O'Connor v Parker
[2019] WASC 195
•12 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: O'CONNOR -v- PARKER [2019] WASC 195
CORAM: DERRICK J
HEARD: 21 MAY 2019
DELIVERED : 12 JUNE 2019
FILE NO/S: SJA 1138 of 2018
BETWEEN: NICHOLAS PETER O'CONNOR
Appellant
AND
ALAN PARKER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S M WILSON
File Number : PE 69852 OF 2017
Catchwords:
Criminal law - Appeal against conviction - Fresh evidence - Evidence of inconsistent out of court statements by a prosecution witness - Prosecution witness not called at appeal hearing - Whether fresh evidence relevant only to credibility can establish a miscarriage of justice - Whether reasonable trier of fact could accept the fresh evidence as relevant, credible and cogent - Whether fresh evidence capable of materially affecting an assessment of the credibility of the prosecution witness's evidence - Whether on the whole of the evidence there is a significant possibility that the trier of fact acting reasonably would have acquitted the appellant
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Evidence Act 1906 (WA)
Surveillance Devices Act 1998 (WA)
Result:
Application for leave to adduce further evidence allowed
Application for leave to appeal allowed
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr T E Pontre |
Solicitors:
| Appellant | : | Legal Pathways Pty Ltd |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
ARK v The State of Western Australia [2014] WASCA 45
Coffman v The Queen [2010] WASCA 54
Muller v The State of Western Australia [2014] WASCA 81
O'Meara v The State of Western Australia [2013] WASCA 228; (2013) 235 A Crim R 209
Pihema v The State of Western Australia [2017] WASC 282
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Rodi v The State of Western Australia [2018] HCA 44
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
DERRICK J:
Introduction
On 14 November 2017 the appellant was charged in the Magistrates Court under s 313(1)(a) of the Criminal Code (WA) (Code) with one offence of aggravated unlawful assault, the alleged circumstance of aggravation being that he was in a family and domestic relationship with the alleged victim.
On 10 January 2018 the appellant entered a plea of not guilty to the charge.
On 8 October 2018 and 16 October 2018 the appellant's trial on the charge took place before his Honour Magistrate Wilson. At the end of the trial the magistrate reserved his decision.
On 5 November 2018 the magistrate found the appellant guilty of the charge and entered a judgment of conviction. His Honour published written reasons for his decision dated 5 November 2018 (the Reasons).
The appellant now applies for leave to appeal against his conviction.[1]
[1] The application is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 18 March 2019 Acting Justice Strk ordered that the application for leave to appeal and an application by the appellant to adduce additional evidence on the appeal be heard together with the appeal.[2]
[2] The application to adduce additional evidence on the appeal is made under s 40(1)(d) of the CAA.
The appellant's single ground of appeal, which is set out in full later in these reasons, is that evidence obtained since the trial is capable of raising a reasonable doubt as to whether the appellant is guilty of the offence of which he was convicted such that a miscarriage of justice has occurred.[3]
[3] Section 8(1)(b) of the CAA permits a person to appeal on the ground that there has been a miscarriage of justice.
Leave to appeal
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[4] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[5] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[6]
[4] CAA, s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[6] CAA, s 9(3).
The magistrate's relevant findings of fact
The magistrate made the following relevant findings of fact in relation to the appellant's offence.
The appellant and Ms Isabelle O'Connor married in 2011. They separated in 2016. They have two children, Carla O'Connor (Carla) and James O'Connor (James). Carla is 6 years old and James is about 4 years old.[7]
[7] Reasons [1].
After their separation the appellant and Ms O'Connor shared responsibility for caring for their children.[8]
[8] Reasons [2].
On 12 October 2017 the appellant was at his house in Bedford (the house). The appellant had his children with him at the house. He had been looking after the children for five or six days.[9]
[9] Reasons [3], [21f].
At about 5.00 pm or 5.30 pm on 12 October 2017 Ms O'Connor arrived at the house to collect the children. At the time the appellant was in the laundry attending to some chores. The children were in the backyard of the house playing.[10]
[10] Reasons [3].
Initially the appellant and Ms O'Connor engaged in amicable conversation. However, after a period of time they began to argue over arrangements for the care of the children on the following weekend. The argument became heated. The appellant and Ms O'Connor verbally abused each other.[11]
[11] Reasons [3], [26d], [26e], [26f].
During much of the argument between the appellant and Ms O'Connor the children were present in the laundry which was where the argument was taking place.[12]
[12] Reasons [26e].
After a time the appellant instructed Ms O'Connor to leave the house. He issued this instruction on several occasions. Ms O'Connor refused to leave the house. She continued to raise her voice and abuse the appellant.[13]
[13] Reasons [26g].
The appellant attempted to move Ms O'Connor from the laundry by shepherding her into the corridor of the house. However, he was unsuccessful in doing so. Further, Ms O'Connor continued to abuse the appellant in the presence of the children.[14]
[14] Reasons [26h].
At this point the appellant took hold of Ms O'Connor by the back of the neck and collar area of her top, as well as her right arm. In taking hold of Ms O'Connor by the back of the neck and collar area of her top the appellant grasped parts of Ms O'Connor's hair. The appellant, having taken hold of Ms O'Connor in this way, partially lifted her from the ground so that she was barely walking and marched her along the corridor towards the front door of the house.[15]
[15] Reasons [26i].
The appellant marched Ms O'Connor from near the laundry to within about six feet of the front door of the house. The appellant then threw or slung Ms O'Connor with unnecessary and unreasonable force towards the front door with the result that Ms O'Connor struck the wall near the door with her body and head.[16] This caused her to be stunned for a moment and caused her to slide to the floor for a moment.[17]
[16] Reasons [24c], [24d], [26j], [26l], [26m].
[17] Reasons [26l].
After being thrown against the wall Ms O'Connor gathered herself, collected Carla and James, and drove to a nearby police station where she reported the matter.[18]
[18] Reasons [13n].
The conduct found by the magistrate to constitute the offence
The magistrate found that the appellant, by taking hold of Ms O'Connor by the back of the neck and collar area of her top including grasping parts of her hair, by taking hold of Ms O'Connor by the right arm and partially lifting her from the ground so that she was barely walking, and by marching Ms O'Connor along the corridor towards the front door acted lawfully. His Honour found that this conduct of the appellant was lawful because it was, by reason of s 254 of the Code, a lawful response to Ms O'Connor's refusal to leave the house at the appellant's request.[19]
[19] Reasons [26h], [26i], [26k],
The magistrate found that the appellant's conduct in throwing Ms O'Connor into the wall was excessive and unwarranted and therefore unlawful. It was the appellant's conduct in throwing Ms O'Connor into the wall that the magistrate found was the unlawful assault constituting the appellant's offence.[20]
[20] Reasons [4], [26j], [26k], [26l], [26m], [27], [28].
The evidence adduced at trial
The prosecution called two witnesses at the appellant's trial, Ms O'Connor and Carla. The prosecution also tendered three photographs of Ms O'Connor taken by the police on 12 October 2017 shortly after the relevant incident,[21] and a medical report from Sir Charles Gairdner Hospital (SCGH) which recorded the results of an examination of Ms O'Connor carried out on the evening of 12 October 2017 following the relevant incident.[22] The three photographs were tendered through Ms O'Connor. The medical report was tendered by consent.
[21] ts 11, 8 October 2018; photographs tendered as exhibit 1.
[22] ts 11, 8 October 2018; medical report tendered as exhibit 2.
The appellant elected to give evidence at his trial. He did not call any further witnesses. The appellant tendered as part of his case the complete medical notes relating to Ms O'Connor's attendance at SCGH on 12 October 2017.[23]
Ms O'Connor's evidence as to the unlawful assault
[23] ts 34, 8 October 2018; medical notes tendered as exhibit 3.
Ms O'Connor's evidence‑in‑chief as to the unlawful assault itself and as to the events that immediately led up to and followed the assault was as follows.[24]
[24] ts 6 ‑ 12, 8 October 2018.
During their argument over the arrangements for the care of their children on the following weekend she and the appellant began yelling at each other. At this point the appellant grabbed the back of her hair with his right hand and used his left hand to take hold of her left arm and slightly lift her off the floor. The appellant dragged her across the corridor towards the front door. When the appellant got close to the front door he threw or pushed her. She fell and hit the lower back of her head on the door frame or on the wall near the door. The appellant was about two metres from the door when he threw her.
After the appellant had thrown her he said to her, 'Now you fucking get out of my house you bitch, and if you think you're going to go to work as you please or you're going to get any money out of me you're wrong'.
When her head hit the wall or the door frame she was pretty dizzy. She could hear Carla crying and shouting, 'Daddy, stop. Stop. You're hurting Mummy. Stop'. She then shook 'it off', got back to her feet even though she was dizzy, and went to grab Carla to comfort her. It was at this time that she saw James use his foot to hit the appellant on the leg. James then ran off through the laundry into the backyard.
After she got Carla close to her she went into the backyard to get James. She picked up James and with Carla still close to her came back into the house. She wanted to ring the police but realised that she did not have her mobile phone on her. It was in her car. She saw the appellant's mobile phone. She grabbed the appellant's mobile phone to ring the police. However, the appellant ripped it out of her hand. She then left the house with the children and drove to the police station.
As a result of the incident she suffered swelling under her right eye which became worse over a period of two days, scratches on her left arm, an egg like lump at the back of her head and some swelling under her right arm.
