Li v The State of Western Australia
[2025] WASCA 75
•16 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LI -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 75
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 19 AUGUST 2024
FURTHER WRITTEN SUBMISSIONS FILED
27 AUGUST & 4 SEPTEMBER 2024
DELIVERED : 16 MAY 2025
FILE NO/S: CACR 36 of 2024
BETWEEN: ZHENBANG LI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1523 of 2021
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of one count of aggravated grievous bodily harm - Where appellant punched complainant in the eye during heated argument - Where complainant suffered fractured eye socket - Whether verdict was unreasonable or unsupported by the evidence - Whether injury amounted to 'grievous bodily harm' - Whether expert evidence that injury had 'potential' or 'chance' to cause permanent injury to health was sufficient for jury to convict - Whether trial judge erred in directing jury that definition of grievous bodily harm included an injury that had 'potential' or 'chance' to cause permanent injury to health in absence of medical treatment - Where trial judge failed to otherwise explain what 'likely to cause permanent injury to health' meant - Whether appellant inadequately advised about advantages and disadvantages of choosing not to testify at trial - Where appellant required interpreter - Whether trial counsel's inadequate advice occasioned miscarriage of justice - Applications to adduce additional evidence in appeal, namely affidavits of appellant's trial counsel - Whether open to court to order conviction or retrial for lesser offence - Resentencing
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(5)
Criminal Code (WA), s 10A, s 10B, s 245, s 246, s 248, s 297, s 317
Result:
Applications to adduce additional evidence in appeal granted
Appeal allowed
Judgment of conviction set aside and new judgment of conviction for alternative offence entered
Appellant sentenced
Category: B
Representation:
Counsel:
| Appellant | : | P Yovich SC |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Hotchkin Hanly |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Brawn v The King [2025] HCA 20
Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Greenup v The State of Western Australia [2024] WASCA 91
Houghton v The Queen [2004] WASCA 20; (2004) 28 WAR 399
Jeffery v The State of Western Australia [2018] WASCA 219
Johnston v The State of Western Australia [2012] WASCA 98; (2012) 223 A Crim R 31
Kaokula v The State of Western Australia [2016] WASCA 198
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Loh v The State of Western Australia [No 2] [2024] WASCA 166
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Pezzano v The State of Western Australia [2020] WASCA 181
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
Sabourne v The State of Western Australia [2010] WASCA 242
Sandy v The State of Western Australia [2024] WASCA 109
The State of Western Australia v Riley [2024] WASCA 11
Table of Contents
Buss P & Mitchell JA
Grounds 1 and 2
Ground 3
Orders
Mazza JA
Overview of the State case at trial
Overview of the defence case at trial
The issues at trial
Grounds 1 and 2 - legal framework
Grounds 1 and 2 - the relevant evidence
The trial judge's directions and redirection concerning the element of grievous bodily harm
The appellant's submissions on grounds 1 and 2
The respondent's submissions on grounds 1 and 2
Disposition - ground 2 - did the trial judge err in his directions concerning the element of grievous bodily harm?
Disposition - ground 1 - was the guilty verdict unreasonable because the evidence did not establish that the complainant suffered grievous bodily harm?
Ground 3 - alleged inadequate advice
Ground 3 - the appellant's affidavit and oral evidence
Ground 3 - Ms Zou's affidavit
Ground 3 - defence counsel's affidavit and oral evidence
Ground 3 - co‑counsel's affidavit
Ground 3 - Ms C's affidavit
Ground 3 - the appellant's submissions
Ground 3 - the respondent's submissions
Ground 3 - findings of fact
Ground 3 - legal principles
Ground 3 - disposition - did defence counsel's 'inadequate' advice give rise to a miscarriage of justice?
Should the court exercise the power under s 30(5) of the Criminal Appeals Act to enter a judgment of conviction for the offence of aggravated assault occasioning bodily harm?
Sentencing
Conclusion and orders
BUSS P & MITCHELL JA:
We have had the considerable advantage of reading a draft of Mazza JA's reasons in this appeal. His Honour has set out the relevant background, including the parties' cases and evidence at trial, the legal framework, the trial judge's directions, the additional evidence adduced in the appeal, the grounds of appeal, and the parties' submissions on those grounds.
Grounds 1 and 2
We agree with Mazza JA, for the reasons which his Honour gives, that appeal grounds 1 and 2 are established.
Given the many other cases in which it has been accepted that an orbital fracture of an eye socket constitutes grievous bodily harm, it might seem curious that this appeal is to be allowed on the ground that the jury could not be satisfied of that fact beyond reasonable doubt. However, the actual and likely impact of a particular injury on a particular person is a question of fact which must be established by evidence in every case. In any case where causing grievous bodily harm is an element of the charged offence, the onus is on the prosecution to adduce evidence which establishes beyond reasonable doubt that the relevant bodily injury is of the nature described in the definition of 'grievous bodily harm' in s 1(1) of the Code. In a case such as the present, when the type of bodily injury does not make the answer obvious, clear medical evidence of the nature of the bodily injury will usually be required.
In the present case, the medical evidence which the prosecution chose to adduce at trial was equivocal and could not satisfy the jury beyond reasonable doubt that the orbital fracture of the complainant's left eye socket was likely to cause permanent injury to her health in the absence of medical treatment. That deficiency in the evidence in this particular case means that the appellant's conviction of unlawfully doing grievous bodily harm must be set aside and a judgment of acquittal of that offence substituted. The fact that there may have been other evidence which the prosecution could have adduced which might have proven that fact cannot affect that outcome.
Ground 3
In relation to ground 3, we agree with Mazza JA's findings of fact at [161] - [173] save in one respect. Unlike Mazza JA, we find that defence counsel did advise the appellant, and that the appellant understood before making his election as to whether to give evidence, that the disadvantage of not giving evidence to the jury was that they would not hear his version of events and his denial of the acts alleged by the complainant.
Defence counsel gave evidence of providing this advice at par 24 of his affidavit sworn 11 June 2024, and affirmed that evidence in cross‑examination.[1] That is advice which counsel for an accused would naturally provide when advising of the advantages and disadvantages of giving evidence. It is not advice which counsel would reasonably perceive the need to belabour as it is an obvious advantage of giving evidence which is likely to be intuitively understood by an accused in any event. This character of the advice provides a reasonable explanation of why it was not given or recorded in writing. This aspect of defence counsel's evidence as to the advice which he provided is plausible and reflects the advice which he would be expected to have given.
[1] Appeal ts 80.
The appellant gave evidence at par 11 of his affidavit sworn on 17 April 2024 that defence counsel told him that his giving evidence may be helpful. In cross-examination on that affidavit, the appellant accepted that defence counsel told him that there would be some advantage to his giving evidence at trial.[2] It is more likely that defence counsel's advice that there were advantages in the appellant giving evidence would be accompanied by some explanation of what those advantages might be. We found the appellant's denial that any advice of this kind was given, at par 26 of his affidavit and in cross‑examination,[3] to be unconvincing.
[2] Appeal ts 71.
[3] Appeal ts 71.
The only evidence of the appellant's lack of understanding of the advantages of giving evidence was in answer to a question in re‑examination. The appellant was asked whether, when making his election, he understood that if he did not give evidence there would be no evidence that he did not punch the complainant. The appellant replied, through an interpreter, 'I didn't'.[4] We found this prompted answer to be self-serving and implausible. The appellant had seen the evidence led at trial and must have known that would be all the evidence before the jury if he did not add to it. The appellant's earlier question at a pre‑trial meeting to defence counsel, 'How could it be possible that I don't give evidence?',[5] indicates an intuitive appreciation of the advantage of putting his account before the jury.
[4] Appeal ts 72.
[5] Appellant's affidavit sworn 17 April 2024, par 22.
On this issue, we prefer the evidence of defence counsel and find that the appellant was advised that the disadvantage of not giving evidence to the jury was that they would not hear his version of events and his denial of the acts alleged by the complainant. We also find that the appellant understood the general nature of the advantages in giving evidence when making his election.
Like Mazza JA, we think the evidence establishes that defence counsel did not give advice to the appellant that if he did not give evidence then he would not be able to rely on self-defence. In our view, nothing turns on this because the appellant's ultimate instructions were that he did not strike the complainant. There would be no occasion to advise the appellant that he could not rely on self-defence if he did not give evidence, in circumstances where his evidence could not give rise to any reasonable doubt as to whether the act alleged by the prosecution was done in self-defence. On the appellant's ultimate instructions as to the evidence which he would give, self-defence would not be left to the jury whether or not the appellant elected to give evidence at his trial.
In Jeffery v The State of Western Australia,[6] it was held that a miscarriage of justice occurred because inadequate advice was given to Mr Jeffery by his legal advisers about his choice of whether or not to give evidence. Relevantly, Mr Jeffery's trial counsel spoke to Mr Jeffery while he was in the dock, after the prosecutor in that case had closed the State's case and shortly before the trial was to resume after the lunch adjournment. It was found that they did not discuss the factors which caused counsel to advise Mr Jeffery not to testify, all of which (in the court's view) were debateable and one of which was incorrect. That occurred in circumstances where the court was satisfied that, on an objective assessment of the relevant facts and circumstances, there was, in substance, no forensic reason not to call Mr Jeffery as a witness. Mr Jeffery's electronic record of interview with police, in which Mr Jeffery denied the offending, was not adduced in evidence as part of the State's case. There were also other factors, concerning the way this court perceived the case theory formulated by Mr Jeffery's trial counsel, which were seen to give rise to a miscarriage of justice in that case.
