Liu v The State of Western Australia - [2012] WASCA 218

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LIU -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 218

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 2 MAY 2012

DELIVERED : 31 OCTOBER 2012

FILE NO/S: CACR 172 of 2011
CACR 173 of 2011

BETWEEN: MIN LIU
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S :CACR 176 of 2011
CACR 177 of 2011

BETWEEN :DONGGUANG MA
Respondent
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCOTT DCJ
File No  :IND 449 of 2011

Catchwords:

Criminal law - Appeals against conviction and sentence - Voluntary intoxication - Was there evidence of intoxication - Whether direction concerning intoxication correct - Collateral evidence rule - Whether trial judge correctly ruled issue as collateral - Res gestae - Whether statement was relevant - Whether statement made in circumstances of spontaneity - Whether sentences imposed manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3)
Criminal Code (WA), s 28(3), s 294 (1), s 317
Sentencing Act 1995 (WA), s 39(2)

Result:

Appeals dismissed

Category: B

Representation:

CACR 172 of 2011

CACR 173 of 2011

Counsel:

Appellant: Mr S B Watters
Respondent: Mr D Dempster

Solicitors:

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

CACR 176 of 2011

CACR 177 of 2011

Counsel:

Respondent: Mr S B Watters
Respondent: Mr D Dempster

Solicitors:

Respondent: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

AB v Lloyd [2011] WASC 97
Armstrong v The State of Western Australia [2012] WASCA 42
Black v The State of Western Australia [No 2] [2010] WASCA 145
Boyle v The State of Western Australia [2010] WASCA 97
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Chan v The Queen (1989) 38 A Crim R 337
Chowdhury v Kenny [2011] WASCA 181
Dair v The State of Western Australia [2008] WASCA 72
DT v Flynn [2009] WASC 124
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Holden v The State of Western Australia [2009] WASCA 50
Kennedy v The State of Western Australia [2008] WASCA 185
McAuliffe v Mears [2008] WASC 280
Mical v Ward [2003] WASCA 149
MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9
Mourish v The State of Western Australia [2006] WASCA 257
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
Pollock v The State of Western Australia [2009] WASCA 121
R v Nicholson [1956] St R Qd 520
R v White [2002] WASCA 112
Saylor v Shepherd [2010] WASC 94
Simms v The Queen [2004] WASCA 237
Taylor v Fairman [2000] WASCA 121
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Camilleri [2008] WASCA 217
The State of Western Australia v Cheeseman [2011] WASCA 15
Thomas v Mallard [2009] WASC 95
Toohey v Metropolitan Police Commissioner [1965] AC 595
Ugle v The Queen [2001] WASCA 268
Vilai v The Queen [1999] WASCA 275
Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88
Wainwright v The State of Western Australia [2005] WASCA 250
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111

MARTIN CJ: These appeals against conviction and sentence should be dismissed for the reasons given by Mazza JA, with which I agree.
BUSS JA: I agree with Mazza JA.
MAZZA JA: Mr Ma and Ms Liu were charged on the one indictment as follows:
1.On 20 June 2010 at Perth [Mr Ma] unlawfully assaulted Guili Jie and thereby did her bodily harm.
2.On the same date as Count (1) at Osborne Park [Ms Liu], with intent to do grievous bodily harm to Guili Jie, unlawfully wounded Guili Jie.
Count 1 is an offence contrary to s 317 of the Criminal Code (WA) and carries a maximum penalty of 5 years' imprisonment. Count 2 is an offence contrary to s 294(1) of the Criminal Code and carries a maximum penalty of 20 years' imprisonment. On 13 September 2011, after a trial before Scott DCJ and a jury, each appellant was convicted as charged.
On 26 October 2011, Mr Ma was sentenced to 8 months' imprisonment suspended for a period of 12 months. Ms Liu was sentenced to 2 years' immediate imprisonment with eligibility for parole.
Each appellant has appealed against their conviction and sentence. Leave to appeal has not yet been granted in respect of the appeals against sentence.