In cross‑examination Ms O'Connor said, among other things, the following.[25]
[25] ts 19 ‑ 21, 43 ‑ 46, 50 ‑ 52, 8 October 2018.
Immediately before the appellant grabbed her, Carla and James were standing in the doorway of the laundry and the hallway.
When the appellant first grabbed her she was in the laundry.
The appellant grabbed her hair with his right hand, used his left hand to grab her by the shoulder, lifted her slightly and then dragged her down the hallway. The appellant dragged her through the laundry door, down the L‑shaped corridor and then 'flicked' her on the wall near the door. The distance from the door when the appellant threw her was one and a half to two metres.
She did not poke the appellant in the chest. She did not use her elbow to strike the appellant in the ribs. She never touched the appellant.
The appellant did not tell her that it was time to leave and then usher or gesture her towards the front door.
It is not the case that the appellant took hold of her collar behind her neck and walked her about one metre down the hallway. It is not the case that after the appellant had walked her about one metre down the hallway she pulled away from him, ran around the corner of the corridor, ran to near the front door, and collapsed or threw herself on the floor near the front door crying and screaming.
She did not, while she was at the police station with her children, say to them 'Well, Daddy pushed Mummy'. She did not speak to her children about the incident. She did not say to them, 'Daddy hurt me'. When she and her children got home from the police station she said to them that what had happened was between mummy and daddy and that they should not have been there when mummy and daddy had argued.
Carla's evidence as to the unlawful assault
Carla was 6 years old at the time of the trial. Accordingly, before Carla commenced to give her evidence the magistrate conducted an inquiry pursuant to s 106B(3)(b) of the Evidence Act 1906 (WA).[26] Having conducted this inquiry the magistrate decided that Carla was competent to give evidence on affirmation.[27] Carla then gave her evidence on affirmation.[28]
[26] ts 53 ‑ 63, 8 October 2018.
[27] ts 63, 8 October 2018.
[28] ts 63, 8 October 2018.
Carla's evidence‑in‑chief was adduced by the playing of the recording of an interview conducted with her by qualified child interviewers on 25 October 2017. She did not give any supplementary oral evidence‑in‑chief.
During the interview Carla said the following about the unlawful assault itself and the events that immediately led up to and followed the assault.[29]
[29] Transcript of interview, 4 ‑ 5, 9 ‑ 10.
Her dad dragged her mum from the laundry to the front door and her mum bumped her head on the wall because her dad had thrown her on the wall. Her mum was crying a lot.
Her dad just dragged her mum from the laundry to the front door and banged her mum's head on the wall. This is why her mum bumped her head.
Her dad was dragging her mum by the neck and the hair. Just before her dad dragged her mum they were having an argument.
She saw her dad dragging her mum to the front door and her mum banged her head on the wall.
When her dad was dragging her mum her mum's shoes were dragging on the floor because her dad was dragging her mum to the front door. Her dad's hands were on her mum's hair and her mum's neck. Her dad was dragging her mum 'nearly on her knees'.
She was in the hallway when she saw her dad drag her mum.
In cross‑examination Carla said, among other things, the following.[30]
[30] ts 68 ‑ 74, 8 October 2018.
When her mum and dad were in the laundry they were 'just saying their opinion' and because her dad had thought he had the right opinion 'he just threw mum on the wall for nothing'.
Her mum did not walk out of the laundry. Her mum was dragged out of the laundry by her dad.
Her mum was standing near the laundry door and then her dad was in the laundry and he dragged her in the hallway. Before this she heard her mum shouting at her dad. Her mum and dad were arguing and were getting louder and louder. Her mum did not use bad words but her dad did.
She did not see her mum poke her dad in the chest. She did see her mum push her dad back in the laundry. Her mum was pushing her dad in the chest. She was doing this gently. Her dad was saying to her mum, 'You have to go now' or something like that. It was after her dad said this that her mum pushed her dad.
When her dad dragged her mum her dad's right hand was on her mum's arm. Her dad put his other hand on the front of her mum's throat.
Her dad was at the back of her mum pushing her mum down the hallway. Her mum was facing her dad.
After her dad had grabbed her mum in the hallway she saw her mum run away from her dad around the corner of the corridor.
Her mum did not sit on the floor in the corridor at any time.
Her mum told her that she was going to the police station to tell the police about dad pushing her on the wall.
Her mum did not tell her that dad had hurt her because she already knew and had seen everything once she had heard her mum and dad fighting.
In re‑examination Carla said that when her dad was dragging her mum her mum was facing her dad, and her dad was facing backwards but her mum was going backwards to the wall. She said her mum's eyes were looking into her dad's eyes.[31]
Appellant's evidence
[31] ts 74, 8 October 2018.
In his evidence‑in‑chief the appellant said the following about the incident the subject of the charge.[32]
[32] ts 10 ‑ 21, 16 October 2018.
Ms O'Connor became more agitated as they were discussing the arrangements for the children. She started shouting and swearing at him.
Before it got to the point of Ms O'Connor shouting and swearing at him he asked Carla and James to leave and go into the kitchen. He asked the children to leave because he could sense that the tension was rising. They went but then came back almost straight away. Carla was in the laundry with him and Ms O'Connor. James was floating around in the hallway somewhere.
In addition to swearing at him Ms O'Connor was poking him in the chest with her finger. He was at the laundry sink at this point.
Ms O'Connor also pushed him in the chest fairly forcefully with her left hand.
At this point he told Ms O'Connor that she had to leave. He asked her to leave probably three or four times.
Ms O'Connor kept on with the abuse. At this point he started walking from the laundry sink towards the laundry door with his arms out trying to usher Ms O'Connor out of the house. As he was ushering Ms O'Connor he was saying to her, 'You're going to have to go. Please go'.
During this time he did not make contact with Ms O'Connor with his hands. He cannot remember if he touched her with his chest. It would have been Ms O'Connor initiating any contact.
His tone of voice during this time was calm. He does not get worked up in front of his children.
Ms O'Connor was swearing and shouting at him. He did not swear at her.
While he had his arms out Ms O'Connor elbowed him in the ribs. She used her left elbow to strike him in his right ribs. He had just come out of the laundry door into the corridor when Ms O'Connor elbowed him.
Once he had been elbowed in the ribs he grabbed Ms O'Connor with his right hand on her right shoulder and with his left hand on the back of her collar.
At the time that he grabbed Ms O'Connor Carla was behind him in the laundry and he does not remember where James was.
When he grabbed Ms O'Connor he twisted her around so that she was facing away from him. He had hold of Ms O'Connor's hair as well but it was predominantly the collar that he had hold of. Her hair was slipping over the collar. He took hold of Ms O'Connor in this manner because she had elbowed him. His intention at this point was to stop her from elbowing him again.
Once he had grabbed Ms O'Connor and she was facing down the corridor he tried to march her forward a couple of steps. He was going to try and march her to the front door. However, Ms O'Connor yanked away from him. He did not at any time lift her up.
Ms O'Connor yanked away from him when they were a couple of steps down the corridor. She yanked away pretty much at the corner of the L‑shaped corridor.
When he was marching Ms O'Connor for the couple of steps her feet were on the ground and she was walking. He did not lift her up.
Ms O'Connor having yanked away from him said, 'That's assault. I'm calling the police'. Ms O'Connor also said, 'Carla, you saw that, didn't you? You saw Daddy pull Mummy's hair?'
After this Ms O'Connor started crying and went and squatted down in the corner on her haunches just next to the front door. Carla was behind him at the time.
Ms O'Connor then got up, pushed past him into the kitchen, got his mobile phone and tried to use it. However, it was locked. He then just snatched the phone out of Ms O'Connor's hand.
Ms O'Connor's demeanour after she had yanked away from him was hysterical.
After he took the phone out of Ms O'Connor's hands she got the kids and left. As she did this she was abusing him the whole time.
In cross‑examination the appellant said, among other things, the following.[33]
[33] ts 25 ‑ 26, 16 October 2018.
Ms O'Connor poked him before he tried to usher her out.
He did not push Ms O'Connor away when he got near the front door. Ms O'Connor did not hit her head.
When Ms O'Connor broke free from his grip he did not try to keep pushing her to the door. He did not do so because she was hysterical. He was not going to take it any further even though he wanted her out.
The reason why he let Ms O'Connor take the children even though she was hysterical is that he decided at that point that letting her have the children would be less traumatic for them.
In re‑examination the appellant said that Ms O'Connor ignored his requests for her to leave the house.[34]
Photographs, medical notes and medical report
[34] ts 27, 16 October 2018.
Two of the tendered photographs were close up photographs of Ms O'Connor's face. They were tendered on the basis that they showed some swelling to the area under Ms O'Connor's right eye. When asked how the swelling under her eye had come about, Ms O'Connor testified that she did not know exactly how the swelling was caused, that she did not know if it 'was like a repercussion' from the fact of having been hit on the back of the head, and that the swelling became worse over the next two days with the result that she had to go and see her general practitioner.[35] The third photograph was tendered on the basis that it showed some scratches near Ms O'Connor's left elbow that were bleeding. Ms O'Connor's evidence in this regard was that she believed that she suffered the scratches when the appellant was holding onto her arm or when she fell.[36]
[35] ts 10, 8 October 2018.
[36] ts 10, 8 October 2018.
The SCGH medical notes and the SCGH medical report revealed the following:
1.Ms O'Connor presented at the hospital at 7.56 pm complaining of a headache behind her right eye, pain and tenderness around her right eye, pain and tenderness around her right lateral zygoma (that is, cheekbone), pain to the back of her head, cervical spine (neck) pain, nausea and dizziness;
2.Ms O'Connor had no swelling in the area of her right cheek;
3.'Nil investigations' and 'nil procedures' were carried out on Ms O'Connor; and
4.At 9.00 pm Ms O'Connor was discharged home to the care of her general practitioner.