[6] Jeffery v The State of Western Australia [2018] WASCA 219 [189] - [194].
In Craig v The Queen,[7] the High Court considered how inadequate legal advice about an accused's choice to give evidence may give rise to a miscarriage of justice. The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice.[8]
[7] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202.
[8] Craig [32].
However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial.[9] In the context of a decision not to give evidence, the court considered that:[10]
At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.
[9] Craig [26] - [27].
[10] Craig [27].
The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[11]
[11] Craig [33].
We are far from satisfied that the appellant's decision as to whether or not to give evidence at his trial was effectively foreclosed by the receipt of inadequate legal advice. On his own evidence, the appellant understood that the choice was his to make and made that choice appreciating that there were advantages and disadvantages to him giving evidence in his own trial. He also, on our findings, understood the general nature of the advantages in giving evidence. The risks associated with the appellant giving evidence were real and defence counsel's assessment of and advice about those risks was reasonable. This was not a case such as was perceived by the court in Jeffery where, on an objective assessment of the relevant facts and circumstances, there was, in substance, no forensic reason not to call the appellant as a witness. The appellant received advice about his
election prior to trial and was given an opportunity to consider his election with the benefit of having seen and heard the complainant's pre-recorded evidence. He decided to accept defence counsel's advice not to give evidence.[12] Having been convicted, the appellant may regret that choice but that does not mean that his trial was unfair.
[12] Appellant's affidavit sworn 17 April 2024, par 27.
In our view, the advice which the appellant received as to his choice about whether to give evidence in his own defence did not give rise to any miscarriage of justice. Therefore, we agree with Mazza JA that ground 3 is not established.
Orders
We agree with Mazza JA, for the reasons which his Honour gives, that this court should substitute a judgment of conviction of assault occasioning bodily harm, and sentence the appellant to 12 months' imprisonment, suspended for 12 months, for that offence. We agree with the orders proposed by Mazza JA.
MAZZA JA:
This is an appeal against conviction.
The appellant stood trial between 11 and 20 December 2023,[13] in the District Court before Troy DCJ and a jury on a charge that on 3 July 2020, at Perth, he unlawfully did grievous bodily harm to Ms A[14] in a circumstance of aggravation, namely that he was in a family relationship with Ms A.[15] This offence is contrary to s 297(1), read with s 297(3), of the Criminal Code (WA) (the Code).
[13] As mentioned at [118(3)] below, an earlier trial that was listed to commence on 19 December 2022 did not proceed, for reasons unrelated to this appeal.
[14] The letter 'A' is not the complainant's real initial.
[15] See Criminal Code (WA), s 221(a).
On 20 December 2023, the jury returned a verdict of guilty to the charge, as a result of which a judgment of conviction was recorded.
On 21 March 2024, the appellant was sentenced to 21 months' immediate imprisonment with eligibility for parole.
On 24 May 2024, the appellant was granted bail pending the outcome of this appeal.
The appellant relies on three grounds of appeal, as follows:
1.The verdict of the jury was unreasonable or could not be supported having regard to the evidence, because the evidence did not permit the jury to be satisfied beyond reasonable doubt that the injuries sustained by the complainant amounted to grievous bodily harm.
2.The trial judge made a wrong decision on a question of law, by directing the jury that the definition of grievous bodily harm included an injury that had the potential to cause permanent injury to health in the absence of medical treatment, in circumstances where the trial judge had not otherwise explained what 'likely to cause permanent injury to health' meant.
3.The appellant was inadequately advised about the advantages and disadvantages of choosing not to testify at trial, occasioning a miscarriage of justice.
Relevantly to ground 3, the parties filed three applications seeking leave to rely upon additional evidence in the appeal. By an application filed by the appellant, dated 12 April 2024, the appellant sought leave to adduce as additional evidence the affidavit of the appellant, sworn 17 April 2024; and the affidavit of an interpreter and translator, Jiping Zou, affirmed 9 April 2024. By an application filed on 8 July 2024, the respondent sought leave to adduce as additional evidence the affidavit of Tania Stefanoska, affirmed 8 July 2024. By a further application, this time filed on 11 July 2024, the respondent sought leave to adduce as additional evidence the affidavits of the appellant's trial counsel (defence counsel), sworn 11 June 2024; his co‑counsel, affirmed 10 June 2024; and Ms C, a solicitor employed by defence counsel, affirmed 10 June 2024.
At the hearing of the appeal on 19 August 2024, only the appellant and defence counsel were required to be cross‑examined on their respective affidavits.
For the reasons that follow, I would grant the applications for leave to adduce additional evidence in the appeal, grant leave to appeal on all grounds, and allow the appeal. I would set aside the conviction and order that the appellant be acquitted of the offence of aggravated grievous bodily harm (AGBH) but convicted of the alternative offence of aggravated assault occasioning bodily harm, contrary to s 317(1)(a) of the Code (AABH). I would resentence the appellant to 12 months' imprisonment suspended for 12 months.
Overview of the State case at trial
The State's principal witness was the complainant, Ms A. Her evidence was pre‑recorded over three days in April 2023 and then played to the jury at the trial.[16] The State's case at trial was as follows.
[16] ts 195 - 404.
The appellant and the complainant, Ms A, are both Chinese nationals. Prior to, and at the time of, the alleged offence they were students living together as boyfriend/girlfriend in student accommodation in Northbridge. Their apartment was very small.
The appellant and the complainant met and began their relationship online. The complainant moved from Sydney to Perth to be with the appellant and moved in with him. Initially the relationship went well, but over time it deteriorated. Among the issues that arose between the appellant and the complainant were the excessive time the appellant spent playing computer games in their apartment, which interfered with the complainant's sleep, and the appellant's dislike of the complainant going out of the apartment by herself.
The disagreements between the appellant and the complainant were mostly verbal but, according to Ms A, sometimes they became physical. Prior to 3 July 2020, on one (uncharged) occasion, the appellant grabbed her by the shoulders and threw her onto the bed. On another (uncharged) occasion, the appellant punched her in the eye.
The alleged offence occurred in the early hours of 3 July 2020, in their apartment. Only the appellant and the complainant were present. According to the complainant, a verbal argument developed over a derogatory remark made by one of the appellant's friends about the complainant's physical appearance. The argument escalated to the point where the appellant was shouting at the complainant and, at the same time, moving towards her. The complainant became concerned that he would physically attack her. She unsuccessfully attempted to block his progress towards her. On the complainant's account, the appellant then punched her in the left eye with his right fist, which resulted in the complainant suffering a lot of pain and double vision in her left eye.
The appellant then put his arm around the complainant's throat and, when she screamed, he placed his hand over her mouth. The complainant struggled and then managed to break free. She grabbed a kitchen knife and retreated into the bathroom. There, she used the knife to cut her wrists. The complainant did this, she said, because she felt suicidal.
The appellant unsuccessfully tried to enter the bathroom. Eventually, the complainant came out of the bathroom, carrying the knife. She then placed the knife near the appellant on their bed.
Two resident assistants, Megan Ang and Jirayu Soonthornrungsi, were notified by another resident of the disturbance in the apartment occupied by the appellant and the complainant. As they approached the apartment, Ms Ang made a recording of the complainant screaming in Mandarin and an aggressive male voice said to be that of the appellant.
Ms Ang and Ms Soonthornrungsi knocked on the apartment door. The complainant came out of the apartment. Both women observed the complainant to be crying and distressed. They noticed she had a cut to her arm and bruising to her left eye. The police were called and attended the scene a short time later. They tried to talk to the complainant but she would not engage with them. The complainant was issued with a police order preventing her from returning to the apartment for 24 hours. Arrangements were made for the complainant to sleep in another apartment.
Later, on the afternoon of the same day, the complainant attended at the Northbridge Medical Centre. There, she was referred to Royal Perth Hospital for further assessment. At Royal Perth Hospital, it was noted that the complainant had sustained a fracture to her left eye socket. She was given a referral to see a maxillofacial surgeon on 13 July 2020. She was also observed to be mentally unwell and quite distraught. After her attendance at Royal Perth Hospital, she was transferred to Perth Clinic because of her emotional state. The complainant went to Perth Clinic, where she stayed for a short period.
On 13 July 2020, at Royal Perth Hospital, the complainant was seen by Dr Michael Hurrell, who noted an orbital fracture of the left eye (the injury). It is this injury which was alleged by the State to constitute grievous bodily harm. The complainant underwent surgical repair of the injury on 24 July 2020, which involved placing titanium mesh at the site of the fracture.
Dr Hurrell did not give evidence at the trial. Without objection, Dr David Thean, a maxillofacial surgeon, gave evidence for the State. He did not personally treat the complainant but he had access to the complainant's hospital records and gave evidence based on them. Dr Thean testified as to the facial injuries suffered by the complainant, her treatment, and the consequences for the complainant's health had she not undergone surgery to repair the left orbital fracture. I will refer in greater detail to this evidence later in these reasons when I deal with grounds 1 and 2. It is enough to say, at this point, that the State's case at trial as to the element of grievous bodily harm relied upon Dr Thean's evidence.
In summary, the State's case was that the appellant unlawfully punched the complainant, fracturing her eye socket and thereby caused her to suffer grievous bodily harm. This was because the State alleged that, absent any medical treatment, the fracture was a bodily injury of such a nature as to cause, or be likely to cause, permanent injury to health.
