Morris v The State of Western Australia

[2009] WASC 318

MORRIS -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 318

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 318
Published:	04/11/2009
Case No:	SJA:1047/2009	Heard:	30 SEPTEMBER 2009
Coram:	EM HEENAN J	Delivered:	30/09/09
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	PAUL WILLIAM MORRIS THE STATE OF WESTERN AUSTRALIA
Catchwords:	Appeal from conviction Unlawful assault doing bodily harm with circumstances of aggravation Family and domestic relationship Credibility issues Onus of proof Significance of rejection of defendant's evidence Alleged need for Liberato direction Alleged bias by principal prosecution witness Propensity evidence Application for leave to adduce alleged fresh evidence Collateral evidence rule
Legislation:	Criminal Code (WA)
Case References:	Edwards v The Queen (1993) 178 CLR 193 Goldsmith v Sandilands [2002] HCA 31; 76 ALJR 1024 Johnson v The State of Western Australia [2008] WASCA 164 Kurgiel v Mitsubishi Motors Australia Ltd (1990) 54 SASR 125 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MORRIS -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 318 CORAM : EM HEENAN J HEARD : 30 SEPTEMBER 2009 DELIVERED : 30 SEPTEMBER 2009 PUBLISHED : 4 NOVEMBER 2009 FILE NO/S : SJA 1047 of 2009 BETWEEN : PAUL WILLIAM MORRIS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R LAWRENCE

File No : PE 72060 of 2008

Catchwords:

Appeal from conviction - Unlawful assault doing bodily harm with circumstances of aggravation - Family and domestic relationship - Credibility issues - Onus of proof - Significance of rejection of defendant's evidence - Alleged need for Liberato direction - Alleged bias by principal prosecution

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witness - Propensity evidence - Application for leave to adduce alleged fresh evidence - Collateral evidence rule

Legislation:

Criminal Code (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms S Chelvanayagam
Respondent : Mr M G Nichol

Solicitors:

Appellant : Sharmini Chelvanayagam
Respondent : Director of Public Prosecutions (WA)

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

Edwards v The Queen (1993) 178 CLR 193
Goldsmith v Sandilands [2002] HCA 31; 76 ALJR 1024
Johnson v The State of Western Australia [2008] WASCA 164
Kurgiel v Mitsubishi Motors Australia Ltd (1990) 54 SASR 125
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533


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1 EM HEENAN J: Paul William Morris was tried before his Honour Magistrate R Lawrence in the Magistrates Court of Western Australia on 6 and 7 April 2009 on a charge that on 22 December 2008 at Kenwick he had unlawfully assaulted Elizabeth Anne Wright and thereby did her bodily harm in circumstances of aggravation, namely that he was in a family and domestic relationship with the victim of the offence. This was a charge of aggravated assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code.

2 At the completion of the evidence and submissions from counsel on 7 April 2009 the learned magistrate reserved his decision. His Honour gave his decision on 29 April 2009 when, for reasons then published, the appellant was found guilty of the offence, convicted, fined $400 and ordered to pay costs of the proceedings fixed at $60. A further order was made pursuant to s 56 of the Sentencing Act that the fine was to be paid to the complainant.

3 From that conviction Mr Morris now appeals to this court as a result of leave granted by McKechnie J on 3 July 2009 and by further order of his Honour on 15 September 2009 giving leave to introduce additional grounds of appeal. At the commencement of the hearing counsel for the appellant sought leave to introduce fresh evidence and to rely upon that proposed evidence in support of extended grounds of appeal. For reasons soon to be explained, I refused leave to introduce the alleged fresh evidence and the hearing proceeded on the amended grounds of appeal alone.

4 The basic features of the alleged offence and the conduct of the trial need to be appreciated to allow the significance of the grounds of appeal to be considered. The appellant and Ms Wright were living together in the house at Kenwick where the injuries resulting in the charge occurred. They had been living together in a relationship which had continued for quite some time, although there had been differences and difficulties between them. The property where they were living belonged to the appellant. In the past, because of problems in the relationship, he had wanted Ms Wright, on occasions, to leave but these differences had resulted in reconciliations and in December 2008 the parties were living together by consent with Ms Wright staying in the home with her clothes and other belongings. Each of these two has had, to varying degrees, a troubled past and had been involved in using drugs and, in particular, amphetamines. Ms Wright claimed, and the learned magistrate accepted, that at the time of the alleged offence she had not been using amphetamines and had not used them for some time. On the other hand,

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the appellant admitted that on the evening before the alleged assault he had taken half an amphetamine tablet and had offered the other half to Ms Wright and that she had taken it. As already stated, she denied that she shared any drugs with the appellant that night and his Honour accepted her evidence.

