Moodley v McKay
[2017] WASC 85
•31 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MOODLEY -v- MCKAY [2017] WASC 85
CORAM: MARTINO J
HEARD: 21 MARCH 2017
DELIVERED : 31 MARCH 2017
FILE NO/S: SJA 1108 of 2016
BETWEEN: DAMIAN TYLER MOODLEY
Appellant
AND
ALAN JAMES MCKAY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P ROTH
File No :KH 2355 of 2015
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of aggravated unlawful wounding - Whether learned Magistrate correctly considered whether act occurred independently of appellant's will
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14
Criminal Code (WA), s 23A, s 23B, s 30
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr P D Yovich SC
Respondent: Mr B M Murray
Solicitors:
Appellant: Oswald Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Kaporonovski v The Queen (1973) 133 CLR 231
Lau v The State of Western Australia [2017] WASCA 16
Peters v The State of Western Australia [2013] WASCA 205
R v Higgins (1829) 3 C&P 603; (1829) 172 ER 565
R v Knutsen [1963] Qd R 157
Strahan v Brennan [2014] WASC 190
MARTINO J: On 3 November 2016 the appellant, Mr Moodley, was convicted after trial of the offence of aggravated unlawful wounding. Mr Moodley appeals against that conviction. His one ground of appeal is:
The learned Magistrate made an error of law and fact, or there was a miscarriage of justice, in that he failed to consider properly or at all whether the prosecution had proved that the complainant’s wound had not occurred as a result of an act occurring independently of the appellant's will, so as to be excused by s 23A of the Criminal Code.
Mr Moodley requires leave of the Supreme Court to appeal – s 9(1) Criminal Appeals Act 2004 (WA). The Supreme Court must not give leave to appeal unless it is satisfied that Mr Moodley's ground of appeal has a reasonable prospect of succeeding – s 9(2). Unless the Supreme Court gives leave to appeal on the ground of appeal the appeal is to be taken to have been dismissed ‑ s 9(3).
On 8 February 2017 I ordered that the application for leave to appeal be heard with the appeal.
For the following reasons I have concluded that I will grant Mr Moodley leave to appeal and allow the appeal.
The trial
By a prosecution notice dated 9 October 2015 Mr Moodley was charged with aggravated unlawful wounding, contrary to s 301 of the Criminal Code (WA). The details of the charge were that on 19 April 2015 at Nickol he unlawfully wounded Paige Taylor‑Callaby in a circumstance of aggravation, namely that he was in a family and domestic relationship with Ms Taylor‑Callaby. The trial took place on 17 June 2016 and 3 November 2016. Mr Moodley was represented by counsel at the trial.
The prosecution adduced oral evidence from four witnesses ‑ Ms Taylor‑Callaby, Christopher Marshall, Brooklyn Pimm and Hayden Gair, read into evidence by consent a statement of Kyle Gustafson and tendered into evidence photographs of Ms Taylor‑Callaby, an electronic record of the interview of Mr Moodley by police officers, a recording of a 000 call made by Ms Taylor‑Callaby and other items. Mr Moodley elected not to give or adduce evidence after the prosecution closed its case.
The evidence of Ms Taylor-Callaby
Ms Taylor‑Callaby gave evidence that on the night of 19 or 20 April 2015 she was at the house of Mr Gustafson, who is a friend of Mr Moodley. Prior to going to Mr Gustafon's house she and Mr Moodley had an argument at the home of Mr Moodley's brother. After the argument Mr Moodley left his brother's house with Mr Marshall and Mr Gustafson. Later that night Mr Moodley telephoned Ms Taylor‑Callaby. They argued in that telephone conversation. Ms Taylor‑Callaby hung up on him and returned to her conversation with people at Mr Moodley's brother's house. Mr Moodley telephoned again and told Ms Taylor‑Callaby to go to Mr Gustafson's house. Ms Taylor‑Callaby, Ms Pimm and Mr Gair went to Mr Gustafson's house.
Soon after she arrived at Mr Gustafson's house Ms Taylor‑Callaby got a glass of water, went to the back yard and sat down. She heard Mr Moodley arguing with Mr Gair. She walked to the front and told Mr Moodley to stop yelling at Mr Gair. Mr Moodley told Ms Taylor‑Callaby to leave. Ms Taylor‑Callaby began to walk. Mr Moodley took the glass of water out of her hand and threw the water in her face and pushed her over.
