Penfold v WA Police - [2024] WASC 98

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PENFOLD -v- WA POLICE [2024] WASC 98
CORAM:   MCGRATH J
HEARD:   8 MARCH 2024
DELIVERED          :   28 MARCH 2024
FILE NO/S:   SJA 1076 of 2023
BETWEEN:   JAMES COYLE PENFOLD
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1076 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B WHITE
File Number            :   CA 700/2021, CA 701/2021 & CA 702/2021

Catchwords:

Criminal law - Common assault - Failing to give police personal details - Appeal against conviction - Whether verdicts unreasonable and cannot be supported - Whether accused satisfied the evidentiary burden at trial for provocation and self-defence - Turns on own facts

Legislation:

Criminal Code (WA), s 313(1)(b)
Criminal Investigation (Identifying People) Act 2002 (WA), s 16(6)

Result:

Leave to appeal on grounds 1 to 6 inclusive not granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms S Walsh

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office

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

Evans v The State of Western Australia [2011] WASCA 182
Goodwyn v The State of Western Australia [2013] WASCA 141
Hounslow v Woodward [2007] WASC 27
Iskov v Matters [1977] VR 220
Labriola v Morgan [2017] WASC 256
Lau v The State of Western Australia [2017] WASCA 16
Maines v Roy (1990) 1 WAR 508
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
Quinlivan v Lumpkin [2008] WASC 120
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013
Wells v The State of Western Australia [2017] WASCA 27

MCGRATH J:

The appellant was convicted after trial in the Magistrates Court of two charges of common assault contrary to s 313(1)(b) of the Criminal Code (WA), and one charge of failing to give police his personal details contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 (WA).
The learned Magistrate imposed fines for the offending and made a spent conviction order in respect to the three convictions.[1]
[1] ts 30 (15/08/2023).
The appellant appeals his convictions on a number of grounds, with the primary contention being that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence.
For the following reasons, I have determined that leave to appeal is not granted on all grounds and therefore, the appeal must be taken as dismissed.

Magistrates Court proceedings

The prosecution case at trial was that on 4 October 2021 at a boat ramp in Exmouth, the appellant assaulted Mr Fitzgerald and Ms Aranda. The appellant and Mr Fitzgerald had a history of animosity prior to the incident.[2]
[2] ts 16 (15/08/2023).
The prosecution case was that the appellant approached Mr Fitzgerald at the boat ramp and without any provocation, opened the driver's door of his vehicle and commenced assaulting him by striking him with clenched fists and by kicking him whilst Mr Fitzgerald attempted to protect himself with his arms and his feet.[3]
[3] ts 16 - 17 (18/10/2022).
At this time, Ms Aranda, who was outside the vehicle, tried to intervene to assist Mr Fitzgerald but then was also assaulted by the appellant by being pushed.[4]
[4] ts 17 (18/10/2022).
Subsequently, Mr Fitzgerald started his vehicle and drove with Ms Aranda to the Exmouth Police Station.[5]
[5] ts 17 (18/10/2022).
The appellant followed the vehicle to the police station and whilst there, walked in an aggressive manner towards Mr Fitzgerald.[6] Mr Watkins, a member of the public, who was in the area outside the police station, observed the appellant. At that time, the appellant struck Mr Fitzgerald's vehicle with his hand whilst Mr Fitzgerald was still inside his vehicle.[7] Sergeant Genovese witnessed this action.[8] Subsequently, there was a further interaction between the appellant and Mr Fitzgerald at the rear of the police station.
[6] ts 19 (18/10/2022).
[7] ts 19 (18/10/2022).
[8] ts 17 (18/10/2022).
The appellant, after being arrested, was asked to provide his personal identifying details by Sergeant Carter. The prosecution case was that the appellant refused to provide his personal details to the police as requested.[9]
[9] ts 19 (18/10/2022).

Evidence at trial

The appellant was represented by a legal practitioner at trial. The prosecution called evidence from four witnesses, namely Mr Fitzgerald, the complainant, Ms Aranda, the second complainant, Mr Watkins, and Sergeant Genovese.
The appellant elected not to give evidence on his own behalf and did not adduce any evidence at trial.
I will outline the testimony of the respective witnesses. I do so for the reason that it is necessary in determining this appeal to undertake an assessment of the evidence at trial.