Background

The general background is not in dispute.
Mr Ma and Ms Liu were de facto partners. Ms Liu conducted a business in the sex industry. In 2009, she met the complainant, Ms Jie, in Sydney. She arranged for the complainant to come to Perth on a short term basis to work for her (ts 104). The arrangement involved the complainant paying to Ms Liu part of the monies that she earned providing sexual services to customers. The arrangement met with apparent success.
In June 2010, again at the invitation of Ms Liu, the complainant returned to Perth. However, things did not go as well as before. Ms Liu wanted a greater proportion of the complainant's earnings. The complainant did not agree with this. Further negotiations about their

business arrangement followed. Eventually, the relationship between the two women soured. Compounding the situation was Ms Liu's belief that, in 2009, the complainant had tried to entice Mr Ma from her.

In an attempt to smooth things over, the complainant invited the appellants and two other women, who were identified in the proceedings as Chi Chi and Du Du, to a dinner. The dinner took place on the evening of 20 June 2010 at a Chinese restaurant in Northbridge.
During the meal, a bottle of whisky was consumed. The evidence about who consumed the whisky and how much each person drank will be referred to later in these reasons. It is enough to note, at this point, that all of the people at the dinner, save for Du Du, drank at least some of the whisky (ts 113). At the conclusion, the complainant paid the bill.
This is where the prosecution and defence cases diverge.

The prosecution case

Relying predominantly on the evidence of the complainant the prosecution case was as follows.
After leaving the restaurant the appellants forced the complainant against her will into a two‑door Toyota Celica driven by Mr Ma (ts 114, 164). Once she was in the back seat of the vehicle, Mr Ma turned around from his position in the driver's seat, grabbed the complainant by the hair and punched her three to five times to the face (ts 114). As a result, she sustained bruising and some dental damage (ts 155). Mr Ma, Ms Liu and the complainant then drove to a motel in Osborne Park.
After they arrived at the motel, the appellants forced the complainant through the front door of the room she was occupying, room 14. While in the room, Ms Liu accused the complainant of trying to take Mr Ma from her. The complainant vehemently denied this. The complainant testified that Ms Liu told her that she (the complainant) should do something to prove that her denials were true. The complainant said that she was given a knife and in order to emphasise the truth of what she had said, she then superficially cut her left ring finger (ts 127, 222 ‑ 223). The complainant said that Ms Liu then grabbed the complainant's right hand which was holding the knife and turned it back toward the complainant (ts 233). Ms Liu then thrust the knife into the complainant's abdomen causing her to suffer a 4 cm ‑ 5 cm deep wound (ts 128, 155, 224).
Very shortly after the stabbing, Ms Liu rendered some assistance to the complainant and asked Mr Ma to telephoned triple zero for an ambulance.

The defence case

Each of the appellants gave evidence in their defence. Their testimony were essentially consistent.
Each appellant testified that the complainant had acted strangely during the dinner. The suggestion (which the complainant denied) was that she may have been affected by drugs or alcohol.
Each appellant denied that the complainant had been forced into Mr Ma's vehicle. Their testimony was that the complainant got in voluntarily. Each denied that Mr Ma had assaulted the complainant in the car or, at any time.
With respect to the wounding, each appellant denied forcing their way into the complainant's motel room. Each testified that Ms Liu and the complainant became involved initially in a verbal argument and then in some kind of minor physical altercation in the complainant's bedroom which Mr Ma described as 'scuffling' (ts 365) and Ms Liu described as 'wrestling' (ts 458).
The appellants said that the complainant then went into the living room where she knelt on the floor. They testified, in effect, that the complainant asked them to punish her (ts 367, 460). They said that the complainant then got up, went into the kitchen, removed a knife from a draw and then stabbed herself in the abdomen (ts 369, 461).

Ms Liu's appeal against conviction (CACR 172 of 2011)

The grounds of appeal relied upon by Ms Liu are:
1.There was a miscarriage of justice when the learned trial Judge failed to adequately direct the jury concerning the issue of 'intoxication' as it related to the specific intent the prosecution were required to prove in relation to s 294(1) of the Criminal Code 1913.
2.The learned trial Judge erred both in law and fact when he determined that inconsistent statements made by the complainant were collateral and were not admissible at trial.
Leave to appeal has been granted with respect to ground 1. The question of leave in respect of ground 2 has been referred to the hearing of the appeal.