Ms Taylor‑Callaby stood up and Mr Moodley pushed her over again. Mr Moodley walked away. Ms Taylor‑Callaby walked up to Mr Moodley, grabbed his shirt and shook him. Mr Moodley grabbed Ms Taylor‑Callaby and they were kicking, punching and hitting each other. Her evidence about what occurred in that physical altercation was:
Okay. Where did you kick him or where did you punch him?---I am not sure. I don't remember.
And what was he doing to you?---The same.
And where did he connect with you?---This bit I don't really remember. I just remember standing there with blood pouring out of my face.
Whereabouts on your face was the blood coming from?---At that point I wasn't sure.
Okay. Did you feel anything before the blood?---No. I don't remember (ts 14 ‑ 15)
And:
Now, you said he pushed you over. Did he have anything in his hands?---He had the glass in his hand.
You said you had it?---But he took it from my hand and threw the water in my face. That's how- - -
So he took - - -? - - - he got the glass.
He took the glass from your face - - -?---Sorry?
- - - from your hands, threw the water?---Yes.
Where did the water get you, if it got you?---In my face.
In the face?---Yes.
What did you do when the water hit your face?---Well, he pushed me over.
He pushed you over then?---Yes.
Well, if he pushed you over – so he took the glass. Where was the glass when he pushed you over?---In his hand. He pushed me with one hand.
Pushed you with one hand. And you said previously that he pushed you how many times, then you went down?---Two or three. I don't – I can't remember. It was a long time ago.
And each time he pushed you down, what did you do?---I stood up in his face, until the last time when I grabbed him.
You were kicking and punching each other?---Yes.
At any stage, when you were fighting with him, did you go down to the ground?---No.
Did he?---No.
Okay. And at what stage did you feel the blood on your face?---I don't – I don't know. Like I said, when we were – because I know I was kicking and I was punching him, and then it was just all of a sudden it had stopped, and I stood there with just blood pouring out of my face (ts 19 ‑ 20)
Ms Taylor‑Callaby ran from the house and contacted a friend. Ms Taylor‑Callaby decided to return to Mr Gustafson's house. Her friend took her there. Her evidence was that when she arrived she saw Mr Gustafson cleaning up glass and blood (ts 15), but she could not recall seeing the blood (ts 16).
Ms Taylor‑Callaby went to the bathroom and washed her face. Ms Pimm followed her to the bathroom. After washing the blood from her face Ms Taylor‑Callaby saw that she had a cut on her right cheek, a cut below her left eye and a cut on her upper lip.
Mr Moodley came to see her and she screamed at him to look at what he had done.
Ms Taylor‑Callaby was taken by ambulance to hospital.
In cross‑examination Ms Taylor‑Callaby gave the following evidence about the incident:
Okay. And then when you were at the patio area, you say this is where the incident occurred. You said Damian took the glass out of your hand?---Yes.
Okay. Which hand did he have it in?---I don't remember.
You don't? You then said he pushed you. Which hand did he push you with?---I don't remember.
Well, was it one-handed or two-handed?---One, because he still had the glass in his hand.
Okay. Well, now you say you can remember the – the glass in his hand, so which hand was it in?---I don't know.
Okay. So was Damian kicking and punching you or not?---We were hitting each other. I remember kicking him. I don't remember him kicking me.
Okay. So was he punching you?---He did punch me in the face with a glass.
Okay. You said earlier in your evidence-in-chief you don't remember being hit with the glass?---Well, it was in his hand.
Just as an – an assumption?---Well, yes, I put two and two together. If it was in his hand and I'm standing there with blood pouring out of my face (ts 28 - 29).
Ms Taylor‑Callaby gave evidence that she had consumed whisky on the night. She did not agree that she was highly intoxicated, but she accepted that she was not sober.
The evidence of Mr Marshall
Mr Marshall gave evidence that when the physical altercation between Mr Moodley and Ms Taylor‑Callaby took place at Mr Gustafson's house he was inside the house. He looked through the window and watched Ms Taylor‑Callaby walk down the driveway. She had no injuries on her. Later that night Ms Taylor‑Callaby returned to the house. Mr Gustafson rushed her to the bathroom. An ambulance was called and Ms Taylor‑Callaby left the house in the ambulance.