Mr Fitzgerald's testimony

Mr Fitzgerald gave evidence that he worked with the appellant at IGA approximately eight and a half years ago and has had approximately three interactions with the appellant since. Mr Fitzgerald accepted that there exists animosity between him and the appellant. The most recent interaction between Mr Fitzgerald and the appellant was approximately six months prior to the incident. At approximately 1.45 pm on 4 October 2021, Mr Fitzgerald stated that he was in the driver's seat of his vehicle with the door closed. His partner, Ms Aranda, was outside the vehicle along with her 12-year-old sister. At that time, Mr Fitzgerald observed the appellant walk past the window and after he made eye contact, the appellant approached the vehicle and opened the door.
Mr Fitzgerald gave testimony that the appellant then commenced punching and kicking him. Mr Fitzgerald stated that there were well over 15 punches and over 15 kicks directed towards him. He stated that he managed to 'swat away' a number of the blows but most of them hit his forearm, with some connecting with his face.[10]
[10] ts 26 (18/10/2022).
Mr Fitzgerald stated that '[a] few definitely connected with my face', for the reason that he recalls having a sore right cheekbone after the incident.[11] The kicking involved flat foot kicks into Mr Fitzgerald's body whilst he was seated in the vehicle. Mr Fitzgerald stated that at least 10 kicks connected with his body.
[11] ts 26 (18/10/2022).
Mr Fitzgerald was asked by counsel whether during the assault he had 'struck back' at the appellant, to which he answered, 'not once'.[12]
[12] ts 28 (18/10/2022).
Mr Fitzgerald stated that Ms Aranda came back to the vehicle and put herself between him and the appellant whilst the appellant was punching and kicking.[13] As a result of this, Mr Fitzgerald stated Ms Aranda suffered an injury to her right arm. At that time the appellant pushed Ms Aranda away in an endeavour to keep trying to assault Mr Fitzgerald. Ms Aranda then fell sideways off the vehicle.[14] During this period Mr Fitzgerald recalls that he was probably saying '[g]et out of my car. Leave me alone'.[15]
[13] ts 28 (18/10/2022).
[14] ts 28 (18/10/2022).
[15] ts 29 (18/10/2022).
Mr Fitzgerald then tried to start the ignition to drive away. The appellant moved around to the other side of the vehicle and opened the passenger side door and jumped in the vehicle.[16] The vehicle was stationary at that time. The appellant continued to assault Mr Fitzgerald by striking and kicking him. Mr Fitzgerald stated that he managed to accelerate and commenced driving the vehicle, causing the appellant to jump out of the vehicle whilst he drove it to the other side of the marina. At that time, Mr Fitzgerald stated that he observed the appellant walking towards the location, which he had driven to. Ms Aranda and her sister then got inside the vehicle.[17]
[16] ts 30 (18/10/2022).
[17] ts 31 (18/10/2022).
Mr Fitzgerald recalled that as he was driving away from the marina, the appellant stated the words 'I know where you work. I know where you live and I will come and kill you in your sleep'.[18]
[18] ts 37 (18/10/2022).
Mr Fitzgerald then drove direct to the police station.[19] Mr Fitzgerald gave testimony that as he got out of the vehicle and walked towards the police station he saw the appellant coming towards him, causing him to run towards the police station. Mr Fitzgerald stated that he observed a member of the public, known to him as Adam, who was shouting out towards the appellant the words 'don't you hit him'.[20] Mr Fitzgerald observed that the appellant had his fists clenched. At that time two officers came from outside the police station, including Sergeant Genovese. The other policeman took the appellant inside the police station.
[19] ts 31 (18/10/2022).
[20] ts 32 (18/10/2022).
Mr Fitzgerald then gave an outline of what had occurred at the marina, namely the assaults, to Sergeant Genovese.[21] At that time the appellant walked out of the police station and made a beeline straight towards him with his fists clenched, staring him down. Mr Fitzgerald formed the view that the appellant was going to strike him again for the reason of the look in his eyes and that he had clenched fists. At that time Sergeant Genovese was in close proximity to Mr Fitzgerald.
[21] ts 33 (18/10/2022).
Mr Fitzgerald gave evidence that he subsequently left the police station and drove around to the back of the police station. He then looked in the rear mirror and he observed the appellant in his own vehicle following directly behind him. Accordingly, Mr Fitzgerald drove back into the police station area. Whilst Mr Fitzgerald was waiting for the gate to open, the appellant punched the windscreen of his vehicle.[22] At that time, two police officers came out of the police station. Sergeant Genovese and another police officer then took the appellant into the police station.
[22] ts 36 (18/10/2022).
In cross-examination, the appellant's counsel put a number of propositions to Mr Fitzgerald. Counsel asked Mr Fitzgerald whether he put his finger up to the appellant and had used the car door to hit the appellant.[23] Mr Fitzgerald denied the propositions. Further, it was put that Mr Fitzgerald threw a punch and spat at the appellant, to which he answered, 'absolutely not'.[24] He further denied that he kicked at the appellant.
[23] ts 39 (18/10/2022).
[24] ts 39 (18/10/2022).
Counsel sought clarification regarding the number of punches allegedly thrown by the appellant. Mr Fitzgerald stated that there was a minimum of 15 punches but accepted that in his police statement he said 30 punches.[25] He denied that he was exaggerating. Mr Fitzgerald did not accept counsel's proposition that the appellant threw only one punch that hit Mr Fitzgerald at the start of the altercation.[26] Further, Mr Fitzgerald did not accept counsel's proposition that when Ms Aranda 'got in between' the appellant and Mr Fitzgerald, the altercation stopped. Mr Fitzgerald was also cross-examined regarding whether the appellant continued throwing punches when he entered the vehicle. Mr Fitzgerald stated in court that he did not, however in his statement he said that the appellant continued to throw punches.[27]
[25] ts 40 (18/10/2022).
[26] ts 40 (18/10/2022).
[27] ts 42 (18/10/2022).
In cross-examination, Mr Fitzgerald maintained his testimony that the appellant did yell at him outside the police station. Further, Mr Fitzgerald did not accept the proposition that when the appellant left the police station he walked away.[28]

Ms Aranda's testimony

[28] ts 46 (18/10/2022).