Merits of ground 1

Ground 1 as expressed does not articulate any error on the part of the learned trial judge. The use of the word 'adequately' does not assist in this regard. The written submissions do little to identify with precision the error said to have been made by the learned trial judge. The gist of the appellant's submissions appears to be that his Honour failed to correctly direct the jury about Ms Liu's intoxication and its relevance to whether the State had proved her intention to cause grievous bodily harm to the complainant.
The learned trial judge's direction concerning intent was in these terms:
Now, intention is a state of mind, and because it's a state of mind, it can never be proved as a fact. It can only be inferred from other facts which are proved. You determine a person's intention from what that person said and did in all the circumstances in which that person said or did things. As to intent, you must be satisfied beyond reasonable doubt that Ms Liu actually formed such an intention. You can only decide what her intention was by considering all of the relevant circumstances, including if you so find whether Ms Liu was [sic], and the level of her intoxication. The question for you being whether you are satisfied beyond reasonable doubt that she did the act causing the wound to Ms Jie with the required intent (ts 534). (emphasis added)
Voluntary intoxication is not by itself a defence to a charge under the Criminal Code. However, s 28(3) of the Criminal Code provides:
When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
The offence with which Ms Liu was charged has as an element an intention to cause a specific result, namely, grievous bodily harm. Accordingly, if Ms Liu was intoxicated that intoxication was a relevant matter for the jury to consider for the purpose of ascertaining whether the prosecution had proved that the appellant had that intention.
In Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88, Gibbs J set out the basic requirements of a direction to the jury when intoxication is an issue for the jury in relation to the drawing of an inference about an accused's intention. His Honour said:
In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed (112). (emphasis added)
See also Simms v The Queen [2004] WASCA 237 [81].
An issue which must be addressed in the present case, before examining whether the learned trial judge's direction was erroneous, is whether there was evidence fit to be considered that Ms Liu was intoxicated at the time the complainant was stabbed. The question is whether there was evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed to have a reasonable doubt that the accused did not have the intent to cause grievous bodily harm by reason of intoxication: Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36].
The evidence of Ms Liu's intoxication was as follows.

Evidence of the complainant

The complainant testified that Mr Ma brought a bottle of whisky to the dinner. She said that by the end of the night 'the bottle was finished'. She said that everyone at the table, except Du Du drank from the bottle (ts 113). She said that the people that drank the most were herself and Ms Liu (ts 160 ‑ 161). She was unable to say what was the volume of the bottle of whisky that was consumed (ts 285). She gave no evidence on the subject of Ms Liu's intoxication.

Evidence of Mr Ma

Mr Ma described the whisky as a bottle of Chivas Regal, 12 years old (ts 356). He said that he and the complainant drank most of the whisky although Ms Liu and Chi Chi 'had a little bit' (ts 356). Mr Ma testified that he and the complainant drank almost half a bottle of whisky each (ts 406).

Evidence of Ms Liu

Ms Liu testified that she 'had a tiny bit [of whisky] and I didn't like it'. When asked to indicate how much she drank she indicated half to 1 cm. She said that Mr Ma and the complainant 'effectively drank half the bottle each' (ts 448). She denied the suggestion that she drank more whisky than Mr Ma (ts 492). Ms Liu said that on the night of the dinner she was feeling the effects of a recent operation and that as a result she was 'unable' and 'unwilling' to drink very much of the whisky (ts 493). At no stage did she testify that she was to any extent intoxicated.
At its highest, based on the evidence of the complainant, it may be that she and Ms Liu drank most of the bottle of whisky. However there was no evidence:
(a)about what portion of the bottle Ms Liu drank;
(b)about the volume of the bottle of whiskey;
(c)about the period of time the alcohol was consumed; or
(d)that Ms Liu was affected by the alcohol she consumed.
While it may be accepted that Ms Liu consumed some of the whisky, there is no evidence as to whether she was intoxicated.
In light of the absence of evidence that Ms Liu was intoxicated, the trial judge was not obliged to direct the jury to consider Ms Liu's intoxication when deciding whether the State had proved beyond reasonable doubt that she intended to cause grievous bodily harm when she stabbed the complainant.
In any event, his Honour's direction was, in the circumstances, correct and the issue of intoxication insofar as it might have been relevant to Ms Liu's intention required no more elucidation. His Honour in the paragraph to which I have already referred, told the jury, in accordance with what Gibbs J said in Viro that when deciding the question of Ms Liu's intention the jury must consider all of the relevant circumstances including her level of intoxication. That was all that needed to be said.
The real issue in the case was not Ms Liu's intoxication. The real issue was whether the State had proved beyond reasonable doubt that Ms Liu had stabbed the complainant and that the complainant had not stabbed herself. No issue was made at trial about Ms Liu's level of intoxication. It would not have been in Ms Liu's interests to make her intoxication an issue. Her case was that the complainant was acting in a completely irrational way and that at the time of the stabbing she (Ms Liu) was in control of her emotions.
The appellants' counsel submitted that his Honour should have given a direction in accordance with what Philp J said in R v Nicholson [1956] St R Qd 520. It is unnecessary to refer to what his Honour said in that case. In the present case, such a direction was unnecessary.
To sum up the position with respect to ground 1. There was no evidential basis for a direction in respect of intoxication. In any event, the direction given by the learned trial judge was correct and all that was required. Ground 1 must be dismissed.