The evidence of Ms Pimm
Ms Pimm's evidence was that she was at the front of the house when she saw the physical altercation between Mr Moodley and Ms Taylor‑Callaby. Mr Moodley was drinking water from a green glass. Her evidence as to what occurred between Mr Moodley and Ms Taylor‑Callaby was:
And what happened next between Damian and Paige?---Damian had thrown a glass of water on Paige when they were arguing.
Did you see that? Did you see the water hit her?---Yes.
Where did the water strike her?---In the face, like down the front of her.
And what did Paige do?---Paige pushed Damian.
With how many hands and where?---Both hands and chest.
And what was Damian's reaction?---To grab Paige by the top of the hair and swing her around.
Swung her around. Did she keep her feet?---Yes.
Did he throw her into anything?---He tried to throw her into a moped that was by the front door.
But what?---Sorry?
But what?---Paige was struggling to get away so he didn't get her into the moped.
…
What happened to Paige when Damian swung her around?---Pardon?
What happened to Paige when Damian swung her around?---She was, like, bent over because of the way that she had – he had hold of hair and then she was struggling to get away and then they were just, like, pushing and shoving and punching and - - -
Where were you?---Standing, like, by the front door.
And what was Paige and Damian doing?---Fighting.
Okay. Describe how they were fighting. What were they doing?---They were pushing and, like, punching and grabbing a hold of each other's clothes and - - -
And what did you do when they were doing that?---When it started to get out of hand I tried to grab Paige and pull her away and get in between them.
What was Damian doing?---Just swinging his arms and trying to punch Paige.
What happened next?---As I was trying to get in between them and separate them, there was – all I remember is a noise of glass breaking and everyone stopped and then Paige had, like, pulled away and put her hands up to cover her face and she said, 'Did he just cut me?' And there were these massive cuts all across her cheek, lip, like it was really gruesome and a cup had been smashed in her face.
You say that she was cut, could you see that clearly?---Sorry?
You said that she was cut on the face?---Yes (ts 68 ‑ 70).
Ms Pimm gave evidence of a conversation between Ms Taylor‑Callaby and Mr Moodley that took place in her presence:
What was her condition?---She was very distraught and, like, crying and she was very, I don't know how like – she was distraught but, at the same time, she wasn't like quite all there.
Did she say anything to you?---When she come back in the house, like, I remember asking her and saying, like, 'You know, we need to go to the hospital', and she's – she just kept saying, like, 'Go away from me'. And then she'd say, like, 'Look at what – look at my face. Look at what you've done.' while she's talking to Damian and then she went and locked herself in the bathroom at Kyle's house.
When she said, 'Look what you've done', could you see who she was talking to?---To Damian.
Did he say anything back?---He – to one of them he responded, 'You hit me first' (ts 71)
The evidence of Mr Gustafson
Mr Gustafson's evidence was when the physical altercation between Ms Taylor‑Callaby and Mr Moodley was taking place he stood between them and told Ms Taylor‑Callaby to leave. When she left Ms Taylor‑Callaby had no injuries that he could see. Ms Taylor‑Callaby returned to his house later that night. Mr Gustafson met her at his front door. Ms Taylor‑Callaby's face was cut up. Mr Gustafson called an ambulance.
The evidence of Mr Gair
Mr Gair's evidence was that when he arrived at Mr Gustafson's house Mr Moodley argued with him. Ms Taylor‑Callaby joined the argument. Either Ms Taylor‑Callaby or Mr Moodley had a glass of water. Mr Moodley threw the water into Ms Taylor‑Callaby's face. Mr Gair left them and went inside the house. He could hear that Ms Taylor‑Callaby and Mr Moodley were arguing. He heard glass breaking. He remained inside the house. Mr Moodley came inside the house. Ms Taylor-Callaby was 'nowhere to be seen' (ts 117).
Mr Gair's evidence was:
So what happened inside when Damian came in?---Damian came inside and his hand was bloody. He was on the couch saying that, 'She ran into my hand'. I – he put his hands up to defend himself and she headbutted him. Yes, and he was just constantly saying that it wasn't his fault.
All right. Did he say what was his fault or what wasn't his fault?---That the glass obviously broken.