Ms Aranda gave evidence that she observed the appellant walking aggressively towards Mr Fitzgerald's vehicle at the boat ramp.[29] The appellant then opened the door of the vehicle and commenced throwing punches, kicking and 'verbally abusing' Mr Fitzgerald. Ms Aranda stated that the appellant was asking Mr Fitzgerald for a fight.
[29] ts 67 (18/10/2022).
At that time Mr Fitzgerald was trying to defend himself against the assault which resulted in punches striking his face, shoulders and legs.[30] Ms Aranda estimated that there were 10 to 15 punches and kicking 'a few times at least'.[31] Ms Aranda stated that there were three to four kicks prior to her intervention, which involved her getting in between the appellant and Mr Fitzgerald. Ms Aranda endeavoured to close the vehicle door.
[30] ts 68 - 69 (18/10/2022).
[31] ts 69 (18/10/2022).
Ms Aranda gave evidence that the appellant then pushed her towards the side, causing her to cut herself on the vehicle tray.[32] Mr Fitzgerald then drove his vehicle from the area. Ms Aranda stated that she told the appellant to leave them alone but he did not answer.[33]
[32] ts 70 (18/10/2022).
[33] ts 71 (18/10/2022).
Ms Aranda stated that she then entered the vehicle with Mr Fitzgerald and they drove to the police station. Upon their arrival, Mr Fitzgerald and Ms Aranda walked towards the police station. At that time, she observed the appellant, who appeared angry, running towards them. Ms Aranda heard Adam (Mr Watkins) yelling 'don't you fucking go near him'.[34] Ms Aranda gave evidence that the appellant was still asking for a fight with Mr Fitzgerald.[35]
[34] ts 73 (18/10/2022).
[35] ts 74 (18/10/2022).
At that time the police came out of the police station. Ms Aranda recalls that one officer took the appellant inside the police station. The other officer then spoke with Ms Aranda and Mr Fitzgerald about the incident whilst remaining outside the police station. After the appellant left the police station, Ms Aranda recalls that he approached Mr Fitzgerald and gave him a stare.[36] The appellant then walked away. Ms Aranda stated that she then went with Mr Fitzgerald to complete her witness statements. Sergeant Genovese took the statements.[37]
[36] ts 76 - 77 (18/10/2022).
[37] ts 79 (18/10/2022).
Ms Aranda gave testimony that subsequently, Mr Fitzgerald left to get his vehicle to drive around the back of the police station. Ms Aranda observed the appellant approach Mr Fitzgerald's vehicle at the rear of the police station and punch the vehicle.[38] Ms Aranda then observed the police arrest the appellant.
[38] ts 81 (18/10/2022).
In cross-examination, the appellant's counsel asked a number of questions that served to clarify and repeat her testimony during evidence in chief. Ms Aranda confirmed that the appellant approached the vehicle at the boat ramp with a 'death glare'. Ms Aranda stated that he came up from behind the vehicle, opened the door and commenced throwing punches. There were more than 10 punches thrown towards the face, arms and legs of Mr Fitzgerald by the appellant. Ms Aranda stated that her vision was not impaired at any stage.[39]
[39] ts 84 - 86 (18/10/2022).
Ms Aranda denied that Mr Fitzgerald threw any punches.[40] Ms Aranda stated that she put herself between the appellant and Mr Fitzgerald. Given that she could not close the vehicle door, Ms Aranda stated that she telephoned Mr Fitzgerald's brother.[41] Ms Aranda stated that she could not get through and therefore she ended the telephone call.
[40] ts 88 (18/10/2022).
[41] ts 89 (18/10/2022)
Ms Aranda stated that as Mr Fitzgerald drove his vehicle away from the boat ramp the appellant stated 'I know where you live. I know where you work. I will fucking kill you in your sleep'.[42]
[42] ts 91 (18/10/2022).
Counsel for the appellant then asked a series of questions concerning prior inconsistent statements between her witness statement provided to the police and the oral testimony of Ms Aranda. It was put to Ms Aranda that in her police statement she did not refer to any threat by the appellant to kill Mr Fitzgerald. Ms Aranda accepted that she did not state that fact in her statement because there were 'too many things [that] happened'.[43] Further, it was put to Ms Aranda in her statement that the appellant 'tried to hit [Mr Fitzgerald]' and that he asked him for a fight while Mr Fitzgerald tried to get back into the car.[44] Ms Aranda said that the appellant did 'hit [him] straight up'.[45]
[43] ts 94 (18/10/2022).
[44] ts 92 (18/10/2022).
[45] ts 92 (18/10/2022).
Counsel suggested to Ms Aranda that she had colluded with Mr Fitzgerald regarding their respective recollections of the incident. Ms Aranda stated that she had not talked with Mr Fitzgerald many times since and that she was giving her best recollection of events. Ms Aranda confirmed that the words uttered by the appellant at the boat ramp were in fact stated by him.[46]
[46] ts 96 (18/10/2022).
Ms Aranda did not accept the proposition that her memory of the incident was better when she gave her statement to the police. Counsel put to Ms Aranda that in her statement she stated that the appellant started walking in front of the vehicle as James was in the driver's seat. Ms Aranda stated that her recollection was that he came from the rear of the boat and that the police statement may be incorrect.[47] Ms Aranda accepted that in her police statement she said 'James refused to fight him and kept trying to get back in the car'. Ms Aranda stated that the statement is incorrect. Mr Fitzgerald was inside the vehicle and being assaulted by the appellant.
[47] ts 98 (18/10/2022).
Ms Aranda accepted that in her statement she did not make reference to the appellant running towards the vehicle twice at the boat ramp. Ms Aranda said that in her witness statement she just referred to one movement of the appellant towards the vehicle during the assault.[48]
[48] ts 101 (18/10/2022).
Ms Aranda accepted that in her statement she stated that the appellant pulled her away from Mr Fitzgerald, causing her arm to start bleeding, rather than being pushed. Ms Aranda said she did not consider that to be inconsistent because being pulled or pushed into the back tray are similar.[49] Another contradiction put was that in her written statement she said 'James then managed to get the car and shut the door', whilst in her evidence she stated that she shut the vehicle door. Ms Aranda stated that she closed the door of the vehicle and that it meant the same thing.[50]
[49] ts 102 (18/10/2022).
[50] ts 103 (18/10/2022).
Counsel put to Ms Aranda that she made no mention in her police statement of the final utterance of the appellant at the boat ramp concerning the threats. That was accepted.
Further, counsel put to Ms Aranda that in her witness statement she referred only to her interactions between the appellant and Mr Fitzgerald whilst during her testimony she gave evidence that there were three interactions, being one at the boat ramp and two at the police station.
Counsel put to Ms Aranda that in her statement she stated that upon arrival at the police station she saw the appellant jump out of his car, but in her evidence she stated that she did not see him get out of the vehicle but saw him moving towards her and Mr Fitzgerald.[51]
[51] ts 104 (18/10/2022).
Counsel put to Ms Aranda that 'the truth' was that Mr Fitzgerald put his finger up at Mr Penfold in an act of provocation. Ms Aranda stated that never happened.[52] Further, counsel also put to Ms Aranda that 'the truth' was Mr Fitzgerald opened the door straight into the appellant hitting him and then he spat at him. Ms Aranda stated that did not happen. Further, that the appellant responded after being assaulted and provoked by Mr Fitzgerald. Ms Aranda said that never happened.[53]

Mr Watkins' testimony

[52] ts 110 (18/10/2022).

