Naraidoo v WA Police - [2024] WASC 429

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   NARAIDOO -v- WA POLICE [2024] WASC 429
CORAM:   MCGRATH J
HEARD:   17 OCTOBER 2024
DELIVERED          :   21 NOVEMBER 2024
FILE NO/S:   SJA 1048 of 2024
BETWEEN:   VLADIMIR MIGUELITO NARAIDOO
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1048 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B AYLING
File Number            :   PE 2470/2024

Catchwords:

Criminal law - Appeal against conviction - Breach of Family Violence Restraining Order - Miscarriage of justice - Verdict unreasonable or could not be supported having regard to evidence - Application to adduce further evidence

Legislation:

Criminal Appeals Act 2004 (WA), pt 2, s 8(2)
Restraining Orders Act 1997 (WA), s 61(1)

Result:

Leave to appeal granted on grounds 1 and 2
Application to adduce further evidence on appeal granted
Appeal allowed
Conviction quashed and acquittal entered

Category: B

Representation:

Counsel:

Appellant	:	Mr C M Townsend & Ms J L Tonkin
Respondent	:	Mr C D Tan

Solicitors:

Appellant	:	Perrella Legal
Respondent	:	State Solicitor's Office

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

Beamish v The Queen [2005] WASCA 62
DPJB v The State of Western Australia [2010] WASCA 12
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Jago v The State of Western Australia [2022] WASCA 2
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27

MCGRATH J:

The appellant appeals his conviction of one charge of breaching a family violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (RO Act).
The appellant contends that there was a miscarriage of justice in that the verdict was unreasonable or could not be supported by the evidence at trial. Further, the appellant appeals the conviction on a second ground that new evidence has been obtained, subsequent to the trial, that casts significant doubt on the guilt of the appellant and consequently, there has been a miscarriage of justice.
For the following reasons, I have determined that leave to appeal should be granted and that the appeal must be allowed.

Procedural history in the Magistrates Court

On 11 July 2024, the appellant appeared in the Perth Magistrates Court for trial represented by a legal practitioner.
At the commencement of the trial, the prosecutor stated that the prosecution case was that the appellant, whilst subject to a family violence restraining order that prohibited him from coming within 10 metres of the external boundary of the relevant property, drove his vehicle down the driveway of the property and thereby breached the prohibition.[1] It was not contended by the prosecution that the appellant exited his vehicle nor that he had any interaction whatsoever with the protected person.[2]
[1] ts 2 (11/07/2024).
[2] ts 2 ‑ 5 (11/07/2024).
The appellant made a number of admissions at the commencement of the trial.
First, that he was subject to a family violence restraining order made on 21 December 2023 under the RO Act (the FVRO).[3]
[3] Exhibit 1, Family Violence Restraining Order made on 21 December 2023.
Second, that the FVRO relevantly provided that the appellant must not 'enter or remain upon [a specified residential address] or any other premises where the protected person lives or works or is educated or be within 10 metres of the nearest external boundary of those premises'.
Third, that on 12 January 2024, whilst subject to the FVRO, he attended at the relevant property, being the protected person's residential address (the residence), but he did not enter within 10 metres of the nearest external boundary of the residence.[4]
[4] ts 6 (11/07/2024).
The appellant's defence was that he attended at the residence to retrieve property, to which he was entitled, but upon realising that the protected person was at home, he withdrew from the driveway by driving back down the driveway. The appellant maintained that he did not come within 10 metres of the external boundary of the residence because he reversed his vehicle out of the driveway before coming within 10 metres of the external boundary. The appellant stated that he did not proceed further along the driveway than the point of a second lamp post alongside the driveway.

Evidence at trial

At trial, the prosecution relied upon testimony from the protected person,[5] and an investigating police officer, First Class Constable Walshe.[6] The appellant gave evidence on his own behalf,[7] and also relied upon testimony from Ms Reyes.[8] I will outline the testimony of the respective witnesses.