…
HIS HONOUR: You said, 'The glass obviously broken', is that a conclusion that you reached or did he say that that was the problem?---Well, he said she ran into him and the glass had broken, and that's how he had the cut and everything.
Okay.
KERSHAW, MR: Did you see the cut?---I did. Yes.
Okay. Do you know which hand it was on?---I believe it was on his left hand.
Okay. What happened then?---He wrapped his hand in a jumper or a shirt, and he – yes, he just kept saying over and over again that it wasn't his fault, that Paige had caused it (ts 118).
Approximately five to ten minutes later Ms Taylor‑Callaby came inside the house. Her face was bloody. She had a cut towards her lip and a cut on her cheek.
The prosecutor asked Mr Gair about a conversation between Ms Taylor‑Callaby and Mr Moodley:
Okay. So what happened then?---Brooklyn was cleaning her up in the bathroom, Damian was walking between the lounge and the bathroom - - -
Yes?--- - - - and then Paige come out and just basically went 100 per cent off at Damian - - -
Okay?--- - - - saying, 'Look at what you did to me'.
Did – was anything else said?---There could have been. I can't remember.
Okay? Just basically that he had caused the injury - - -
And did - - -?--- - - - to her face.
- - - anybody say anything back?---Damian said – I think he was saying that it was her fault (ts 119).
The interview of Mr Moodley
Mr Moodley was interviewed by police officers on 9 October 2015. He answered questions asked of him by police officers. Mr Moodley said that he had argued with Ms Taylor‑Callaby at Mr Gustafson's house. Ms Taylor‑Callaby hit him several times. He pushed her away. Mr Gustafson had stepped between them and told her to leave. Ms Taylor‑Callaby did not have anything in her hands when she was hitting him. Mr Moodley said that he did not have anything in his hands. He denied having a glass in his hands. Mr Moodley had gone inside and Ms Taylor‑Callaby had left. Ms Taylor‑Callaby had no injuries at that time. When Ms Taylor‑Callaby returned to his house approximately half an hour later her face was bleeding.
Mr Moodley denied that he had cut Ms Taylor‑Callaby or himself with broken glass. He denied that his hand was cut at all.
The learned Magistrate's reasons for decision
The learned Magistrate commenced his reasons by stating the legal principles that apply to a criminal trial. His Honour then referred to the elements of the offence with which Mr Moodley had been charged:
In order to prove the charge, the prosecution must satisfy me, and satisfy me beyond a reasonable doubt, that, first, it's the accused who has done an act, and secondly, as a result of that act, the complainant has suffered an injury, that that injury amounts to a wounding, and that the wounding was unlawful, and that the accused and the victim were in a family and domestic relationship at the time. In relation to these central elements of proving the injury was a wounding, the defence have quite correctly, in my view, admitted that element for the purposes of the Evidence Act. Accordingly, that element can be accepted as being proven and proven beyond a reasonable doubt.
Further, in relation to the circumstances of aggravation, the defence has not put into issue that matter, and I accept and accept beyond a reasonable doubt that there was a family and domestic relationship in existence between the accused and the complainant at the time of this allegation or this alleged offence. Accordingly, I am satisfied beyond a reasonable doubt in relation to the circumstance of aggravation (ts 145 - 146).
His Honour then said that there was no suggestion by the defence that the wounding was not unlawful. His Honour found this element proved:
I also note that there is no suggestion by the defence that the wounding itself was anything other than unlawful, and that there has been no evidence led which would or could suggest the wounding was not unlawful as that term is understood within the meaning of section 301(1) of the Criminal Code, and as to that see Knutsen (1963) Qd R 157 re Phillip J at page 162. Accordingly, I am satisfied beyond a reasonable doubt that the wounding itself was unlawful (ts 146)
His Honour then said that the matter in issue was who had caused Ms Taylor‑Callaby's wound:
The matter in issue is whether the accused – it was actually the accused who caused the injury which amounted to a wounding (ts 146).
His Honour then summarised the evidence that he had heard.
After his summary of the evidence his Honour analysed the evidence. He accepted the submission of defence counsel that there were significant differences between the evidence of the various prosecution witnesses, but that the witnesses could in general be divided into two groups. The evidence of Ms Taylor‑Callaby, Ms Pimm and Mr Gair was consistent with Ms Taylor‑Callaby sustaining her injuries as a result of Mr Moodley's conduct. The evidence of Mr Marshall, Mr Gustafson and of the interview of Mr Moodley by police officers was inconsistent with that conclusion.