[53] ts 110 (18/10/2022).

Mr Watkins gave evidence that he was attending at the police station. As he pulled up in his vehicle he observed a man who appeared agitated given his demeanour. He observed the man walk towards another man who was walking across the footpath to the police station. Mr Watkins stated that the other man was known to him as the baker. It was accepted at trial that this man was Mr Fitzgerald. Mr Watkins described the man 'making a beeline to this other person'.[54] The baker man then started running to the police station. At that time, Mr Watkins shouted out saying 'don't touch him' and then two police officers came out of the police station.
[54] ts 53 - 54 (18/10/2022).

During evidence in chief, Mr Watkins stated that he observed the two police officers restraining the other man. In cross‑examination, Mr Watkins accepted that he did not state that fact in his police statement. Mr Watkins confirmed that the police officers did not restrain the man.[55]

Sergeant Genovese's testimony

[55] ts 62 ‑ 64 (18/10/2022).

Sergeant Genovese gave evidence that at approximately 2.00 pm on 4 October 2021, whilst he was on duty inside the Exmouth police station along with Sergeant Carter, he heard a disturbance outside. Both Sergeant Genovese and Sergeant Carter went outside and observed two men. It was not in dispute that one of the men was the appellant and the other was Mr Fitzgerald.[56]
[56] ts 112 (18/10/2022).
Sergeant Genovese stated that he observed the appellant 'pacing towards' Mr Fitzgerald and that Mr Fitzgerald was 'backing towards the station trying to get away'.[57] Sergeant Genovese observed that Mr Fitzgerald was aggressive.
[57] ts 112 - 113 (18/10/2022).
Sergeant Genovese stated that Sergeant Carter took the appellant into the police station. Sergeant Genovese stated that he then spoke to Mr Fitzgerald concerning what occurred prior to arriving at the police station, namely the alleged assault. At that point the appellant came out of the police station and 'made a beeline' to Mr Fitzgerald. Sergeant Genovese stepped in front of the appellant and he moved away.
Sergeant Genovese gave evidence that:[58]
After that had occurred myself and Sergeant Carter then spoke with each other about the accounts that I had just heard from both complainants and the alleged offences. We decided to take both back into the station to obtain statements. I obtained a statement Maria Jolena Aranda whilst Sergeant Carter obtained a statement from the complainant, James Fitzgerald. Whilst doing so James approached and stated he wished to move his car to the back of the police station.
[58] ts 114 (18/10/2022).
Mr Fitzgerald left the police station to move his vehicle to the rear of the police station.[59] Sergeant Genovese then observed the appellant beside Mr Fitzgerald's vehicle whilst Mr Fitzgerald was inside with the door closed.[60] Sergeant Genovese stated that he heard the appellant yelling. Sergeant Genovese then arrested the appellant for the two assaults and informed him of his rights. After arresting the appellant, Sergeant Genovese took him into the police station where Sergeant Carter requested the appellant provide his identifying particulars.[61] Sergeant Genovese gave testimony that Sergeant Carter informed the appellant that if he did not state his name, date of birth and address he would be charged with an offence.[62] At that time, in the presence of both Sergeant Genovese and Sergeant Carter the appellant refused to reply.[63]
[59] ts 115 (18/10/2022).
[60] ts 115 (18/10/2022).
[61] ts 117 (18/10/2022).
[62] ts 117 (18/10/2022).
[63] ts 117 (18/10/2022).
Sergeant Genovese gave testimony that, after speaking to both complainants, he had a conversation with Sergeant Carter outlining the alleged offending conduct involving the appellant.[64] That conversation included discussing the alleged offences that occurred at the boat ramp.[65] The conversation included Sergeant Genovese telling Sergeant Carter that there was an allegation that the appellant had assaulted a person.[66] This conversation occurred after the appellant left the police station but before the appellant returned to the area at the rear fence at the police station.[67] The appellant after leaving the police station went to the rear of the police station. It was at that time that the appellant was arrested because of his conduct near Mr Fitzgerald's vehicle.
[64] ts 126 - 127 (18/10/2022).
[65] ts 128 (18/10/2022).
[66] ts 128 (18/10/2022).
[67] ts 128 (18/10/2022).
In cross‑examination, Sergeant Genovese stated that at the time he arrested the appellant he was unaware of his name. After that the appellant entered the police station and Sergeant Carter asked for his personal details.[68] Sergeant Genovese observed that Sergeant Carter asked 'multiple times', explaining that it was an offence to not give the details.[69]
[68] ts 131 (18/10/2022).
[69] ts 129 - 130 (18/10/2022).

Magistrate's decision

The learned Magistrate outlined the testimony of the witnesses and considered the applicable legal principles. The learned Magistrate outlined the inconsistencies in the testimony of Mr Fitzgerald and Ms Aranda. His Honour found that the testimony of both complainants were generally consistent, observing that 'neither were shaken in cross-examination'. His Honour stated there were some inconsistencies between the respective witnesses' evidence and their police statements, but the inconsistencies did not 'cause any real concerns or any real doubts about their credibility or reliability'.[70] The learned Magistrate expressly considered whether the two complainants colluded in respect to their testimony, finding that they did not do so. His Honour noted that there were a number of differences between the two complainants' evidence that supported that finding.
[70] ts 22 (15/08/2023).
The learned Magistrate found that there was no other evidence adduced at trial that contradicted the complainants' testimony.[71] Accordingly, the learned Magistrate, having accepted the testimony of the complainants as credible and reliable, convicted the appellant of the two assault charges.
[71] ts 23 (15/08/2023).
In respect to the failure to provide personal details charge, the learned Magistrate stated that there was no real challenge to the testimony of Sergeant Genovese and that therefore, his evidence was accepted. Accordingly, His Honour found that the only reasonable inference open on the evidence was that Sergeant Carter held the necessary suspicion and he did so on reasonable grounds.[72]
[72] ts 24 (15/08/2023).