The protected person's testimony

[5] ts 7 ‑ 17 (11/07/2024).

[6] ts 17 ‑ 26 (11/07/2024).

[7] ts 26 ‑ 33 (11/07/2024).

[8] ts 34 ‑ 35 (11/07/2024).

The protected person gave evidence that at approximately 11.00 am on 12 January 2024, whilst inside her kitchen area, she heard the garage door opening. Upon walking to the garage door area, she observed that the door was halfway up and she 'saw the car about to turn into the carpark', so she went to retrieve her mobile phone. Upon returning, the protected person observed the car was reversing down the main driveway and took a photograph, which was made exhibit 2.[9]
[9] Exhibit 2, Photograph of dark-coloured vehicle at the end of the driveway.
The protected person stated that she 'saw the [appellant's] car in front of the garage door', which is 'around five steps' from where she stands where she opens her car door,[10] and 'probably two to three steps from the garage'.[11] The roller door to the garage was '70 per cent up', which permitted her to observe the vehicle. The protected person marked a copy of a ground floor plan of the property showing her recollection of the position of the vehicle.[12] The protected person stated that the appellant's vehicle was 'just in front of the garage door'.[13]
[10] ts 9 (11/07/2024).
[11] ts 10 (11/07/2024).
[12] Exhibit 3, Copy of plan with marking by the complainant showing position of the vehicle in the driveway.
[13] ts 10 (11/07/2024).
In cross‑examination, the protected person stated that she was unable to say with accuracy how far 10 metres was from her property, estimating it was 'probably halfway' up the driveway.[14]
[14] ts 12 (11/07/2024).
In cross‑examination, the protected person stated that she parked her vehicle on the left‑hand side of the garage and not the right‑hand side. The question appeared to be predicated on observing the double garage from standing outside looking inwards. The protected person said she could not see the driver's face in the vehicle because of the windscreen and the reflection from the sun.[15] The protected person accepted that she was scared at the time, but 'pretty sure' of how far the car was from the garage.[16]
[15] ts 14 (11/07/2024).
[16] ts 14 (11/07/2024).
In re‑examination, the protected person was shown the photograph she took (exhibit 2) and asked whether the wall would have blocked her vision of the vehicle if the vehicle had been further up the driveway. To that question the protected person answered, 'yes'.[17]

First Class Constable Walshe's testimony

[17] ts 16 (11/07/2024).

First Class Constable Walshe attended at the property. The officer produced CCTV footage from a neighbour's property showing the common property.[18] A vehicle was depicted moving along the driveway, but that vehicle was not identified by First Class Constable Walshe nor any other witness.
[18] Exhibit 4, Neighbour's CCTV footage showing common driveway.
The officer also produced camera footage showing a walk‑through of the driveway area, which he conducted. That footage was exhibited as exhibit 5.[19] The officer gave evidence that he held the mobile phone camera at his chest level when he recorded the walk‑through. The walk‑through video showed that the property formed part of a single level residential complex with a straight driveway from the roadway to the property, which was situated to the area at the top right of the driveway. Further, there were three lamp posts along the right‑hand side of the driveway. The second lamp post was the middle one. On the driveway near the second lamp post is a drain.
[19] Exhibit 5, Footage of First Class Constable Walshe's walk through at property.
The officer was asked at what point did he see the complainant's 'garage and vehicle from that footage'. The officer answered, 'I would only be guessing, but I would say within 10 metres'.[20]
[20] ts 20 (11/07/2024).
The officer produced a series of still photographs showing the external area of the property, specifically the driveway area, which became exhibit 6.[21] The officer was asked a series of questions concerning the photographs. It is not possible to discern which photographs were subject to specific questions given that the photographs were not labelled with any identification number.
[21] Exhibit 6, Seven pages of photographs of external area of property.
In cross‑examination, the officer confirmed that he did not measure the distance of 10 metres from the external boundary to any particular location. Further, the officer stated that he was unable to say what the point on the driveway was at the 10‑metre mark from the external boundary of the residence.[22] The officer accepted that the CCTV footage did not show how far along the driveway the appellant's vehicle was driven.[23]
[22] ts 23 (11/07/2024).
[23] ts 24 (11/07/2024).
I note, for completeness, that the prosecution case appears to have proceeded on the basis that the 'external boundary' of the residence extended to the confines of the protected person's unit property, and not to the perimeter of the strata complex on which the unit property was located, and which included the common property such as the driveway.

