Pavitt v Skeet
[2010] WASC 65
•30 MARCH 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PAVITT -v- SKEET [2010] WASC 65
CORAM: HASLUCK J
HEARD: 8 FEBRUARY 2010
DELIVERED : 30 MARCH 2010
FILE NO/S: SJA 1109 of 2009
BETWEEN: TINA DALIDA PAVITT
Appellant
AND
TAMYKA MARIE SKEET
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE W TARR
File No :PE 12721 of 2008
Catchwords:
Criminal law - Appeal against conviction on a charge of aggravated assault occasioning bodily harm - Whether magistrate erred in assessment of matters of fact and law - Principles concerning assessment of causation - Findings of fact of magistrate based upon decisions as to credibility of witnesses at trial - Whether magistrate erred in finding that the appellant pushed the complainant as alleged and thereby caused him to fall and suffer an injury - Evidence held to be sufficient to support a finding beyond reasonable doubt - Appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14, s 14(2)
Criminal Code (WA), s 317(1)
Result:
Leave to appeal allowed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr C G Astill
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Campbell v The Queen [1981] WAR 286
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Devries v The Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Harling v Hall (1997) 94 A Crim R 437
Liberato v The Queen (1985) 159 CLR 507
Royall v The Queen (1991) 172 CLR 378
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Skerritt v O'Keefe [1999] WASCA 183
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
HASLUCK J:
Application for leave to appeal
The appellant, Tina Dalida Pavitt, seeks leave to appeal against a conviction after trial in the Perth Magistrates Court.
The questions raised by the proposed appeal are whether the learned magistrate erred in his assessment of certain matters of fact and law and whether he acted properly in taking into account certain evidentiary matters that came before him in the course of the hearing.
The application for leave and the grounds of appeal are opposed by the respondent who is represented by counsel instructed by the Director of Public Prosecutions.
The hearing
The appellant was charged that on 29 December 2007 at Mirrabooka she unlawfully assaulted one Albert James Garlick and thereby did him bodily harm in circumstances of aggravation, namely, that the victim was of or over the age of 60 years, contrary to s 317(1) of the Criminal Code (WA).
The provision in question states that any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime and is liable to certain prescribed penalties. The nature of the penalty is affected by whether the offence is committed in circumstances of aggravation such as that the victim is over the age of 60 years.
The matter was brought on for hearing before his Honour Magistrate Tarr on 24 June 2009. The appellant was represented at the hearing by counsel and pleaded not guilty to the charge.
The prosecution case at the hearing was supported by the evidence of three witnesses being Coral Garlick, her grandson, Mark Lewis and his girlfriend, Assunta Bruno. It emerged from the evidence given by these witnesses and evidence given later by the appellant and her brother, Jamie Covich, that the appellant was the proprietor of certain premises in Mirrabooka, being the premises formerly occupied by the appellant's late mother. The premises had been inherited by the appellant from her deceased mother and were being rented to Anne Garlick. As at December 2007 the premises were being occupied by Anne Garlick and her son Mark Lewis.
The initial events
It seems that the appellant was of the view that the tenancy agreement had been infringed and it was necessary for her to inspect the premises as a preliminary to an eviction of the tenants. With that thought in mind, the appellant attended at the premises in the company of her brother, Jamie Covich, on the afternoon of 29 December 2007 with a view to entering the premises to carry out an inspection and to speak to the tenant about the proposed eviction.
It appeared to be common ground at the hearing that the tenant, Anne Garlick, was not at home on the day in question. Her son, Mark Lewis, was in the house. When the appellant and her brother knocked on the front door Mr Lewis refused to admit them and told them to leave. The appellant and her brother then went to the back door of the premises and it was there that the appellant used her landlord's key to open the door with a view to entering the premises.
It was a matter of controversy on the evidence as to whether the appellant herself actually entered the premises after opening the back door. I will return to that aspect of the matter later. However, the evidence as a whole established that an altercation took place between Mr Lewis and the appellant's brother in the vicinity of the back door.
One way or another the altercation led to Mr Lewis and his girlfriend, Ms Bruno, leaving the premises hastily. The evidence showed also that Mr Lewis then made his way quickly to some premises nearby occupied by his grandparents, Coral Garlick and Albert Garlick. The tenor of Coral Garlick's evidence was that she and her husband then drove to the subject premises with a view to protecting the property of the tenants; that is, their daughter, Anne Garlick and their grandson, Mark Lewis.
