherson,[13] Gibbs CJ and Wilson J discussed whether a trial judge was obliged to explain to an accused the choice open to him as to whether or not to give evidence on a voir dire, and the potential legal ramifications of doing so. Their Honours' observations are of relevance here, notwithstanding the slightly different context:[14]
there should be no difficulty in explaining to an accused person … that if he does give evidence he may be cross-examined and that his answers on cross-examination may be used against him on the trial. It would be wrong to think that a judge who explained to an accused person the choices open to him would be playing the part of an advocate - he would be performing his duty as a judge by informing the accused of his rights in relation to the conduct of the trial.
However, there is no obligation for the trial judge or magistrate to do that on every occasion. It all depends on the circumstances.
[12] See O'Connell v The State of Western Australia [2012] WASCA 96 [106] and the authorities discussed therein.
[13] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512.
[14] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 524.

As I have said, in this case, I do not think that there was any obligation on the learned magistrate to do more than he did, in order to make clear to Mr Li that he was not obliged to give evidence. His questions of Mr Li as to whether he wished to give evidence made it clear that Mr Li had a choice as to whether to do so. I do not accept that the learned magistrate failed to tell Mr Li that he was not obliged to give evidence, or that he failed to ensure that Mr Li received a fair trial.
I therefore refuse leave to appeal in respect of ground 1.

Ground 2

Ground 2 of the grounds of appeal is in the following terms: 'his Honour asked me [the] majority of questions [and] acted like a prosecutor'.
In his written submissions, Mr Li submitted that he:
perceived [that the] magistrate [was] a fairer person than [the] prosecutor [and he] suppose[d that he] should answer every question from his Honour. If [the] majority of the questions [had come] from [the] prosecutor, [he] might not have answered at all.
In the course of the hearing today, Mr Li made clear what was meant by ground 2. He submitted that the magistrate should have 'outline[d] the rules', that 'it … should [have been] the prosecutor' who asked the questions, and that it was 'strange' for the magistrate to be 'joining in' and asking the questions as he did.[15] Put that way, it appears that the ground raises an issue of apprehended bias.
[15] ts 8 (29 October 2018).
Before turning to that issue, however, it is appropriate to set out precisely what occurred. It is apparent from the transcript that the learned magistrate sought to assist Mr Li by asking him questions to adduce from him his evidence-in-chief. Mr Li was, as I have said, unrepresented at the hearing. After Mr Li gave his evidence‑in‑chief, the prosecutor had the opportunity to ask questions of him in cross‑examination.
Ground 2 proceeds on the basis that, but for the fact that it was the magistrate asking the questions to adduce Mr Li's evidence‑in‑chief, Mr Li may not have answered some of those questions. Clearly, in his evidence-in-chief, Mr Li was entitled to tell the magistrate his version of the events of 3 August 2017. Mr Li does not suggest that he was prevented from doing so by virtue of the questions posed by the learned magistrate, and nor does he point to any question which was unfair to him, or impermissible. By and large, the learned magistrate simply directed Mr Li to the points in time when crucial matters were said to have occurred, and asked him to tell him what happened. In that sense, he simply ensured that Mr Li was able to put his evidence before the Court.
The learned magistrate, at one point, invited Mr Li to respond to Ms Wu's allegation that he had grabbed her by the collar and dragged her along the floor. That, of course, was at the heart of the prosecution case. There was nothing unfair in that course. On the contrary, it was imperative that the learned magistrate ensured that Mr Li had the opportunity, having elected to give evidence, to give his version of what occurred on 3 August 2017. What he told the learned magistrate in his answer to the questions posed by the learned magistrate and, in particular, to that question, was entirely a matter for Mr Li.
Finally, at the conclusion of his evidence, the learned magistrate asked Mr Li if there was anything else that he wished to tell him, and Mr Li indicated that there was not.
As I have said, at the heart of this ground of appeal, there appears to be an allegation of apprehended bias on the part of the learned magistrate, on the basis that he did the prosecutor's job by asking questions of Mr Li. It was no part of the prosecutor's role to adduce the evidence‑in‑chief of Mr Li, the accused person. The prosecutor's role was to cross‑examine Mr Li.
Having regard to the transcript of the hearing before the magistrate, there is nothing which would support the conclusion that the test for reasonable apprehension of bias set out by the High Court in Johnson v Johnson[16] would be satisfied here. That is, there is nothing to support the conclusion that a fair‑minded lay observer might reasonably apprehend that the learned magistrate might not bring an impartial and unprejudiced mind to the resolution of the question whether the charge was proved beyond a reasonable doubt.
[16] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488.
There is no reasonable prospect of success in respect of ground 2 and leave is refused in respect of that ground.