The appellant's testimony

The appellant gave evidence that he went to the property to retrieve his mother's heart medication that had been left there.[24] At the time of attending the appellant believed the protected person would be at work.
[24] ts 28 (11/07/2024).
The appellant said that he drove down the driveway and stopped his vehicle at the 'second lamp depicted on the photo'.[25] The appellant was shown one of the photographs that comprised exhibit 6 and stated that he was 'pretty much parallel to the second lamp that you can see in the middle'.[26]
[25] ts 29 (11/07/2024).
[26] ts 30 (11/07/2024).
The appellant stated that when he entered the driveway, he pressed the garage door remote control button and, upon observing the protected person's vehicle in the driveway, began to reverse back out of the driveway.[27] The appellant confirmed that when he was reversing down the driveway he observed the complainant take a photograph of his vehicle.[28]
[27] ts 29 (11/07/2024).
[28] ts 29 (11/07/2024).
In cross‑examination, the appellant's testimony was largely unchallenged. In particular, there was no challenge to his testimony that his vehicle did not proceed any further than the second lamp in the driveway. The prosecutor played the officer's walk‑through footage (exhibit 5) and asked the appellant to state when he could see the complainant's garage. The appellant in due course answered 'yes, I can see it'.[29] However, that evidence has no forensic value on appeal for the reason that the prosecutor did not identify the timing on the recording and, therefore, it is not possible to discern the point on the recording when the appellant confirmed he could see the garage.
[29] ts 32 (11/07/2024).
In cross‑examination, the appellant stated that when he was in the vehicle on the driveway the vehicle was parked closer to the left‑hand side of the driveway rather than on the right‑hand side.[30]

Ms Reyes' testimony

[30] ts 33 (11/07/2024).

The defence called Ms Reyes for the sole purpose of tendering two photographs of the residence and driveway, namely exhibits 7.1 and 7.2.[31] There was no evidence as to the date on which Ms Reyes took the photographs.
[31] Exhibit 7.1, First photograph taken by Ms Reyes; Exhibit 7.2, Second photograph taken by Ms Reyes.
Ms Reyes stated that the first photograph, exhibit 7.1, was taken from the point on the driveway adjacent to the second lamp post and depicted what she was observing from that point and the second photograph, exhibit 7.2, depicted the second lamp post on the driveway.
Ms Reyes was not cross‑examined. There was no challenge to the veracity of the photographs.