Merits of ground 2

Under cross‑examination by counsel for Mr Ma, the complainant testified that the appellants forced her into her room at the motel. She denied opening the door using a key. The complainant said that the lock on the door 'was playing up' and that 'it was possible to push open the door' (ts 170 ‑ 171).
On 25 June 2010 the complainant was interviewed in Cantonese by Detective Tan. She observed him to have made notes during the interview. The unchallenged evidence was that Detective Tan drafted a statement in English apparently based on what he had been told by the complainant. The complainant was then asked to sign and date the document. She said that she told a police woman present at the time that she could not understand what the document said but she nevertheless signed it, in part because she had 'great faith' in the police (ts 176 ‑ 177).
Mr Ma's counsel drew the complainant's attention to par 60 of the statement which reads:
When we got to my room I opened my door with my key and they pushed me into the room. (emphasis added)
When asked about the contradiction between her evidence and her statement as to the use of the key the complainant said, that she had told the police that the door was pushed open (ts 178).
Ms Liu's counsel elicited from the complainant under cross‑examination that on the Tuesday before the commencement of the trial (31 August 2010) she spoke to the prosecutor for approximately three and a half hours by telephone via a telephone interpreter. The complainant said that the prosecutor took her 'very systematically' through the statement she made on 25 June 2010 (ts 236). She said that at all times she attempted to tell the truth but there could have been translation difficulties and that the order of events was 'muddled' (ts 241).
The complainant also said that she 'mentioned' to the prosecutor that there was an error in her statement where it said that a key was used to open the door to her room (ts 266). It was put to her that she had not told the prosecutor this. She denied that proposition (ts 268).
In the absence of the jury, Ms Liu's counsel told the learned trial judge that the prosecutor had informed him that the matter of the use of the key had not been discussed with the complainant in their telephone conference. Defence counsel said he wanted the prosecutor to make a concession in the presence of the jury to that effect. He submitted that if no such concession was made his 'only alternative' would be to call the prosecutor to give evidence in rebuttal (ts 248).
The prosecutor informed the learned trial judge that what he had indicated to both defence counsel was that he had no recollection of canvassing with the complainant the method used to get into her motel room on the night in question. Further, he did not recall any discussion about whether there was any departure from the version she gave in her statement about using a key (ts 257 ‑ 258).

The prosecutor declined to make the concession sought by Ms Liu's counsel. He submitted that the issue of what the complainant had said to him was a collateral issue going only to credit. He submitted that the collateral evidence rule precluded the defence from rebutting the complainant's testimony that she had informed him about the error in her statement concerning the use of the key.
During the course of brief oral reasons, the learned trial judge said that he would not require the prosecutor to make the concession sought by Ms Liu's counsel. He upheld the prosecutor's submission that the collateral evidence rule precluded Ms Liu from calling evidence to rebut the complainant's testimony that she told the prosecutor about the error in her deposition (ts 344 ‑ 345).
It is clear, not so much from the ground of appeal, but rather from the submissions made on Ms Liu's behalf that what is being alleged is that the learned trial judge erred in law by ruling that the collateral evidence rule precluded the calling of evidence to rebut the complainant's testimony about what she told the prosecutor.