In addition to the complainant, Dr Thean, and the two resident assistants, the State called a number of police officers who had attended at the apartment on 3 July 2020; being First Class Constable Lee Brunnen, First Class Constable Alessandro Caratazzolo and Senior Constable Joshua Gammon‑Carson. Body‑worn camera footage taken by First Class Constable Brunnen and Senior Constable Gammon‑Carson was shown to the jury, as were still photographs taken of the complainant's facial injuries. At no point on 3 July 2020, or subsequently, did the appellant make any admissions to police concerning the alleged offence. The State did not tender at the trial an electronic record of interview between the appellant and police.
Overview of the defence case at trial
The appellant elected not to give evidence at his trial. The advice that he was given by defence counsel in respect of this choice is the basis for the allegation of miscarriage of justice in ground 3.
Although the appellant did not give evidence in his defence, he adduced evidence from three witnesses, being Dr Amir Tavasoli, a psychiatrist; Dr Kang‑Fui Koh, a general practitioner; and Jiaxin Li, his then girlfriend. Dr Tavasoli treated the complainant at Perth Clinic after the alleged offence, and Dr Koh treated her for a facial injury sustained on or about 30 March 2020. The complainant told him that the injuries were sustained as a result of a fall. Ms Li gave what amounted to good character evidence.
It was accepted that the appellant and the complainant were in a family relationship at the time of the alleged offence. In essence, the defence case was that the complainant was a highly unreliable witness, whose account of what occurred on 3 July 2020 was not credible and could not reasonably be accepted. Both defence counsel's cross‑examination of the complainant in the pre‑recording and his closing address were highly critical of the complainant's reliability and her version of events.
In his closing address, defence counsel submitted that:
(a)The complainant's explanation of how the appellant punched her was 'not … adequate'.[17] Defence counsel submitted to the jury:[18]
[17] Closing address, ts 37.
[18] Closing address, ts 37.
So how did the punch occur? Did it occur while they were on the bed, and if so, [the appellant] was behind [the complainant], so how did he punch her in the face? That was unexplained.
(b)It made no sense that, when the complainant came out of the bathroom, she did not immediately leave the apartment. Instead:[19]
[I]t's her bizarre evidence that she wanted to put a knife into the hands of the man who had just assaulted her. That's her evidence. The man that had just punched her, so she says, and injured her, she wanted to put a knife in his hands. I put to you that that was a total fabrication[.]
(c)The complainant did not speak to police on the night of the alleged offence because:[20]
[S]he wanted to control as much of the situation as she could because she didn't want to be caught out, and she didn't want it to affect her position in Australia, and her ongoing intentions for the future, and probably expelled from Australia.
(d)The complainant had a history of mental instability and was mentally unstable at the time of the alleged offence.
(e)The complainant falsely complained to police about the assault in September 2020 only after she discovered that the appellant had commenced a new relationship.
[19] Closing address, ts 37.
[20] Closing address, ts 37.
Defence counsel submitted that, in the pre‑recording, the complainant frequently answered questions 'I do not remember', and that such answers did not 'pass the smell test'.[21] It was said that the complainant was 'not a reliable or credible witness'. It was said that, in cross‑examination, there were times where the complainant stalled in giving answers to questions by either asking for retranslations of the questions, or taking a long time to answer, or taking drinks of water when 'she became uncomfortable'.[22] Defence counsel also submitted to the jury that there were discrepancies, inconsistencies and contradictions in the complainant's evidence.
[21] Closing address, ts 34.
[22] Closing address, ts 34.
The defence case was that the complainant was the aggressor, and that, on the night of 3 July 2020, she cut herself and caused injury to the appellant.[23] It was put on behalf of the appellant that he did not punch the complainant, and that it was 'quite possible that the injuries suffered by [the complainant] were self‑inflicted'.[24] In this regard, defence counsel reminded the jury that there was evidence that the complainant had previously 'self‑harmed', and had told doctors that she had previously 'had falls'.[25]
[23] Closing address, ts 36.
[24] Closing address, ts 38.
[25] Closing address, ts 38.
Thus, the line of defence pursued by the appellant at trial was that the appellant did not punch or otherwise strike the complainant in the face, and that he did not cause the fracture to her eye socket. It was put to the complainant, and denied by her, that the injury occurred as a result of the complainant falling to the floor.
While it was suggested by defence counsel that the complainant was the aggressor, he did not submit that the appellant punched or struck the complainant in the face in self‑defence.
The issues at trial
As mentioned, there was no dispute at trial that, at the time of the commission of the alleged offence, the complainant and the appellant were in a family relationship. It was also not disputed that the complainant suffered a facial fracture.
The trial judge instructed the jury that the critical question for them to determine was whether they were satisfied beyond reasonable doubt that the appellant punched the complainant in the eye, as alleged.[26] If they were not so satisfied, the appellant must be found not guilty. In the event that they were so satisfied, then the jury were required to decide whether the appellant inflicted upon the complainant 'grievous bodily harm'. That is, did he cause her to suffer a bodily injury of such a nature as to cause, or be likely to cause, permanent injury to health? Alternatively, if the injury did not constitute grievous bodily harm, did the injury constitute bodily harm?
[26] ts 656.
Because of the possibility that the jury might be satisfied that the appellant had punched the complainant, but had caused her bodily harm only, his Honour left to the jury the alternative charge of AABH.
The trial judge instructed the jury that, if they were satisfied beyond reasonable doubt that the appellant punched the complainant, there was no basis upon which it could be said that the punch was lawful. His Honour specifically directed that self‑defence under s 248 of the Code did not apply.[27]
[27] ts 656. Earlier in the trial, the trial judge made preliminary observations to the effect that s 248 of the Code did not arise. Defence counsel, when called upon, did not make any submissions to the contrary: see ts 486 ‑ 488.
Although provocation was raised by the appellant's counsel in the sentencing proceedings,[28] it should be noted that the defence of provocation under s 246 of the Code is not a defence to a charge of unlawfully doing grievous bodily harm,[29] and it was not raised at trial in the context of the alternative charge.
[28] Defence counsel did not represent the appellant at the sentencing proceedings.
[29] Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 218 (McTiernan ACJ & Menzies J), 223 (Walsh J).
His Honour made it clear that the appellant could only be convicted if the prosecution proved that the punch was a willed act.[30]
[30] ts 656.
Grounds 1 and 2 - legal framework
There is considerable overlap in grounds 1 and 2. It is convenient at the outset to describe the legal framework applicable to both grounds.
Section 297(1) of the Code provides:
(1)Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.
Section 297(3) provides that, where an offence under subsection (1) is committed in circumstances of aggravation (one of which is that the offender is in a family relationship with the victim), the applicable statutory penalty is 14 years' imprisonment.
The term 'grievous bodily harm' is defined in s 1(1) of the Code to mean
any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health[.]
One of the statutory alternatives to an offence under s 297 is an aggravated offence of assault occasioning bodily harm under s 317 of the Code. This offence carries a statutory penalty of 7 years' imprisonment.[31] 'Bodily harm' is defined in s 1(1) of the Code to mean any bodily injury which interferes with health or comfort. The phrase 'bodily injury' is not itself defined in the Code, and should be given its natural and ordinary meaning.[32]
[31] Code, s 317(1)(a).
[32] See Houghton v The Queen [2004] WASCA 20; (2004) 28 WAR 399 [8].
The elements of the offence of unlawfully doing grievous bodily harm are:
(1)the accused was the person who did an act, or omitted to do an act;
(2)the complainant suffered a bodily injury amounting to grievous bodily harm, as that term is defined in s 1(1) of the Code;
(3)the accused's act or omission caused the grievous bodily harm; and
(4)the accused did the grievous bodily harm unlawfully.
In the present case, the bodily injury alleged by the State to be grievous bodily harm was the fracture of the complainant's eye socket. The State did not allege that this injury was of such a nature as to endanger, or be likely to endanger, life. The State's case at trial was that the injury caused, or was likely to cause, permanent injury to health. It is well accepted that the assessment as to whether an injury constitutes grievous bodily harm (or, indeed, bodily harm) is to be made by reference to the injury itself without regard to any medical treatment that could have been, or actually was, subsequently received by the complainant.[33]
[33] Greenup v The State of Western Australia [2024] WASCA 91 [67] ‑ [68].
A matter of importance in grounds 1 and 2 is the meaning of the word 'likely' in the definition of 'grievous bodily harm' in s 1(1) of the Code.
The meaning of the word 'likely' was considered by the High Court in Boughey v The Queen,[34] in the context of the expression 'likely to cause death' in s 157(1)(b) and s 157(1)(c) of the Criminal Code Act 1924 (Tas).
[34] Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10.
In Boughey, Mason, Wilson and Deane JJ observed that the Criminal Code (Tas) (like the Western Australian Code) contained no definition of the word 'likely'.[35] Their Honours held:[36]
In our view, the word 'likely' is used in both ss 156(2)(a) and 157(1) with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 percent. (citations omitted)
[35] Boughey (19).
[36] Boughey (21).