Grounds 3 and 5

It is convenient to deal with grounds 3 and 5 together as they raise similar issues. Ground 3 is as follows: 'his Honour did not bother to call investigating officers.'
Ground 5 is that: 'his Honour refused me getting more evidence and/or witness next time.'
In his written submissions in respect of ground 3, Mr Li submitted that:
by not calling police witnesses who were there on the trial day and by only asking questions about 9 am and 1 pm, his Honour got an impression that there was no provocation, passion from morning should have died down. All blames were loaded on me.
(I propose to deal with the latter part of the submission, which concerns the issue of provocation, in the course of dealing with ground 6.)
Ground 3, then, contends that there was an error by the learned magistrate in failing to call police witnesses who were available to give evidence at the trial.
In respect of ground 5, in his written submissions Mr Li submitted that he 'did not know what [was] the best witness and evidence to bring with [him] to the trial, [that] some witnesses [were] scared of giving evidence [and he] asked his Honour to call any witnesses for [him], and [the magistrate] refused.' Mr Li says that he wanted to bring more evidence and witnesses next time, and that the magistrate denied him this opportunity. He says that he wanted to call witnesses or adduce evidence about Ms Wu's alleged attack on him with an axe in 2003, which was attended by the police, and that the learned magistrate should have called the police to attend Court.[17] (There are some other matters in respect of ground 5, to which I will return when dealing with ground 4, concerned with the admission of further evidence.)
[17] ts 20 (29 October 2018).
The thrust of Mr Li's complaint in respect of grounds 3 and 5 is thus that the learned magistrate did not call particular witnesses, and that the learned magistrate refused Mr Li the opportunity to have an adjournment to enable him to call further evidence or witnesses on another occasion. These grounds of appeal have no prospect of success for the following reasons.
In respect of ground 3, there was no obligation on the learned magistrate to call witnesses. I have instead approached ground 3 on the basis that it amounts to an allegation of a miscarriage of justice, in that Mr Li was denied the opportunity to call witnesses himself because he did not understand the trial process.
Mr Li has not established that he has any reasonable prospect of success in establishing that a miscarriage of justice occurred on this ground. In his submissions, Mr Li refers to the fact that there were police witnesses who were present at the court who were not called to give evidence. Having regard to the transcript, the position appears to be that the prosecutor initially contemplated calling at least one, if not two, police witnesses to formally adduce into evidence photos taken of Ms Wu which showed the red marks to her neck said to have been inflicted while she was being dragged by the collar. Police officers were ultimately not called, because the photos were admitted into evidence in the course of Ms Wu's evidence. When the prosecutor told the learned magistrate that that was the position, Mr Li did not give any indication that, in his view, there was any reason why those police officers should be called.
In respect of ground 5, there was a discussion between Mr Li and the magistrate about other witnesses who Mr Li wished to call at the hearing. However, the only witnesses that he mentioned were his son and daughter. I will deal with their situation in a moment. Mr Li did not, at any stage, tell the magistrate that he needed an adjournment or that he needed further time to get witnesses to attend.
Mr Li now suggests that police witnesses should have been called. In his oral submissions today, Mr Li submitted that on the day of the offence, a police officer called Justin attended at his home and that Mr Li told that police officer the words which were spoken by Ms Wu. It appears that Mr Li did not participate in a police record of interview and that the conversation to which he is referring is one in which he simply told the police officer what had occurred, with a focus on what it was that Ms Wu had said to Mr Li. It was not suggested that Justin or, indeed, any other police officer, witnessed the assault on 3 August 2017. Mr Li confirmed in his evidence that the only people present were him, Ms Wu and their young child. Mr Li did not suggest that the police officer Justin witnessed the assault. Mr Li's intention in calling Justin was apparently that Justin could recount Mr Li's report to Justin of what Ms Wu's conduct had been on 3 August 2017. It is far from clear how such evidence would be admissible. In any event, it was open to Mr Li to give precisely that evidence in his evidence under oath before the magistrate. He did so, although he now says he did not give as much detail as he would have preferred.
Mr Li also submitted today that his daughter and son were not present when the assault occurred. As I have said, he indicated to the learned magistrate that he would like to have called them to give evidence. Mr Li indicated today that his son and daughter are 17 and 15 years of age. He does not dispute that they were at school on the day of the offence from about 9.00 am or shortly before. They were clearly not eye witnesses to what occurred. Nothing Mr Li told the learned magistrate indicated that their evidence could have a bearing on assisting the learned magistrate to determine whether the charge was proven.
As a result of his submissions today, it appears that Mr Li wanted his son and daughter to give evidence about previous incidents between him and Ms Wu, or about the nature of their relationship. He also disclosed, however, that neither of his children apparently wished to give evidence. In any event, it is difficult to see how any evidence of the relationship between Mr Li and Ms Wu on other occasions would have been relevant to the issues in dispute at the trial, namely, whether Mr Li acted on a provocation. For the same reason, I do not see any basis for concluding that there was a miscarriage of justice because Mr Li did not have the opportunity, by virtue of an adjournment of the trial, to call these further witnesses.
Finally, and for completeness, Mr Li mentioned today that he wanted to call the police officer who attended an altercation at his home in 2003. Mr Li alleges that, on this occasion, Ms Wu attacked him with an axe. It appears, from what Mr Li has said, that police officers attended at the home of Mr Li and Ms Wu after an altercation, but no charges were laid and the police officers simply left. Mr Li also indicated that the officers who attended at his home on that occasion did not see anything of the altercation which he says occurred. Their evidence would have been inadmissible at the hearing of the present charge. No miscarriage of justice, in my view, can be said to have arisen because Mr Li did not have the opportunity, by virtue of an adjournment of the trial, to call further witnesses.
Leave to appeal will be refused in respect of grounds 3 and 5.