The magistrate's findings as to credibility
The magistrate, as part of explaining his reasons for making the above set out findings of fact and for convicting the appellant of the charged offence, made express findings in relation to the credibility of Ms O'Connor, Carla and the appellant.
The magistrate formed a generally favourable view of the credibility of Ms O'Connor. His Honour found that the evidence of Ms O'Connor was 'in its vast majority honest and truthful, not exaggerated or unbelievable and in its vast majority consistent with that of her daughter Carla'.[37] His Honour found the evidence of Ms O'Connor to be credible and honest.[38] His Honour found Ms O'Connor to be a credible witness of the truth.[39]
[37] Reasons [24a].
[38] Reasons [24a].
[39] Reasons [24c].
The magistrate also formed a generally favourable view of Carla's credibility. His Honour found the evidence given by Carla to be 'generally accurate, truthful and credible'.[40] His Honour did not accept that the evidence of Carla 'showed any influence by any adult person'.[41] His Honour found that Carla's evidence given during the interview conducted with her by the qualified child interviewers and the evidence she gave during the trial was 'consistent and frank' and demonstrated 'variations brought about by time'.[42] His Honour found that Carla was a 'bright and insightful' child who was 'clearly influenced' by what she saw occur between Ms O'Connor and the appellant, that she had a good memory of events, and that she had not been 'overhauled by the circumstances in which [she] came to give evidence and the people who were involved in the case'.[43] His Honour found that Carla's demonstrations of her mother being grabbed by the appellant by the front of the neck 'may well have been the view that she took from the angle she was at when she says Ms O'Connor was thrown into the wall by the [appellant]'.[44] His Honour stated that he was 'impressed by the evidence of Carla despite her young age' and that he accepted her evidence to be 'uninfluenced and credible'.[45] His Honour found Carla to be a credible witness of the truth.[46]
[40] Reasons [24b].
[41] Reasons [24b].
[42] Reasons [24b].
[43] Reasons [24b].
[44] Reasons [24b].
[45] Reasons [24b].
[46] Reasons [24c].
Consistently with his assessment of the credibility of Ms O'Connor and Carla the magistrate, in the course of making his above referred to findings of fact, stated that he 'accepted the evidence of Ms O'Connor and Carla as to what transpired'[47] and noted that the evidence of Ms O'Connor and Carla was consistent.[48]
[47] Reasons [26j].
[48] Reasons [24j].
The magistrate formed a generally unfavourable view of the appellant's credibility. His Honour did not accept the evidence of the appellant as 'being wholly truthful, logical or consistent' and as a consequence 'in the vast majority' rejected the appellant's evidence.[49] His Honour found that the evidence of the appellant was, 'in its majority inconsistent with the evidence of Ms O'Connor and Carla' both of whom he found to be 'credible witnesses of the truth'.[50] His Honour '[did] not accept that the [appellant] gave evidence that was consistent with the overwhelming evidence of Ms O'Connor and Carla'.[51] In particular, his Honour did not accept the following aspects of the appellant's evidence:
1.The appellant's evidence that he did not raise his voice or become angry or agitated with Ms O'Connor, and that he remained cool and calm during the incident because the children were present;
2.The appellant's evidence that as he was attempting to remove Ms O'Connor from the house Ms O'Connor elbowed him to the body, moved away from him and sat on the floor of the house before gathering the children and leaving the house; and
3.The appellant's evidence that he did not forcefully throw the appellant into the wall in the corridor near the door of the house.[52]
[49] Reasons [24c].
[50] Reasons [24c].
[51] Reasons [24d].
[52] Reasons [24c], [24d], [24j], [24l], [24m].
In rejecting the above aspects of the appellant's evidence the magistrate made the point that these aspects of the appellant's evidence were inconsistent with the evidence given by Ms O'Connor and Carla.[53] His Honour also stated in this context that the evidence of the appellant that Ms O'Connor sat on the floor before gathering the children and leaving the house was 'not supported by the medical report'.[54]
[53] Reasons [24c], [24d].
[54] Reasons [24d]. Although it is not entirely clear, it would appear that the magistrate, in making this statement, was intending to convey a finding not only that the medical report did not provide any positive support for the appellant's evidence that Ms O'Connor had on her own volition sat on the floor, but also that the medical report did provide some positive support for the evidence given by Ms O'Connor and Carla that the appellant had thrown Ms O'Connor into the wall.
The ground of appeal
The appellant's single ground of appeal is expressed in the following terms:
1.Evidence obtained since the trial, particulars of which appear below, is capable of raising a reasonable doubt as to whether the appellant is guilty such that a miscarriage of justice has occurred;
Particulars of fresh evidence
1.1The affidavit of Mrs Kerry Ann O'Connor dated 28 February 2019 filed in relation to this appeal attaches a USB stick that contains certain recordings made by the prosecution witness Carla O'Connor ('Carla') subsequent to the trial, which affidavit and recordings reveal:
(i)The complainant lied to Carla about events concerning the incident that occurred on 12 October 2017 ('the incident') [10];
(ii)The appellant merely took hold of the complainant's wrist [12] and [26];
(iii)The appellant did not throw the complainant against the wall during the incident [14] and [27];
(iv)Carla was coached as to what her evidence about the incident should be [24];
(v)The complainant hit the appellant at the relevant time [26].
The numbers in square brackets contained in the particulars of the ground of appeal are references to the affidavit sworn by Mrs Kerry Ann O'Connor (Kerry) referred to in the first paragraph of the particulars and to which I refer further below.[55]
[55] I will from this point on use Mrs Kerry Ann O'Connor's first name so as to easily distinguish her from Ms Isabelle O'Connor who I will continue to refer to as Ms O'Connor. No disrespect is intended by my use of Mrs Kerry Ann O'Connor's first name.
The application to adduce additional evidence
At the commencement of the hearing of the appeal the appellant made his application to adduce additional evidence on the appeal. The application to adduce the additional evidence was made pursuant to s 40(1)(d) of the CAA.
The application was supported by the affidavit sworn by Kerry dated 28 February 2019. Kerry is the mother of the appellant and the grandmother of Carla.
The additional evidence that the appellant sought leave to adduce was, in essence, evidence to be given by Kerry of three conversations that she had with Carla in relation to the offence of which the appellant was convicted. The conversations were, at least in part, recorded by Kerry on her mobile phone and then transferred onto the USB stick referred to in the ground of appeal and annexed to Kerry's affidavit.[56] The three conversations occurred on 15 December 2018. The detail of the conversations is referred to further below. However, in essence during the conversations Carla made statements that are on the face of it inconsistent with aspects of the evidence given by both her and Ms O'Connor at trial to the effect that the appellant threw Ms O'Connor into the wall near the door of the house.
[56] The particulars of the ground of appeal are inaccurately expressed in that the USB stick referred to therein does not contain recordings made by Carla but rather recordings made by Kerry of statements made by Carla.
The application was consented to by the respondent on the basis that the additional evidence was 'fresh evidence' as opposed to 'new evidence', and was relevant to evaluating whether a miscarriage of justice has occurred.[57]
[57] Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [96] ‑ [101]. In consenting to the application the respondent in his written submissions and for purposes of completeness, quite properly raised the issue of the lawfulness of the recordings of the conversations obtained by Kerry in light of the provisions of the Surveillance Devices Act 1998 (WA). However, the respondent submitted, correctly in my view, that the recordings of the conversations were not obtained by Kerry in contravention of s 6(1)(b) and s 6(3)(a) of the Surveillance Devices Act because Kerry, who was a person who had the care of Carla, had reasonable grounds for believing that the recordings were in the public interest: Surveillance Devices Act, s 6(2)(d), s 24, s 26(3)(b); Pihema v The State of Western Australia [2017] WASC 282 [25] ‑ [29].
The additional evidence the subject of the application was fresh evidence. It was not available to the appellant at his trial and could not have been discovered by him with reasonable diligence before his trial. Moreover, the additional evidence was relevant to evaluating whether a miscarriage of justice had occurred. For these reasons I allowed the application to adduce the additional evidence.[58]
The respondent did not seek to adduce any evidence on the appeal.
The additional evidence
The evidence of Kerry
The evidence‑in‑chief given by Kerry on the appeal was comprised of the contents of her above referred to affidavit supplemented by some brief oral evidence.
In her oral evidence‑in‑chief Kerry stated that she is 63 years old and has no criminal convictions.[59] She stated that she is a retired teacher but that she is still employed by the Department of Education on a casual basis to undertake relief teaching.[60] She stated that she has been a teacher for about 25 years and that she does currently perform relief work as a teacher.[61]
[59] ts 11, 21 May 2019.
[60] ts 11, 21 May 2019.
[61] ts 11, 21 May 2019.
In her affidavit Kerry deposes to, among other things, the following:
1.She has an excellent relationship with Carla and James and looks after them regularly. She and her husband Matthew O'Connor spend time with Carla and James at least once a week. They also look after Carla and James whenever they are requested to do so by the appellant;[62]
[62] Affidavit of Kerry [3].
2.Carla and her parents lived with her and Matthew for approximately 18 months between August 2012 and February 2014;[63]
[63] Affidavit of Kerry [4].