Their Honours elaborated that it would be erroneous to ascribe to the word 'likely' meanings such as 'more likely than not', 'a more than 50 per cent' or an 'odds on' chance. To ascribe such a meaning to the word would be to require a degree of mathematical probability which it does not have as a matter of ordinary language.[37] Their Honours said that the expression 'likely to cause death' in s 157(1) of the Criminal Code (Tas) was an ordinary expression, meant to convey the notion of a substantial or real chance, as distinct from a mere possibility.[38] Gibbs CJ considered that it would be 'potentially misleading' to suggest that an act was likely to cause death if there was 'a chance' it would cause death, because the ordinary meaning of the word 'chance' includes mere 'possibility' as well as 'probability'. Therefore, relevantly to the present appeal, his Honour warned that a judge directing a jury as to the effect of the word 'likely' should avoid the use of the word 'chance'.[39]
[37] Boughey (21 - 22).
[38] Boughey (22).
[39] Boughey (15).
The statements of Mason, Wilson and Deane JJ in Boughey have been cited with approval by this court in Macartney v The Queen[40] (in the context of the felony murder provision in s 279(2) of the Code (now repealed), 'likely to endanger human life'); Sabourne v The State of Western Australia[41] (in the context of the definition of 'child pornography' in s 3 of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), 'likely to cause offence to a reasonable adult'); Johnston v The State of Western Australia[42] (in the context of s 279 of the Code, 'likely to endanger life'); Collard v The State of Western Australia[43] (in the context of s 279 of the Code, 'likely to endanger life'); and Kaokula v The State of Western Australia[44] (in the context of s 304 of the Code, 'likely to be endangered').
[40] Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 [114] ‑ [117], [125], [131] (Steytler P), [139] (Wheeler JA), [466] (Roberts‑Smith JA).
[41] Sabourne v The State of Western Australia [2010] WASCA 242 [63].
[42] Johnston v The State of Western Australia [2012] WASCA 98; (2012) 223 A Crim R 31 [98].
[43] Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1 [74].
[44] Kaokula v The State of Western Australia [2016] WASCA 198 [14] ‑ [15].
In the present case, the parties accept, as do I, that in the context of the expression 'grievous bodily harm' as defined in s 1(1) of the Code, the word 'likely' should be construed in accordance with the statements in Boughey, set out at [64] and [65] above. The word should be given its ordinary meaning, that is to convey the notion of a substantial - a 'real and not remote' - chance as opposed to a mere possibility that, if untreated, the injury was of such a nature as to cause permanent injury to health.
Grounds 1 and 2 - the relevant evidence
As the focus of grounds 1 and 2 is on the nature of the injury suffered by the complainant and not how it was inflicted, or whether its infliction was unlawful, it is necessary to set out the limited evidence adduced at trial relevant to the issue.
The complainant testified to the following effect.
After she was punched in the eye by the appellant, she experienced double vision and pain, discomfort and swelling to her left eye and the left side of her face.[45] Prior to the incident, she had neither the double vision nor the other symptoms she described.[46]
[45] ts 212 - 213.
[46] ts 213.
The complainant described how, after the incident, she attended the Northbridge Medical Centre and later, Royal Perth Hospital. On 13 July 2020, she returned to Royal Perth Hospital and later underwent surgery on 24 July 2020.[47]
[47] ts 215 - 216.
In cross‑examination, in response to a question by defence counsel as to why the complainant waited until September 2020 to report the matter to the police, she said:[48]
I need some time to recover from the low and depression - the low mood and depression when I first left at the mental hospital and also, my left eye hasn't - hadn't recovered fully. There was [sic] blood clots in my left eye at the time.
[48] ts 326.
A number of photographs showing the complainant's facial injuries were tendered at the trial.[49] These photographs were taken shortly after the commission of the alleged offence. They show obvious bruising to her left eye socket.
[49] Exhibit 8.1, 8.2.
As mentioned, the complainant attended at Royal Perth Hospital on 13 July 2020, where she was examined by Dr Hurrell. Dr Hurrell was not available to give evidence at the appellant's trial. Instead, evidence was adduced from Dr Thean, a specialist oral and maxillofacial surgeon, also at Royal Perth Hospital.[50] Dr Thean did not personally examine the complainant. His testimony was based on the records held by Royal Perth Hospital, including notes made by Dr Hurrell. Dr Thean's evidence‑in‑chief included that:
1.Dr Hurrell noted an orbital fracture, that is an eye socket fracture, to the complainant's left eye.[51]
2.The injury required reconstructive surgery to place titanium mesh in the area of the fracture.
3.Had the complainant not received any treatment for the fracture, 'there is a chance that she could have had double vision, restriction of eye movement, deformity or chronic pain'[52] (emphasis added).
4.When asked why the complainant would potentially have double vision if the surgery had not been performed, Dr Thean said that the patient had presented with double vision at the time of the consultation. Another question to similar effect was put to Dr Thean concerning the restriction of the complainant's eye movement, to which Dr Thean responded, 'Because the bones of the orbit were broken … And there's muscles that are in the bony eye socket'.[53]
[50] ts 514.
[51] ts 514.
[52] ts 515.
[53] ts 515.
Of particular significance to grounds 1 and 2 was this exchange in examination‑in‑chief:[54]
Now in relation to the likelihood of those consequences being permanent consequences, can you comment on that?---I can't comment on statistics because it differs from person to person.
From your experience, would you expect to be there a permanent injury to the eye movement - a restriction of the eye movement if an injury of that kind is not operated upon?---Even though there was double vision prior to surgery, there's a potential it would have continued to be present without surgery. (emphasis added)
Were the injuries of such a nature as to endanger this patient's life?---No.
[54] ts 515 - 516.
Dr Thean was not cross‑examined as to whether the orbital fracture would have been likely to cause permanent injury without any treatment. The cross‑examination mostly concerned how the injury may have been caused.
The trial judge's directions and redirection concerning the element of grievous bodily harm
The trial judge's directions as to the element that the complainant suffered grievous bodily harm, were as follows (the direction):[55]
The second element is that [Ms A] suffered grievous bodily harm.
Now, grievous bodily harm means any bodily injury of such a nature as to endanger or be likely to endanger the life or to cause or be likely to cause permanent injury to health. So if there's a bodily injury, and here the State rely upon a fracture to the left eye and there's no dispute that she did have a fracture to the left eye, which was likely to cause a permanent injury to the person's health, that can amount in law to grievous bodily harm.
And further, the law is that a jury's assessment of the seriousness of the injury is made without reference to the availability of medical treatment. And so it was that Ms Robinson asked Dr Thean what the prognosis would have been if there hadn't been surgery or medical treatment. We know there was, but what would have happened if there wasn't?
So it's the nature of the injury as received before any question of medical intervention arose to which you are required to have regard. Now, Dr Thean who gave evidence didn't treat [Ms A], but he uncontroversially spoke to the treating doctor, Dr Hurrell's report and he sets out his findings at pages 514 to 517.
Dr Hurrell noted an orbital fracture which is an eye socket fracture to [Ms A's] left eye. [Ms A] underwent a reconstruction of the left orbital fracture. She had the surgery to place a titanium mesh. Without any treatment, there is a chance that she could have had double vision, restriction of eye movement, deformity or chronic pain.
There was a potential that double vision would have continued to be present without surgery. So that's the second element.
[55] ts 655 - 656.
About two hours after the jury began its deliberations, his Honour reconvened the court to deal with a question from the jury. The question asked by the jury was:[56]
Does the definition of GBH include potential permanent injury?
[56] ts 688.
In the absence of the jury, the learned trial judge informed counsel that he proposed to answer the jury's question
by saying it does include potential permanent injury, but it is not limited to potential permanent injury. And then to repeat my directions that I gave earlier in the afternoon on the meaning of grievous bodily harm.[57]
[57] ts 688.
After indicating his proposed answer to the jury's question, and upon direct enquiry of counsel, defence counsel indicated that the proposed answer was 'acceptable'.[58]
[58] ts 688.
His Honour then answered the jury's question and gave the following redirection (the redirection):[59]
[59] ts 689.
Dealing with the substantive question:
Does the definition of GBH -
obviously an abbreviation for grievous bodily harm:
- include potential permanent injury?
The answer is it does include it, but it is not limited to that. And I will repeat my definition of grievous bodily harm that I provided a little earlier.
So grievous bodily harm is defined in the Criminal Code as meaning any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health. So if there is a bodily injury - here there is a fracture to the left eye, which was likely to cause a permanent injury to the person's health, that can amount in law to grievous bodily harm.
Further, the law is that your assessment of the seriousness of the injury is made without reference to the availability of medical treatment. Accordingly, it is the nature of the injury as received before any question of medical intervention arose, to which you are required to have regard.
I remind you that Dr Thean, speaking to the report, noted that his predecessor had noted an orbital fracture or an eye socket fracture to [Ms A's] left eye. [Ms A] underwent a reconstruction of the left orbital fracture. She had the surgery to place a titanium mesh. He said that without any treatment, there is a chance that she could have had double vision, restriction of eye movement, deformity or chronic pain. And there was a potential that double vision would have continued to present without surgery.
So to repeat, ladies and gentlemen, grievous bodily harm means any bodily injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health unless there was - and that is a question that you assess prior to any medical intervention.
So it's an assessment that you make without reference to the availability of medical treatment.
Thank you, ladies and gentlemen. Having answered that question, I'll invite you to retire and continue with your deliberations. Thank you.
At no point did defence counsel take exception to the trial judge's directions. More specifically, at no point did defence counsel seek a direction as to the meaning of the word 'likely' in the definition of 'grievous bodily harm'; nor was any such direction given.