Application to adduce further evidence: Grounds 4 and 5

Ground 4 is that 'his Honour ignored Yuxia Wu's plotting text message'. Mr Li submitted that that message pointed to a planned provocation and Mr Li, in his submissions, referred to some other text messages from Ms Wu to him, which I will outline in a moment.
As I have said, in respect of his submissions concerning ground 5, Mr Li submitted that he has other evidence that he wanted to adduce at trial. He referred to a video that he says contains footage of Ms Wu cursing and swearing, and to claims that he has done a lot of good deeds to others at various stages in the past. Mr Li sought to hand up a document which appears to be a receipt for money which he handed in to a police station after he found a wallet in 2000 containing a sum of money. He seeks to rely upon that as evidence of his good character. The good deeds he says he has done in the past that he seeks to draw to the Court's attention were also of matters going to his good character.
Under the Criminal Appeals Act, an appeal court must decide an appeal on the evidence and material that were before the lower court.[18] However, that requirement does not affect the power of the appeal court to admit additional evidence. The Court has a discretion to permit evidence other than that which was adduced at the trial to be relied upon.[19]
[18] Criminal Appeals Act 2004 (WA) s 39(1).
[19] Criminal Appeals Act 2004 (WA) s 40(1)(e).
As I understand it, the basis for Mr Li's application for the Court to receive additional evidence was to demonstrate that there would be a miscarriage of justice if the conviction were to be maintained, having regard to the nature of this additional evidence.
The principles in relation to the admission of additional evidence were most recently discussed by the Court of Appeal in Gibson v The State of Western Australia,[20] and have previously been discussed by the Court of Appeal in Rodi v The State of Western Australia.[21] The Court has a wide discretion under s 40(1)(e). In determining whether the Court should admit additional evidence, the first thing the Court must do is to decide the relevance of the additional evidence. After deciding its relevance and, if necessary, its credibility and authenticity, the Court can then evaluate its cogency in the context of the evidence adduced at the trial.
[20] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [50] - [64] (the Court).
[21] Rodi v The State of Western Australia [2017] WASCA 81 [88] - [105] (Buss P).
As I have said, Mr Li seeks to have the Court receive additional evidence of three kinds. First, some text messages. Some of those were put to Ms Wu in cross-examination but were not tendered. Copies of those text messages were handed up to the Court at the hearing today. Secondly, the receipt for the property handed in to police, to which I have already referred. Thirdly, a DVD of the video footage to which I have referred.
Turning first to the text messages, these were of two kinds. First, there were text messages which Mr Li says he received from Ms Wu on 22 and 24 August 2017. These were said to indicate that Ms Wu would drop the charge against him if he agreed to pay her some money that she claimed he owed her. A further text message that Mr Li sought to have the Court receive was dated 25 January 2018. He said that that message showed that Ms Wu wanted money from Mr Li.