Magistrate's reasons for decision

The learned Magistrate delivered an ex‑tempore judgment at the conclusion of the evidence. Her Honour recited the applicable principles of law and outlined the relevant testimony of the witnesses. Her Honour correctly identified that the issue at trial was whether the appellant was within 10 metres of the nearest external boundary of the residence.
The learned Magistrate directed herself in accordance with the Liberato principle,[32] before assessing the testimony of the appellant.[33]
[32] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J).
[33] ts 40 (11/07/2024).
For completeness, I outline the learned Magistrate's relevant findings concerning the prosecution case and the testimony of the appellant:[34]
As to the evidence of the accused, he, in my view, gave reliable evidence, in the sense that he conceded where he had done wrong.
He conceded he was there when he shouldn't have been, that he was there essentially with the intention of breaching the order to go into the house for the purposes of retrieving the medication, and that it was the positioning of the complainant's vehicle and the sight of her that caused him to then depart from the premise. In that sense, it was evidence that made sense, and that's why I say it's reliable and that it was an account which seemed to follow, in terms of being a believable account.
The difficulty with his evidence is that, in giving what I consider to be an honest account, I consider that he has placed himself essentially within the crosshairs of the difficulty that he finds himself in with the charge. On a review of the other evidence, particularly the documentary evidence and the photographs and the walk-through, my estimation of where 10 metres would be places him, really, within the own account of the accused in his evidence - that at the second lamp or thereabouts, where he indicated, he was within the 10 metres external boundary of the premise.
And although he indicates that it was within a matter of seconds that he was there, it still falls within the terms of the restriction, in that the restriction is that he not be - and be includes even within one second of - and the shortest possible time of being within 10 metres of the distance that he's prevented from being. So I have reviewed the accused's evidence from the starting point to ascertain whether it gives rise to the reasonable doubt, as I'm required to do.
And it would seem that on the interpretation of the accused's account, which I accept that he stopped at the point that he said, at the second lamp, and then retreated, that he still finds himself within the terms of the restriction, which then leads me to the ultimate conclusion that the prosecution have proved beyond reasonable doubt that he was within the 10-metre restriction of the restraining order requiring him not to be at that residence.
I don't need to turn to an assessment of the prosecution case, given that the starting point has been what has been raised on the accused's evidence as a whole. I note that the complainant indicated that he was further closer to the garage door, that she had been concerned and seen a silhouette or things of that nature. As I've indicated, I accept the accused's account in the way that he gave it, but nonetheless, his accused - his account, rather, does not give rise to a reasonable doubt in relation to the defence of the trial proper.
And so I'm inclined to accept his account that he stopped at the point of the second lamp and retreated, but nonetheless, for the reasons I've already announced, I find that that is, nonetheless, proof beyond reasonable doubt of his guilt of being within 10 metres of the external boundary of the premise. And so with that conclusion reached, there's a judgement of conviction.
[34] ts 42 - 43 (11/07/2024).
In short, it is apparent that the learned Magistrate specifically accepted the appellant's evidence that he went as far up the driveway as to the second lamp post. On the basis of that evidence, and the 'documentary evidence and the photographs and the walk through', the learned Magistrate made her own estimate that the appellant was within 10 metres of the external boundary of the residence.[35]
[35] ts 42 (11/07/2024).
Therefore, the learned Magistrate, having found that the appellant proceeded along the driveway to the second lamp post, which was a point within 10 metres of the external boundary of the residence, concluded that there was no reasonable doubt as to the appellant's guilt.

Appeal

This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.
An appeal hearing is not a retrial of the issues that were before the primary court. The appellant must demonstrate that the primary court fell into error in a manner specified in a ground of appeal. The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[36] On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[37]
[36] Criminal Appeals Act2004 (WA), s 8(1).
[37] Criminal Appeals Act2004 (WA), s 14.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[38]
[38] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
The appellant's appeal contains the following grounds:[39]
[39] Appeal Notice dated 6 August 2024.
1.The verdict of guilty was unreasonable or could not be supported having regard to the evidence adduced at trial.
Particulars
i)The issue for determination, at trial, was whether the Appellant approached within 10 metres of the Complainant's residence.
ii)The Appellant elected to give evidence, and the Learned Magistrate accepted that evidence as otherwise credible and reliable.
iii)In accepting that evidence, the Learned Magistrate accepted expressly where the Appellant placed himself with respect to the boundary of the Complainant's residence.
iv)There was no basis, given the Learned Magistrate's acceptance of that evidence, to be satisfied beyond a reasonable doubt that the Appellant did approach within 10 metres of the Complainant's residence.
v)The Learned Magistrate should've had a reasonable doubt as to the Appellant's guilt, indicated by her 'estimation' of distance, but failed to give effect to that doubt.
2.Since the Appellant's conviction; new evidence, that if obtained prior to trial, would have cast significant doubt on the guilt of the Appellant and as a result there has been a miscarriage of justice.
I will now consider the grounds of appeal.