The jury returned its verdict of guilty three minutes after the redirection.
The appellant's submissions on grounds 1 and 2
As to ground 1, it was submitted on behalf of the appellant that the only evidence adduced at the trial that was capable of proving that the injury was likely to cause permanent injury to health if left untreated was that given by Dr Thean. The appellant contended that Dr Thean's evidence went no higher than that there was a possibility, a potential or a chance (not expressed as a 'substantial real and not remote' chance as expressed by Mason, Wilson and Deane JJ in Boughey) of permanent injury to health, whether in the form of double vision, restriction of eye movement, deformity or chronic pain. While the injury and its symptoms or consequences could have been permanent, the evidence of Dr Thean did not go so far as to enable a jury to reasonably conclude that there was a substantial - real and not remote - chance of permanent injury.
As to ground 2, the appellant submitted that even if ground 1 is not made out, the learned trial judge erred in law by instructing the jury in his redirection that grievous bodily harm included 'potential' permanent injury. By doing so, his Honour wrongly substituted or included a less demanding standard ('potential') than that provided for in the statutory definition ('likely'), as explained by the High Court in Boughey and cases decided in this court.
It was submitted that his Honour should have answered the jury's question by reiterating the statutory definition, explaining the meaning of 'likely' by reference to the explanation of that term in Boughey, and by emphasising the distinction between what is likely on the one hand, and what is only possible on the other, having regard to the evidence of Dr Thean.
While it was accepted on behalf of the appellant that no redirection was sought along the lines suggested by the appellant in this appeal, it was submitted the trial judge's answer to the jury's question was a misdirection which constituted a wrong decision on a question of law, regardless of whether objection was taken to it at trial.
The respondent's submissions on grounds 1 and 2
As to ground 1, it was submitted by the respondent that although the evidence in respect of the element of grievous bodily harm was brief, the evidence of Dr Thean in the context of evidence given by the complainant was sufficient to enable the jury to be satisfied beyond reasonable doubt that the injury sustained by the complainant amounted to grievous bodily harm. The respondent submitted that the uncontroversial evidence at trial was that on 13 July 2020, prior to reconstructive surgery on 24 July 2020, the complainant was experiencing double vision as a result of the injury. Dr Thean's unchallenged evidence was that double vision was one of a number of permanent injuries that might arise from an unrepaired orbital fracture. In this context, it was asserted that the jury were entitled to be satisfied beyond reasonable doubt that the orbital fracture suffered by the complainant was likely to cause permanent injury in the absence of medical treatment.
However, in oral argument, when it was suggested to counsel for the respondent that the evidence did not enable a jury to conclude any more than that there was a chance that the complainant's double vision would be permanent without surgery, counsel accepted the correctness of this proposition.[60]
[60] Appeal ts 124.
Counsel for the respondent also accepted that if this court was left with a doubt as to whether the injury constituted grievous bodily harm, there was nothing in the advantage that the jury had of seeing and hearing the witnesses that might assuage that doubt.[61]
[61] Appeal ts 124.
As to ground 2, the respondent accepted that the definition of 'likely' as explained by Mason, Wilson and Deane JJ in Boughey, and applied in subsequent cases in this jurisdiction, applied to the meaning of 'likely' in the context of the definition of 'grievous bodily harm' in s 1(1) of the Code.
In oral submissions, counsel for the respondent acknowledged the strength of the appellant's submission that the trial judge's redirection did not deal with the reasonable risk that the jury would impermissibly equate 'chance' and 'potentially' with 'likely'.[62]
[62] Appeal ts 128.
It is convenient to first deal with ground 2.
Disposition - ground 2 - did the trial judge err in his directions concerning the element of grievous bodily harm?
In both the direction and redirection, his Honour instructed the jury that:
(a)In the context of the case, grievous bodily harm meant any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.
(b)The State's case was that the bodily injury said to constitute grievous bodily harm was the orbital fracture to the complainant's left eye.
(c)The State's case was that the fracture to the left eye constituted grievous bodily harm because, without medical intervention, it was likely to cause a permanent injury to the complainant's health. Relevantly, the trial judge drew the jury's attention to the evidence of Dr Thean. In particular, he reminded the jury that Dr Thean had testified, based on the hospital records, that the complainant underwent a reconstruction of the left orbital fracture, and that there was a chance that, without any treatment, the complainant could have had ongoing double vision, restriction of eye movement, deformity, or chronic pain. The trial judge also reminded the jury that Dr Thean had testified that there was a potential that double vision would have continued without surgery.
Having regard to the direction, the jury would have been left with the impression that a chance of causing, or a potential to cause, permanent injury to health was sufficient to constitute grievous bodily harm. Indeed, in the redirection, his Honour specifically instructed the jury that the definition of 'grievous bodily harm' included potential permanent injury.
In my opinion, his Honour's instruction that a potential permanent injury could amount to grievous bodily harm was erroneous. This is because, as explained by the High Court in Boughey, the ordinary meaning of the word 'likely' is to convey the notion of a substantial - real and not remote - chance that, if untreated, the injury was of such a nature as to cause permanent injury to health. The ordinary meaning of the word 'potential' conveys a degree of probability that is less than 'likely'. I accept the appellant's submission that the inclusion of the word 'potential' amounts to a less demanding standard than that provided by the word 'likely' as it appears in s 1(1) of the Code.
In light of the jury's question, the trial judge should have reminded them of the statutory definition of 'grievous bodily harm', and then explained the meaning of 'likely' in accordance with the majority in Boughey, including the importance of the distinction between what is likely, on the one hand, and what is only possible, on the other, and told the jury that, if the evidence established only a potential for a bodily injury to be permanent, this would be insufficient to constitute grievous bodily harm. In my opinion, his Honour's erroneous answer to the jury's question constituted a wrong decision on a question of law,[63] which is unaffected by the failure of the appellant's trial counsel to object.
[63] See Criminal Appeals Act 2004 (WA), s 30(3)(b).
It follows that I do not accept the submissions made on behalf of the respondent in respect of ground 2. While it is true that Dr Thean's evidence, including his use of the words 'a chance' and 'a potential', indicated that the likelihood of the complainant suffering a permanent injury to health from the orbital fracture was something less than certain, the direction did not address the question of whether the bodily injury was of such a nature as to be 'likely' to cause permanent injury to health, as required by s 1(1) of the Code.
Ground 2 has been made out.
Disposition - ground 1 - was the guilty verdict unreasonable because the evidence did not establish that the complainant suffered grievous bodily harm?
Section 30(3)(a) of the Criminal Appeals Act requires this court to allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
The legal principles applicable to such a ground of appeal are uncontroversial and were authoritatively stated by the High Court in M v The Queen,[64] and then reiterated in subsequent cases including R v Baden‑Clay,[65] and Pell v The Queen.[66] Those principles have been explained and applied in many cases decided by this court. Recently, in Loh v The State of Western Australia [No 2],[67] this court summarised the principles as follows:[68]
[64] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.
[65] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308.
[66] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123.
[67] Loh v The State of Western Australia [No 2] [2024] WASCA 166.
[68] Loh [76], citing Sandy v The State of Western Australia [2024] WASCA 109 [63] ‑ [67], [72] ‑ [74], [76].
1.It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.
2.An appellate court must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand.
3.The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence).
4.The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.
5.The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
6.The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. The critical issue is whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.
7.The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.
8.The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
9.The setting aside of a jury's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by jury.
10.The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict.
11.The nature and extent of the appellate court's task, in a particular case, will be informed by the elements of the offence, the accused's defence, the issues in contest at the trial, the manner in which the trial was conducted, the way in which the case was ultimately left to the jury, and the particulars of the ground of appeal.
(original emphasis)
The last point in this statement of principles in Loh is important in the present case. Here, the challenge to the reasonableness of a jury's verdict on the charged offence of unlawfully doing grievous bodily harm is narrowly focused. The appellant does not submit that it was not open on the evidence for the jury to be satisfied beyond reasonable doubt that the appellant punched the complainant in the area of her left eye and thereby inflicted the injury. Nor is it suggested that the State failed to exclude beyond reasonable doubt that the appellant acted in self‑defence.
Ground 1 is restricted to an attack on the jury's finding that the injury suffered by the complainant constituted 'grievous bodily harm', as defined in s 1(1) of the Code.
Due to the confined nature of ground 1, there is no need to outline in detail all of the evidence that was adduced at trial. In particular, there is no need to provide a detailed summary of the complainant's pre‑recorded evidence, which was given over three days; much of which was taken up by a very lengthy cross‑examination which, it must be said, was often unnecessarily hostile towards the complainant and, at times, towards the presiding judge.
All of the relevant evidence necessary to consider ground 1 is summarised at [69] ‑ [76] above.
The State's case, that the injury constituted grievous bodily harm in the sense that it was likely to cause a permanent injury to health, relied on the expert evidence given by Dr Thean. There was nothing in the complainant's evidence capable of establishing by itself the element of grievous bodily harm.
Dr Thean described, in general terms, the nature of the injury suffered by the complainant (an orbital fracture to the left eye socket) and the nature of the treatment administered to her (reconstructive surgery to place titanium mesh in the area of the fracture). None of this evidence was challenged at trial. There was no specific evidence about the nature of the fracture or the surgery itself.