Grounds of appeal

The appellant's Notice of Appeal pleads the following six grounds:
1.The trial judge erred in law by palpably misusing his advantage to contravene the doctrine of precedent.
2.The trial judge erred in finding that officer Carter had the necessary 'reasonable suspicion' to authorise request for personal details.
3.The verdict is unreasonable and cannot be supported by the evidence because it was not open to the trial judge to be satisfied beyond reasonable doubt that officer Carter held a 'reasonable suspicion' to authorise request for personal details, and there is a significant possibility that an innocent person has been convicted.
4.The trial judge erred in law by failing to determine whether prosecution proved beyond reasonable doubt that the assaults were unlawful, meaning that they were not justified, authorised, or excused by law.
5.The trial judge erred in finding that there were about 10 punches delivered whilst Mr Fitzgerald was sitting in the car.
6.The verdicts are unreasonable and cannot be supported having regard to the evidence because on the whole of the evidence it was not open to the trial judge to be satisfied beyond reasonable doubt on the word of the complainants alone that the assaults were unlawful, meaning that they were not justified, authorised, or excused by law, and there is a significant possibility that an innocent person has been convicted.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[73]
[73] Criminal Appeals Act 2004 (WA), s 9(1).
The Court must not grant leave to appeal unless a ground has a reasonable prospect of success.[74] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[75]
[74] Criminal Appeals Act 2004 (WA), s 9(2).
[75] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
During the hearing of the appeal the appellant confirmed that grounds of appeal 1 to 3 concerned his conviction contrary to s 16(6) of Criminal Investigation (Identifying People) Act, being the failure to provide personal details, and that grounds 4 to 6 concerned his two convictions contrary to s 313(1)(b) of the Criminal Code, being the assaults.
I will turn first to grounds 4 to 6.

Assessment of the appeal – Grounds 4 to 6

Ground 4

By ground 4 the appellant contends that the learned Magistrate erred by failing to find that the assaults were 'unlawful, meaning that they were not justified, authorised, or excused by law'. By ground 6 the appellant contends that the verdicts in respect to the two assault convictions are unreasonable and cannot be supported having regard to the evidence because it was open to find that the assaults were not 'justified, authorised, or excused by law'.
The two grounds in effect conflate into the same contention that there has been a miscarriage of justice, in that the learned Magistrate erroneously convicted the appellant in circumstances when the evidence supported a finding that the prosecution had not negatived the defences of provocation or self-defence.
The principles to be applied in respect to a contention that a conviction is unreasonable and cannot be supported by the evidence are settled. An appeal court, in determining whether a verdict of guilty on which a conviction is based is unreasonable or cannot be supported, must undertake its own independent assessment of the sufficiency and quality of the evidence and determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand. The same principles apply to a verdict of guilty entered after a trial before a judge alone or before a magistrate.[76]
[76] Wells v The State of Western Australia [2017] WASCA 27, [13] - [14].
The principles applicable to a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence were summarised by the Court of Appeal in Wells v The State of Western Australia as follows:[77]
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial. (footnote omitted)
[77] Wells v The State of Western Australia [2017] WASCA 27, [13].
In Wells v The State of Western Australia, the Court of Appeal summarised the principles relating to criminal cases that turn upon circumstantial evidence, which were restated by the High Court in The Queen v Baden‑Clay,[78] as follows:[79]
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[78] The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013, [46] ‑ [47].
[79] Wells v The State of Western Australia [2017] WASCA 27, [14].
Grounds 4 and 6, properly understood, rely upon the same contention, namely that the assaults by the appellant were not unlawful because he acted in provocation and or self-defence.
The learned Magistrate found that there was no evidential basis for the defences of self-defence or provocation.[80] Accordingly, his Honour determined that the prosecution need not negative the defences beyond a reasonable doubt. This finding is the subject of ground 4. I am satisfied that his Honour did not err in so finding.
[80] ts 16 (15/08/2023).
Section 246 of the Criminal Code provides that a person is not criminally responsible for an assault committed by a person who gives him or her provocation for the assault, if he or she was in fact deprived by the provocation of the power of self-control, and acted upon it on the sudden and before there was time for his or her passion to cool. The force used must not be disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.
Section 245 provides that provocation includes any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his or her immediate care, or to whom he or she is married or is in a parental, filial or fraternal relationship, to deprive him or her of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.[81]
[81] Evans v The State of Western Australia [2011] WASCA 182.
The law in respect to self-defence is well known.[82] Section 248(4) of the Criminal Code enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent. Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be. Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent. Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances. If the accused satisfies the evidential onus in relation to self-defence then the burden is on the State to negative the defence by excluding at least one of its elements beyond a reasonable doubt.
[82] Goodwyn v The State of Western Australia [2013] WASCA 141.
A trial judge is bound to put to the jury every lawfully available defence opened to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it.[83]
[83] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 - 118.
Accordingly, it is necessary for a trial Judge to consider, at the close of both the prosecution and defence case at trial, whether there are any defences that should be left to the jury. In a case such as this where the evidential burden is on the accused and the legal burden is on the prosecution the question is whether there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence or an element of the defence, as the particular case may require, had been negatived.[84]
[84] Lau v The State of Western Australia [2017] WASCA 16, [85] - [91].
The accused may discharge the evidential burden by giving or calling evidence, or by pointing to evidence called in the prosecution's case.
Therefore, the learned Magistrate was required to consider the sufficiency of the evidence to determine whether, on the version of events most favourable to the appellant that is supported by the evidence, a jury acting reasonably might not be satisfied beyond reasonable doubt that the accused was not acting in self-defence or in circumstances of provocation. Put another way, in respect to self-defence or provocation, that the evidence at the trial taken at its highest in favour of the appellant could lead the Magistrate to have a reasonable doubt that each of the elements of the defence had been negatived.
At trial, counsel for the appellant during his opening address stated that in respect to the two assault charges it was accepted that there was an incident at the boat ramp but that it occurred in circumstances where the appellant was assaulted first.[85] Counsel gave no other particularisation of the circumstances or referred to any defence provisions.
[85] ts 21 (18/10/2022).
During cross-examination a series of questions were put by counsel for the appellant suggesting that it was Mr Fitzgerald who acted provocatively to the appellant and that it was he that assaulted the appellant first. I have outlined each of the propositions put to Mr Fitzgerald during his testimony. Each proposition was rejected by Mr Fitzgerald. Counsel for the appellant also put to Ms Aranda questions suggesting the proposition that Mr Fitzgerald acted provocatively. Ms Aranda did not accept the propositions. I have outlined the testimony of Mr Fitzgerald and Ms Aranda in detail identifying the matters raised in cross-examination. I need not repeat the relevant line of questioning, which were rejected.
The appellant did not give evidence and it was his right to do so.[86] I must not draw any adverse inference from the appellant exercising his right to silence and not giving evidence. However, a forensic consequence of that decision was that the learned Magistrate only received testimony from the two complainants. There were no other witnesses called at trial by either the prosecution or the appellant.[87] The only evidence before the learned Magistrate in respect to the incident at the boat ramp was the testimony of Mr Fitzgerald and Ms Aranda. Further, there was no other evidence received at trial that provided an evidential basis for the appellant to satisfy an evidential burden in respect to the defences of provocation or self-defence.
[86] ts 3 (15/08/2023).
[87] ts 3 (15/08/2023).
During closing addresses at trial, counsel for the appellant stated that the issue in respect to the assault charges was whether the learned Magistrate could find that the two complainants' evidence was sufficiently reliable and credible in order to convict the appellant beyond a reasonable doubt.[88] Whilst ultimately it is for the judicial officer to decide whether the evidential burden has been satisfied, it is noteworthy that the experienced defence counsel did not refer to any defence provisions nor point to any evidence concerning self-defence or provocation.
[88] ts 9 - 11 (15/08/2023).