His Honour's conclusion, following his analysis of that evidence, was:
I am satisfied and I am satisfied beyond a reasonable doubt that it was the actions of the accused which brought about the injuries which were suffered by the complainant, and that action was the thrusting of a glass into the face of the complainant (ts 155).
His Honour then expressed his conclusion that the provision of s 23A and s 23B of the Criminal Code did not apply to the wounding of Ms Taylor‑Callaby:
Given that there was a tussle or a struggle going on at the time, I am also satisfied that the action cannot be excused under section 23A or 23B of the Code as an accident or unwilled act as it would have been a foreseeable consequence of the struggle when the glass was within the accused's hand. As I have indicated, I am satisfied beyond a reasonable doubt of each and every element of the offence, and I find the accused guilty as charged (ts 155).
Whether the learned Magistrate erred
His Honour accurately summarised the evidence he heard. His Honour's conclusion that Ms Taylor‑Callaby's wound was caused by the action of Mr Moodley thrusting a glass in her face was a finding of fact that was open to him. There is no challenge to that finding in this appeal.
After stating the elements of the offence with which Mr Moodley had been charged and before summarising the evidence that he had heard his Honour noted that there was no suggestion by the defence that the wounding was not unlawful and said that he was satisfied that the wounding was unlawful. His Honour referred to R v Knutsen [1963] Qd R 157 in which Philp J said that all that the word 'unlawfully' requires on a charge of unlawful grievous bodily harm is that the doing of grievous bodily harm was contrary to law and not excused.
Although the defence did not suggest that the wounding was not unlawful his Honour was obliged to consider that issue if there was evidence in the prosecution case which, taken at its highest in favour of the accused, could lead a reasonable tribunal of fact to have a reasonable doubt as to that element: see, for example, in the context of a jury trial, Lau v The State of Western Australia [2017] WASCA 16 [85] ‑ [92] (Buss JA).
His Honour did consider whether Mr Moodley was excused by s 23A and s 23B of the Criminal Code after he had concluded that Mr Moodley had caused Ms Taylor‑Callaby's injuries. His Honour's consideration of those provisions was brief.
The provisions of s 23B of the Code concern an event which occurs by accident. An event occurs by accident if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Kaporonovski v The Queen (1973) 133 CLR 231, 231 (Gibbs J). If Mr Moodley was criminally responsible for the act of thrusting a glass into Ms Taylor‑Callaby's face then the event of the injuries suffered by her would reasonably have been foreseen by an ordinary person and the provisions of s 23B would not have applied. The learned Magistrate was correct to conclude that Mr Moodley was not excused by the provisions of s 23B of the Code.
The ground of appeal is that the learned Magistrate failed properly to consider s 23A of the Code. Section 23A concerns an act which occurs independently of the will of the accused. The provisions of s 23A require that the relevant acts of the accused should be of his or her own volition, that is that he or she should have willed that the relevant acts themselves should happen: Kaporonovski v The Queen, 227 (Gibbs J); Peters v The State of Western Australia [2013] WASCA 205 [37] (Buss JA).
Mr Moodley did not say anything to the police officers in his interview which would have provided a basis for the application of s 23A. He denied that Ms Taylor‑Callaby had been injured in his presence.
Two questions that arise on this appeal are:
1.Was there any evidence which required the learned Magistrate to consider whether Mr Moodley was not criminally responsible for the act of the glass in his hand coming into contact with Ms Taylor‑Callaby's face? and
2.If so, did his Honour consider that evidence in accordance with s 23A?
Whether there was evidence that required consideration of s 23A
There are two types of evidence that could give rise to the application of s 23A: evidence of the physical altercation and evidence of what Mr Moodley said in Mr Gair's presence after the altercation between Mr Moodley and Ms Taylor‑Callaby.
The direct evidence of the physical altercation came from Ms Taylor‑Callaby and Ms Pimm. Neither Ms Taylor‑Callaby nor Ms Pimm gave evidence that they actually saw the act of Mr Moodley striking Ms Taylor‑Callaby's face with the glass. Ms Taylor‑Callaby's evidence‑in‑chief was that Mr Moodley had the glass in one hand, he pushed her with the other hand, the fighting continued and when the fighting stopped she was bleeding from her face. In cross‑examination Ms Taylor‑Callaby gave evidence that Mr Moodley punched her in the face with the glass, but that was clarified by defence counsel and her evidence was that her conclusion that Mr Moodley had punched her in the face with a glass was based on the glass being in his hand and her face bleeding.