3.Carla is very open when speaking to her and they often talk about a variety of matters. She often speaks to Carla and tries to teach Carla life lessons such as the importance of telling the truth when called upon to do so;[64]
4.On around 15 December 2018 Carla and James were staying with her at her house. At some stage during the day she and Carla were in the laundry and were discussing various matters 'including how important it is for people to be honest and tell the truth'.[65] During the conversation Carla said to her words to the effect that 'Mum lied to me'.[66] She found this statement strange and asked Carla to explain what she meant and what it was that her mother had lied to her about;[67]
5.Carla responded with words to the effect of, 'That day her and Dad had an argument'.[68] She understood Carla to be speaking about the events that occurred on 12 October 2017 which led to the appellant's conviction in the Magistrates Court.[69] She queried with Carla what she recalled happening on that day. She recalls Carla saying words to the effect of, 'Dad asked Mum to leave'. She also recalls Carla grabbing her own wrist to demonstrate that the appellant grabbed her mother by the wrist and attempted to escort her out of the house;[70]
6.She then decided to record the conversation between herself and Carla. By this stage she and Carla had moved to the toy room which is a room in her house where she keeps Carla's and James' toys and belongings. She began recording the conversation on her mobile phone. She asked Carla to tell her again what she had told her earlier in the laundry and recorded the conversation;[71]
7.Later on 15 December 2018, and a short time after the conversation referred to above, she attempted to speak to Carla again about what Carla remembered seeing on 12 October 2017;[72]
8.She recorded a short video clip of this conversation with Carla and saved it;[73]
9.Following the conclusion of the recording she asked Carla who told her that she was not allowed to talk about the matter but she was unable to obtain a response from Carla. She did not press the issue any further;[74]
10.Later on 15 December 2018 she tried to discuss the issue with Carla once again. She asked Carla if she knew what she was going to say in court (which she referred to as the time when Carla was on the TV screen) and Carla responded with words to the effect of, 'Well, they told me what to say'. She 'quizzed' Carla about her response and decided to again record the conversation that she was having with Carla;[75]
11.She recalls Carla getting agitated while they were speaking so she decided to cease the recording and did not press the issue any further; and[76]
12.She did not coach Carla or tell her what to say during any of her three conversations with Carla.[77] Carla was not under any form of duress when they were having their conversations.[78]
[64] Affidavit of Kerry [5].
[65] Affidavit of Kerry [9].
[66] Affidavit of Kerry [10].
[67] Affidavit of Kerry [10].
[68] Affidavit of Kerry [11].
[69] Affidavit of Kerry [11].
[70] Affidavit of Kerry [12].
[71] Affidavit of Kerry [13]
[72] Affidavit of Kerry [17].
[73] Affidavit of Kerry [19].
[74] Affidavit of Kerry [20].
[75] Affidavit of Kerry [23].
[76] Affidavit of Kerry [28].
[77] Affidavit of Kerry [13].
[78] Affidavit of Kerry [16], [22], [30].
In cross‑examination Kerry gave the following evidence.
She does not have any specific training in relation to interviewing children.[79]
[79] ts 12, 21 May 2019.
She did not tell Carla that she would be showing the recordings of the conversations to a lawyer.[80]
[80] ts 12, 21 May 2019.
It is not fair to say that during the conversations Carla was preoccupied. However, Carla was playing at the time.[81]
[81] ts 13, 21 May 2019.
She does not accept that it is correct to say that the conversations in question that she had with Carla were not the most serious conversations that a person could have with a child. She thinks that Carla realised that it was a serious conversation.[82]
[82] ts 13, 21 May 2019.
She accepts that she did not during the course of the conversations impress upon Carla the seriousness of her obligation to tell the truth. However, she expected Carla to tell her the truth.[83]
[83] ts 14, 21 May 2019.
She has an excellent relationship with Carla. Carla stays with her relatively regularly, at least once a week. She speaks to Carla about all manner of things.[84]
[84] ts 14, 21 May 2019.
She has an excellent relationship with the appellant, her son. She does not think that he is guilty. In these circumstances she accepts that it is fair to say that she is not an impartial observer in this matter. If she thought that the appellant was guilty she would not be supporting him.[85]
[85] ts 14 ‑ 15, 21 May 2019.
She did not record any of the conversations visually. It would have been difficult for her to do so. Her phone had a wraparound cover with the front flap that opens. The back part of the cover covered the camera lens of the phone. Accordingly, for her to have recorded the conversations visually it would have been necessary for her to have folded back not only the front flap of the cover but also the back flap of the cover so as to uncover the camera lens.[86]
[86] ts 15 ‑ 16, 21 May 2019.
It is not fair to say that she did not want the fact of the recording to interfere with what Carla was saying. It is not fair to say that she concealed from Carla the fact that she was recording the conversations. When she was recording the conversations she held the phone out in front of her with the front flap of the cover folded back. She did not say to Carla that she was recording her. However, she did not have to say this. Carla knew that she was being recorded.[87]
[87] ts 16, 21 May 2019.
At the time of the incident between Ms O'Connor and the appellant she was not able to speak to Carla about the incident. She was not able to do so because Ms O'Connor prevented her from seeing Carla for two weeks following the incident.[88]
[88] ts 17, 21 May 2019.
At the end of the two week period when she saw Carla, Carla did not mention that she had been interviewed.[89]
[89] ts 17, 21 May 2019.
She and the appellant did not find out that Carla had been interviewed until about February 2018 when the appellant received some papers from a lawyer that he had engaged.[90]
[90] ts 17, 21 May 2019.
Following the expiration of the two week period during which she had not been permitted to see Carla and once she started to see Carla again, at no point did Carla say to her that she had lied during the interview process. However, she did hear the children say, 'Well, we know what happened, because Mummy told us'. She took these statements with a pinch of salt because she did not think for a minute that Ms O'Connor would put Carla 'on the stand'.[91]
[91] ts 18 ‑ 19, 21 May 2019.
After the expiration of the two week period during which she had not been permitted to see Carla she continued to see Carla relatively regularly. She purposely did not speak to Carla about the relevant incident because she did not want to put Carla 'on the spot and have her concerned about her parents arguing and that sort of thing'. It was very sensitive and very delicate.[92]
[92] ts 19, 21 May 2019.
At no point during the year leading up to the appellant's trial did Carla say anything to her that made her suspect that the appellant had not thrown Ms O'Connor against the wall.[93]
[93] ts 19, 21 May 2019.
During the first part of her conversation with Carla, Carla had said to her that her mum had lied to her about the day that her mum and her dad had had an argument. By this time she knew that at the trial Ms O'Connor had denied being asked to leave the house. However, she did not think that Carla's statement that her mum had lied to her was necessarily about Ms O'Connor having denied that she had been asked to leave the house. It just seemed to her that 'the whole thing Carla may have thought it was a lie'.[94]
[94] ts 21, 21 May 2019.
She did not commence recording the conversation in the hope that Carla might say something that would be of benefit to the appellant.[95]
[95] ts 22, 21 May 2019.
She and Carla were not talking about the incident before Carla brought up that her mum had lied to her.[96]
[96] ts 22, 21 May 2019.
During the period between when she and Carla were moving from the laundry to the toy room, they were not really talking about the incident. There was not much discussion. They were 'sort of' walking to the toy room.[97]
[97] ts 22 ‑ 23, 21 May 2019.
She deliberately stopped the first recording because James was coming into the room and making a noise.[98]
[98] ts 23, 21 May 2019.
She cannot say how long after the first of the recorded conversations the second of the recorded conversations commenced. She does not think that it is fair to say that it is possible that between the two recordings she was talking to Carla about the incident. She does not think this is possible because James was there and there was 'just too much going on'.[99]
[99] ts 24, 21 May 2019.
It is the case that she recorded the third conversation with James present but she had to turn that recording off too.[100]
[100] ts 24, 21 May 2019.
By the time she commenced to make the third recording she thinks that she and Carla were in the kitchen. She cannot say precisely how long after the second of the recorded conversations the third recorded conversation took place.[101]
[101] ts 24, 21 May 2019.
She is pretty sure that she did not speak to Carla about the incident between the second and third recorded conversations. She is pretty sure that she did not do so because her memory is that Carla had found what she had been looking for, namely a skipping rope, and was actually skipping and showing her how many times she could skip. She does not think that it is possible that she was speaking to Carla about the incident between the two recordings.[102]
[102] ts 25, 21 May 2019.
I pause to note that at this point in the cross‑examination the last portion of the recording of the third conversation was played to Kerry. After having had the opportunity to listen to the recording Kerry's evidence in cross‑examination continued as follows.
She accepts, having listened to the last portion of the recording of the third conversation, that at the time that she ceased the recording it appears that Carla was actually prepared to say something about what had occurred. She supposes that it could be accepted that it was a strange place to stop the recording. However, she did not stop the recording at a time when Carla was about to say something further on purpose. She made choices about ending the recordings based not on convenience but on whatever the situation was in the house. For example, wherever James might have been or what was going on in the house.[103]
[103] ts 28 ‑ 29, 21 May 2019.
She does not accept that she could have visually filmed Carla throughout her entire interaction with Carla. It would have been too hard to follow Carla around while visually recording her. Her house is a big house. It just would not have been suitable.[104]
[104] ts 29, 21 May 2019.
She has not made any other recordings of Carla relevant to this matter. She did not delete any recordings of Carla relevant to this matter.[105]
[105] ts 29, 21 May 2019.
She accepts that at no point during her conversations with Carla did Carla accept that she had told a lie. However, she did not ask Carla if she had told a lie.[106]
[106] ts 30, 21 May 2019.