Before the learned magistrate, Mr Li did not seek to put the text message or messages he had put to Ms Wu into evidence, or otherwise read them into the transcript, and there is no basis for any contention that the learned magistrate ignored the text message in the course of his reasons. The nature of the relationship and the dispute between Ms Wu and Mr Li in respect of money was certainly not overlooked by the learned magistrate. The text messages disclose that Mr Li and Ms Wu were having arguments about money. That fact was referred to at the hearing before the learned magistrate.
It is difficult to see how the further text messages would have any bearing on the magistrate determining whether the charge had been proved. They did not deal with the question of whether there was an excuse of provocation in respect of the assault alleged to have been committed by Mr Li. Mr Li did not deny that there was an assault. The only real issue at the trial was whether the excuse of provocation had been raised, and whether the prosecution had negatived the issue of provocation. I am not satisfied that the text messages should be received under s 40(1)(e) of the Criminal Appeals Act.
As for the DVD, Mr Li says that the DVD would disclose Ms Wu's true behaviour. I watched the video in preparation for the hearing, and part of it was played during the hearing today. Mr Li confirmed that the DVD was not recorded on the day of the charge. He says it was taken in 2003, and that the DVD also contained extracts from other video footage he took on that occasion. He says it shows Ms Wu in an agitated state, yelling and screaming, and that the video also shows two other adults apart from Mr Li, who he says are Ms Wu's parents. A small child is also in the footage, as is a baby. Mr Li says that the DVD footage reveals an example of Ms Wu's behaviour in 2003.
What is clearly depicted in the DVD is a domestic dispute in which the person Mr Li says is Ms Wu is swearing and is in a very agitated state. It is impossible to draw anything more than this from the DVD footage because those speaking are speaking in a language other than English.
I am not satisfied that the DVD should be received under s 40(1)(e) of the Criminal Appeals Act. The footage of events in 2003 could have no bearing on whether the charge from conduct on 3 August 2017 was proved. Insofar as Mr Li wanted to put before the Court the fact that Ms Wu engaged in verbally abusive conduct or that she was inclined to swear or abuse him or yell and scream at him, that was disclosed in his evidence during the trial in any event, insofar as it related to the events of 3 August 2017.
Turning to the police property receipt, as I have said, this appears to be material that Mr Li wishes to rely upon to demonstrate that he is of good character. He also refers to a number of other instances of good character in the past.
In my view, there is no basis for the admission of this material under s 40(1)(e) of the Criminal Appeals Act either. It is not in an admissible form, and does not advance the position as to Mr Li's prior good character (namely the absence of any prior convictions).
I should say, for completeness, that Mr Li says that one of the texts from Ms Wu could somehow establish that she plotted the incident the subject of the charge. It is not apparent how the evidence that has been provided to the Court today could lead, in any way, to that conclusion. Furthermore, there was no suggestion whatsoever in Mr Li's cross‑examination of Ms Wu that she had plotted her claim of assault.
None of the material the subject of the application to adduce additional evidence in relation to grounds 4 or 5 should be admitted under s 40(1)(e) of the Criminal Appeals Act. No miscarriage of justice has been shown to have occurred by the absence of that material before the magistrate, to the extent that it was in existence at the time. Leave to appeal should be refused in respect of ground 4.