Ground 1

By ground 1, the appellant contends that the verdict of the learned Magistrate was unreasonable or unsupported by the evidence.
The conclusion that a verdict is unreasonable, having regard to the evidence, is not materially different from the conclusion that the verdict is unsafe or unsatisfactory. The statutory ground of miscarriage of justice is thus commonly encompassed within the description that the conviction is 'unsafe and unsatisfactory'.
The High Court,[40] and the Court of Appeal,[41] have outlined the principles that apply in determining whether a conviction is unsafe and unsatisfactory in the context of appeals from a jury verdict.
[40] M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.
[41] Wells v The State of Western Australia [2017] WASCA 27 [13]; Jago v The State of Western Australia [2022] WASCA 2.
The Court of Appeal, in Jago v The State of Western Australia, summarised the relevant principles applicable to a conviction before a jury as follows:[42]
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.
(5)The appeal court performs its function on the assumption, in a case such as the present case, that the evidence of a complainant was assessed by the jury to be credible and reliable. The question for the appeal court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6)A doubt experienced by an appeal court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the appeal court to conclude that, even making full allowance with the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted then the appeal court must set aside the verdict.
(8)The setting aside of a jury's verdict on the ground that it is unreasonable is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court which has not seen or heard the witnesses called at the trial.
[42] Jago v The State of Western Australia [2022] WASCA 2 [144].
The principles concerning unsafe and unsatisfactory verdicts apply to a verdict of guilty entered after a trial before a judge alone or before a magistrate.[43]

Analysis of ground 1

[43] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [12] (French CJ, Bell, Keane & Nettle JJ), [82] (Gageler J); The State of Western Australia v Olive [2011] WASCA 25 [44] (Buss JA with whom McLure & Mazza JJA agreed).