The collateral evidence rule

McHugh J in Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 stated the collateral evidence rule in these terms:
The collateral evidence rule declares that answers given by a witness to questions put to him or her in cross‑examination concerning collateral matters are final. Those answers cannot be contradicted or rebutted by other evidence. Hence, the rule is often referred to as the 'finality' rule. Collateral facts are 'facts not constituting the matters directly in dispute between the parties' or 'facts that are not facts in issue or facts relevant to a fact in issue'. In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone - in other words, a collateral matter - is final and cannot be rebutted [38]. (footnotes omitted)
See also MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9 [124] (McLure P), [145] (Buss JA); Cross on Evidence (8th Aust ed) [17580].
The rule is based on the desirability of avoiding a multiplicity of issues: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [3] (Gleeson CJ).
There is no exhaustive test, and it is sometimes difficult to determine, whether something is a collateral fact. Much depends upon what is in issue in a particular case. But as McHugh J pointed out in the passage that I have just quoted from Nicholls v The Queen, generally speaking, a fact that affects the credibility of a witness is a collateral fact.
The collateral evidence rule is subject to a number of exceptions. It is unnecessary to canvass all of these exceptions. The two exceptions raised in argument in this case are:
(a)that the witness has made a statement inconsistent with the witness' present testimony; and
(b)the character of the witness is such as to militate against the witness telling the truth.
Cross on Evidence (8th Aust ed) [17595]; appellants' written submissions pars 62 ‑ 64.
The first question to be decided is whether what the complainant said or did not say to the prosecutor about the error in her statement was a collateral issue.
I have already identified the critical factual issue to be decided in this case [37]. Whatever the complainant said or did not say to the prosecutor about an error in her statement concerning the use of a key to enter her motel room, it is not relevant to the proof of this issue. That evidence would not rationally affect either directly or indirectly the jury's assessment of it.
If the complainant had not, as she testified, told the prosecutor that there was an error in her statement that would be a matter relevant to whether she could be believed on her oath or affirmation. In other words, it is a matter which could go only to her credibility and was thus a collateral issue. Accordingly, applying the collateral evidence rule, the complainant's evidence on the matter was final and could not be rebutted unless it came within one of the exceptions to the rule.
The exception relating to prior inconsistent statements does not apply in this case. The object of calling the prosecutor (or for that matter, the telephone interpreter) was not to prove that the complainant had made an inconsistent statement during the telephone conference, rather, it was to prove that she had made no statement at all to the prosecutor about the error. If the complainant had failed to make a statement to the prosecutor about the error, this failure could possibly have affected the complainant's credibility but it was not relevant to any facts in issue or any facts relevant to a fact in issue.
The exception relating to the complainant's lack of veracity cannot apply to this case. The submissions of the appellants misconceive the nature of this exception.
Although very rare, of dubious utility and lacking much logic, at common law a witness may be asked based on that witness' knowledge of the impugned witness' reputation for veracity, whether the impugned witness can be believed on his or her oath or affirmation: Toohey v Metropolitan Police Commissioner [1965] AC 595, 605 ‑ 606 (Lord Pearce); see also the discussion in Cross on Evidence (8th Aust ed) [19045].
In this case there is nothing to indicate that either the prosecutor (or the telephone interpreter) could speak of the complainant's reputation for veracity. No evidence could be adduced from the prosecutor or the telephone interpreter of the kind discussed in Toohey.
For these reasons ground 2 has no reasonable prospect of succeeding. I would not give leave to appeal in respect of it.

Conclusion as to Ms Liu's appeal against conviction

I would dismiss ground 1 and I would not give leave to appeal with respect to ground 2. Accordingly, Ms Liu's appeal against conviction must be dismissed.