Ground 6

I turn now to ground 6. It is in the following terms: 'his Honour concluded without any consideration for provocation.'
In his written submissions relevant to this ground, Mr Li submitted that:
The whole trial was swift, a lot of the existing details were missed, and other factors like Yuxia Wu's behaviours and my treatment to others were not considered at all.
The thrust of ground 6 is thus that the learned magistrate did not properly consider the question whether the prosecution had negatived, beyond reasonable doubt, that Mr Li was acting under provocation at the time he committed the assault on Ms Wu.
Counsel for the respondent suggested that the only issues that might arise from the learned magistrate's reasoning in relation to provocation were whether the learned magistrate erred in reversing the onus of proof in relation to provocation, and whether the learned magistrate erred in answering the question as to whether Mr Li's passions had cooled by reference to the ordinary person, and not by reference to Mr Li's conduct himself. However, counsel for the respondent submitted that, properly understood, the learned magistrate's reasons did not disclose errors of those kinds, and that there was no merit in this ground of appeal.

It is well established that it is not appropriate to approach the reasons of a magistrate with a fine-toothed comb looking for error.[22] Even bearing that in mind, the learned magistrate's observations as to the issue of provocation were not well expressed. Having carefully considered the import of what his Honour said, however, I am not persuaded that any error is disclosed. When those reasons are carefully read, they seem to me to disclose the following approach: first the learned magistrate referred to the fact that there was an issue as to whether, at around 9.00 am on the morning of the alleged offence, Ms Wu assaulted Mr Li. He noted that that was denied by Ms Wu. The learned magistrate did not proceed to make an express finding as to whether there was such an assault by Ms Wu on Mr Li. What he did instead was to move directly to the next question: 'in any event, if I were satisfied that there was such an earlier assault'.[23] The learned magistrate then referred to the period of about four hours for passions to be cooled and, in particular, for Mr Li to calm down. Looking at that line of his Honour's reasons in isolation, the impression might be gained that his Honour was approaching the question of whether Mr Li was acting under a passion from an objective rather than a subjective perspective. As Brennan, Deane, Dawson and Gaudron JJ in Masciantonio v The Queen made clear,[24]
The question is not whether an ordinary person, having lost his self-control, would have regained his composure sooner than the accused nor is it whether he would have inflicted a lesser number of wounds. It is whether an ordinary person could have lost self-control to the extent that the accused did. … The associated question whether, in the sequence of events, an accused, having lost his self-control had regained it so that the continued infliction of injury was, in fact, no longer provoked, is not a question to be answered by reference to the ordinary person. It is to be answered by reference to the conduct of the accused himself and to common experience of human affairs.
[22] See, eg, Strahan v Brennan [2014] WASC 190 [90] (Martin CJ).
[23] ts 17 (10 April 2018).
[24] Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58.
In the totality of what the learned magistrate said he has taken into account it is, in my view, clear that he was not approaching the question by reference to what an ordinary person would have done, but by reference to what the accused himself did, on his own evidence. In the alternative - and this is, I think, the best conclusion which can be reached having regard to the learned magistrate's reasons - what the learned magistrate in fact did was to consider whether he accepted the evidence of Mr Li as to the assault itself and the circumstances in which he engaged in the assault at all. In other words, he decided whether he found Mr Li's evidence, such as it was, to be credible.
It is clear that the learned magistrate rejected the evidence of Mr Li. I am of that view because he concluded that: 'What I'm left with is the evidence of Ms Wu, which I can accept.'[25] That suggests that, by implication, he rejected the evidence of Mr Li. Further, having explained why he accepted the evidence of Ms Wu, the learned magistrate then noted that there was no evidence before him giving him a contrary view to that of the witness, Ms Wu. That was necessarily because he had not accepted the evidence of Mr Li. To the extent that the learned magistrate's reasons might be construed as him considering the question of whether in fact Mr Li was acting under a passion, clearly he rejected that on the basis of Mr Li's own evidence.
[25] ts 17 (10 April 2018).
As I have said, it seems to me that the better view is that the learned magistrate was assessing the credibility of Mr Li's evidence and rejected it. For that reason, I am not persuaded that there is any merit in respect of ground 6 and leave to appeal in respect of ground 6 should be refused.