5 The trouble started the next morning. Both the appellant and Ms Wright were employed and were due at their respective places of work that day. According to Ms Wright, the appellant got out of bed first, dressed, went and made some coffee and brought her a cup of coffee into their bedroom. She took the cup of coffee and began to get up but on moving into the kitchen she saw that a pile of clothes which she had washed and ironed the day or night before and left folded neatly on a table in the laundry were on the floor. She got very cross about this and started to criticise the appellant about it just as he was going out the door to leave for work. She got so angry that she was shouting and threw the cup of coffee at the door, where its contents spilt, the cup broke and she then slammed the sliding door with such force that it came off its rollers but did not break. According to her, as soon as this occurred the appellant came back into the house, grabbed her by the hair and around the throat, forced her face into a nearby mirror, shouting at her that she was crazy and in the subsequent struggle forced her against a table top in the kitchen, banged her head into the table top or sink several times, causing her head and facial injuries, and then struggled with her and threw her on to the floor, where she suffered further injuries to her arms, knees and thighs. According to her, he then stormed out of the house and went off to work.

6 Shortly afterwards an ambulance arrived and the ambulance staff attended to Ms Wright. They wanted to take her to hospital or at least to a doctor but, after she had regained some composure, she declined to go. Two police officers also arrived, inspected the scene and took a statement from Ms Wright. One officer gave evidence that he noticed the broken cup on the kitchen floor, the spilt coffee and some disarray but, when asked at the trial, said that he had not noticed any other signs of disturbance which, significantly, counsel for the appellant at trial and on this appeal, suggested meant that there were no signs of laundry or ironing being thrown on the floor as Ms Wright had described.

7 After taking the statement from Ms Wright and completing his investigations of the home the police officer who gave evidence, Constable Hymus, and the other officer with him went to the appellant's place of employment to interview him about the incident. As a result of

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that meeting the appellant was taken by the police to the Gosnells police station where he participated in a video record of interview. At the end of that interview he was charged with the offence of aggravated assault.

8 The appellant's version of the events was significantly different. According to him, Ms Wright had on numerous occasions previously in the course of their relationship been prone to fly into rages, when she would shout and lose her temper and become aggressive. On these occasions in the past he had, a number of times, had to take hold of her to calm her down and take her outside and hold her until she did calm down and regained her self-control. He would then let her go and, the rage having passed, a more or less normal relationship would be resumed.

9 On the night before the incident on the morning of 27 December 2008, according to Mr Morris, the pair had been in bed together, he produced an amphetamine tablet, took half the tablet and offered the other half to Ms Wright. At first he alleged that she took the half-tablet offered but in the course of cross-examination it emerged that he could not be positive that she did. The next morning began, according to Mr Morris, with Ms Wright waking up in a temper, storming about the bedroom, shouting and generally making a fuss. According to him, he got dressed, went and made a cup of coffee and brought it to her in the bedroom, before preparing to leave for work. He said that Ms Wright then made some sarcastic remark, implying that it was a rare occasion that he should bring her coffee, and thereupon flew into a rage and flung the cup of coffee at him. He denied moving the clothes which had been washed or ironed and maintained that it was Ms Wright who went into an unprovoked rage.

10 According to Mr Morris, the argument between the two got worse and they moved into the kitchen where Ms Wright continued to shout at him. He says that she took a knife from a table top or the sink and threatened him with the knife. Faced with this threat, and the fear that in her agitated condition she might harm herself, Mr Morris decided in the instant that he had to take the knife away from Ms Wright and grabbed her, seized the hand in which she was holding the knife and struggled with her, twisting her arm and eventually causing her to drop the knife. He says that it is likely that in the course of dropping the knife she suffered shallow cuts to her thigh which bled on to the floor and which can be seen in the photographs. Ms Wright absolutely denied ever seizing the knife, threatening the appellant or being injured by a knife or any other sharp instrument. There was no sign of any knife which may have been used as a weapon or been the subject of a struggle seen on the floor by Constable

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Hymus when he, his companion officer and the ambulance men came to the house shortly afterwards although blood was seen on the floor in various places.

11 He said that, at that point, he did grab her around the neck or by the hair in an effort to hold her down so that she would get over her rage. In the process he accepts that he did push her towards a mirror so that she could see her face and, in effect, realise how 'crazy' she had become. A struggle followed in which the two moved into the kitchen and were forced up against the table or sink, whereupon it is possible that Ms Wright's head did strike the surface of the table or the sink as a result of her struggles. Mr Morris maintains that he kept a hold of her with the intention of forcing her out through the door and outside the home where he expected that he could hold her until she calmed down as she had in the past.