Mr Ma's appeal against conviction (CACR 176 of 2011)

Mr Ma relies on two grounds of appeal. The second ground of appeal is identical to the second ground in Ms Liu's appeal against conviction as are the submissions in support of it. For the reasons I have already given, I would refuse leave to appeal in respect of this ground.
Ground 1 is in these terms:
There was a miscarriage of justice when the learned trial Judge ruled an exculpatory statement made by the appellant was not made in circumstances of spontaneity or involvement in the event and was therefore inadmissible:
Particulars
1.1A call that was made by the Appellant to emergency services formed part of the res gestae to the overall offending ('the 000 call');
1.2His Honour did not find that the '000 call' was concocted (t‑s 397).
Leave to appeal has been granted in respect of this ground.
There is no dispute that at about 8.54 pm on 20 June 2010, just after the complainant was stabbed, Mr Ma telephoned triple zero and requested the operator to send an ambulance for a female. When he was asked what was wrong with her, Mr Ma answered 'she killed herself' (white AB 87). There is no reference in the call to anything in connection with Mr Ma's alleged assault on the complainant in the car earlier in the evening.
On the first day of the trial, Mr Ma's counsel indicated to the learned trial judge that he wished to adduce, in evidence, a recording of the triple zero call as part of the res gestae. The prosecutor indicated that this would be opposed. The issue was not decided immediately. His Honour thought that it would be best to decide the matter in the light of the evidence as adduced at trial concerning the spontaneity of Mr Ma's statement in the triple zero call.
The prosecutor did not in his opening address refer to the triple zero call. In fact the call was referred to only in passing during the prosecution case. Detective Sergeant Douglas, one of the investigating officers, confirmed in cross‑examination that Mr Ma made the call (ts 332).
The matter was raised in Mr Ma's evidence‑in‑chief. He testified that after the stabbing he picked up the knife, wrapped it in tissue and rang triple zero on his mobile telephone (ts 372). At this point, Mr Ma's counsel pressed for the admission of the recording of the triple zero call.
The learned trial judge refused to admit the recording into evidence. He said that although the call was likely to have been made shortly after the complainant was stabbed he was not satisfied that the possibility of concoction could be disregarded. He said that to be part of the res gestae there was a need to consider whether the event had assumed such intensity and pressure that the statement made by Mr Ma that the complainant had stabbed herself could be safely regarded as a true reflection of what had actually occurred. Because the possibility of concoction could not be disregarded, he could not be so satisfied (ts 397).
The relevant law in relation to statements made as part of the res gestae was recently explained by Buss JA (with whom Newnes JA and I agreed) in Armstrong v The State of Western Australia [2012] WASCA 42 [46] ‑ [50]:
In general, a statement made spontaneously by an observer or participant during or immediately after an event which culminates in the charging of a criminal offence is admissible in evidence at the trial as part of the res gestae.
In Ratten v The Queen [1972] AC 378, Lord Wilberforce said that 'if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received' (389 - 390).
In Ratten, Lord Wilberforce also said:
'[H]earsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused (391).'
This approach was approved by the High Court in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 295 (Mason CJ), 304 (Wilson, Dawson & Toohey JJ) and Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 582 - 583 (Brennan J).
In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, Gaudron and Kirby JJ made these observations:
'The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law's bias against the reception of hearsay evidence. That is because it is not logically necessary for the possibility of concoction to be excluded before a statement is probative of the fact asserted in it. Rather, all that is necessary is that the statement be consistent with the fact to be proved and its making so connected to that fact that, when taken in conjunction with other evidence in the case, it bears on the probability of that fact having occurred.
The nature and degree of the connection necessary before a statement is probative of the fact asserted in it will, of course, depend on the nature of that fact and, if it be different, the fact ultimately to be proved. Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expected from the maker if the fact were true. Similarly, a statement that is closely contemporaneous with the fact in issue and is contrary to what would ordinarily be expected if that fact were true rationally bears on the improbability of its having occurred [55] - [56].'
The ground of appeal is completely misconceived. It appears to have been overlooked that Mr Ma was charged only with the assault occasioning bodily harm which occurred in his car shortly after the dinner in Northbridge had concluded. The triple zero call occurred well after the assault. It is not clear exactly how much time had elapsed between the assault allegedly perpetrated by Mr Ma and the stabbing allegedly perpetrated by Ms Liu, but, however long it is, the triple zero call has nothing to do with the assault allegedly committed by Mr Ma and on no account could it be said that there was a close contemporaneity between the assault and the making of the statement.
Shortly put, the triple zero call is not relevant with respect to the charge against Mr Ma and cannot conceivably come within the doctrine of res gestae.
Ground 1 of Mr Ma's appeal against conviction must be dismissed.