I note in passing that Albert Garlick was an elderly man in frail health at that time, suffering from an onset of Alzheimer's disease, who is now unfortunately deceased. However, it is necessary to describe Mr Garlick's involvement in the events that followed, although he did not give evidence at the hearing, for he was the alleged victim of the assault complained of on the prosecution case. The appellant herself, in a passage from her evidence that I will come to later, said: 'I could see that he was frail' (ts 26).
It was a matter of acute controversy at the hearing (and remains so on the appeal) as to what exactly took place when Mr and Mrs Garlick arrived at the subject premises. However, for the sake of a coherent narrative, it will be useful at this stage to describe what occurred in general terms.
Events at the front gate
It appears that Mrs Garlick entered the subject premises and proceeded down the driveway towards the rear of the premises. At the rear corner of the house she encountered the appellant and there was then an altercation which led to the appellant's brother, Mr Covich, separating the two women. It was made clear to Mrs Garlick that she was required to leave the premises and thus she retreated or was escorted to the front gate where a second altercation took place.
It was apparent from the evidence as a whole, including photographic evidence, that the gate was constructed of wooden pickets with an arc‑shaped configuration at the upper level. The appellant and her brother finished up on the internal side of the gate (that is, within the property on the side closest to the subject premises). Mr and Mrs Garlick were on the external side of the gate (that is, closest to the communal or municipal pavement) with Mr Lewis.
The appellant and her brother were pushing the gate with a view to closing it, and thus completing the removal of Mr and Mrs Garlick and Mark Lewis from the property. This was being resisted by those on the other side of the gate. The evidence as a whole indicates that the appellant and the elderly Mr Garlick were opposite each other at about the lowest point of the arc‑shaped configuration. Ms Bruno was watching the struggle from a position close by.
It was common ground that during the course of the second altercation Mr Garlick finished up on the ground with his legs beneath the gate. It was this that brought the altercation to an end as the parties combined to effect the removal of his legs from beneath the gate. It was a matter of acute controversy at the hearing and on appeal as to whether the appellant pushed or assaulted Mr Garlick in the course of the second altercation as a consequence of which he fell to the ground and suffered certain injuries.
The prosecution case included evidence from Police Officer Tamyka Gould to the effect that at about 5.30 pm she received information that caused her to attend at the subject premises. Upon her attendance she observed two elderly people standing on the front verge of the property next to a vehicle. She saw that Mrs Garlick's 82‑year‑old husband, Albert Garlick, had a graze to his right knee and right ankle. She proceeded to make further enquiries.
Evidence was received also from Police Officer Nadia Okis who attended at the site in company with Constable Skeet both of whom enquired into the incident. Medical evidence establishing that Mr Garlick was subjected to bodily harm was not disputed.
It was against this background that the learned magistrate proceeded to his reasons for decision.
Reasons for decision
At the commencement of his reasons for decision the learned magistrate stated that no issue was being taken with two of the elements of the charge before him, namely, that there was bodily harm and that the complainant, Albert Garlick, was over the age of 60 years. His Honour said that it was only the physical assault which was in issue and the allegation that 'during some pushing and shoving at a gate in front of the property the appellant leant over the fence and pushed Mr Garlick causing him to stumble back' and fall to the ground.
His Honour said further that 'the issue is whether or not the cause of him falling to the ground was a push by the accused'. He noted that the court needed to be satisfied beyond reasonable doubt that the offence had been committed.
His Honour described the background to the altercations at the property on the day in question including reference to matters bearing upon the tenancy dispute. As to the second altercation he noted that on the evidence of Mrs Garlick, which did not seem to be in dispute, Mr Garlick was closest to the letterbox pillar, being that end of the gate and outside the gate. To the left of Mr Garlick was Mrs Garlick. The appellant was on the inside of the gate and to her right was her brother. Mrs Garlick said that she saw the appellant with two hands push Mr Garlick off balance and he fell. As a result of that fall he received injuries. Mr Lewis said that he saw the appellant use her right arm to push Mr Garlick, causing him to fall. The appellant denied pushing Mr Garlick at all and said that in any event, even if she wanted to, she could not because of the height of the gate.