The learned Magistrate outlined the testimony of the witnesses succinctly without error. His Honour identified inconsistencies within the testimony of the two complainants, identifying the contended contradictions of the oral testimony with their respective police statements. His Honour did so without error. Further, the learned Magistrate identified the contradictions between the testimonies of the two complainants. His Honour did so without error. Having undertaken that forensic exercise in a most thorough manner, the learned Magistrate found that the two complainants' evidence was 'generally very consistent with each other'. His Honour stated that whilst there were some inconsistencies between the complainants' evidence, and further with their respective police statements, the inconsistencies did not cause any concerns or real doubts concerning the credit or reliability of the complainants.[89]
[89] ts 22 (15/08/2023).
Having reviewed the testimony of the respective witnesses at trial, I am satisfied that the learned Magistrate did not err in his findings.
Understandably, the learned Magistrate made the finding that the appellant had not satisfied the evidential burden in respect to the defences of provocation and self-defence. Accordingly, the learned Magistrate determined that the prosecution was not required to negative the two defences. His Honour did not err in so finding. I have outlined and assessed the evidence at trial. I find that there was insufficient evidence at trial to satisfy the evidential burden in respect to provocation or self-defence.

Ground 6

I now turn to ground 6. As I have observed, ground 6 relies on the contention that the verdicts are unreasonable and cannot be supported having regard to the evidence because it was not open for the learned Magistrate to be satisfied beyond a reasonable doubt on the word of the complainants alone that the assaults were not unlawful. The gravamen is that the assault of the appellant occurred in circumstances amounting to provocation or self-defence.
After careful consideration, I find that the only reasonable inference open on the evidence was that the appellant committed the two offences of assault. The learned Magistrate acting reasonably was not precluded by the totality of the evidence at trial from convicting the appellant. The verdict on the charges was supported by the evidence that the learned Magistrate was entitled to accept, and from the inferences that the learned Magistrate was entitled to logically draw, from that evidence. I have outlined my reasoning when considering ground 4. Further, I have considered the learned Magistrate's reasoning. I have undertaken an independent assessment of the evidence at trial. I have carefully assessed the testimony of Mr Fitzgerald and Ms Aranda.
Having full regard to the consideration that the learned Magistrate was the tribunal of fact entrusted with the responsibility of determining the guilt or innocence of the appellant, and having full regard to the consideration that the learned Magistrate had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt or as to the correctness of the decision. I find that it is not dangerous to permit the conviction to stand. Leave to appeal is not granted on ground 6.

Ground 5

By ground 5, the appellant contends that the learned Magistrate erred in fact by finding that there were about 10 punches delivered whilst Mr Fitzgerald was sitting in the vehicle.
The learned Magistrate undertook the assessment of the evidence identifying the relevant testimony and noting the contended contradictions in Mr Fitzgerald and Ms Aranda's testimony. Having done so, His Honour stated that 'in terms of factual finding' that he intended 'to sentence on the basis that there were about 10 punches delivered whilst Mr Fitzgerald was sitting in the car'.[90] His Honour made the finding that the vast majority of the punches were blocked and two or three made contact with his face and there were two or three kicks to his leg.
[90] ts 23 (15/08/2023).
It was clearly open for the learned Magistrate to make the finding that the appellant struck 10 punches to Mr Fitzgerald. That finding was consistent with the testimony of Mr Fitzgerald and Ms Watkins. His Honour found that the respective testimony of the two complainants was generally consistent with each other and that the identified inconsistencies did not cause him any real doubts concerning the witnesses' credibility or reliability.
Ground 5 is without merit and therefore, leave to appeal on ground 5 is not granted.