Conclusion as to Mr Ma's appeal against conviction

Ground 1 of Mr Ma's appeal against conviction must fail. Leave to appeal in respect of ground 2 is refused. Accordingly, Mr Ma's appeal against conviction must be dismissed.

The applications for leave to appeal against sentence

The general legal principles which apply to appeals against sentence were explained by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They are well known, uncontroversial and do not require repetition.
Ms Liu's sole ground of appeal is that the sentence of 2 years' immediate imprisonment was manifestly excessive. In his oral submissions in support of Ms Liu's application, her counsel, Mr Watters, did not argue that his Honour erred by imposing a term of immediate imprisonment, rather the complaint is that the length of the term is too long.
Mr Ma also alleges that the suspended sentence imposed upon him was manifestly excessive and that some other lesser sentence should have been imposed upon him. He further complains that the learned sentencing judge erred by failing to consider granting him a spent conviction order.
Leave to appeal is required in respect of each ground of appeal. Leave to appeal can only be granted if a ground has a reasonable prospect of succeeding. If no ground has a reasonable prospect of succeeding, the appeal is taken to have been dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA).
To determine whether a sentence is manifestly excessive, it is necessary to view it from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).

Ms Liu's application for leave to appeal against sentence (CACR 173 of 2011)

The learned sentencing judge found that Ms Liu stabbed the complainant out of anger at a time when her emotions were high and she was affected by alcohol (AB 77). This latter finding is generous given the lack of evidence to that effect. He did not find that the appellant formed the intention to cause grievous bodily harm at any significantly earlier stage of the night's events (AB 77). Nevertheless he characterised the offence as 'very serious' (AB 77). He found that Ms Liu's use of the knife to deliberately stab the complainant in the abdomen was an aggravating factor.
His Honour noted that Ms Liu was at the time of sentencing 37 years of age and that she arrived in Australia in September 2008 to escape religious persecution in China. He observed that she had no record of convictions in Australia and, although she continued to maintain her innocence, she was remorseful in the sense that the complainant had been hurt (AB 77). His Honour found that Ms Liu's behaviour was not reflective of a general propensity for violence and accordingly he did not consider personal deterrence to be a significant sentencing consideration (AB 77).
His Honour's characterisation of the offence as 'very serious' was plainly justified. To deliberately inflict a stab wound 4 cm ‑ 5 cm deep into another's abdomen had the potential to cause life threatening if not fatal injuries. The complainant was hospitalised for 10 days (ts 130). At no time did the complainant pose a threat to either Mr Ma or Ms Liu.
Mr Watters referred the court to a number of sentencing decisions in respect of offences under s 294 of the Criminal Code and in particular Vilai v The Queen [1999] WASCA 275; Ugle v The Queen [2001] WASCA 268; R v White [2002] WASCA 112; Wainwright v The State of Western Australia [2005] WASCA 250; Dair v The State of Western Australia [2008] WASCA 72; Kennedy v The State of Western Australia [2008] WASCA 185; Pollock v The State of Western Australia [2009] WASCA 121; and Black v The State of Western Australia [No 2] [2010] WASCA 145.
There is no need to analyse the facts and circumstances of those cases which, generally speaking, involved more serious offending behaviour and concerned offenders whose personal circumstances were not as favourable as Ms Liu's. Further, in nearly all of these cases the sentence imposed for a contravention of s 294 of the Criminal Code was affected by considerations of totality. Nevertheless, a broad comparison between the cases cited by Mr Watters and the present case reveals that the sentence imposed on Ms Liu is at the lower end of the applicable range. This is particularly so having regard to the fact that it was imposed after trial.
An important sentencing consideration in this case is general deterrence. The use of knives to inflict serious injury is prevalent and requires general deterrence.
Having regard to all of the circumstances of the case it is not reasonably arguable that the sentence imposed upon Ms Liu was manifestly excessive. I would refuse leave to appeal in respect of the ground as a consequence of which the appeal must be dismissed.