Carla does know the difference between the truth and a lie.[107]
[107] ts 30, 21 May 2019.
In re‑examination Kerry further described and demonstrated how she used the phone to record her conversations with Carla and how it would not have been possible for her to easily visually record these conversations. She also testified that although when she was employed full time as a teacher she usually taught older children between the ages of 10 to 12, since she has been working as a relief teacher she has been teaching younger children around the age of 5.[108] She stated that during the two week period that she was not allowed to see Carla, Carla was living with her mother.[109] She stated that after that two week period and up until the time of the trial she and her husband would see Carla at least once a week and often every weekend as well.[110] She stated that Carla stayed with her and her husband on the night that she had been interviewed, although at that time they did not know that Carla had been interviewed.[111]
The recorded conversations
[108] ts 30 ‑ 31, 21 May 2019.
[109] ts 32, 21 May 2019.
[110] ts 32, 21 May 2019.
[111] ts 32, 21 May 2019.
The three recorded conversations are audio recorded conversations. There is, as is apparent from my above recital of Kerry's evidence and despite Kerry's reference in her affidavit to a short video clip of the second conversation, no visual recording of Carla during the conversations. There is, however, at the end of the audio recording of the first conversation between Kerry and Carla a few seconds of what appears to be unsteady vision of the floor and of an adult person's feet and lower legs, obviously Kerry's feet and lower legs, taking a few steps. The vision appears a few seconds after the conversation between Kerry and Carla finishes, immediately before the recording ceases and while Kerry is apparently having a brief verbal exchange with James in relation to looking for a skipping rope. Kerry was not asked by counsel for the appellant or counsel for the respondent if she knew how this small amount of innocuous footage came to be taken and, if she did, why it was taken.
Some of what is said during the conversations is not decipherable due to either the poor quality of the recording or background noise (including Carla's brother James talking).
The first of the recorded conversations, to the extent that it is able to be heard, was as follows:
Carla: I'm using it.
Kerry: So do you want to tell me again what … just to get, get it right, what you were just telling me in the laundry?
Carla: I did get it right.
Kerry: Okay, well tell me what you said in the laundry … I just want to be sure … sorry.
Carla: I said I didn't say anything to (indistinct) or you.
Kerry: Yeah yeah alright so what, what were you, what actually happened that day? Can you tell me?
Carla: So dad said get out of the house and so he um cos mum hit him really hard.
Kerry: Yeah.
Carla: Dad only done this.
Kerry: Yeah.
Carla: Like that and said get out of the house.
Kerry: Yeah … and …
Carla: That's all dad (indistinct).
Kerry: And then he threw, and then he threw her against the wall?
Carla: Nup.
Kerry: Oh didn't he? Are you sure? Are you really sure about that?
Carla: Certain.
Kerry: Okay.
Carla: Certain.
Kerry: Okay.
The second of the recorded conversations, to the extent that it is able to be heard, was as follows:
Kerry: So that's what you said wasn't it?
Carla: Stop talking.
Kerry: So why yeah, but why, why …
Carla: Stop talking.
Kerry: No, no, no.
Carla: I'm not allowed to talk about it.
The third of the recorded conversations, to the extent that it is able to be heard, was as follows:
Kerry: Can you, can you, can you tell me then what they've told you to say?
Carla: I don't want to say (indistinct).
Kerry: Yeah, can you tell me, can you tell me, can you please tell me Carla what, what you were asked to say?
Carla: I was asked to say dad dragged mum to the wall.
Kerry: Well who asked you to say that?
Carla: The lady.
Kerry: Which what, what was her name? Do you know?
Carla: Um I've forgotten.
Kerry: Was it Lyn? Or Lynette?
Carla: (Indistinct).
Kerry: You don't know? Okay or someone else was it?
Carla: I don't (indistinct).
Kerry: (indistinct) so did anybody, anyone else ever ask, ever say to you this is what happened?
Carla: No.
Kerry: No. So, you felt like you had … so why …
Carla: I had …
Kerry: Why did you?
Carla: I had really bad (indistinct).
Kerry: You what?
Carla: I had bad butterflies.
Kerry: Sorry?
Carla: I had bad butterflies.
Kerry: You bad, what?
Carla: Butterflies.
Kerry: Oh you had butterflies that day and you didn't know what, did you know what you were gonna say or, or what, what?
Carla: No.
Kerry: You didn't? So when you went in there, what actually happened? Can you tell me how, what, what happened?
Carla: The ladies told me what to say.
Kerry: Did they?
Carla: Yes.
Kerry: Oh okay two ladies or one?
Carla: Two.
Kerry: Two ladies okay, was anyone else there as well?
Carla: There were lots.
Kerry: Yeah.
Carla: Well not in that room.
Kerry: Not in that room, but you saw other people outside, did you? Okay.
Carla: But in the whole thing.
Kerry: In the whole (indistinct).
Carla: Not outside.
Kerry: No, no, I know what you mean, yeah yeah okay. So um so when you went there you, did you realise what you were going to be asked to say?
Carla: (Indistinct) I realised what (indistinct).
Kerry: So if they hadn't told you what to say, what would you have said when the man asked you what happened?
Carla: Dad just grabbed mum gently on the wrist and said get out of the house.
Kerry: Mmm okay and then what happened?
Carla: Mum, before that mum hits dad.
Kerry: Yeah.
Carla: And then now she just ran away with us.
Kerry: Okay.
Carla: To the police station.
Kerry: Mmm.
Carla: And said a lie.
Kerry: Oh did she? Why, why, why, why would that be why would that be a lie why would she say a lie if that's happened, if that's what's happened?
Carla: No she said that um mum dragged oh wait dad dragged mum, mum to the wall and banged her head.
Kerry: Oh and what you, did you see that happen though?
Carla: No I did not see (indistinct).
Kerry: Mmm.
Carla: Dad, I saw dad grab (indistinct).
Kerry: Mmm.
Carla: (Indistinct).
Kerry: Yeah, okay, alright thanks Carla.
When during the third conversation Carla stated that her mum had said that her dad had 'dragged mum to the wall and banged her head' she appeared to emphasise the word 'dragged'.
The nature of the additional evidence
In their written submissions filed in relation to the appeal both the appellant and the respondent refer to the additional evidence as being evidence of a recanting witness.[112] This is an incorrect characterisation of the additional evidence. If the additional evidence was evidence given by Carla that was directly contrary to the material parts of her evidence given at trial as to the unlawful assault comprising the offence, then the additional evidence could properly be described as evidence of a recanting witness. However, the additional evidence in the present case is not evidence given by Carla, but rather evidence given by Kerry of out of court statements made by Carla which are on the face of it inconsistent with aspects of the evidence given by Carla at the trial. Accordingly, the additional evidence would only be admissible at any retrial of the appellant if the requirements of s 21 of the Evidence Act are met and in that event only as to the credibility of Carla's evidence.[113]
[112] Appellant's submissions [7], [10], [15]; Respondent's submissions [19], [21] ‑ [22], [26] ‑ [27].
[113] O'Meara v The State of Western Australia [2013] WASCA 228; (2013) 235 A Crim R 209.
The respondent's decision not to call Carla
As I have already pointed out, the respondent did not seek to adduce evidence on the appeal. In particular, the respondent did not seek to adduce any evidence on the appeal from Carla about the conversations that she had with Kerry.
During the hearing of the appeal I asked the respondent's counsel why the respondent had decided not to call Carla to give evidence on the appeal. The respondent's counsel answered my question by stating, in substance, that the respondent had left the appellant to run his case on the appeal as he saw fit, and that if the appellant had thought that elaboration of the out of court statements made by Carla to Kerry would have assisted his case on the appeal he could have called Carla to give evidence on the appeal.[114] The respondent's counsel submitted that the position taken by the respondent in this regard was supported by statements made by members of the court in Coffman v The Queen,[115] although he acknowledged that the position adopted by the respondent was on the face of it in conflict with statements made by Mazza JA and Hall J (both of whom Buss JA agreed with) in the more recent decision in Muller v The State of Western Australia.[116] The respondent's counsel did not, during my exchange with him, volunteer any information about whether Carla had been spoken to on behalf of the respondent in relation to the evidence that she gave at trial in light of the evidence of Kerry adduced on the appeal.
[114] ts 38 ‑ 40, 21 May 2019.
[115] Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375 [70] ‑ [71], [186] ‑ [193].
[116] Muller v The State of Western Australia [2014] WASCA 81 [4], [52] ‑ [55].
In Muller the fresh evidence adduced on the appeal was similar to the additional evidence adduced in the present appeal. It was evidence given by a third party of apparently inconsistent out of court statements made by a prosecution witness. The only difference between the nature of the fresh evidence adduced on the appeal in Muller and the nature of the additional evidence adduced in the present appeal is that in Muller the evidence was of statements made by the complainant prosecution witness, whereas in the present case the evidence is of statements made by a prosecution witness other than the complainant. In Muller Mazza JA, in commenting on the relevance of the fresh evidence, said the following:[117]
The relevance of Ms Gunkel's fresh evidence lies in its capacity to undermine the credibility of TH's evidence concerning the sexual acts allegedly committed by the appellant. For reasons which are unknown (and about which I do not speculate), the respondent did not adduce any contradictory evidence from TH. Ms Gunkel's evidence, which was given by video link from South Africa, was relatively brief. Her examination in chief was, in essence, a confirmation of the three affidavits she had sworn. Those affidavits are, in substance, consistent.