Ground 7

I turn then to ground 7. Ground 7 alleges that 'the learned magistrate erred in that the sentence imposed was manifestly excessive'.[26]
[26] ts 50 (29 October 2018).
Mr Li wishes to appeal against his sentence. As I have said, I gave Mr Li leave to amend his grounds of appeal to include ground 7. In the course of the hearing, it appeared that Mr Li did not suggest that the learned magistrate made any express error. Rather, his submissions amounted to a contention that the fine awarded was manifestly excessive.
The principles in relation to appeals against sentence were set out by the Court of Appeal in Wilson v The State of Western Australia[27] and have been repeated in numerous cases since then. It is not necessary to repeat them here. In order to determine whether a sentence is manifestly excessive, it is necessary to examine it from the perspective of the maximum sentence for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness, and the personal circumstances of the offender.
[27] Wilson v The State of Western Australia [2010] WASCA 82 [2].
In this case, the maximum penalty prescribed by the Criminal Code was three years' imprisonment and a fine of $36,000. That maximum penalty shows that Parliament views assaults in the aggravating circumstances present in this case as serious.
The most recent review of authorities in respect of sentences imposed for offences of this kind is the decision of Williams v Pennuto of Banks-Smith J.[28] I do not intend to repeat her Honour's observations here. It suffices to say that there are no factually comparable cases to the present. The range of circumstances in which these offences may be committed is such that it is difficult to identify any range for any particular kinds of offending within the category of assault, much less aggravated assaults of this kind.
[28] Williams v Pennuto [2016] WASC 28 [42] - [48].
I turn to the seriousness of the offence in this case, taking into account not only the statutory penalty, but the circumstances of the offending, aggravating and mitigating factors. I have already referred to the facts of the offending in the course of these reasons. As to the circumstance of aggravation, the only additional observation I need to make is that domestic violence is properly regarded as serious by the community. Parliament has made it clear that committing assaults in a domestic relationship is to be regarded as an aggravating factor.
There were other aggravating factors here. The assault occurred by Mr Li dragging Ms Wu on the floor. It was a callous act. It showed no respect for her human dignity. He persisted when she asked him to stop and even when she was trying to hold on to the furniture. Mr Li apparently assaulted her because he did not like her swearing which, to my mind, shows a desire to punish her when her behaviour did not meet his expectations. It appears also that the assault occurred in the presence of their young child.
In terms of mitigating factors, Mr Li had no prior convictions. The assault occurred in the course of a day where he and Ms Wu had been arguing.
Counsel for the respondent submitted that the offence was at the lower end of seriousness for aggravated assaults. While the offence was certainly not at the higher end of the scale, to my mind, it was certainly not at the very lowest end of the spectrum for seriousness of offences of this kind. It was still a serious assault by Mr Li on Ms Wu.
In addition, domestic violence is a matter of increasing concern in our community. Sentences imposed must have regard to the need for general deterrence so that others who are inclined to engage in conduct of this kind will be under no misapprehension that their conduct will be viewed seriously by the Courts.[29]
[29] Duncan v The State of Western Australia [2018] WASCA 154 [40].
Mr Li's personal circumstances as disclosed to the magistrate and as discussed in Court today are that he is about 51 years old. He is not presently employed, nor was he employed at the time of the offence. He earns income by repairing and selling bicycles. He has three children. He owns his own home. He is still living in that home, as indeed is Ms Wu. The evidence disclosed at the hearing before the learned magistrate and confirmed by Mr Li today was that in the past, he had traded shares, both for himself and on behalf of other people.
The fine imposed for the present offence was about five per cent of the maximum penalty. Having regard to all of the matters to which I have referred, including the seriousness of the offence and to Mr Li's personal circumstances, I am not persuaded that the imposition of a fine in that quantum was manifestly excessive.
Leave to appeal in respect of ground 7 should be refused.