Mr Ma's application for leave to appeal against sentence (CACR 177 of 2011)

The learned sentencing judge found that Mr Ma's assault on the complainant was unprovoked and committed without warning. He found that after the complainant was forced into Mr Ma's vehicle he turned around from the driver's seat grabbed the complainant by the hair and punched her a number of times to the face causing her to sustain a black eye, a bruise under her chin and damage to her teeth (AB 72 ‑ 73). His Honour found that the punches were forceful (AB 74).
His Honour noted that at the time of sentencing Mr Ma was 39 years of age and arrived in Australia from China in 2001. Mr Ma had no prior record of convictions. The learned sentencing judge found that Mr Ma was not remorseful and had no empathy for his victim. He regarded both personal and general deterrence as matters of importance (AB 80). His Honour considered that the only appropriate sentence was a term of imprisonment but decided to suspend the term, essentially having regard to Mr Ma's favourable antecedents (AB 80).
Mr Watters cited in his written submissions a number of sentencing decisions including some decisions by single judges in respect of offences of assault occasioning bodily harm. The cases referred to by Mr Watters were Mical v Ward [2003] WASCA 149; McAuliffe v Mears [2008] WASC 280; Boyle v The State of Western Australia [2010] WASCA 97; Thomas v Mallard [2009] WASC 95; DT v Flynn [2009] WASC 124; Saylor v Shepherd [2010] WASC 94; Taylor v Fairman [2000] WASCA 121; The State of Western Australia v Cheeseman [2011] WASCA 15; AB v Lloyd [2011] WASC 97; and Chowdhury v Kenny [2011] WASCA 181 (this case concerned an offence relating to s 301 of the Criminal Code).
I have had regard to the analysis undertaken by this court in a number of recent cases relating to the offence of assault occasioning bodily harm including Mourish v The State of Western Australia [2006] WASCA 257; The State of Western Australia v Camilleri [2008] WASCA 217; and Wiltshire v Mafi [2010] WASCA 111.
There is no tariff for assault occasioning bodily harm. This is because of the great variation in the circumstances of such cases: Holden v The State of Western Australia [2009] WASCA 50 [43] (Wheeler JA). Wheeler JA noted in Holden that under the post‑transitional provisions sentences ranging from 6 months suspended imprisonment to 2 years' immediate imprisonment had been imposed.

Although the circumstances of the present offence were not as serious as other cases, the assault could not be characterised as minor having regard to:
(a)its unprovoked nature;
(b)the injury sustained by the complainant and in particular the damage to her teeth;
(c)the striking of multiple blows; and
(d)the fact it occurred in the confined space of a car where the complainant had little means of avoiding the punches and no ability to escape.
Although Mr Ma had good antecedents, he was not remorseful and had no insight into what he had done. Of course, the mitigating weight of a plea of guilty was not available to him.
In my opinion there is no arguable basis to the claim that the sentence of 8 months' imprisonment suspended for a period of 12 month was manifestly excessive. This ground of appeal must be dismissed. Where a sentence of suspended imprisonment is imposed upon an offender a court is not able to impose a spent conviction order: s 39(2) of the Sentencing Act 1995 (WA). Accordingly Mr Ma's complaint that the learned sentencing judge erred in failing to make a spent conviction order cannot succeed.
As none of Mr Ma's proposed grounds of appeal against sentence have a reasonable prospect of succeeding the appeal must be dismissed.

Conclusion

For the reasons I have given, I would dismiss all of these appeals. I would make the following orders.
In respect of Ms Liu's appeal against conviction (CACR 172 of 2011):
(1)Leave to appeal in respect of ground 2 is refused.
(2)The appeal is dismissed.
In respect of Ms Liu's appeal against sentence (CACR 173 of 2011):
(1)Leave to appeal is refused.
(2)The appeal is dismissed.
In respect of Mr Ma's appeal against conviction (CACR 176 of 2011):
(1)Leave to appeal on ground 2 is refused.
(2)The appeal is dismissed.
In respect of Mr Ma's appeal against sentence (CACR 177 of 2011):
(1)Leave to appeal is refused.
(2)The appeal is dismissed.