His Honour then observed that it was his duty to make some assessment of the credibility of the witnesses. He said that, in his view, the evidence of the appellant 'in relation to a number of matters' was not convincing. He illustrated this by referring to evidence given by the appellant that she did not go into the house at all, being evidence that was not consistent with evidence given by Ms Bruno and the appellant's own brother that she went through the house and in the course of doing so told Ms Bruno to get out.
Having regard to the evidence given by Mrs Garlick and the appellant's brother, his Honour doubted the appellant's account of what took place during the first altercation at the corner of the house. He noted that a number of matters were raised in the course of the defence case that had not been put to witnesses. He concluded also that the appellant was in an upset or angry state of mind at the time, being the description used by her brother.
The magistrate went on to review evidence that indicated Mr Garlick was on the other side of the gate at the time of the second altercation and interfering with what the appellant was trying to do, namely, to keep the Garlick group off the property. His Honour reasoned that it was not inconsistent with the situation for a person in the position of the appellant trying to shut the gate to push the other person away in circumstances where there was evidence, including evidence from the appellant herself, that Mr Garlick had attempted to aim a blow at the appellant.
His Honour proceeded to review evidence bearing upon the appellant's contention that the gate was too high for an interaction between the appellant and Mr Garlick. In the course of doing so, his Honour referred to photographic evidence (taken after the event) showing the appellant standing at the gate and to the letterbox pillar which appeared from the photographic evidence to have 16 courses of brick.
His Honour then concluded with these observations:
The accused is a reasonably tall woman, as is her husband. I could not conclude on the evidence it would be impossible to push someone over that fence and that's what I am being asked to accept. My view and finding would be that it is - it would be possible for someone to push someone who was on the other side of the fence. The accused had a determined purpose on this day and was clearly angry with what was going on.
As I have indicated, there has been no documentary evidence tendered although it has been spoken of which would have given her the right to enter the premises. The premises were still occupied by the tenant. She still had possession of the premises. The accused on this day I find on the evidence was determined to either view the premises or terminate the agreement - I am not sure how she was going to do that on that day - or evict the people.
I accept the evidence of Mrs Garlick and her grandson that Mr Garlick finished up on the ground because he was pushed by the accused. As I have indicated, the accused in a number of parts of her evidence was a bit vague about what was happening and she was not consistent in other parts. I find that she was not truthful in relation to entering the premises or her initial contact with Mrs Garlick. I accept the evidence of Mrs Garlick and her grandson and I find the charge proven. (ts 65)
The appellant was convicted pursuant to these reasons of the offence of assault occasioning bodily harm. She was fined $1,000 with costs of $364.20.
Notice of appeal
It was against this background that the appellant proceeded to lodge an appeal notice dated 15 September 2009 in which she applied to the Supreme Court for leave to appeal against the conviction in question.
The grounds of appeal were set out in the appeal notice as follows:
1.The decision is bad at law and in fact.
2.The Presiding Magistrate wrongly took into account evidence that should not have been taken into account.
Particulars -
a.The Presiding Magistrate erred in his reasoning by drawing his own conclusions as to the height of the fence and gate on evidence that was not put before the hearing;
b.The Presiding Magistrate improperly took into account and relied on residential tenancy matters that were irrelevant to the charge as laid;
c.The Presiding Magistrate improperly took into account and wrongly gave weight to inconsistent evidence of the prosecution witnesses.
d.The Presiding Magistrate accepted that the victim was examined by a doctor on the day following the alleged incident whereas the doctor's signed statement indicates that such examination was undertaken on 30 January 2008 which was one month after the alleged incident.
3.The Magistrate decided the proceedings against the weight of the evidence and the appellant submits that the charge was not proved beyond a reasonable doubt.
4.Counsel for the defendant did not put evidence to the prosecution witnesses that would likely have established the defendant's position with respect to residential tenancy matters. Such evidence was ruled inadmissible as a result and prejudiced the defendant's position.
5.The Presiding Magistrate improperly prevented evidence being heard with respect to the defendant's statement to Police.
On 25 September 2009 McKechnie J made orders concerning the proposed appeal to the effect that an extension of time within which to appeal was granted. Further, leave to appeal and the appeal in respect of the grounds specified in the appeal notice were to be heard at the same time.
The appellant was not represented when the matter was brought on for hearing. However, prior to the hearing detailed written submissions had been filed on behalf of the appellant. These submissions were full and well presented and it emerged during the course of the hearing that the appellant had obtained some legal assistance in the course of preparing the submissions.