Assessment of the appeal – Grounds 1 to 3

Ground 1

Grounds 1 to 3 concern the appellant's conviction contrary to s 16 of the Criminal Investigation (Identifying People) Act.
By ground 1, the appellant contends that the learned Magistrate erred in law by contravening 'the doctrine of precedent'. At the hearing of the appeal, the appellant particularised that the ground concerned whether the learned Magistrate properly applied the principles outlined in the authority of Labriola v Morgan concerning the definition of 'reasonably suspects' in the Criminal Investigation (Identifying People) Act.[91]
[91] Labriola v Morgan [2017] WASC 256.
I will outline the relevant statutory provisions.
Section 16 of the Criminal Investigations (Identifying People) Act is the offence creating provision and relevantly provides:
16.Officer may ask for name, address, etc
(1)In this section -
'personal details', in relation to a person, means -
(a)the person's full name;
(b)the person's date of birth;
(c)the address of where the person is living;
(d)the address of where the person usually lives.
(2)If an officer reasonably suspects that a person whose personal details are unknown to the officer -
(a)has committed or is committing or is about to commit an offence; or
(b)may be able to assist in the investigation of an offence or a suspected offence, the officer may request the person to give the officer any or all of the person's personal details.
(3)If an officer reasonably suspects that a personal detail given by a person in response to a request is false, the officer may request the person to produce evidence of the correctness of the detail.
(4)A person to whom a request is made under subsection (2) or (3) may request the officer making the request to identify himself or herself.
(5)An officer who is requested by a person to identify himself or herself must do so.
(6)A person who, without reasonable excuse, does not comply with a request made under subsection (2) or (3) commits an offence. Penalty: Imprisonment for 12 months.
Section 4 of the Criminal Investigation (Identifying People) Act defines reasonably suspects as follows:
4.Meaning of 'reasonably suspects'
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she, acting in good faith, personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable.
In the Labriola v Morgan,[92] Tottle J considered the definition of reasonably suspects in the Criminal Investigation (Identifying People) Act and stated as follows:
There are two aspects to the definition:
(i)The arresting officer must suspect the thing. A suspicion is a state of mind. It has been held to mean 'a state of conjecture or surmise where proof is lacking'; and, 'more than an idle wondering … it is positive feeling of actual apprehension or mistrust amounting to a slight opinion but without sufficient evidence'. In the context of an investigation, a suspicion has been held to mean a 'working hypothesis' for which there is some supporting material, and where there is a rational connection between the suspicion and the supporting material. The information acted on by the arresting officer need not be based on his own observations. He is entitled to form a suspicion based on what he has been told. He may act on hearsay evidence, information from an informant or even an anonymous tipoff.
(ii)The suspicion must be objectively reasonable. That is, the information or material from which the officer's suspicion arises must also engender that suspicion in the mind of a reasonable person thinking about that information. In assessing this, the Court is required to look at the grounds which were in the officer's mind at the relevant time, and judge those grounds objectively against what was known, or reasonably capable of being known by the officer at the time. The question whether the information provided reasonable grounds for the suspicion will depend on the source of the information in its context seen in the light of the surrounding circumstances.
[92] Labriola v Morgan [2017] WASC 256, [46] (citations omitted).
The appellant contends that the learned Magistrate disregarded the authority of Labriola v Morgan and thereby erred in law. The ground is without merit.
The learned Magistrate directly referred to the authority of Labriola v Morgan in discourse with counsel during the prosecutor's opening address and again in discourse with counsel during the testimony of Sergeant Genovese. His Honour inquired during the prosecution's opening address whether the officer who requested the personal details was to be called as a witness. The prosecutor stated that another officer who was present at the relevant time when the request was made, namely Sergeant Genovese, would give evidence at trial.
During discourse with counsel during the opening addresses, the learned Magistrate stated the authority of Labriola v Morgan [2017] WASC 256, Tottle J at [45] provides a useful summary to this offence and in particular, deals with the definition of reasonable suspicion that must be held by the relevant officer.[93] His Honour stated that the relevant officer must have reasonably suspected that the appellant had committed an offence and that if circumstances are relied upon then that must be the only reasonable inference.[94]
[93] ts 19 (18/10/2022).
[94] ts 20 (18/10/2022).
The learned Magistrate, in discourse with counsel for the appellant, during the testimony of Sergeant Genovese, discussed the meaning of 'reasonable suspicion'.[95] His Honour once again directly referred to the authority of Labriola v Morgan.
[95] ts 123 (18/10/2022).
In his reasons for decision, the learned Magistrate applied the principles in Labriola v Morgan identifying the issue as to whether the prosecution had proved beyond a reasonable doubt that Sergeant Carter reasonably suspected that the appellant had committed an offence or may be able to assist with the investigation of the offence.[96] The learned Magistrate so found. The evidentiary basis of that determination is the subject of grounds 2 and 3.
[96] ts 13 (15/08/2023).
Accordingly, leave to appeal is not granted on ground 1. The appellant's contention that the learned Magistrate did not apply binding authority is without merit. To the contrary, the learned Magistrate raised the authority of Labriola v Morgan with counsel and then applied the relevant principles without error.