For the State to prove the element of grievous bodily harm, it was necessary for it to prove, beyond reasonable doubt, that the injury suffered by the complainant was of such a nature as to cause, or be likely to cause, permanent injury to health. The type of permanent injury to health that could have been caused by the injury was identified by Dr Thean as being double vision, restriction of eye movement, deformity, or chronic pain. However, all that Dr Thean gave evidence of was that there was a chance that the complainant could have suffered these consequences. An expression of a mere chance of the consequences, either collectively or individually, eventuating amounts to no more than a possibility, and falls short of the requirement in the definition of 'grievous bodily harm', being that the injury was likely to cause permanent injury to health.
Understandably, given this evidence, the prosecutor then expressly sought Dr Thean's opinion as to the likelihood of any of the consequences he had identified as being permanent. Dr Thean's initial answer was unresponsive. Insofar as the answer is of any real use, Dr Thean appears to be saying that whether the consequences of the injury are permanent differs from individual to individual.[69]
[69] ts 515.
Dr Thean's answer to the subsequent question, which referred to the restriction of eye movement, addressed the consequence of double vision only. As to double vision, Dr Thean only went so far as to state that, without surgery, there was 'potential' for double vision to continue.[70] Dr Thean was not asked about, and nowhere in his evidence does he elaborate on, the extent of the potential for double vision to have been a permanent consequence if the injury had been untreated. No further evidence was given by Dr Thean as to the likelihood of double vision, restriction of eye movement, deformity, or chronic pain being permanent consequences.
[70] ts 516.
In my opinion, it was not open to the jury, on the evidence presented to them, to be satisfied beyond reasonable doubt that the injury suffered by the complainant constituted grievous bodily harm as defined in s 1(1) of the Code. This is because, as submitted on behalf of the appellant, there was no evidence capable of demonstrating that the injury suffered by the complainant, without medical treatment, was of such a nature as to be likely, in the sense of a substantial - that is, a real and not remote - chance, to cause permanent injury to the complainant's health. The evidence adduced at trial went no higher than establishing that there was 'a chance' or 'the potential' of the injury causing permanent injury to the complainant's health. Whether expressed in terms of 'chance' or 'potential', both fall short of the standard conveyed by the ordinary meaning of the word 'likely'. In essence, the evidence went no higher than establishing that there was a possibility that the complainant would suffer permanent injury to health.
Ground 1 has been made out.
Ground 3 - alleged inadequate advice
Ground 3 is as follows:
The appellant was inadequately advised about the advantages and disadvantages of choosing not to testify at trial, occasioning a miscarriage of justice.
Between them, the parties filed several applications for leave to adduce additional evidence in relation to this ground. None of the applications were opposed. I would grant leave in respect of each application.
By an application dated 12 April 2024, the appellant sought to adduce as additional evidence in the appeal an affidavit sworn by the appellant on 17 April 2024; and an affidavit affirmed by Jiping Zou, an interpreter and translator, affirmed on 9 April 2024.
By applications filed on 8 July 2024 and 11 July 2024, the respondent sought leave to adduce as additional evidence in the appeal the affidavits of a number of deponents. Of particular relevance is the application filed 11 July 2024, in which the respondent sought to adduce the affidavits of defence counsel, sworn 11 June 2024; his co‑counsel, affirmed 10 June 2024; and Ms C, a solicitor employed by defence counsel, affirmed 10 June 2024.
The only witnesses who were required to attend the hearing of the appeal for cross‑examination were the appellant and defence counsel. In substance, the evidence‑in‑chief of both individuals involved confirmation of the contents of their respective affidavits.[71] The evidence of the other deponents was unchallenged.
Ground 3 - the appellant's affidavit and oral evidence
[71] Appeal ts 63 - 64 (the appellant), 76 (defence counsel).
The appellant's affidavit is, relevantly, to the following effect:
(1)On 27 September 2022, he received an email attaching a letter from defence counsel regarding his trial, which, at that stage, was listed to commence in December 2022. The complainant's evidence had not yet been pre‑recorded. It was expected, at this point, that the complainant would testify at the trial itself. The letter was both in English and in the appellant's first language, which is Mandarin. Both versions are annexed to the appellant's affidavit. In general terms, the letter advised the appellant about the process and procedure at his trial. At one point in the letter, defence counsel wrote:
Please appreciate that it is not our role, nor are you required, to show you are innocent. In fact, if counsel decides, there may not be any evidence in your defence. This is a forensic decision that [defence counsel] as your counsel must make and it may well be that at the end of the prosecution's case no evidence from you will be provided to the jury. At present, it would be better if you did not give evidence.
The key witness for the prosecution is the complainant. [defence counsel's] cross‑examination of the complainant is a key part of the trial as he will be able to put the true nature of her behaviour to her and demonstrate to the jury that her allegations are not true. It is a simple argument that [the complainant] is not reliable or credible and that her story is not to be believed by the jury, and that, at the very least, there is reasonable doubt. Again, you should be aware that it is not our role to prove you are innocent but to raise doubt as to [the complainant's] story.
(2)A week or so prior to receiving the letter of 27 September 2022, the appellant met with defence counsel. According to the appellant, defence counsel said words to the effect that he (the appellant) had a choice as to whether or not to give evidence. Defence counsel also said words to the effect that giving evidence may be helpful, but there was also a risk that 'it [giving evidence] may be adverse to my case because the prosecutor may try to trap or trick me'. The appellant also deposed that defence counsel said words to the effect that, in his view, the appellant should not give evidence 'because my English is not good'.
(3)The trial originally listed for December 2022 was adjourned and was subsequently relisted to begin on 11 December 2023. Prior to the December 2023 trial, in the second half of the year, the appellant attended several meetings at defence counsel's office to discuss the preparation of his case. At one such meeting, which the appellant believed to have occurred on 7 December 2023, defence counsel asked the appellant whether he wanted to give evidence at trial. In response, the appellant asked defence counsel, 'How could it be possible that I don't give evidence?' Defence counsel said words to the effect that the appellant 'could keep silent', and he expressed the view that it would be better if the appellant 'did not say a word'.
(4)Defence counsel then conducted a 'practice cross‑examination' on the appellant, in English. At the conclusion of the practice cross‑examination, defence counsel told the appellant that he thought the appellant would be a bad witness, 'but it was my decision, and that I could not blame him if I fail'.
(5)At no stage prior to the meeting alleged by the appellant to have been on 7 December 2023 did defence counsel, nor any of the lawyers assisting him, advise the appellant that, if he did not give evidence, then there would be no evidence before the jury disputing the complainant's account of what had occurred on 3 July 2020.
(6)On 8 December 2023, the appellant emailed co‑counsel. In the email, he wrote:
During the last meeting, it was mentioned that I did not need to provide testimony. I guess this is for safety and rigor. Because the other party must have misled me and I made a mistake. So I guess [defence counsel] is right.
A short time after sending this email, the appellant received a reply from co‑counsel, also dated 8 December 2023, which relevantly stated:
An accused person is under no obligation to give evidence at their own trial. It is the job of the State to prove the offence and there are cases where the defence does not lead any evidence at all and just tells the court or the jury that the allegation has not been proved.
There is always a risk when an accused person gives evidence of what happened that the State will 'trip them up' in cross‑examination so that they look unreliable or say something damaging. As [defence counsel] demonstrated yesterday when he caught you in a lie, that you never touched her, when in fact you had already said that you had restrained her, that was totally unintentional but which [sic] can happen when a skilled barrister is asking questions.
(7)Towards the end of the appellant's affidavit, he deposed about certain events at the trial. As to what occurred after the prosecution called its last witness, the appellant deposed:[72]
[72] Affidavit of the appellant, 17 April 2024, pars 32 - 37.
At or around the time that the prosecution called its last witness, I signed a handwritten piece of paper stating, in English, that I had decided not to give evidence. A copy of this is annexed to this affidavit and marked 'ZL‑3'.
I do not recall having any conversations with [defence counsel] or defence co‑counsel during the trial about the piece of paper, or about whether to give evidence. When I signed the piece of paper, I was sitting in court, in the accused dock.
Before I signed the piece of paper, Ms Zou interpreted the handwritten words into Mandarin for me.
I signed the piece of paper because I had decided to accept the advice I had received from [defence counsel] at the meeting on 7 December 2023.
At no stage prior to or during the trial was I told by my lawyers that if I did not give evidence, there would be no evidence disputing [the complainant's] evidence about what occurred on 3 July 2020, and no evidence of my version of those events.
At no stage prior to or during the trial was I told by my lawyers that if I did not give evidence, I could not rely on self‑defence or provocation at trial.
The document ZL‑3 is handwritten and states:
I, Zhenbang Li, give explicit instructions that I do not want to give evidence in my trial.
The document ZL‑3 is signed by the appellant and is dated '14/12/2023'.
Under cross‑examination at the hearing of the appeal, the appellant denied that, at the meeting on 7 December 2023, defence counsel had said to him that it would be best for the defence case if he (the appellant) gave evidence.[73] The appellant agreed that, at the same meeting, defence counsel told him that he thought the appellant would not be a good witness.
[73] Appeal ts 67.
The appellant also said under cross‑examination that defence counsel told him that he was worried that, if the appellant testified, there would be inconsistencies in his evidence.
Under cross‑examination, the appellant accepted that the defence case at trial was that he never punched, kicked, slapped, or hit the complainant, and that he was not responsible for the injuries to the complainant's face.[74]
[74] Appeal ts 69.