Ground 1 raises two issues for consideration. First, the learned Magistrate's finding of the distance that the appellant drove his vehicle down the driveway of the common property towards the residence. Second, the finding that the appellant came within 10 metres of the external boundary of the residence.
It was admitted at trial that the appellant went to the residence to retrieve property and drove his vehicle down the driveway. The prosecution did not contend that the appellant exited his vehicle. Rather, it was common ground that he reversed back down the driveway and departed. The issue at trial was how far the appellant drove his vehicle down the driveway before reversing and whether that point was within 10 metres of the external boundary of the residence.
At trial there were three sources of evidence to establish the point on the driveway that the appellant reached before retreating and whether that point was within the 10‑metre restriction. The three sources were the protected person's testimony, the appellant's testimony and the photographic evidence comprising the walk‑through video by Officer Walshe, the officer's photographs and the photographs produced by the defence.
The protected person gave evidence that she came out of her garage door and 'saw the car in front of the garage door', which was 'around five steps' from where she stood where she opened her car door in the garage and about 'two to three steps' from the 'garage door to the car'.[44] The protected person marked the strata map to indicate where the appellant's car was. The protected person's evidence appears to place the appellant within 10 metres of the external boundary of the residence.
[44] ts 9 - 10 (11/07/2024).
The appellant's testimony was that he did not advance further than the second lamp post on the driveway. His evidence was that from that point he was able to see the protected person's vehicle through the open garage door, and that caused him to retreat.
The learned Magistrate made an express finding that the appellant's evidence was both credible and reliable. That was a significant credibility finding regarding the appellant's testimony.
The respondent submits that the verdict was not unsafe and unsatisfactory, effectively because the appellant's evidence should not have been accepted. The respondent submitted that the appellant's evidence that from where he stopped, that is next to the second lamp post, he could see into the garage, or see the protected person's vehicle inside the garage, was inconsistent with the evidence of Officer Walshe. The officer's evidence and the walk‑through video indicated that it was not possible to see inside the garage from a position next to the second lamp post.
There are three problems with the respondent's submission. The first is that it is apparent that in accepting the appellant's evidence, the learned Magistrate was focused on his evidence as to where he stopped, namely the second lamp post, and not what he said he could see from that point.
The second problem is that the evidence given by the appellant as to where he stopped was not precise. He was sat inside a vehicle. His recollection was that he stopped 'closely to the second lamp' and was 'pretty much parallel to the second lamp'.[45] The appellant was asked whether the point at which he reached was 'in line with approximately the grate that's on the floor' of the driveway. The appellant did not answer that question.[46] The respondent accepted in written submissions that there was ambiguity, stating that the learned Magistrate did not expressly accept that the appellant's vehicle 'had stopped when it was exactly on par with, or before it drew level with the second lamppost'.[47] I note that the learned Magistrate stated that the appellant was 'at the second lamp or thereabouts, where he indicated', and further accepted 'that he stopped at the point that he said, at the second lamp, and then retreated'.[48] The respondent's submission appears to be that there is evidentiary ambiguity arising from the testimony of the appellant as to whether he was directly in line with the second lamp (on par) or was closer to the boundary line and, therefore, the appellant may have been somewhat closer. This ambiguity does not assist in proving the prosecution case, but rather is demonstrative of the evidentiary weaknesses of the prosecution case.
[45] ts 29 - 30 (11/07/2024).
[46] ts 30 - 31 (11/07/2024).
[47] Respondent's written submissions dated 10 October 2024, [21].
[48] ts 42 (11/07/2024).
Thirdly, the respondent effectively seeks that I disregard the learned Magistrate's advantage in assessing the credibility of the appellant's evidence on the crucial question of where he was on the driveway. I am not satisfied that his evidence as to where he was on the driveway was so glaringly improbable as to warrant not accepting the learned Magistrate's credibility finding. That is because there are limitations on the physical evidence produced by the prosecution.
The limitations on the physical evidence comprise the following. The prosecution did not lead any evidence at all concerning the 10‑metre mark from the external boundary of the residence. The police officer was unable to identify the point along the driveway where the 10‑metre boundary was, and in particular whether the second lamp post was within that distance. The officer did not give evidence as to the distance from the point on the driveway where he was able to see the garage door and the vehicle.
I have reviewed the physical evidence. From merely observing the walk‑through video, what appears to be the top of the open garage door can be seen from a point that appears to be at or near the second lamp post. However, from that point it does not appear that a vehicle could be seen from inside the garage. There is necessarily an inherent uncertainty in respect to the evidence in the recordings due to their nature and the lack of measurements. I note that the photographs produced by Ms Reyes appear to support a finding that the garage door of the property may be observed from the area of the driveway adjacent to the second lamp post. Again, this evidence lacks any reference point to measurements of the distance.
I am left with the findings of the learned Magistrate that the appellant gave credible and reliable testimony regarding his entry onto the property, and the point to which he advanced. Upon reviewing the evidence as a whole, I am satisfied the finding of the learned Magistrate concerning how far the appellant advanced along the driveway was reasonably open on the evidence having regard to the advantage that she had in assessing the testimony of the appellant.
The question that then arises is whether the learned Magistrate's estimation, based upon the physical evidence that the second lamp post was within the 10‑metre prohibition, was a finding that was open to be found beyond a reasonable doubt. The appellant contends that the evidence at trial was insufficient to establish that finding.
The prosecution case suffered from the fundamental difficulty of proving beyond a reasonable doubt whether the area on the driveway adjacent to the second lamp post was within 10 metres from the external boundary of the residence.
Properly understood, the learned Magistrate has made the finding that the point where the appellant stopped, being close to or adjacent to the second lamp post, was within the 10‑metre distance of the external boundary. Her Honour's finding was made on her estimation based on observing the video walk‑through by Officer Walshe, the photographs and the strata diagram.
The evidence adduced by the prosecution was not sufficient to prove the learned Magistrate's estimation beyond a reasonable doubt. The investigating police officer was unable to identify the point on the driveway which is 10 metres from the external boundary of the property. The officer was asked about the distance to the boundary from the point whether he could see the protected person's 'garage and vehicle from that footage'. The officer answered, 'I would only be guessing, but I would say within 10 metres'.[49]
[49] ts 20 (11/07/2024).
With the greatest respect to the learned Magistrate, in circumstances where the evidence as to the appellant's location adjacent to the second lamp post was not precise and where the prohibited distance was relatively small, it was not appropriate for the learned Magistrate to rely upon her own estimation in determining whether this element of the offence was proved beyond a reasonable doubt.
I have assessed all the evidence at the trial. The question for the appeal court is whether, upon the whole of the evidence, it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant came within 10 metres of the external boundary of the property. I find that it was not open for the learned Magistrate to be so satisfied.
Accordingly, ground 1 is made out. For completeness, I will consider ground 2 given that the gravamen of that ground concerns new evidence from a licensed surveyor regarding the 10‑metre mark from the external boundary of the evidence.