[117] Muller v The State of Western Australia [4].
Hall J, in dealing with the position adopted by the State on the appeal, said the following:[118]
The State did not seek to adduce any evidence on the appeal from TH about the alleged conversation with Ms Gunkel. Counsel for the respondent confirmed that TH had been contacted and asked about the alleged conversation. Counsel also confirmed that she had received instructions in this regard and that those instructions had been disclosed to counsel for the appellant. What the instructions were was not specified to the court and no details of the complainant's response were stated.
The court was left in the position of assuming that the cross examination of Ms Gunkel was based on instructions received from TH. That questioning included a contention that Ms Gunkel was making up her evidence regarding the conversation in order to help her uncle out.
When asked why a decision had been made not to call TH on the appeal counsel for the respondent said:
'Even if the witness was called, what you would end up with - what you might end up with is, at best, the complainant being called - this conversation being put to her and saying it never happened. So then you are in the same position, in my submission, now as you would be without her being called.
MAZZA, JA: Well, maybe not because it would depend upon our assessment of her credibility.'
The position adopted by the State has a number of significant consequences. First, there is no evidence to contradict that of Ms Gunkel. It is not known, for example, whether the complainant denies being in South Africa at the time, denies speaking to Ms Gunkel or says that the conversation has been misrepresented. The absence of any evidence in this regard makes it more difficult to critically assess Ms Gunkel's evidence. Secondly, without knowing in detail what the response of the complainant is, it is more difficult to exclude the possibility that the evidence could have an impact on her credibility. Thirdly, without seeing the complainant this court is in no position to make its own assessment of her credibility.
[118] Muller v The State of Western Australia [52] ‑ [55].
Thus it is clear from the statements made by Mazza JA and Hall J in Muller that in their Honours' opinion the responsibility for calling the prosecution complainant witness on the appeal to give evidence in response to the fresh evidence adduced by the appellant lay on the State. In my opinion there is no reason for taking a different view in the present case. At the end of the day Carla was a prosecution witness and it is therefore logical that if any party was to call her to give evidence on the appeal in response to the evidence of Kerry, that party would be the respondent.
In my opinion the respondent's reliance on the decision in Coffman is misguided. In Coffman the appellant was seeking to adduce on the appeal as fresh evidence transcripts of evidence given by two witnesses during the hearings of a Royal Commission without calling the two witnesses to give evidence on the appeal. In other words, the appellant was seeking to adduce as fresh evidence, evidence given by the relevant witnesses in another setting without actually calling the witnesses. That is a very different situation to the present case in which the person giving the additional evidence, namely Kerry, has been called by the appellant to give that evidence and has thereby been made available for cross‑examination.
The decision of the respondent not to call Carla to give evidence on the appeal has a number of consequences. First, there is no evidence before me to contradict the evidence given by Kerry as to what was said by her and Carla during those portions of the conversations that Kerry did not record. This makes it more difficult for me to critically assess these portions of Kerry's evidence. Second, without knowing the detail of any response of Carla to the additional evidence, including any explanation that she might have for making the statements that she did to Kerry, it is more difficult to exclude the possibility that the evidence could have an impact on her credibility. Third, without seeing Carla I am in no position to make my own assessment of her credibility.
Applicable legal principles
The settled legal principles to be applied in the determination of an appeal brought on the basis of fresh evidence, so far as they are relevant in the present case, may be stated as follows:
1.A miscarriage of justice will be established where fresh evidence, when viewed in combination with the evidence given at trial, shows that there is a significant possibility that the trier of fact, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it;[119]
2.In determining if there is such a significant possibility, the appeal court has the responsibility of examining the fresh evidence in order to satisfy itself that the evidence is relevant, credible and cogent and therefore capable of being accepted as true by a reasonable trier of fact;[120] and
3.Cogency is necessary but not in itself sufficient. The evidence must also be material in the sense that it is reasonably capable of affecting the outcome.[121]
[119] Rodi v The State of Western Australia [2018] HCA 44 [28]; Muller v The State of Western Australia [57] ‑ [59] and the cases cited therein.
[120] Rodi v The State of Western Australia [2018] HCA 44 [28]; Muller v The State of Western Australia [59].
[121]Muller v The State of Western Australia [60] and the cases cited therein. In ARK v The State of Western Australia [2014] WASCA 45 [145] ‑ [153] Buss JA, with whom Mazza JA agreed, summarised the additional principles to be applied when the fresh evidence is recanting evidence given by a witness. It is not necessary for me to set out Buss JA's summary of these principles because, as I have already stated, the additional evidence is not evidence of a recanting witness.
In applying the above stated principles to the present case, it needs to be borne in mind that the additional evidence, being evidence of out of court statements made by Carla, is evidence that is relevant only to the credibility of Carla. As Hall J stated in Muller:[122]
The limited use that could be made of the evidence is relevant in determining whether there has been a miscarriage of justice. Generally speaking, fresh evidence that is only relevant to the credibility of a prosecution witness is far less likely to meet [the test for a miscarriage of justice] than fresh evidence that is directly relevant to one of the elements of the offence. However, the particular circumstances of the individual case must always be considered. Fresh evidence relevant only to credibility can support a conclusion that a miscarriage of justice has occurred if it has the capacity to cause the jury to have a reasonable doubt about whether the evidence of a witness on a critical issue should be accepted.
[122] Muller v The State of Western Australia [63].
Questions for determination
It follows from the above statement of applicable principles and the nature of the additional evidence adduced on the appeal that the questions that must be answered in order to determine the appeal are as follows:[123]
1.Would it have been open to the magistrate, acting reasonably, to have accepted the evidence of Kerry as relevant, credible and cogent?
2.If the first question is answered in the affirmative, is the evidence of Kerry capable of materially affecting an assessment of the credibility of Carla's evidence that the offence occurred?
3.If the second question is answered in the affirmative, does the evidence of Kerry, viewed in combination with the evidence given at trial, show that there is a significant possibility that the magistrate, acting reasonably, would have acquitted the appellant if the evidence of Kerry had been before him?
[123] Muller v The State of Western Australia [10], [64].
I will deal with each of these questions in turn.
Would it have been open to the magistrate, acting reasonably, to have accepted the evidence of Kerry as relevant, credible and cogent?
If the additional evidence had been available at the time of the trial it would have been open to the appellant's counsel, pursuant to s 21 of the Evidence Act, to cross‑examine Carla on the statements that on Kerry's evidence Carla made to her during the conversations that were inconsistent with the evidence given by Carla in examination‑in‑chief as to the appellant's commission of the offence. It would be so open because such statements would be 'relative to the subject matter of the proceeding'. Then, if Carla denied making the relevant statements, and only if she did so, it would have been open to the appellant, again pursuant to s 21 of the Evidence Act, to adduce from Kerry evidence of her conversations with Carla, including the evidence comprised of the recorded conversations, in order to prove the relevant prior inconsistent statements. Therefore my following comments are necessarily made on the assumption that this is what would have occurred at the trial if the additional evidence had existed at the time of the appellant's trial.
As I have indicated Kerry, in addition to authenticating the recordings of her three conversations with Carla, gave evidence as to the nature of her relationship with Carla, as to the circumstances in which she came to have the recorded conversations with Carla and as to what, if anything, was said between her and Carla in the lead up to the first of the recorded conversations and then between each of the recorded conversations.
The evidence given by Kerry authenticating the three recordings of her conversations with Carla was not challenged by the respondent. There was no dispute raised by the respondent as to the authenticity of the recordings. Accordingly, acceptance of the evidence of Kerry as to the content of the recorded conversations does not depend on any assessment of Kerry's credibility. It would therefore obviously be open to a magistrate, acting reasonably, to accept the evidence of Kerry to the extent that it was comprised of simply authenticating the recordings as being recordings of conversations that she had with Carla.
As to the balance of Kerry's evidence, that is, the evidence she gave as to the nature of her relationship with Carla, as to the circumstances in which she came to have the recorded conversations with Carla and as to what was said between her and Carla in the lead up to the first of the recorded conversations and then between each of the recorded conversations, the respondent points out that Kerry is the mother of the appellant and therefore cannot be said to be a disinterested third party in the matter.
It is clear that Kerry does, given her relationship with the appellant, have an interest in the outcome of the proceedings. She is not, as she admitted, an impartial observer. This is something that must be borne in mind. Nonetheless, in my assessment, and having not had the benefit of hearing Carla's evidence on the point, Kerry's evidence as to the nature of her relationship with Carla, as to the circumstances in which she came to have the recorded conversations with Carla and as to what was said between her and Carla in the lead up to the first of the recorded conversations and then between each of the recorded conversations, which was not shaken in cross‑examination, was credible, that is, was honestly given and was reliable. Kerry was forthright in the way that she gave her evidence. She made concessions where appropriate. I did not detect any prevarication or evasiveness in the way that she answered any of the questions asked of her. Nor did I detect any attempt on her part to embellish to the advantage of the appellant any aspects of her evidence. Further, she came across as having a generally good, albeit not infallible, memory of the course of events during which the conversations occurred.
Despite Kerry's evidence that she was unable to easily visually record her conversations with Carla and therefore did not do so, there is, as I have already pointed out, some very brief visual footage of the floor and Kerry's lower legs and feet at the end of the audio recording of the first conversation. However, in light of the nature and duration of the footage, Kerry's plausible evidence as to her reasons for not being able to visually record her conversations with Carla, and the absence of any evidence as to how the footage came into existence, it seems to me likely that Kerry did not even realise that the footage had been taken and that it was taken inadvertently by her while she was in the process of turning off her phone's audio recording application. In any event, the existence of this small amount of footage does not cause me to take an adverse view of the credibility of Kerry's evidence as to why she did not attempt to make a visual recording of her conversations with Carla. I accept that it would, in the circumstances in which the conversations came about and took place, have been difficult for Kerry to not only physically make a visual recording but also to engage and converse with Carla while doing so.