The appellant denied the proposition put to him in cross‑examination that defence counsel had told him that if he did not give evidence, the jury would not hear his version of what happened to the complainant.[75]
[75] Appeal ts 70.
The appellant accepted that defence counsel had told him that it was his (the appellant's) choice whether to give evidence, and that there would be some advantages if he did so. However, defence counsel did not tell him that one of those advantages would be that the jury would hear the appellant's side of what happened.[76]
[76] Appeal ts 70 - 71.
The appellant denied the proposition put to him in cross‑examination that defence counsel had told him in December 2023, that if the appellant did not give evidence, then he would not be able to rely on self‑defence.[77]
[77] Appeal ts 71.
In re‑examination, the appellant confirmed that defence counsel had told him in December 2023 that there would be advantages for him if he gave evidence at trial, but reiterated that defence counsel did not specifically say what those advantages were.[78] The appellant also said that at the close of the prosecution case at trial, when he was asked in court if he would give evidence or not, he did not understand that if he elected not to give evidence then there would no evidence that he did not punch the complainant.[79]
[78] Appeal ts 71.
[79] Appeal ts 72.
In re‑examination, the appellant was also asked about the practice cross‑examination alleged to have taken place on 7 December 2023. The appellant said that the practice cross‑examination went for 'maybe more than 10 minutes'. The appellant also said that the questions were not translated into Mandarin, and that he understood 'maybe half and half'.[80]
[80] Appeal ts 73.
The appellant also said in re‑examination that, whenever he communicated orally with defence counsel, he did not fully understand everything he was told; and when defence counsel communicated with him in writing, or vice versa, he would use Google Translate.[81]
Ground 3 - Ms Zou's affidavit
[81] Appeal ts 73 - 74.
The appellant's interpreter at trial, Ms Zou, said in her affidavit that she is a NAATI certified Mandarin interpreter and a certified translator of Chinese into English, and English into Chinese. Ms Zou deposed that she acted as the appellant's interpreter on each and every day of his trial in December 2023.
Ms Zou deposed as follows, regarding what occurred at the close of the prosecution case, on 14 December 2023:[82]
[82] Affidavit of Ms Zou, 9 April 2024, pars 12 - 20.
On Thursday 14 December 2023, the fourth day of the trial, the prosecution called its last witness. After that witness gave evidence, the Judge presiding over the trial, Judge Troy, adjourned the trial for a short break.
Once the trial was adjourned, [defence counsel] came over to where [the appellant] and I were sitting in the accused dock. I cannot remember if the court room was completely empty at this time, but I did not notice any other people in the court room other than me, [the appellant], and [defence counsel]. I cannot recall whether [co‑counsel] was in the court room at this time.
[Defence counsel] started to speak with [the appellant] about the case. I do not recall exactly how the conversation started. However, at or shortly after the start of the conversation, [defence counsel] said to [the appellant] words to the effect that [the appellant] now needed to decide whether or not to give evidence. I interpreted these words into Mandarin for [the appellant].
[The appellant] did not say anything in response. After a short pause, [defence counsel] said to [the appellant] words to the effect that he did not recommend that [the appellant] gives evidence, because he did not think [the appellant] would be a good witness, and that [the appellant] would be destroyed by the prosecution. I interpreted these words into Mandarin for [the appellant].
[The appellant] did not say anything in response. After a short pause, I asked [the appellant] in Mandarin what his decision was. [The appellant] said words to the effect that he would not give evidence. I cannot recall whether he said these words in Mandarin or English, but I believe that he may have said them in English. If he said the words in Mandarin, then based on my general practices I believe that I interpreted the words into English for [defence counsel]. But I do not have an independent recollection of doing so.
[Defence counsel] then said to [the appellant] words to the effect that it was [the appellant's] decision, and that [the appellant] could not blame [defence counsel] for the decision if he is convicted. I interpreted these words into Mandarin for [the appellant].
[Defence counsel] then went to the bar table and returned to where [the appellant] and I were sitting and gave me a piece of paper which contained handwritten words. I sight translated the words on the piece of paper into Mandarin for [the appellant]. The words were to the effect of a statement from [the appellant] that he did not wish to give evidence in the proceedings.
[Defence counsel] said to [the appellant] words the effect of which were requesting [the appellant] to sign the document. I interpreted these words into Mandarin for [the appellant]. [The appellant] then signed the document and gave it back to [defence counsel].
Apart from the conversation to which I depose in paragraphs 14 to 19 above, I was not present during any other conversation between [the appellant] and his solicitors about whether or not he would give evidence in the District Court proceedings.
Ground 3 - defence counsel's affidavit and oral evidence
In his affidavit, defence counsel deposed as follows.
The appellant engaged defence counsel's firm in or about September 2020. The appellant's first language is Mandarin, but he has a good general understanding of English.
By the time the appellant stood trial, defence counsel had known him for three years, and had attended upon him in person on 'numerous occasions to discuss his matter and obtain his instructions'. He also communicated with the appellant by telephone and by text message. Generally, when he spoke to the appellant in person, it was in the presence of another solicitor who could communicate in Mandarin with the appellant (either Ms L or Ms C).
The real focus of the appellant's complaint is that he was not told, specifically, that if he did not give evidence, then there would be no sworn account before the jury of his version of events, and he would not be able to rely on self‑defence.
I have found that defence counsel did not specifically advise the appellant of these matters. However, the appellant was advised by defence counsel that it would be better for him to give evidence. Such advice begs the question, why would it be better for the appellant to give evidence? In the context of this case, the answer is obvious. It would be better for the appellant to give evidence so that his sworn version of events was before the jury. I accept that this generalised advice may have been inadequate to convey the importance of his testimony if the appellant wished to rely on self‑defence.
Self‑defence is available to an offence of AGBH and to the alternative offence of AABH. Section 248(4) of the Code states:
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.
The proper construction of s 248(4) of the Code was explained by Buss JA in Goodwyn v The State of Western Australia.[120] At [95] of Goodwyn, Buss JA set out the four elements of self‑defence under s 248(4), as follows:
First, 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)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) 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)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
[120] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [84] ‑ [96].
In order for the appellant to invoke the defence under s 248(4), there needed to be evidence that the appellant did a harmful act to the complainant; being, in this case, the punch to her face, which caused the orbital fracture. The difficulty for the appellant is that his instructions to his lawyers, in his second and third witness statements, were that he had not struck the complainant in the face as the complainant (and the State) alleged. Put another way, based on the instructions given to his lawyers, there was no basis for the appellant to claim that he believed that it was necessary to punch the complainant in the face; that it was a reasonably objective response; that the punch was necessary to defend himself; nor that there were reasonably objective grounds for his beliefs, because he denied acting in this way.
Based on the instructions the appellant ultimately gave his lawyers, self‑defence was not available. In these circumstances, it was unnecessary for defence counsel to advise the appellant that, if he did not give evidence, self‑defence would not be open to him at trial.
For the abovementioned reasons, I do not think that defence counsel's failure to provide specific advice to the appellant, to the effect that, if he did not give evidence, there would be no sworn version of his story before the jury and he would not have a basis for self‑defence, rendered the advice the appellant was given, about his election not to give evidence, inadequate.
In any event, there is a fatal deficiency in the appellant's affidavit and oral evidence in relation to ground 3. Although, in his oral submissions, senior counsel for the appellant submitted that if the appellant had been advised of the matters raised by him in this ground, then he would have elected to testify in his defence at trial, there is no evidence to that effect before this court. A similar fundamental deficiency was identified by the High Court in Craig.[121]
[121] Craig [37].
There is no basis, on the evidence before this court, to infer that had the appellant been given the advice he now says that defence counsel should have given to him, he would have elected to testify in his defence. In my opinion, given defence counsel's view that the appellant would make a 'bad witness', a view that the appellant did not apparently disagree with, there is no reason to believe that the appellant would have chosen to give evidence and to expose himself to the risks referred to at [183] above. This is particularly so given that it was the view of the appellant (and his defence counsel) that the complainant's evidence was not credible.
Ground 3 has not been made out.
Should the court exercise the power under s 30(5) of the Criminal Appeals Act to enter a judgment of conviction for the offence of aggravated assault occasioning bodily harm?
For the reasons that I have given, grounds 1 and 2 have been made out, whilst ground 3 has not.
However, a question arises in this appeal as to whether this court should order a new trial on the alternative offence of AABH, or substitute a judgment of conviction for the offence and sentence the appellant accordingly.
Section 30(5) of the Criminal Appeals Act describes the powers of this court when it allows an appeal against conviction. The subsection provides, relevantly, as follows:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A[.]
As a consequence of grounds 1 and 2 being made out, this court must allow the appeal and set aside the conviction for the offence of AGBH (offence A for the purposes of s 30(5)). Given that ground 1 has been made out, a new trial on the offence of aggravated grievous bodily harm should not be ordered. But that leaves the question of whether this court should enter a judgment of conviction for the alternative offence of AABH (offence B for the purposes of s 30(5)(c)) or order a new trial for this offence.[122]
[122] In Pezzano v The State of Western Australia [2020] WASCA 181 [117], the power to take this course was held to derive from s 30(5)(a).
Section 10A and s 10B of the Code are also relevant. Section 10A(1) states:
A person charged with an offence cannot be convicted by the court dealing with the charge of any other offence instead of that offence unless -
(a)the accused is charged with the other offence as an alternative to that offence; or
(b)this Chapter provides otherwise.