Ground 2

By ground 2 the appellant contends that the learned trial Magistrate erred in finding that Sergeant Carter had the necessary reasonable suspicion to authorise the request to the appellant to provide the identifying material. By ground 3, the appellant contends that the conviction is unreasonable or cannot be supported by the evidence for the reason that there was insufficient evidence to prove that Sergeant Carter had reasonable suspicion.
The issue to be determined by both grounds is whether it was reasonably open for the learned Magistrate to find that Sergeant Carter reasonably suspected at the relevant time that the appellant had committed an offence (or was about to commit an offence) or may be able to assist in the investigation of an offence or a suspected offence. There is no dispute at trial that the appellant failed to respond to the request by Sergeant Carter.
The prosecution did not call Sergeant Carter as a witness. Therefore, it was necessary for the prosecution to prove that Sergeant Carter held the requisite suspicion and the reasonableness of that suspicion by inference.
The appellant contends that the learned Magistrate erred in determining that it was open to assess whether Sergeant Carter held the suspicion and the reasonableness of that suspicion by inference. The appellant submits that it was necessary for Sergeant Carter to give evidence.[97] For the following reasons, I find that it was open for the learned Magistrate to be satisfied beyond a reasonable doubt by inference.
[97] Appellant's written submissions, [4] - [5].
In Maines v Roy,[98] Nicholson J considered the meaning of reasonably suspects in the context of the power to detain and search a person reasonably suspected of committing an offence. His Honour, after reviewing the relevant authorities, stated that it is not essential that the relevant officer should actually swear he held such a suspicion. Rather, the existence and reasonableness of the suspicion may be inferred from a combination of the proved facts themselves and the way in which the complainant acted.[99] Maines v Roy has subsequently been approved and applied.[100]
[98] Maines v Roy (1990) 1 WAR 508.
[99] Maines v Roy (1990) 1 WAR 508, 514.
[100] See: Hounslow v Woodward [2007] WASC 27, [50]; Quinlivan v Lumpkin [2008] WASC 120, [47].
Clearly, a police officer's belief on reasonable grounds may be proven by inference.[101] Belief is a state of mind which is capable of proof by means other than the direct testimony of the police officer contended to be holding that belief. Similarly, it is uncontroversial that in criminal cases, intention, which is also a state of mind, may be proven by inference.
[101] By way of example consider: Iskov v Matters [1977] VR 220, 223.
It was necessary that the prosecution prove that the inference was the only reasonable inference available on the evidence. The learned Magistrate relied on the following findings of fact to prove that the only reasonable inference was that Sergeant Carter suspected that the appellant had committed an offence or could assist in the investigation of an offence and that the suspicion was reasonably held:
1.Prior to the incident at the police station, Sergeant Genovese and Sergeant Carter both heard yelling from outside the police station. Both officers departed the station together to investigate;[102]
2.Sergeant Carter escorted the appellant into the police station and left Sergeant Genovese outside with Mr Fitzgerald and Ms Aranda. At that time Sergeant Genovese spoke to each of the complainants whilst outside the police station;[103]
3.Sergeant Genovese and Sergeant Carter had a conversation where Sergeant Genovese informed Sergeant Carter about the version of the events from the two complainants of the incident at the marina, including the allegation the appellant had assaulted them and had hit them – an allegation that the appellant had committed some sort of assault;[104]
4.Sergeant Carter was obtaining a statement from Mr Fitzgerald about the event at the marina prior to his request for the appellant's identifying details being made.[105]
[102] ts 24 (15/08/2023).
[103] ts 24 (15/08/2023).
[104] ts 24 (15/08/2023).
[105] ts 24 (15/08/2023).
The factual findings of the learned Magistrate are unimpeachable. There was an abundance of evidence available to support the finding that the only reasonable inference was that Sergeant Carter held the requisite suspicion that the appellant had committed an offence or was able to assist in the investigation of an offence and that the suspicion was reasonably held. Sergeant Genovese gave reliable and unchallenged evidence concerning the acts of him and Sergeant Carter.
The uncontroverted facts are that both Sergeant Carter and Sergeant Genovese heard shouting outside the police station and upon leaving the police station, the appellant was present along with the two complainants. Sergeant Carter took the appellant into the police station whilst Sergeant Genovese spoke to both complainants. The two complainants told Sergeant Genovese that the appellant had assaulted them. Sergeant Genovese then told Sergeant Carter about the accounts that he received from both complainants regarding the assaults at the marina. This conversation occurred before Sergeant Carter requested the appellant provide his personal details. Sergeant Carter then took a statement from Mr Fitzgerald and Sergeant Genovese took statements from the two complainants. The taking of the statement from Mr Fitzgerald occurred before Sergeant Carter requested that the appellant provide his identifying material. It was only after Sergeant Genovese had arrested the appellant that Sergeant Carter requested that the appellant provide his identifying material. The only reasonable inference open is that Sergeant Carter held the necessary suspicion and the evidence fully supports that that suspicion was reasonably held.
Therefore, ground 2 is without merit and leave is not granted.

Ground 3

I now turn to ground 3, which contends that the conviction is unreasonable and cannot be supported by the evidence, in that it was not open to find that Sergeant Carter held a reasonable suspicion to authorise the request for personal details. I have outlined the relevant applicable principles in determining a claim of unsafe and unsatisfactory verdicts. I must evaluate the evidence at trial. I have outlined that evidence at trial in determining ground 2.
After careful consideration, I find that the only reasonable inference open on the evidence was that Sergeant Carter held the requisite suspicion and that the suspicion was reasonably held. I am satisfied that there is no other reasonable inference open on the evidence. I am satisfied beyond a reasonable doubt that the appellant committed the offence contrary to s 16 of the Criminal Investigations (Identifying People) Act. The learned Magistrate acting reasonably was not precluded by the totality of the evidence at trial from convicting the appellant. The verdict on the charge was supported by the evidence that the learned Magistrate was entitled to accept, and from the inferences that the learned Magistrate was entitled to logically draw, from that evidence. I have outlined my reasoning when considering ground 2.
Having full regard to the consideration that the learned Magistrate was the tribunal of fact entrusted with the responsibility of determining the guilt or innocence of the appellant, and having full regard to the consideration that the learned Magistrate had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt or as to the correctness of the decision. I find that it is not dangerous to permit the conviction to stand. Leave to appeal is not granted on ground 3.

Conclusion

Accordingly, I do not grant leave to appeal on the grounds of appeal 1 to 6 inclusive. Therefore, the appeal is taken as dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PB
Associate to the Judge
28 MARCH 2024