12 Again, according to Mr Morris, the struggle ended when Ms Wright fell to the floor as he described. They never got outside the door as he had originally intended. At that point, he left for work, leaving Ms Wright to care for herself and make her own way to her place of employment.

13 It was common ground that Ms Wright was clothed only in a towel draped around her during this struggle. However, because of the force of the struggle, she fell over and struck the floor, injuring her arms, knees and thighs in the process.

14 This description of events by Mr Morris was essentially the version which he gave to Constable Hymus in the video record of interview but with one significant difference. In the video record of interview no reference was made by the appellant to the alleged incident with the knife which, according to him, Ms Wright had seized in the kitchen, and threatened him with, resulting in the struggle which he had described. The version involving the knife only emerged at trial, first in cross-examination of Ms Wright and later in the evidence of the appellant. In response to the inevitable questions about why he had not mentioned the knife incident in his discussions with the police, the appellant said that he had not told them the entire story because he did not want to reveal details which would reflect on Ms Wright more than was absolutely necessary. He said that he wished to avoid disclosing the seizing of the knife and her threat of him with it in order to protect her. This non-disclosure in the VRI was a significant, but by no means the only, reason for the learned magistrate disbelieving the appellant's evidence about the circumstances of the struggle and injuries.

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15 At the trial some 24 colour photographs taken of Ms Wright and features of the home at which she and the appellant were living were put in evidence. These showed, unmistakably, that she had bruising and minor abrasions to both knees, a contusion to the inner surface of her left lower lip, an abrasion to the exterior of her left lower lip, bruising below both eyes resulting in the typical signs of black eyes, an abrasion to her right elbow, an abrasion or laceration to the inner surface of the left upper thigh resulting in bleeding, marked reddening to the sclera of both eyes, bruising across the bridge of the nose and that there was blood on a table surface in the kitchen and on another surface in the home. She also described suffering a chipped tooth.

16 There can be no doubt that Ms Wright had suffered this series of injuries as described in the incident, however it had occurred. Accordingly, the real issue at trial was whether or not these injuries had been inflicted as a result of an assault by the appellant or whether they had occurred accidentally in the course of a struggle as described by the appellant which had resulted from him taking reasonable steps to defend himself from the threatened attack with the knife and/or from reasonable efforts taken by him to subdue Ms Wright as a result of her condition of rage when it was apparent that she might do damage to herself and to various items of property in the home. It was even submitted that the prosecution was obliged to establish that the appellant was not entitled to act as he did in order to take reasonable measures to exclude from his property a person who was not entitled to be on the premises - in other words, a trespasser.

17 Of course, in a case like this proof of the offence alleged could never be established simply by a decision of the learned magistrate that he did not believe the evidence of the appellant, or critical parts of it, and that, therefore, that the appellant was not a witness of credit whose evidence could be accepted. For the offence to be proved it was essential for the prosecution to establish beyond reasonable doubt that the evidence established beyond reasonable doubt all the elements of the offence and that it should be accepted and acted upon. Establishment of those matters requires more than discrediting the defendant's case, it requires proof to the degree required that the prosecution case should be accepted. In the setting of this case it meant that the learned magistrate needed to be satisfied, beyond reasonable doubt, of the essential facts as narrated by Ms Wright. His Honour could not have been satisfied of those matters simply because he rejected the evidence of the appellant. Positive satisfaction by the magistrate with the evidence of Ms Wright was needed to enable a conviction. It is for this reason that so much stress was laid

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both at the trial and on this appeal by the appellant upon alleged weaknesses in the credibility of Ms Wright.

18 The evidence at the trial was from Ms Wright, Police Officer Hymus, including the video record of interview between himself, his colleague and the appellant, and the photographs of Ms Wright's injuries.