Importantly, it appears from cl 4 of the appellant's written submissions that the appellant sought leave to appeal on the grounds listed in the appeal notice save for grounds 2(b), 2(d), 4 and 5 which were expressly abandoned as having no reasonable prospect of success.
In summary, then, upon the hearing of the appeal, the appellant contended pursuant to ground 1 that the decision is bad at law and in fact, pursuant to ground 2 that the presiding magistrate wrongly took into account evidence that should not have been taken into account in that he erred by drawing his own conclusions as to the height of the fence and gate on evidence that was not put before the hearing (2a.) and improperly took into account and wrongly gave weight to inconsistent evidence of the prosecution witnesses (2c.).
Further, pursuant to ground 3, it was contended that the magistrate erred in deciding the proceedings against the weight of the evidence and the appellant submitted that the charge was not proved beyond a reasonable doubt.
Before turning to the submissions of the parties it will be useful to look at certain legal principles bearing upon an appeal of this kind.
Legal principles
Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal. Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding; that is, the appeal must have a real prospect of success: Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
The question of whether each ground has a real prospect of success obviously requires that some consideration be given to additional provisions and principles.
By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing. Section 14(2) of the Act provides that even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. By s 39, the Supreme Court must decide the appeal on the evidence and materials that were before the lower court but this does not prevent consideration of any evidence that the lower court refused to admit.
A magistrate is generally required to set out the relevant findings of fact and the reasons for decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226. The sufficiency of fact finding will vary widely with the exigencies of each case: Skerritt v O'Keefe [1999] WASCA 183.
In Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Ipp J observed at 448 that primary findings of fact will not ordinarily be interfered with, provided there is evidence to support those findings, and provided the appellant fails to establish that the court below has not taken proper advantage of seeing and hearing the witnesses. Nevertheless, when findings as to the primary facts are attacked, and the inferences drawn from the primary facts are said to be wrong, it remains the task of an appellate court in an appeal by way of rehearing to embark on an analysis of the evidence, documents and objective facts in order to determine the issues afresh.
However, generally an appellate court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or palpably misused the advantage of seeing and hearing the witnesses or acted upon evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v The Australian National Railways Commission (1993) 177 CLR 472.
The question on appeal will often be not whether the court would have formed a different view, but whether the magistrate's approach in view of the evidence was defensible: Chamberlain v The Queen (No 2) (1984) 153 CLR 521.
Where there is a conflict in the evidence, if the tribunal of fact prefers the evidence of the prosecution, it must not convict an accused unless it is satisfied beyond reasonable doubt of the truth of that evidence: Liberato v The Queen (1985) 159 CLR 507. A finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
As to causation, it is necessary to identify the particular act which, on the prosecution case, might have been the cause of the injury complained of. The question of cause is not a philosophical or a scientific question, but a question of the judicial officer or jury charged with resolving the issue applying commonsense to the facts as they are found to be. It is not necessary to isolate a single cause of the injury, for there may be more than one such cause. The relevant act must have made a significant contribution to the result. See Campbell v The Queen [1981] WAR 286; Royall v The Queen (1991) 172 CLR 378. Thus, in the text books the test for causation is often expressed in terms of 'but for' terminology so that, if the result charged would not have occurred but for the action of the accused, causation is established.
I note in passing that in the present case the magistrate identified the appellant's act in pushing the complainant as the act that caused the complainant to fall to the ground. His Honour said: 'I accept the evidence of Ms Garlick and her grandson that Mr Garlick finished up on the ground because he was pushed by the accused'. There was no issue that there was bodily harm. The issue on appeal was whether the magistrate erred in finding that the appellant pushed the complainant as alleged and thereby caused him to fall and suffer an injury.
The appellant's submissions
The appellant submitted that in respect of the element of bodily harm, the burden remained upon the prosecution to establish beyond reasonable doubt that the complainant's injuries had in fact been caused by the appellant's alleged act of pushing him to the ground, and did not arise incidentally from the actions of all of those who were engaged in the pushing and shoving at the gate during the course of the second altercation.
It was said that even if it were open to the magistrate to form the view ultimately that the appellant had pushed Mr Garlick, his Honour erred in assuming that the injuries to which the complainant was subjected were caused by the appellant in circumstances where the evidence showed that the gate was being pushed and pulled by a number of people at the time. The magistrate's conclusion was inconsistent with a finding that this element of the charge was proved beyond reasonable doubt. It was said that the magistrate's conclusion in this regard was against the weight of evidence and was logically flawed.