Section 10B(1) and s 10B(2) state:
(1)This section applies if a provision of this Code, or of another written law, that creates an offence (offence A) provides one or more alternative offences for offence A.
(2)If a person is charged with an offence (offence A), whether or not on indictment, the person, instead of being convicted as charged, may be convicted of any alternative offence that is provided for offence A.
The offence‑creating provision for the offence of unlawfully doing grievous bodily harm, s 297(1) of the Code, provides that an offence under s 317 is an alternative offence.
In Pezzano v The State of Western Australia, this court analysed and construed s 30(5) of the Criminal Appeals Act.[123] The court concluded:[124]
In our view, an offender convicted of offence A 'could have been found guilty of some other offence (offence B)' within the meaning of s 30(5)(c) where offence B is a statutory alternative to offence A and the evidence led at trial is capable of proving, to the requisite standard, that the accused committed offence B. It is not essential to the existence of the power that the trial judge exercises his or her discretion to leave offence B to the jury as an alternative offence. Rather, the point at which the manner in which the trial judge exercised his or her discretion becomes significant is when considering whether the power in s 30(5)(c) should be exercised.
[123] Pezzano [104], [110] - [131].
[124] Pezzano [132].
In my opinion, the prerequisites for the exercise of the power in s 30(5)(c) are satisfied in this case. First, the offence of AABH is a statutory alternative to the offence of unlawfully doing grievous bodily harm. Secondly, the evidence led at trial was capable of establishing, to the criminal standard, the elements of the statutory alternative offence. Thirdly, the appellant could have been found guilty of the offence of unlawfully doing grievous bodily harm. Fourthly, the jury must have been satisfied of facts that prove the appellant was guilty of the offence of AABH.
The critical question is whether this court must exercise the power under s 30(5)(c), instead of the power under s 30(5)(a) to order a new trial, and substitute a judgment of conviction for AABH.
It is a relevant consideration to whether this court should substitute a judgment of conviction for AABH that, at trial, the State's case was that if the appellant was not guilty of unlawfully doing grievous bodily harm, he was guilty of the alternative offence. Of course, the jury, having convicted the appellant of unlawfully doing aggravated grievous bodily harm, was not required to consider whether the appellant was guilty of the alternative offence.
An issue which may militate against this court substituting a judgment of conviction for AABH is whether provocation was properly open as a defence.
The defence of provocation under s 246 of the Code is available to an offence of AABH. Section 246 of the Code is as follows:
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.
Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self‑control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self‑control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.
The term 'provocation' is relevantly defined in s 245 of the Code:
The term provocation used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, 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.
When such an act or insult is done or offered by one person to another, or in the presence of another, to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.
A lawful act is not provocation to any person for an assault.
In my opinion, having regard to the appellant's second and third witness statements, the defence of provocation was not open to the appellant. This is for reasons analogous to those given earlier in respect of self‑defence. The instructions in the appellant's statements deny that he struck the complainant. Further, the appellant gives no evidence to the effect that any wrongful act or insult by the complainant deprived him of his power of self‑control.
In my opinion, it is in the interests of justice for this court to exercise its power under s 30(5)(c), instead of its power under s 30(5)(a), of the Criminal Appeals Act, and enter a judgment of conviction for the alternative offence of AABH. This court should now sentence the appellant for the offence of AABH.
Sentencing
By order of this court, the parties provided written submissions in the event that the court was required to sentence the appellant. I have taken those submissions into account. While not binding on this court, the respondent accepts that, if this court were to substitute a conviction of AABH for the AGBH conviction, it would be open to this court to impose a term of suspended imprisonment upon the appellant. The appellant urges the court to take this course.
The maximum sentence for the offence of aggravated assault occasioning bodily harm is 7 years' imprisonment.[125]
[125] Code, s 317(1)(a).
The appellant does not dispute that he should be sentenced on the findings of fact made by the sentencing judge as to the circumstances of the offence.[126] Those circumstances may be summarised as follows.
[126] See ts 754 - 755.
The offence on 3 July 2020 was not an isolated aberration. In the first few weeks of the relationship between the appellant and the complainant, after an argument, the appellant held the complainant with both arms on her shoulders and threw her onto the bed.
Then, on or about 30 March 2020, there was a heated argument between the appellant and the complainant, during which, as the sentencing judge put it, 'each party responded badly'. In the course of the argument, the complainant threw the appellant's food into the sink, and the appellant responded by squashing food onto her head. The complainant slapped the appellant, who then punched her and pushed her to the ground, where she sustained injuries to her right knee and forearm.
There were no other incidents of violence until 3 July 2020, although, on one occasion, the complainant smashed the appellant's computer.
As to the circumstances of the offence on 3 July 2020, the sentencing judge found that the complainant did not give any provocation and that she did not attack the appellant with a knife. His Honour found that the appellant was the aggressor.
The appellant was sentenced on the basis that he threw a single punch, which struck the complainant and caused an orbital fracture to her left eye. The assault was not premeditated. The appellant and the complainant were in a domestic relationship. The offence involved an abuse of trust which the complainant placed in the appellant. She was vulnerable by reason of the appellant's greater physical strength, and her vulnerability was underscored by the difficulty which she had in extracting herself from the situation perpetrated by the appellant. The complainant suffered a significant physical injury, which required surgery. Although there does not appear to have been any permanent physical injury, the offence has caused the complainant significant psychological distress.
At the time of the commission of the offence, the appellant was 22 years of age. He was a first‑time offender, and was of prior good character, although, given the events described earlier (see [213] and [214]), it cannot be overlooked that the offence was not a one‑off aberration. The sentencing judge noted that the offence was committed almost five years ago. The appellant has committed no further offences, is engaged in a new relationship, and lives a prosocial life.
The sentencing judge found that the appellant was not remorseful for his offending and had no insight into it. Nevertheless, he assessed the appellant's risk of reoffending as being low. It is not suggested that this court should sentence the appellant on any other basis.
I take into account that the appellant spent 2 months and 2 days as a serving prisoner between the date on which he was sentenced at first instance on 21 March 2024, until he was released on bail pending appeal on 23 May 2024. Since this time, he has been on bail pending appeal.
There is no tariff on sentences for the offence of aggravated assault occasioning bodily harm nor, for that matter, is there any tariff of sentences for the offence of assault occasioning bodily harm simpliciter.
This was a case involving the infliction of domestic violence upon the complainant. As this court observed in The State of Western Australia v Riley:[127]
General deterrence also looms large in cases of this type. Domestic violence is a scourge on society. Awareness of this type of offending and concern to prevent it have grown markedly in recent years.
[127] The State of Western Australia v Riley [2024] WASCA 11 [67].
The appellant does not suggest, nor could it reasonably be suggested, that the seriousness of this offence permitted the imposition of a sentence other than imprisonment. Having regard to the circumstances of the offence, the impact on the complainant, and the need for general deterrence, the only appropriate penalty for the present offence is a term of imprisonment.
The question is whether the term of imprisonment can be suspended.[128]
[128] As to which, see Sentencing Act 1995 (WA), s 76.
In its consideration of whether a suspended sentence is appropriate, this court must take into account, again, all of the relevant circumstances, including the aggravating and mitigating circumstances. It may be that the seriousness of the offence is such that the imposition of a suspended sentence, whether conditional or not, cannot properly be accommodated.
I have come to the conclusion that a term of suspended imprisonment can properly be imposed in this case. I have done so, having regard to the circumstances of the offending, the appellant's personal circumstances, and the attitude of the respondent. I do not overlook that the appellant has now been convicted of an offence which carries a substantially lower maximum penalty than for AGBH.
It is now almost five years since the commission of the offence. He has spent a short time in custody. The evidence suggests that he has lived an entirely prosocial life during this period. He has entered into, and maintained, a new romantic relationship, has successfully completed a Bachelor's degree and is about to complete a Master's degree. His risk of reoffending is low.
The appellant has provided the court with character references and medical reports that were before the sentencing judge, which I have taken into account. The medical reports do not reveal any matters of significance.
In my opinion, the appellant should be sentenced to 12 months' imprisonment suspended for 12 months; to commence on the date judgment in this appeal is delivered. In light of his prosocial lifestyle since the commission of the offence, I would not impose any conditions on the suspended imprisonment order.
Conclusion and orders
Leave to appeal should be granted on all three grounds. In respect of the parties' applications to adduce additional evidence in the appeal, leave should be granted.
Grounds 1 and 2 have been made out. Ground 3 has not been made out. The appellant's appeal against conviction must be allowed. I would set aside the conviction for AGBH and, pursuant to s 30(5)(c) of the Criminal Appeals Act, I would enter a judgment of conviction for the alternative offence of AABH. For this offence, I would sentence the appellant to 12 months' imprisonment, suspended for 12 months.
The orders I would make are as follows:
1.Leave to appeal is granted on grounds 1, 2 and 3.
2.Leave is given in respect of the applications filed by each party to adduce additional evidence in the appeal.
3.The appeal is allowed.
4.The appellant's conviction of the offence of aggravated grievous bodily harm is set aside, a verdict of acquittal is entered in respect of that charge, and, instead, a judgment of conviction is entered for the offence of aggravated assault occasioning bodily harm.
5.The appellant is sentenced for the offence of aggravated assault occasioning bodily harm to 12 months' imprisonment suspended for 12 months.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
16 MAY 2025
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