Findings at trial

19 The learned magistrate gave lengthy reasons for his decision to convict the appellant. These involved a detailed analysis of the conflicting versions of fact given by the appellant and by Ms Wright with much more detail than I have so far mentioned. In particular, his Honour's account involved a careful analysis of the allegation by the appellant and the denial by Ms Wright that she had picked up a knife and threatened the appellant with this before in the ensuing struggle which had resulted, to a large degree, from steps taken by the appellant to disarm her and to protect himself. His Honour also considered the content of the VRI generally, but especially in relation to the alleged incident with a knife. He attended to certain discrepancies which the appellant alleged existed in the evidence of Ms Wright about the details of how and where she was seized or held by the appellant and how many times her head was knocked against the surface of the table or sink. Having examined this evidence his Honour said:

I have difficulty in accepting the accused's version of events as to what transpired following the stair incident. His explanation would appear to be invention precipitated by the questioning of the police officer. His suggestion that he left the complainant to fend for herself following the injury to her head and that her transformation from rage to calmness in a very short period of time, even though immediately prior thereto she had been trying to assault him with a knife, is, when viewed in the circumstances, or the overall circumstances, improbable. He would have me believe that he merely left her, walked calmly about the house replacing dislodged items such as the door, the lamp, the knife, and then left for work. On the manner in which he has given that evidence and the text of that evidence, it must be rejected as not being a plausible explanation.

On his evidence, this person had immediately beforehand attempted to attack him with a knife and his attention would have been upon her and her movements if the event had occurred as he described. Incidental issues such as cleaning up the house is a mere afterthought, designed to complete his version as he has presented, and I reject his evidence as completely lacking credibility.

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I accept the complainant's evidence, albeit her evidence was punctuated with slight memory lapses concerning her specific description of how she was grabbed, and this could be explained due to the trauma that she had experienced during the course of this event. During her evidence she became angry and upset in relation to the accused and, on occasions, added gratuitous comments which were irrelevant to questions put to her, but her description of events and the sequence of the incident was clear and unshaken. The injuries sustained to her eyes, both sides of the forehead, the temple region and the bruising to her knees and other injuries that she sustained were consistent with her version of events and, as previously mentioned, it is significant that the accused made no mention of the knife during the course of the record of interview and changed his version of events in terms of the number of falls to the ground when it was put to him that the injuries were not consistent with his version.

20 His Honour went on to reject a submission made on behalf of the appellant that the evidence of Ms Wright showed bias and then, after dealing with some other matters, turned to the allegation made by the appellant that Ms Wright used drugs the evening before, saying:

The accused admitted that he had used an illicit substance on the night before and I am satisfied beyond reasonable doubt that that was the case, that he grabbed her from behind, as I have found, that a struggle ensued and he punched or pushed her head into the bench, striking her in the forehead region, on at least two occasions, causing bruising to that region of her head, as is evidenced by the photographs now before me. He then carried and threw her to the hallway. In the course of the throw she - at the end of the throw she landed near the step region. She landed on her knees and, whilst on her knees, he got on top of her and pushed her head into the step. She suffered injuries, namely the damaged tooth and injuries to her eyes, bruising to the legs and to the knees. On the evidence of injuries that have been presented to me and those findings, I am satisfied beyond reasonable doubt that he caused bodily harm to her.

21 Later, in relation to issues raised on behalf of the appellant, which his counsel submitted had to be refuted beyond any reasonable doubt, his Honour said:

Through counsel it is argued that the actions of the accused were lawful and that the prosecution has failed to negate the elements of section 254 of the Code in that it was lawful for the accused, who was in peaceable possession of the place, that is his house, and he was entitled to control and/or manage that place and to use such force as was reasonably necessary to remove a person who was behaving in a disorderly manner from that place. On the findings of fact made, even if the complainant was acting in a disorderly manner and the accused was entitled to remove her from his residence, his actions were unreasonable in the circumstances and I am satisfied beyond reasonable doubt that was the case.

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For the reasons explained, I am satisfied beyond reasonable doubt that the injuries to the complainant were not sustained independently of the accused's will as submitted pursuant to section 23A. They were deliberate and a course of events which resulted in violent acts and the injuries sustained by the complainant.

In relation to the submission concerning section 23B, I am satisfied beyond reasonable doubt that the incident did not occur by accident. They were deliberate acts of punching and pushing her head into the bench and the steps and the results were foreseeable. Any suggestion that he acted in self-defence pursuant to section 248 failed to arise due to these findings and it was not necessary for the accused to defend himself in that manner on the findings that I have made. She did nothing to him to give rise to a belief necessary to defend himself and, in any event, that belief was not reasonably based and the response was unreasonable in the circumstances.

Accordingly, in all the circumstances, I am satisfied beyond reasonable doubt that he did assault the complainant and caused her bodily harm, that the assault was an unlawful assault at law, and he will be convicted of the charge.