Given my favourable assessment of Kerry's credibility, it is my view that it would have been open to the magistrate, acting reasonably, to accept as relevant, credible and cogent the evidence given by Kerry as to the nature of her relationship with Carla, as to the circumstances in which she came to have the recorded conversations with Carla and as to what was said between her and Carla in the lead up to the first of the recorded conversations and then between each of the recorded conversations.
In summary, for the reasons that I have stated I am satisfied that it would have been open to the magistrate to accept as relevant, credible and cogent the additional evidence, that is, the evidence given by Kerry on the appeal.
If it would have been open to the magistrate, acting reasonably, to have accepted the evidence of Kerry, is the evidence capable of materially affecting an assessment of the credibility of Carla's evidence that the offence occurred?
As is apparent from my above summary of Kerry's evidence, Carla, according to the evidence given by Kerry, made statements during her conversations with Kerry that were in substance as follows:
1.Her mum had lied to her about the day that her mum and her dad had had an argument;
2.Her dad had asked her mum to get out of the house because her mum had hit her dad really hard;
3.Her dad had not thrown her mum against the wall and that she was certain about this;
4.She was asked to say that her dad had dragged her mum to the wall by 'the lady';
5.Two ladies told her what to say;
6.If the ladies had not told her what to say she would, when the man asked her what happened, have said that her dad had 'just' grabbed her mum gently on the wrist and said 'get out of the house';
7.Before her dad grabbed her mum on the wrist her mum hit her dad, and that her mum then just ran away with her and James to the police station; and
8.Her mum had 'said a lie' because her mum had said that her dad had dragged her to the wall and banged her head.
The respondent submits that the above statements made by Carla are not capable of materially affecting the assessment of the credibility of the evidence given by Carla as to the offence (comprised of what she said during the interview conducted with her on 25 October 2017 and her oral testimony given at trial). In support of this submission the respondent advances a number of contentions.
First, the respondent contends that given that Carla did not during her conversations with Kerry make any statement to the effect that she had told a lie when she said, in substance, during the interview conducted with her on 25 October 2017 and during her oral evidence at trial that her dad had thrown her mum into the wall, the statements that she made to Kerry during the conversations cannot be seen as materially affecting an assessment of the credibility of her evidence.
It is the case that Carla did not expressly state to Kerry that she had told a lie in saying during the interview conducted with her and during her oral evidence at trial that her dad had thrown her mum into the wall. However, as Kerry pointed out in her evidence, she did not, understandably, ask Carla directly if she had lied when she had made these statements. In these circumstances I do not accept the argument that Carla's failure to expressly state or acknowledge that she had told a lie when she had said in the interview and in her oral evidence that her dad had thrown her mum into the wall, provides a basis for concluding that the statements that she made to Kerry are not capable of materially affecting an assessment of the credibility of her evidence.
Second, the respondent contends that a number of the material statements made by Carla during the conversations with Kerry were ambiguous and capable of more than one interpretation. I will refer to each of the allegedly ambiguous statements in turn.
The respondent contends that Carla's initial statement 'mum lied to me' may not have been intended to convey that Ms O'Connor had lied in saying that the appellant had thrown her against the wall, but rather as intending to convey only that Ms O'Connor had lied in saying that the appellant had not asked her to leave the house. In support of this contention the respondent points out that on Kerry's evidence when following this statement by Carla she further queried with Carla what she recalled happening on the day, Carla said words to the effect that 'dad asked mum to leave' and demonstrated the appellant grabbing Ms O'Connor by the wrist and attempting to escort her out of the house.
I do not accept the respondent's argument on this point. The argument overlooks not only Carla's response to Kerry's question what it was that her mum had lied about, which was 'That day her [mum] and her dad had an argument' but also Carla's clear subsequent statements that her dad had not thrown her mum against the wall. In my view it cannot properly be suggested that Carla's statement that 'mum lied to me' when read in this context could have been intended to convey only that Ms O'Connor had lied in saying that the appellant had not asked her to leave the house.
Another of the statements made by Carla that the respondent contends is ambiguous and capable of more than one interpretation is Carla's answer 'Nup' to Kerry's question, 'And then he threw, and then he threw her against the wall?' The respondent contends that this statement could have been a rejection by Carla of the suggestion that this was literally the next thing that happened, that is, the next thing that happened after her dad had told her mum to get out of the house. I do not accept this contention. It is quite clear from Carla's subsequent response 'Certain' to Kerry's questions, 'Oh didn't he? Are you sure? Are you really sure?' that her answer 'Nup' given moments earlier was a rejection of the suggestion that her dad had thrown her mum against the wall.
The last of the material statements that the respondent contends is ambiguous is the statement made by Carla that her mum had lied by saying that her dad had 'dragged her mum to the wall and banged her head'. The respondent contends that it is not clear from this statement which part of the proposition Carla is asserting was a lie. That is, the respondent argues that is not clear if Carla is asserting that her mum lied in saying that the appellant dragged her to the wall or is asserting that her mum lied in saying that the appellant banged her head.
It is apparent from listening to the recording that Carla does, in making the above referred to statement, emphasise the word 'dragged'. However, in my view it is to engage in an exercise in semantics to suggest that it is open to interpret Carla's statement as intending to convey that Ms O'Connor's lie was restricted to an assertion that the appellant had dragged her as opposed to an assertion that the appellant had dragged her and banged her head. This is particularly so given Carla's statement made during the first of the recorded conversations that she was certain that her dad had not thrown her mum against the wall.
In summary, I do not accept the respondent's contention that Carla's material statements made during the conversations are ambiguous.
The third of the respondent's contentions advanced in support of the submission that the statements made by Carla to Kerry are not capable of materially affecting the assessment of the credibility of her evidence is that the statements were made in 'an informal setting, without proper support persons present, other than under oath, and without it having been explained that the giving of evidence is a serious matter requiring truth'. The respondent argues that there is no evidence that Carla understood that she was 'effectively giving evidence analogous to that she gave in court, and which must be given seriously and truthfully'.
There is an obvious difficulty with the respondent's contention, namely that Carla was not 'effectively giving evidence analogous to that she gave in court'. The statements made by Carla to Kerry are not in any way evidence. They are nothing more than out of court inconsistent statements and it is for this very reason that they can only bear upon the credibility of Carla's evidence at trial. In any event, the fact that Carla in making the statements was in an informal setting, without support persons present and without being expressly told that it was important for her in making the statements to tell the truth does not, in my view, bear greatly on the question whether the statements made by Carla are credible and therefore whether the evidence of the statements is capable of materially affecting an assessment of the credibility of Carla's evidence that the offence occurred. Indeed, it might be argued that given Carla's close and open relationship with Kerry, the relationship of trust that obviously existed between Carla and Kerry, and the informal circumstances in which the relevant conversations occurred, there is an increased likelihood that Carla's statements to Kerry would be truthful. Further, on Kerry's evidence the conversation between her and Carla that led to Carla making her initial statement that her mum had lied to her, or words to that effect, was a conversation that they were having in the laundry about various matters including how important it is for people to be honest and to tell the truth.
Fifth, the respondent contends that in contradistinction to the detailed evidence given by Carla at trial, the conversations that Carla had with Kerry are short and lacking in continuity and context. The respondent asserts in this context that the third of the recorded conversations ends while Carla is apparently in the process of giving a significant clarification as to what she saw the appellant actually do.
The conversations are short. At some points they are a little disjointed which is unsurprising given the age of Carla. Furthermore, it is, I think, fair to infer from the subject matter of the conversations, some of the responses given by Carla, and the tone of her voice in answering some of the questions asked of her, that she would have preferred to be talking about something else with her grandmother. Nonetheless, I do not agree that the material parts of the conversations can be said to be lacking in continuity and context.
As to the suggestion that the third of the recorded conversations ends while Carla is in the process of clarifying what she saw the appellant do, it does not actually seem to me, despite Kerry's concession (that is, despite her concession that she stopped the recording at a point when it appears that Carla was actually prepared to say something about what had occurred) that this is in fact the case. On listening to the recording it does not, to my ear, sound as though Carla is about to embark upon some further elaboration of what she saw. In any event, even if Carla was about to embark upon some further elaboration of what she saw, given that there is no way of knowing what she was about to say it cannot be said that the fact that she did not complete what she wanted to say provides a basis for concluding that what she had already said is not capable of materially affecting an assessment of the credibility of her evidence as to the commission of the offence.
Sixth, the respondent contends that some of Carla's responses are given in response to leading questions rather than by Carla stating matters in her own words, in particular on the issue of whether the appellant threw Ms O'Connor into the wall.
I do not accept the respondent's contention. Carla's denial that her dad threw Ms O'Connor against the wall was actually made in response to the positive assertion by Kerry, 'And then he threw, and then he threw her against the wall'. Further, Carla's statements that she was asked by 'the lady' to say that her dad had dragged her mum to the wall, her statement that the two ladies had told her what to say, her statement that her dad had 'just grabbed her mum gently on the wrist and said get out of the house' and her statement that her mum had lied by saying that her dad had dragged her mum to the wall and banged her head were, quite simply, not made in response to leading or suggestive questions. Indeed, it is quite apparent from a review of the content of the conversations that Kerry did her best to avoid putting words in Carla's mouth.