The appellant said further that, having arrived at an unsound conclusion that Mr Garlick's injuries were caused by the appellant, the magistrate then identified the sole element remaining to be made out by the prosecution to be that of whether or not the cause of Mr Garlick falling to the ground was a push by the appellant.
The appellant contended that the magistrate erred at law in giving considerable weight to the evidence of various witnesses about the first altercation and the tenancy issues in forming a conclusion about the credibility of the witnesses in relation to their evidence concerning the second altercation at the gate. It was said that the magistrate's decision was against the weight of the evidence if he were to apply the standard that the prosecution must prove each element of the offence beyond reasonable doubt.
It was said further, on behalf of the appellant, that a condition precedent to the overall conclusion reached by the learned magistrate was a resolution of the issue as to whether the picket fence or gate was too high for the appellant to reach over and push Mr Garlick as alleged. The magistrate's reasoning was seriously flawed because he misdirected himself about the height of a house brick, from which he erroneously extrapolated the apparent height of the brick pillar adjacent to the fence. No evidence was offered by the prosecution as to the actual height of the appellant, or directly about the height of the gate or adjacent masonry pillar or its component bricks. It was said that the appellant was entitled to the benefit of reasonable doubt and should have been acquitted.
The respondent's submissions
Counsel for the respondent submitted that no error of fact or law had been identified in the reasons expressed by the learned magistrate. Further, and in any event, if any error had been demonstrated, no miscarriage of justice had occurred with the result that the appeal ought to be dismissed.
Counsel submitted that the learned magistrate had recognised correctly that the burden lay upon the prosecution to establish each element of the charge beyond reasonable doubt and that it was the duty of the magistrate to make some assessment of the credibility of the witnesses which he proceeded to so. The findings of fact made by the learned magistrate were based upon decisions as to credibility after he had the advantage available to a trier of fact at first instance to observe the witnesses.
It was said also that to the extent that the residential tenancy matters provided for part of the res gestae and the narrative, they were relevant to the charge laid. The appellant's motive for attending the premises and her demeanour in doing so, were specifically relevant to the assessment of the credibility of the accounts provided.
Having regard to the submissions made by the parties, it will now be useful to look at certain parts of the evidence given by the appellant herself bearing upon the assessment of her credibility by the magistrate and the height of the gate issue.
Evidentiary matters
In the course of her evidence‑in‑chief the appellant referred to the photographic evidence which showed her standing at the gate. The gate at the lowest point of the descending arc appears to be at shoulder or less than shoulder height of the appellant. To my mind, this does not appear to be a fact objectively established that incontrovertibly shows that the appellant could not have leaned over the gate to push a person such as Mr Garlick positioned on the far side of the gate.
The appellant said in the course of her evidence that she 'was trying to lock the gate. I was trying to latch the gate to stop them from coming in' (ts 10). Her evidence then continued in this way:
Okay, and did you push Mr Garlick over?---No. Mr Garlick did try and punch me at one stage which I laughed at because, I mean, he's frail and old, but he lifted up his arm to punch me and I sort of leant back away from that and my brother actually said something to him, but that's about all. Mr Garlick - I didn't speak to him, I didn't put my hands on him and he just raised his arm and - - -
Was the gate open at this stage?---No, it was always closed.
So how did his leg get stuck under the gate?---I think he fell when he went to punch me, to be honest. I think he lost his (indistinct) but that's just - I don't know, I really don't know.
Okay. Now, you heard the evidence of Coral Garlick. She said that you were trying to strike her. Did that happen?---No, not at all.
And were you waving your hand around at all?---Not at all. I was too busy trying to push the gate and keep them out.
So when you noticed that Mr Garlick had his leg stuck in the gate or under the gate, what happened then?---We stopped. I stopped. Jamie had already stopped because he was the one that was shouting. I stopped immediately as did Jamie, and I - I mean, Jamie stopped and lifted the gate off his leg and then we just, you know, helped him up.
Okay, and can you reach over the gate?---No, definitely not.
If you hold up the pictures again. Would you physically be able to reach over that gate and push someone?---No, you couldn't, you couldn't reach over. You couldn't even jump over and reach them and plus it's very spiky as well, so it's just not possible.