Grounds of appeal

22 The grounds of appeal as amended are lengthy with much of their real content buried in extensive particulars under each ground. What follows, therefore, is a compression of those grounds designed to identify more precisely their real points and effects. Accordingly, by this process of abbreviation, the grounds of appeal, in effect, amount to these:

1. The court erred in law because the decision is against the weight of the evidence is unreasonable and cannot be supported having regard to the evidence because:

• having accepted and preferred the evidence of the complainant and rejected the evidence of the appellant the magistrate failed to take the final step of determining whether or not the prosecution had established its case beyond reasonable doubt and failed to give himself the Liberato direction;

• the magistrate accepted one version of the evidence from Ms Wright and discounted the other version of the appellant;

• the magistrate accepted the evidence of Ms Wright and rejected the evidence of the appellant without assessing

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whether the evidence of Ms Wright should be accepted in part and rejected in part;

• the magistrate accepted the evidence of Ms Wright, discounting any bias, and described the applicant's evidence as unconvincing, thereby misdirecting himself by placing some onus upon the appellant;

2. The court erred in law in failing to perform its obligation to find on the whole of the evidence whether the case was proven beyond reasonable doubt - a result said to follow from disbelieving and rejecting the evidence of the appellant;

3. The court erred in fact and law by finding facts where the findings were against the weight of the evidence and by drawing inferences adverse to the appellant which were not the only reasonable inferences open to him in a case of oath against oath, namely:


• the evidence of the complainant was unshaken and unreliable;

• these findings do not consider Ms Wright's prior inconsistent statements;

• the findings did not take into account the shift in her evidence during the examination and cross-examination;

• the finding did not take into account that her evidence was inconsistent in material parts with the uncontested evidence of the appellant and the police officer;

• the finding that Ms Wright was not biased was against the weight of the evidence or the evidence

• the finding that Ms Wright was not in a rage was against the weight of the evidence;

• the court discounted admissible propensity evidence adduced by the appellant in relation to the issue of whether Ms Wright used a knife as a weapon;

• no finding of fact was made in relation to whether the cut to Ms Wright's leg was consistent with her holding a knife as alleged;

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• the rejection of the defences of accident, self-defence, unwilled act and protection of property were wrong because these could not be excluded beyond reasonable doubt;

4. There was an error of law and fact by finding that Ms Wright's evidence was supported by the police when:

• the police officer was not an eyewitness to the contested events;

• his evidence was inconsistent with the complainant's version because he did not observe any folded washing on the kitchen floor or other signs of disturbances;

• his evidence was inconsistent with that of Ms Wright on the issue of whether an entire cup or just pieces of a cup were found on the floor near the sink;

• the police officer's evidence did not entirely discount the appellant's evidence notwithstanding there was an onus on the prosecution to establish that;


5. There were errors of law that:

• the magistrate failed to give himself an Edwards direction in relation to whether or not the issue of the alleged use of a knife was a recent invention;

• the learned magistrate described the appellant's evidence in relation to the knife as unconvincing and lacking in credibility;

• the magistrate further misdirected himself by stating that it was in the appellant's interest to give a full account of the incident to the police during the VROI because it was the centrepiece of his defence, and by so doing wrongly cast an onus of proof on the appellant and encroached on his right of silence;


6. Text messages were wrongly admitted into evidence when they were not properly before the court and had not been disclosed;

7. The decision resulted in a miscarriage of justice for the above reasons when looked at globally.

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23 Three more grounds of appeal were added by leave granted by McKechnie J on 15 September 2009. These were:

8. His Honour misdirected himself by introducing the word 'punch' and 'punches or pushes' on two occasions when neither the complainant nor the appellant gave any evidence of a punch or punches;

9. The learned magistrate failed properly to consider each defence raised as a result of his error of fact in finding that Ms Wright was unshaken in her evidence among other things;

10. The learned magistrate failed to consider each of the two occasions where s 23B was raised and made one finding in relation to the kitchen and the stair incidents.

24 However, at the commencement of the hearing of this appeal counsel for the appellant announced that she would not be pursuing grounds 5 or 6 (the Edwards direction, the encroachment on the right of silence and the admission of text messages) and these were not pursued.

Application for leave to adduce fresh evidence

25 By oral application made at the commencement of the hearing of the appeal counsel for the appellant sought leave to adduce so-called fresh evidence and, in support, produced:

(a) an affidavit by counsel, Ms Chelvanayagam, sworn 30 September 2009;

(b) an affidavit of the appellant bearing date 24 September 2009;

(c) a printout from a media statement of the Corruption and Crime Commission of Western Australia dated 21 September 2009 concerning charges laid by the CCC against an unnamed 28-year-old woman employee of the Department of Corrective Services.