Ground 2

By ground 2, the appellant contends that new evidence has been obtained that casts significant doubt on the guilt of the appellant and as a result, there has been a miscarriage of justice.
The appellant seeks to rely upon the affidavit of Mr Daniel Win, a licensed surveyor, who holds a current practising certificate issued by the Land Surveyors Licensing Board of WA.[50]
[50] Affidavit of Mr Win sworn 12 September 2024, [5].
Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that was before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Criminal Appeals Act. Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following ‑
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence.
There is a well‑established distinction between fresh evidence on the one hand and new evidence on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.[51]
[51] Beamish v The Queen [2005] WASCA 62 [9].
An appellate court will not allow an appeal against conviction on the basis of new, as distinct from fresh, evidence unless the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted.[52] An appellate court will not allow an appeal against conviction on the basis of fresh, as distinct from new, evidence unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant.[53]
[52] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676; DPJB v The State of Western Australia [2010] WASCA 12 [66].
[53] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399, 402; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273, 301 ‑ 302.
Mr Win deposes that on 2 August 2024 he completed a boundary alignment survey of the residence, which involved measuring the Strata Lot Boundary of the property. Mr Win identified the external boundary of the property, then determined and marked the 10‑metre mark from the external boundary of the residence. Mr Win measured the distance from the external boundary of the residence to the middle lamp post (second lamp post) on the driveway. Mr Win deposed that having regard to the measurements taken, the second lamp post is 14.4 metres from the external boundary of the residence and is, therefore, outside of 10 metres from the external boundary of the residence.
This further evidence, on which the appellant now seeks to rely, is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. Thus, that evidence can only be received if it establishes such doubt that the court is satisfied that the appellant should not have been convicted.
The appellant's contention is that the issue at trial was whether he approached within 10 metres of the boundary of the residence. The appellant submits that the learned Magistrate found that he was a reliable and credible witness and therefore, his testimony that he did not proceed any further than the second lamp post was accepted. He submits that the expert evidence establishes that that point is 14.4 metres from the external boundary of the residence. Accordingly, the appellant submits that the new evidence raises sufficient doubt in respect to the conviction.
I accept that submission. The evidence of Mr Win establishes that the second lamp post is 14.4 metres from the external boundary of the residence. In light of the learned Magistrate's acceptance of the appellant's evidence that he did not proceed past the second lamp post, the new evidence raises a reasonable doubt as to whether the appellant breached the condition of the FVRO, in that he did not come within 10 metres of the external boundary of the residence.

Conclusion

Accordingly, leave to appeal is granted on grounds 1 and 2. The appeal is allowed. The conviction on charge PE 2470/2024 is quashed and a verdict of not guilty is entered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
21 NOVEMBER 2024