Under cross‑examination further questions were asked about this aspect of the matter. The appellant had this exchange with the cross‑examiner:
Did Mr Garlick say anything to you?---No, I never said anything to him. We never spoke.
I see, yet you suggest that - I think you suggested Mr Garlick is a fairly short man?---He is a fairly short man.
Shorter than you?---Yes.
How do you suggest then that - if you're not able to reach over the gate, how do you suggest then that he's punched out to you to reach over the gate?---He raised his arm towards me like that. He went sort of towards me that way.
I see?---So I just went like that.
So you moved backwards?---Yeah. Well - - -
So he could reach over the gate, you say?---No, he didn't reach over. He went above the gate towards me that way.
Well, he reached over the gate, did he not?---He didn't go over the gate.
Then why did you have to lean back?---Because he was trying to get my chin. So he had nothing to do over the gate, he was just trying to get my chin because I'm taller than him.
You're taller than him?---Yes.
So that made you angry, didn't it?---No, it didn't.
It didn't make you angry?---I actually was a bit surprised that he was an elderly gentleman and he was doing that when he was a bit dittery anyway.
How did you know that?---Because you could see he was wobbling. He wasn't - - -
How could you see him wobbling?---Because I could see that he was frail. He wasn't - he was frail---. (ts 26)
I pause to observe that in looking at these passages of testimony it is significant that the appellant appeared to accept that Mr Garlick, who was positioned directly opposite her, and who was shorter than she was, had some capacity to deliver a blow of sorts, or come close to delivering a blow, which might require responsive action on her part. This could suggest that the gate was not as high as she contended in her argument on appeal.
Further, it is significant that the appellant herself recognised that Mr Garlick was somewhat frail and unsteady on his feet. This arguably leaves room for an inference to be drawn that it would take only a comparatively mild push or blow to cause him to lose his footing and to fall.
General observations
As to the first issue raised by the appellant concerning causation, I am of the view that in the event of the magistrate finding that the appellant had pushed Mr Garlick as alleged, it would be open to the magistrate to find also, as he did, that this caused bodily harm of the kind described in evidence when Mr Garlick finished up on the ground. The rule is that causation must be assessed in a commonsense way and it is sufficient if the act said to be the cause contributed significantly to the happening of the relevant event. There may have been other elements of activity taking place in the circumstances of the present case. However, if the magistrate was able to find that the appellant pushed Mr Garlick as alleged then, in my view, it was open to the magistrate to find also that Mr Garlick would not have fallen to the ground and been injured but for an application of force in that manner.
It follows that in the circumstances of the present case the crucial question was whether it was open to the magistrate to find beyond reasonable doubt that the appellant had pushed Mr Garlick as alleged.
I am of the view that it was open to the magistrate to take account of the earlier events at the subject premises concerning the appellant's alleged entry into the premises and the first altercation. These were approximate in time to the alleged assault and were relevant in that they had a bearing upon the credibility of the various witnesses and the state of mind and attitude of the appellant at the time of the alleged assault. I therefore do not consider that the magistrate erred in taking account of the earlier events.
It follows from this view of the matter that the magistrate had a basis for concluding that the account given by the appellant was unconvincing because there was evidence before him from several witnesses, including the evidence of the appellant's own brother, that she had actually entered into the premises, contrary to her persistent denial that this was so.
His Honour went on to refer to that part of the evidence (mentioned above) concerning the attempt by the complainant (Mr Garlick) to throw a punch. His Honour observed that if, as the appellant claimed, the gate was too high for an interaction the punch would have been ineffective. His Honour said also that the appellant is a reasonably tall woman and he 'could not conclude on the evidence that it would be impossible to push someone over that fence' (ts 65).
Accordingly, having tested the credibility of the opposing witnesses, the magistrate gave greater weight to the evidence of Mrs Garlick and her grandson, Mark Lewis, that in the course of the second altercation the appellant did push Mr Garlick and cause him to fall to the ground and sustain injuries. It was against this background that his Honour eventually proceeded to the crucial finding of fact that 'Mr Garlick finished up on the ground because he was pushed by the accused' (ts 66).
It emerges from my review of the decided cases that an appeal court should not lightly interfere with findings made by a magistrate who has had the advantage of seeing the witnesses, especially in circumstances where the conclusion arrived at by the magistrate as to the weight to be given to the evidence of the witnesses he prefers is not controverted by objectively established facts. In the present case, I do not consider that there is a basis for interfering with the findings of the magistrate.