26 The basis for the submission that this was fresh evidence and should be admitted related to one point at the trial of the appellant where his counsel, in cross-examination, put to the Ms Wright a proposition that she had said or boasted to the appellant on one or more occasions that she was able to get access to the records of himself or his acquaintances presumably because of opportunities in that behalf which arose from her employment. Ms Wright denied that she had ever made any such
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statement or boast to the appellant as alleged or at all and that issue was not thereafter pursued. Nor was it alluded to in any shape or form in the learned magistrate's reasons for decision. Now, however, counsel for the appellant submitted that, on the evidence of Mr Morris in his most recent affidavit, and upon the media statement from the CCC, it was probable that Ms Wright was the person who had been charged with the offences and that this meant that she had given a false answer in response to the question put to her in cross-examination and, importantly, that this reflected badly upon her credit when her credit was the dominant factor at the trial and where his Honour accepted her as, essentially, being a witness of truth.

27 The application has a number of major obstacles. First, there is nothing to identify the person said to have been charged with these offences as being Ms Wright and counsel for the appellant acknowledged that further attempts to establish this had failed. Second, the mere laying of charges against a person does not establish that that person is guilty of any of the offences charged. Thirdly, the answer to the question put to Ms Wright in cross-examination was that she had never made any statement or boast to the effect alleged to the appellant and she was not asked whether or not, in the course of her employment, she had made improper use of confidential records or information. Fourth, and most importantly, the issue of whether or not Ms Wright had ever made any such statement as alleged to the appellant had nothing whatever to do with any of the issues arising in the determination of the charged against the appellant. It was not suggested that the statement or boast had been made during or immediately before the events of the alleged assault. It was not suggested that the argument leading to the alleged assault had in any way arisen out of statements or disclosures by Ms Wright about her employment or information obtained from her employment. The question went entirely to a collateral issue and, at most, could only have ever been relevant to Ms Wright's general credit.

28 Accordingly, because the question did not relate to any issue or fact in issue in the trial, cross-examining counsel was bound to accept the answer which was given by the witness and would not have been permitted, had she attempted to do so at the trial, to adduce any other evidence to challenge or refute that answer. This well-known collateral evidence rule is explained in Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533, 546. It also applies to answers given by a party witness; Kurgiel v Mitsubishi Motors Australia Ltd (1990) 54 SASR 125, 130. In particular, a question going to nothing more than general credit is an example of a question relating to a collateral fact:

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Goldsmith v Sandilands [2002] HCA 31; 76 ALJR 1024 [3]. Accordingly, even if this so-called fresh evidence had been available to counsel at the trial and even if it had been sufficient to identify the appellant as the person charged, it would not have been admissible.

29 As it was, the evidence failed to identify Ms Wright as the person charged, because there was no proof that she had committed any such offence nor anything to suggest that she had given a false answer in cross-examination, there was simply no basis upon which this material was, or previously ever could have been, admissible. For all these reasons I refused the application for leave to introduce the so-called fresh evidence.

Issues on the appeal

30 Despite the grounds of appeal and the detailed written and oral submissions on behalf of the appellant there is really nothing in this case to suggest, let alone warrant, my finding that the learned trial magistrate made any error of law in his reasons for decision or otherwise in his decision to convict the appellant as charged. The contested issues were, in reality, all issues of fact and his Honour made a careful examination of the evidence and reached his conclusions fully conscious of the obligation for the prosecution to prove the offence beyond reasonable doubt and that this entailed more than establishing grounds to reject the evidence of the appellant.

31 The main point of the case for the appellant, although it was approached from various angles in the grounds of appeal and in the submissions, was that the learned magistrate had erred in law or in fact in deciding to accept the evidence of Ms Wright when it was said, in a variety of respects, to be contradicted by the evidence of the appellant because, in effect, that must have meant that the appellant's evidence was subject to a reasonable doubt. Such an approach cannot be accepted and it was certainly not the method by which his Honour approached this trial or decided the issues before him.

32 This basic contention, as I say, approached in various ways by the appellant on the appeal, can be disposed of by addressing the submission that the learned magistrate failed to give himself a Liberato direction. In the case of Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, Brennan J, in a dissenting judgment which nevertheless was accepted as authoritative on this particular point, observed:

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When a case turns on the conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as including the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

33 The significance of the decision in Liberato (supra) was considered by the Court of Appeal in Johnson v The State of Western Australia [2008] WASCA 164, a decision of Martin CJ, Wheeler and Buss JJA. In reasons to the same effect as those given by Martin CJ and Wheeler JA, Buss JA said at [29]:

It is well established that a so-called Liberato direction is not required as a matter of law. See, for example, Salmon v The Queen [2001] WASCA 270 [3], [11], [101]; R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300, 328 - 329; Niass [28]; KDY [26]. Such a direction should be given, however, if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means that the State has proved its case beyond reasonable doubt.