Ground 8

I turn, finally, to ground 8.
In the course of the hearing today and having regard to the submissions Mr Li had made, it appeared that he may be asking the Court to consider a spent conviction order, although no request was made of the learned magistrate to do so. I gave Mr Li leave to amend his grounds to add ground 8, which alleges that 'there was a miscarriage of justice in that the learned magistrate did not consider whether to grant a spent conviction order pursuant to s 45 of the Sentencing Act1995 (WA)'.[30]
[30] ts 55 (29 October 2018).
The discretion to grant a spent conviction order is conferred by s 45(1) of the Sentencing Act:
Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to -
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
The principles in relation to s 45 have been addressed in a number of cases, including Brewer v Bayans,[31] Tognini,[32] and Riggall v The State of Western Australia.[33] It is not necessary to set out the principles in detail for present purposes.
[31] Brewer v Bayans [2002] WASCA 271.
[32] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291.
[33] Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211.
Section 45 of the Sentencing Act makes clear that a Court sentencing an offender is not to make a spent conviction order unless it considers that the offender is unlikely to commit such an offence again, and having regard either to the fact that the offence is trivial or to the previous good character of the offender, it considers that the offender should be released immediately from the adverse effect that the conviction might have on him or her.
In my view, it cannot be said that the offence in this case could be trivial so as to satisfy the criterion in s 45(1)(b)(i) of the Sentencing Act. However in relation to the criterion in s 45(1)(b)(ii), it is clear that Mr Li had no convictions prior to his conviction for the present offence. There was no formal evidence in the form of references from other parties and so on, which is often seen in cases of this kind. I am prepared to proceed on the assumption for present purposes that the criteria of previous good character is met in this case.
It is clear from the decisions of the Court, including Tognini, that the discretion available to the Court under s 45 of the Sentencing Act should be exercised sparingly. Consideration has to be given to all of the circumstances of the case, of the offender, and to the public interest.
In this case, the basis for a spent conviction order was confined to an indication from Mr Li that he has had difficulty obtaining a job in the taxi industry, as a driver for Uber, or in the mining industry because in those industries, it is necessary to demonstrate that an applicant for a job has no criminal record. However there was no evidence before the Court to suggest that Mr Li is any different position than he was prior to his conviction for this offence in relation to his employment. Prior to his conviction for the offence, Mr Li did not have formal employment. He was apparently earning income by fixing bicycles and by engaging in share trading. There was no evidence to indicate that he had at that stage been aspiring to enter a particular industry, and therefore no basis for the Court to conclude that his conviction for this offence is likely to have any particular effect on his employment prospects. At most, it might be said that if he hopes that he might be able to obtain a job in the future in any industry where proof of the absence of any criminal convictions might be required, employment in that industry may be more difficult.
There was some information provided to the Court that Ms Wu had contacted counsel for the respondent shortly before this hearing to inquire whether the prosecution would withdraw the charge, on the basis that it was having an impact on Mr Li getting a job. There was no suggestion, according to counsel for the respondent, that Ms Wu wanted to withdraw her evidence. He advised the Court that Ms Wu had simply made the inquiry because she said Mr Li had had difficulty in getting a job because of his conviction. In my view, the limited information available to the Court, none of which was on affidavit, does not advance the position further than that which I have already outlined.
In considering whether this case warranted consideration of a spent conviction order, I also take into account the fact that domestic violence offences are of a serious kind in our community, and there is a public interest in the recognition of the seriousness of this offending.
In all of the circumstances, including those to which I have just referred, I am not persuaded that there is any basis for the view that Mr Li should be released immediately from the adverse effect of the conviction upon him. In all of those circumstances, I am not satisfied that Mr Li has any reasonable prospect of success in contending that there was any miscarriage of justice in the failure by the learned magistrate to consider whether a spent conviction order should be granted to Mr Li.
Leave to appeal will therefore be refused in respect of ground 8.
The appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD
16 NOVEMBER 2018