Ms Pimm's evidence was that Mr Moodley was swinging his arms trying to punch Ms Taylor‑Callaby. As Ms Pimm was trying to get between them to separate them she heard the noise of glass breaking. The fighting stopped and Ms Pimm then saw that there were cuts on Ms Taylor‑Callaby's face.
There was no evidence from Mr Moodley and he did not say in the police interview that the glass had come into contact with Ms Taylor‑Callaby in the course of the altercation without any willed act on his part. In the interview he denied that glass had come into contact with Ms Taylor‑Callaby's face in her presence.
The evidence of Ms Taylor‑Callaby and Ms Pimm was that there was a physical confrontation, that Mr Moodley had a glass in his hand, that they did not see the glass come into contact with Ms Taylor‑Callaby and that Ms Taylor‑Callaby's face was cut in the altercation. Although they did not see the glass Mr Moodley was holding come into contact with Ms Taylor‑Callaby's face if their evidence was accepted the only inference reasonably available was that the glass Mr Moodley was holding had cut Ms Taylor‑Callaby's face. In my view that evidence, on its own, taken at its highest in favour of Mr Moodley, could not lead a reasonable tribunal of fact to have a reasonable doubt as to whether the glass in Mr Moodley's hand coming into contact with Ms Taylor‑Callaby's face was an act unwilled by Mr Moodley. However that evidence was not on its own. It is necessary also to consider the evidence of what Mr Moodley said in Mr Gair's presence.
Before considering whether Mr Gair's evidence of what Mr Moodley said in Mr Gair's presence it is necessary to consider whether the evidence of what Mr Moodley said is evidence as to the truth of what he said. As a general rule self‑serving out of court statements of an accused are not admissible evidence. What an accused has said outside of court is not evidence unless the prosecutor chooses to make it so by using it as part of the prosecution case. If the prosecutor chooses to make what the accused has said out of court part of the prosecution case then what the accused said is evidence both for and against the accused: R v Higgins (1829) 3 C&P 603; (1829) 172 ER 565.
On this appeal I raised with counsel whether Mr Gair's evidence of what Mr Moodley said to Mr Gair and in Mr Gair's presence was evidence as to the truth of what he said. It could only be evidence of the truth of what was said if it was intended to be adduced by the prosecutor as part of the prosecution case. There was a sound basis to do so. That is because the evidence went to an issue at the trial – whether the injuries suffered by Ms Taylor‑Callaby occurred in Mr Moodley's presence. However the evidence given by Mr Gair at ts 118 as to what Mr Moodley said to him was in response to questions as to what happened without the questions specifically asking Mr Gair about conversations and the prosecutor did not refer to the evidence at all in the brief closing address.
The position of the respondent at the hearing of the appeal was that the better view is that the prosecutor did choose to make the mixed statements of what Mr Moodley said as part of the prosecution case. The position taken by the respondent is very fair and, I conclude, it is accurate. While there is a basis to doubt whether the prosecutor chose to make the evidence given by Mr Gair at ts 118 as to what Mr Moodley said as part of the prosecution case because of the way that the prosecutor's questions were framed the doubt is removed on ts 119 when the prosecutor asked Mr Gair about the conversation between Ms Taylor‑Callaby and Mr Moodley. I conclude that Mr Gair's evidence of what Mr Moodley said is evidence as to the truth of what Mr Moodley said because the prosecutor did choose to make those mixed statements part of the prosecution case.
The learned Magistrate found the evidence of Mr Gair to be 'truthful, reliable and compelling' (ts 154). He accepted Mr Gair’s evidence (ts 155). I conclude that he accepted Mr Gair's evidence of what Mr Moodley said in his presence.
Mr Moodley said that Ms Taylor‑Callaby's injuries were not his fault but were caused by her running into him breaking the glass. This evidence was evidence which could lead a reasonable tribunal of fact to have a reasonable doubt as to whether the glass coming into contact with Ms Taylor‑Callaby's face was an act unwilled by Mr Moodley. It did require the learned Magistrate to consider whether the prosecution had excluded the application of s 23A.