34 The present case did not involve a trial by jury but, of course, it was nevertheless necessary for the learned magistrate to be aware that rejection or disproof of the appellant's evidence would not alone justify conviction nor, necessarily, lead to acceptance of the evidence of Ms Wright. There is nothing whatever to suggest that his Honour was unfamiliar with that requirement or consciously or subconsciously had failed to observe it. His Honour examined all the evidence and made positive findings that he accepted as truthful the evidence of Ms Wright, on the essential points, having reached that conclusion not merely on a comparison of the credit of the two witnesses but by taking into account the objective evidence of the injuries sustained by Ms Wright and the inherent probabilities arising from the events. In my respectful view, the process of reasoning by the learned magistrate was entirely orthodox and did not reveal or suggest any failure to appreciate or apply the full requirements of the standard and onus of proof resting upon the prosecution.

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35 Nor was there any misapplication of the onus of proof nor encroachment upon the appellant's right to silence. Mr Morris had voluntarily participated in the VROI and also gave evidence at his trial. It was, therefore, essential for the learned magistrate to consider the explanations given by the appellant, their credibility and consistency in the light of all the evidence. Accordingly, his Honour's conclusion that the appellant's failure to refer to the knife incident at all in the course of his VROI was, in all the circumstances, a factor to be taken into account when measuring the credit of his evidence at trial and, having regard to the context, that that failure significantly damaged his credit.

36 In relation to the third ground of appeal, that the facts were found against the weight of the evidence, it is manifestly apparent that the learned magistrate was satisfied that none of the alleged inconsistencies was of any great significance either alone or together. I am satisfied, with respect, that his Honour was justified in reaching that conclusion.

37 His Honour expressly acknowledged that Ms Wright's evidence was punctuated with slight memory lapses but he concluded, justifiably in my view, that this was readily explained by the stresses of the moment and the rapidity of the events involved in the alleged offence. Ms Wright was not certain whether the appellant had one hand or two around her throat and said that because the events were so distressing she could not remember exactly what had happened. Nor was her evidence inconsistent with being dragged or thrown into the living room. Similarly, the absence of visible bruising to her throat was not inconsistent with her being held by the appellant by the throat as she had alleged. Further, the uncertainty over how many times her head was struck against the bench or table was not significant, it being either two or three times. The same can be said about the number of times that her head was forced into the ground. I am satisfied that the learned magistrate was fully conscious of these minor uncertainties in the evidence but rightly concluded that none of them affected the essential question of whether or not Ms Wright had been assaulted as alleged. Similarly, there is no incongruity arising from the situation of uncertainty over whether or not it could be determined whether the coffee cup was smashed on the floor or whether there were fragments of it in the sink.

38 The learned magistrate's conclusion that the appellant was not biased was also open on the evidence and was not shown to have been erroneous. His Honour accepted that Ms Wright was hostile to the appellant and made a number of gratuitous adverse comments about him. Having regard to the events which occurred, it would be surprising if this were not

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so. However, counsel for the appellant, both at trial and on the appeal, attempted to elevate that hostility to the point of bias and, therefore, unreliability. His Honour was careful to explain that he did not regard her evidence as unreliable nor her hostility as depriving Ms Wright's evidence of credit. As I remarked during the course of submissions, the term 'bias' in its proper meaning connotes some improper deviation from a truth path, and I am satisfied that it was in this sense that the learned magistrate rejected the submission that Ms Wright's evidence had been biased. Although it was hostile and damaging, his Honour was satisfied that it was true in its essential respects. There is no basis for suggesting that his Honour was in error in this regard.

39 Similar observations can be made about the submissions that the learned magistrate was in error in failing to find that Ms Wright was in a rage during the time when the events in question occurred. His Honour was satisfied that she was angry and upset but was not in a rage. Clearly, there was an argument between the two protagonists and angry words were exchanged but 'rage' in the manner in which the term was employed by the appellant and his counsel connotes a state of anger or agitation so severe as to deprive the person concerned of proper control or understanding, or even recollection. I am satisfied that it was in this sense that the learned magistrate concluded that no such extreme state of agitation had been reached by Ms Wright and that despite her anger and hostility to Mr Morris she was able to give an accurate account of the basic events. There is no merit in the submission that there was any error of law or fact because of a wrongful conclusion that the victim was not in a rage.