Let me now apply these general observations to the grounds of appeal (that is, the grounds remaining after the abandonment of grounds 2(b), 2(d), 4 and 5).
The first ground of appeal
The first ground of appeal was that the decision is bad in law and in fact.
This ground is broadly expressed but having regard to the way in which the matter was argued at the hearing and after allowing for the fact that the appellant was an unrepresented litigant, I must proceed on the basis that this ground encompassed the various matters raised in the appellant's submissions (referred to earlier) including the causation issue and the related factual issue as to whether the evidence was sufficient to support a finding beyond reasonable doubt that the appellant pushed the complainant with the result that he fell to the ground and suffered bodily harm.
As to this ground it follows from my general observations that there is no basis for interfering with the findings of the magistrate with the result that the appeal will not be allowed on this ground.
The second ground of appeal
The second ground of appeal (as reduced by the abandonment of certain particulars) is that the magistrate wrongly took into account evidence that should not have been taken into account. Having regard to the particulars, it is said that (a) his Honour erred in his reasoning by drawing his own conclusions as to the height of the fence and gate on evidence that was not before the hearing; and, (c) he improperly took into account and wrongly gave weight to inconsistent evidence of the prosecution witnesses.
As to this ground and the related particulars, it follows from my general observations that, for the reasons I have given, his Honour had a basis for doubting the credibility of the appellant and for preferring the evidence of the prosecution witnesses. In my view, the magistrate's references to the size of bricks amounted to no more than testing the veracity of the witnesses by reference to tangible features of the scene as portrayed by the witnesses and in the photographs in the same way that a judicial officer or a jury is required to draw upon his own experience in assessing estimates of time or distance provided by a witness. The magistrate was entitled to draw inferences from the photographs as to the height and dimensions of the gate. Moreover, it is apparent from the tenor of the magistrate's reasoning, considered as a whole, that his findings were based essentially upon the observations of the prosecution witnesses, especially Mrs Garlick and her grandson, as to the mood and demeanour of the appellant and as to what she did.
This brings me to the question of whether the magistrate wrongly 'gave weight to inconsistent evidence of prosecution witnesses'. The crucial passages in the appellant's submissions concerning the inconsistency issue are as follows:
28.Significantly, the Magistrate used his conclusions concerning the First Altercation to resolve the critical issue of inconsistencies in the evidence of the prosecution witnesses in relation to the sole relevant issue of whether the Appellant pushed the Complainant. Mr Lewis had given evidence that the Complainant was pushed with one hand, Mrs Garlick had given a different account that the Appellant had leaned over the gate and pushed the Complainant with two hands, and Ms Bruno had given evidence that 'I didn't see anyone push him'.
29.It was said in the case of Pickett v State of Western Australia [2004] WASCA 291 that a failure of a decision maker to mention a matter expressly in his or her reasons does not reasonably give rise to an inference that the matter was not considered. The Magistrate gave no account in his reasons about how he dealt with the inconsistencies or with the conflicting evidence of Ms Bruno, other than his conclusions in general about credit based upon the evidence of the First Altercation, at which Bruno was present.
30.Having accepted Bruno's evidence concerning the First Altercation as creditworthy it makes no sense that he would reject her evidence about the critical issue of whether or not the Complainant was pushed without some comment. Accordingly, it is reasonable to conclude that the Magistrate either misapprehended the substance of Bruno's evidence about how the Complainant fell, or fundamentally erred by not taking it into account.
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44.Because of the inconsistencies in the evidence of the prosecution witnesses concerning the key issue of whether the Complainant was pushed by the Appellant, and considering that it was not possible to call upon the Complainant to corroborate the evidence, the Appellant was entitled to the benefit of reasonable doubt and should have been acquitted.
In dealing with these submissions I must begin by noting that the magistrate was conscious of the obligation of a judicial officer charged with the duty of making findings of fact to look at consistencies and inconsistencies. Thus, in the course of his reasons for decision the magistrate made these observations:
The issue is whether or not the cause of him falling to the ground was a push by the accused. Now, it's not uncommon in charges of this type for there to be conflicting evidence as to events and as to the sequence of those events. It's up to the court to look at the evidence overall and note any consistencies and inconsistencies in an effort to assess the credibility of the witnesses and come to some conclusion as to whether or not the event itself happened.