Whether the learned Magistrate correctly considered the application of s 23A.
In considering his Honour's reasons I bear in mind that they were delivered on the same day as the evidence was completed and the closing addresses were made to him. I also bear in mind that Magistrates Courts are summary courts and magistrates are to conduct their work with expedition and a degree of informality appropriate to the disposition of the large volume of cases brought before them. It is not appropriate to scrutinise a Magistrate's reasons for decision with a fine tooth comb or with an eye keenly attuned to the identification of error, or to infer error from infelicity of language: Strahan v Brennan [2014] WASC 190 [88] ‑ [90] (Martin CJ).
After reaching his conclusion that it was Mr Moodley's actions which brought about Ms Taylor‑Callaby's injuries the learned Magistrate referred to both s 23A and s 23B. He concluded that Mr Moodley's 'action cannot be excused under section 23A or 23B of the Code as an accident or unwilled act as it would have been a foreseeable consequence of the struggle when the glass was within the accused's hand'. The fact that it was foreseeable that Ms Taylor‑Callaby would suffer injury when the glass in Mr Moodley's hand struck her face provided a sound basis to exclude the application of s 23B. However whether s 23A applied did not turn on foreseeability. It turned on whether the prosecution had proved that the striking of Ms Taylor‑Callaby's face by the glass in Mr Moodley's hand had not occurred independently of Mr Moodley's will. The paragraph of his Honour's reasons in which he considered s 23A does not show that he considered that question.
His Honour considered s 23A immediately after he had found that Mr Moodley's 'action was the thrusting of a glass into the face of' Ms Taylor‑Callaby. The use of those words gives rise to consideration of whether his Honour had found that Mr Moodley had intended to do so. The use of the word 'thrust' is not consistent with an unwilled act.
However for two reasons I have reached the conclusion that his Honour did not correctly consider whether the prosecution had excluded s 23A. One reason is that his Honour stated why he reached the conclusion that s 23A had been excluded. That conclusion was based on the foreseeability of Ms Taylor‑Callaby's injuries, which did not exclude the operation of s 23A.
The other reason is that while his Honour did refer to the evidence of Mr Gair as to what Mr Moodley said his Honour did not state in his reasons that he had considered that evidence but was satisfied beyond reasonable doubt that the prosecution had excluded the act having been unwilled by Mr Moodley. While it was open to the learned Magistrate, having considered the evidence of what Mr Moodley said in Mr Gair's presence along with all the other relevant evidence, to be satisfied that the prosecution had proved that the act was not an unwilled act it was necessary for him to consider that evidence before reaching the conclusion. The other relevant evidence included the evidence of Ms Taylor‑Callaby and Ms Pimm as to the altercation. It also included the evidence of Ms Pimm that Mr Moodley told Ms Taylor‑Callaby that she had hit him first, which might be regarded as evidence of an acknowledgement of intention. On my reading of his Honour's reasons he did not consider the evidence in this way.
I conclude that the learned Magistrate made an error of law in that his Honour failed to consider whether the prosecution had proved that the act of the glass in Mr Moodley's hand coming into contact with Ms Taylor‑Callaby's face had not occurred independently of Mr Moodley's will.
Whether there was no miscarriage of justice
Although the learned Magistrate made that error of law I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred – s 14(2) Criminal Appeals Act. Counsel for the respondent submitted that even if the magistrate erred in conflating the tests for s 23A and s 23B I could conclude that no substantial miscarriage of justice has occurred on the basis that if the learned Magistrate had correctly applied s 23A Mr Moodley's conviction was inevitable once his Honour found that Ms Taylor‑Callaby's wounds were caused by Mr Moodley's deliberate act of thrusting a glass into her face.
However for reasons that I have explained I have concluded that by reason of his error of law the learned Magistrate did not consider whether, having regard to the evidence of what Mr Moodley said in Mr Gair's presence along with all the other relevant evidence the prosecution had proved that the act of the glass in Mr Moodley's hand coming into contact with Ms Taylor‑Callaby's face had not occurred independently of Mr Moodley's will.
While it was open to his Honour to be so satisfied if he had considered that evidence I cannot conclude that it was inevitable that he would have been so satisfied. I have decided to grant leave to appeal and to allow the appeal.
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