40 Turning to the contention that Ms Wright's evidence was inconsistent with or unsupported by the independent police evidence and that the learned magistrate's finding that it was was erroneous, it is necessary to begin by saying that in a number of material respects her evidence was confirmed by the evidence of Constable Hymus. In the first place, the injuries were noted, recorded and photographed. There were blood stains on the floor and there was a smashed coffee cup in the kitchen. The evidence of Constable Hymus included the video record of interview of the appellant in which there were admissions that he had used force, in a number of respects, towards Ms Wright that morning. Insofar as the appellant submitted that because Constable Hymus had not said that he noticed washing or laundry on the floor of the kitchen area, this was inconsistent with the version of events given by Ms Wright, the proposition cannot be accepted. Properly regarded, all that the evidence of Constable Hymus meant in this regard was that he had not seen

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washing or laundry on the floor. There was no inquiry as to how far, to what extent, or for what purpose he had inspected the interior of the flat or whether he had any reason to note whether there were clothes or laundry in any particular place. Those were not matters that were pursued in the course of his evidence-in-chief or cross-examination. The learned magistrate obviously treated the evidence of the police officer as being inconclusive on that particular issue and so it was. No error has been demonstrated in this respect.

41 The contention in the fifth ground of appeal that there should have been an Edwards direction (Edwards v The Queen (1993) 178 CLR 193) is, with respect, quite misplaced and, as already noted, ground five was not pursued. Nor was ground six, relating to the alleged admission of text messages into evidence. The fact of the matter was that no text messages were admitted in evidence. His Honour did not permit them to be tendered and remarked that he placed no weight on them.

42 The contention in ground eight that the learned magistrate had erred by mistakenly introducing into the examination of the evidence a question of whether or not the appellant had punched or pushed Ms Wright must also be rejected. In the context of his Honour's reasons for decision it is quite obvious (and even more obvious from an examination of the course of the evidence) that there was no suggestion or implication that the appellant had ever struck Ms Wright in the face or in the head with a clenched fist. The whole context was whether or not her head had been slammed or pushed repeatedly into the surface of the table or sink and, on a subsequent occasion, on to the floor. There was an issue as to whether or not the appellant had pushed the victim's head or face forcibly into those surfaces, causing her harm. The finding was that he had - a finding quite consistent with the nature of the injuries and the evidence of Ms Wright. In the reasons for decision his Honour did use the words 'punched or pushed' but the use of the word 'punch' was, in the context, synonymous with the idea of her head being forced on to such a surface. No error of fact or law in this regard has occurred.

43 In relation to the ninth ground of appeal, that the learned magistrate failed properly to consider each of the defences raised by the appellant, it is quite apparent that his Honour did separately address each of the potential statutory defences and, consistently with the findings of fact which he had already reached, concluded, correctly in my view, that none of those defences applied and that the prosecution case had refuted any potential application which they might otherwise have had.

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44 With regard to the contention in the tenth ground of appeal, that the learned magistrate failed to consider the application of a s 23B defence in relation to each of the two separate incidents, the one in the kitchen and the other by the stairs, the proposition must be rejected. As counsel for the respondent correctly submitted, the respondent was entitled to charge the appellant with a single count of assault notwithstanding that there were multiple assaults during one incident - Criminal Procedure Act 2004 (WA) sch 1 cl 8. The events in the kitchen and near the stairs were jointly covered by the sole charge of assault and, it is quite evident, the learned magistrate saw the events as one continuing sequence of unlawful assaults and was addressing all aspects of the appellant's behaviour together comprehensively. There is no error in that approach nor is there any basis for considering, as a matter of fact, that there was any difference in the circumstances or in the significance of the violent behaviour which occurred in the kitchen and that which occurred near the stairs so as to give rise to any possibility that there may have been a defence open for one such incident but not the other.

45 Returning to ground seven of the grounds of appeal, namely that for all or any of the reasons relied upon by the appellant there had been a miscarriage of justice, I am also satisfied that this must be rejected. No error has been demonstrated by the learned magistrate whether of fact or of law. His Honour was conscious of the ingredients of the offence, the defences relied upon by the appellant and the issues of fact upon which a determination of the case turned. His Honour correctly addressed each of those issues and found that he was satisfied, beyond reasonable doubt, that the charge had been established. There was evidence upon which his Honour was entitled to make that finding and there were cogent reasons why his Honour did so. The learned magistrate correctly recognised the location of the onus of proof of all issues and of the burden of proof. No error in this respect or otherwise has been established.

46 It is for these reasons that, at the end of the hearing of the appeal, I ordered that it should be dismissed.