It goes without saying the court needs to be satisfied beyond reasonable doubt that the offence has been committed. (ts 62)
His Honour went on to note that the evidence of prosecution witnesses in relation to the assault was given by Mrs Garlick and her grandson Mark [Lewis]. It was their evidence that 'there was some pushing and shoving at the gate'. His Honour then went on to make these further observations:
Mrs Garlick said that she saw the accused with two hands push Mr Garlick off balance and he fell. As a result of that fall he received injuries. Mr Lewis said that he used - he saw the accused use her right arm, just one arm, to push Mr Garlick causing him to fall. The accused denied pushing Mr Garlick at all and said that in any event even if she wanted to she couldn't because of the height of the gate.
As I have indicated it's my duty to look at the evidence and look at consistencies and inconsistencies and make some assessment of the credibility of the witnesses. I must say the evidence of the accused in relation to a number of matters was not convincing. (ts 63)
The magistrate then dealt with matters bearing upon the credibility of the witnesses including reference to the first altercation before the parties moved to the gate. Having concluded that the appellant was in an angry frame of mind and that, as to the height issue, it would have been possible for her 'to push someone who was on the other side of the fence', his Honour said that 'he accepted the evidence of Mrs Garlick and her grandson that Mr Garlick finished up on the ground 'because he was pushed by the accused'.
It emerges from this analysis that the magistrate recognised that he was dealing with what might be described as a flurry of movement at the gate as the appellant tried to evict or keep out Mrs Garlick and her grandson, being a situation in which it was not uncommon for there to be conflicting evidence. To my mind, in a situation of that kind the supposed inconsistency complained of by the appellant is more apparent than real. Mrs Garlick and her grandson were consistent in their basic assertion that the appellant pushed Mr Garlick with the result he fell to the ground. There was a degree of inconsistency in their evidence as to whether this was done with two hands or one hand but as the magistrate clearly appreciated, in a case concerning a flurry of movement a degree of inconsistency could be expected as to matters of detail without necessarily diminishing the credibility of the relevant witnesses or creating a reasonable doubt as to the basic assertion.
When one turns to the evidence of the grandson's girlfriend, Ms Bruno, different considerations come into play. A careful review of the evidence reveals that there was no inconsistency to be resolved.
Ms Bruno gave evidence to the effect that she was in the bedroom with Mark Lewis. After he left, she heard a commotion. Then the appellant came into the bedroom and attempted to pull her off the bed, so Ms Bruno grabbed her belongings and walked out of the house. She ran across the road and called the police. She went to the grandparents' house and later took up a position about four houses down, maybe three from Mark's place. From there she viewed the altercation at the gate. She saw Mr Garlick fall but 'I don't remember how he fell'.
Under cross‑examination the only brief exchange concerning the fall was as follows:
When you say that you saw who you have described as Mark's grandfather fall over you didn't see anyone push him, did you?---I didn't see anyone push him. I never said that. (ts 63)
This cannot be regarded as a positive assertion that Mr Garlick was not pushed. It emerges from this review of the evidence that Ms Bruno, from her vantage point, really had nothing of any relevance to say about the cause of the fall. It follows that her evidence cannot be regarded as inconsistent with the evidence of the other prosecution witnesses as to that matter. Further, the magistrate's reasoning cannot be regarded as flawed because he made no mention of her evidence in dealing with the central issue as to whether the appellant pushed Mr Garlick. On the other hand, it was open to the magistrate to make use of Ms Bruno's evidence concerning events in the house and the first altercation (as he did) in assessing the credibility of the appellant.
It follows from all of this that, in my view, the matters relied upon by the appellant in respect of the second ground of appeal have not been substantiated.
Accordingly, the appeal will not be allowed on this ground.
The third ground of appeal
The third ground of appeal was that the magistrate decided the proceedings against the weight of the evidence and the appellant submits that the charge was not proved beyond a reasonable doubt.
It follows from my general observations and my observations concerning the second ground of appeal that there is no basis for interfering with the findings of the magistrate. The appeal will not be allowed on this ground.
Summary
The appellant is allowed leave to appeal on the three grounds of appeal referred to in earlier discussion. Nonetheless, for the reasons I have given in respect of each ground, the appeal is dismissed. I will hear from the parties as to whether any further orders or directions are required.
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