Seventh, the respondent contends that Carla's demeanour during her conversations with Kerry cannot be fully considered because the recordings do not contain vision of Carla. This is obviously correct. Nonetheless, the way in which Carla engaged in the conversations with Kerry can, to some significant extent, be discerned from the recorded portions of the conversations. There is, in my view, nothing in the recordings that raises concerns about the credibility of the statements being made by Carla. I would not conclude that the relevant statements made by Carla are not capable of materially affecting an assessment of the credibility of the evidence given by Carla as to the commission of the offence by reason of the fact that there is no vision of her having the relevant conversations with Kerry.
Finally, the respondent contends that no reasons are given by Carla for the asserted contradictions between Carla's 'fresh evidence' and her evidence at trial, save for her generalised statement that the ladies told her what to say.
Putting to one side the erroneous reference as part of this contention to Carla's statements to Kerry as Carla's 'fresh evidence', it is the position that Carla's statements to Kerry that she had been asked by 'the lady' to say that her dad had dragged her mum to the wall, and that two ladies told her what to say are vague and lacking in detail. They do not reveal the identity of the lady or the ladies in question. Nor do they reveal precisely when, on Carla's account, her relevant conversations with the lady or ladies are said to have occurred. Further, even if it is assumed that Carla is referring to an employee or employees of the Child Witness Service, or one or more of the qualified child interviewers that conducted the interview with her on 25 October 2017, it might well be thought that there is an implausibility in Carla's assertion that these independent persons in some way coached Carla about the evidence that she should give as to the incident the subject of the trial. The lack of detail and lack of plausibility of Carla's proffered explanation for saying what she did during the interview conducted with her and during her oral evidence is relevant to the determination of whether the relevant statements made by Carla are capable of materially affecting an assessment of the credibility of the evidence given by Carla as to the commission of the offence.
As is apparent from what I have said in dealing with the second of the contentions advanced by the respondent in support of the submission that the statements made by Carla to Kerry are not capable of materially affecting the credibility of the evidence given by Carla as to the offence, it is my opinion that during her conversations with Kerry, Carla made clear unambiguous statements, without any obvious prompting or inducement by Kerry, that her dad had not thrown her mum against the wall, that she was certain of this, that if she had not been told what to say she would have said that her dad 'just' grabbed her mum gently on the wrist and said to her get out of the house, and that her mum had told a lie by saying that her dad had dragged her to the wall and banged her head. These statements are on any view of the matter directly contrary to the evidence given by Carla in both examination‑in‑chief and cross‑examination at the appellant's trial that her mum had banged her head on the wall because the appellant had thrown her on the wall. The inconsistency between what Carla said in her evidence and what she said in her above identified statements to Kerry is not an inconsistency as to mere detail. It is an inconsistency of significance in that it relates to the evidence given by Carla as to the actual conduct of the appellant found by the magistrate to constitute the offence committed by the appellant.
Furthermore, in my view, and for the reasons that I have given, none of the other above referred to contentions advanced by the respondent in support of the proposition that the apparent inconsistency is not capable of materially affecting an assessment of the credibility of the evidence given by Carla, with the possible exception of the last mentioned contention, are of any real merit. As to the last contention, the absence of any obviously plausible explanation given by Carla for her statements to Kerry, while relevant to the question at hand, is not something that by itself causes me to conclude that the inconsistency between Carla's evidence and what she said to Kerry is incapable of materially affecting an assessment of the credibility of the evidence given by Carla as to the commission by the appellant of the offence.
In addition, and as I have already pointed out, the respondent's decision not to adduce evidence from Carla on the appeal in response to the additional evidence, including evidence from Carla as to why she made the relevant statements to Kerry, makes it more difficult to conclude that the evidence of the statements is not capable of materially affecting an assessment of the credibility of the evidence given by Carla.
In all these circumstances I am persuaded that the evidence of Kerry as to the making to her by Carla of the above identified statements is capable of materially affecting an assessment of the credibility of Carla's evidence that the offence occurred, that is, that the appellant did throw Ms O'Connor into the wall near the front door of the house. The evidence of Kerry, even though it is relevant only to Carla's credibility, does in my view have the capacity to cause a trier of fact not to accept Carla's evidence on this critical issue.
If the evidence of Kerry is capable of materially affecting an assessment of Carla's evidence that the offence occurred, does the evidence of Kerry, viewed in combination with the evidence given at trial, show that there is a significant possibility that the magistrate, acting reasonably, would have acquitted the appellant if the evidence of Kerry had been before him?
Accepting that the evidence of Kerry is capable of materially affecting an assessment of Carla's evidence that the offence occurred so that Carla's evidence on this specific point may not have been accepted by the magistrate, the question which remains is whether there is a significant possibility that the magistrate, acting reasonably, would have acquitted the appellant if the evidence of Kerry as to the statements made by Carla had been before him. In determining this question it is necessary to take into account the extent to which the prosecution case depended upon the evidence of Carla, and the extent to which there was other evidence of the commission of the offence.[124]
[124] Muller v The State of Western Australia [10].
As is apparent from what I have already said in relation to the evidence adduced at trial, the prosecution case against the appellant did not depend solely on the evidence given by Carla. Rather, Carla was one of two witnesses as to the conduct of the appellant said to comprise the offence. Nonetheless, it is clear that Carla's evidence was of real significance to the prosecution case. Carla's evidence corroborated the evidence given by Ms O'Connor as to the commission of the offence. If not for the evidence of Carla the prosecution would have been left solely with Ms O'Connor's evidence as to the actual commission of the offence. Ms O'Connor, it could be argued, given the acrimonious nature of her relationship with the appellant at the time of the incident the subject of the charge, had a motive for tailoring her evidence to paint the appellant in an unfairly bad light.
In making the statement in the preceding paragraph that the prosecution would have been left solely with the evidence of Ms O'Connor as to the actual commission of the offence, I am not overlooking the evidence tendered at the trial comprised of the photographs of Ms O'Connor, the medical report and the medical notes. However, in respect of this evidence I make the following points. First, in my view the two photographs of Ms O'Connor's face do not clearly show any swelling to the area under her right eye or to her right cheek area generally. Second, the existence of scratches to Ms O'Connor's left elbow area, as shown in the third tendered photograph, while arguably consistent with her evidence that she was dragged down the hallway do not provide support for her evidence that she was thrown against the wall. Third, no swelling to Ms O'Connor's right eye area or right cheek area was observed when she was examined at SCGH (which is consistent with my above referred to observations in relation to the two photographs of her right cheek area). Fourth, there was no bump, swelling or bruising to the back of Ms O'Connor's head observed when she was examined at SCGH. In short, and despite the magistrate's above referred to finding that the appellant's evidence that Ms O'Connor sat on the floor before gathering her children 'was not supported by the medical report', the medical evidence that was before the magistrate did not provide any clear objective support for the evidence given by Ms O'Connor and Carla that the appellant had thrown Ms O'Connor into the wall.
It cannot be overlooked that the magistrate took an adverse view of the appellant's credibility. However, as is apparent from a reading of the magistrate's findings on credibility that I have set out above, his Honour's rejection of the appellant's evidence was inextricably linked with his acceptance of the evidence of Ms O'Connor and Carla. That is, a reading of the magistrate's reasons for concluding that the appellant was not a credible witness with the result that he rejected the appellant's evidence that he had not thrown Ms O'Connor into the wall, reveals that the essential basis for his Honour's conclusion was that the appellant's evidence on this point was in material respects inconsistent with the evidence of Ms O'Connor and Carla as to 'what transpired'. It is clear from his Honour's reasons that Carla's evidence, which he found not to have been influenced by any adult person, was integral to him coming to the conclusion that he was satisfied beyond reasonable doubt that the appellant did throw Ms O'Connor into the wall.
It might be that the magistrate, even if he had not accepted Carla's evidence as to the appellant's conduct the subject of the offence, would still have concluded that he was on all of the evidence satisfied beyond reasonable doubt that Ms O'Connor's evidence that she was thrown into the wall by the appellant was honest and reliable with the consequence that he would have convicted the appellant of the offence. Ultimately, it is difficult for me to gauge the impact of a rejection of the material part of Carla's evidence on the likelihood of the magistrate finding, on the basis of Ms O'Connor's evidence alone, that the appellant committed the charged offence. This is particularly so in circumstances where the respondent has chosen not to call Carla on the appeal. However, given the very significant weight that the magistrate clearly placed on Carla's evidence in making the finding of fact that the appellant had thrown Ms O'Connor into the wall and therefore unlawfully assaulted her, I am persuaded, viewing the evidence adduced at trial as a whole, that if the magistrate had not, due to the evidence of Kerry as to Carla's inconsistent statements, accepted the evidence of Carla there is at least a significant possibility that the magistrate, acting reasonably, would not have been satisfied beyond reasonable doubt that the appellant had thrown Ms O'Connor into the wall near the door of the house and would consequently have acquitted him of the charge.
Conclusion
For the reasons I have given I am persuaded that there is a significant possibility that the magistrate, acting reasonably, would have acquitted the appellant if the additional evidence of Kerry adduced on the appeal had been before him at the appellant's trial. It follows that I am satisfied that a miscarriage of justice has been established. I therefore grant leave to appeal, allow the appeal, set aside the conviction and order a retrial before a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick12 JUNE 2019
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