Pezzano v The State of Western Australia - [2020] WASCA 181

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PEZZANO -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 181
CORAM:   MAZZA JA
MITCHELL JA
BEECH JA

HEARD:   19 OCTOBER 2020
DELIVERED          :   4 NOVEMBER 2020
FILE NO/S:   CACR 171 of 2019
BETWEEN:   GIOVANNI PEZZANO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   IND 2252 of 2018

Catchwords:

Criminal law - Appeal against conviction of assault occasioning bodily harm - Whether verdict of guilty is unreasonable or cannot be supported by the evidence - Whether verdict of guilty is inconsistent with verdict of not guilty on extortion charge - Whether there was evidence that the assault occasioned bodily harm in circumstances where complainant testified that he sustained a bruise to the upper left arm but did not give evidence that the bodily injury caused him any pain - Whether prosecution established that the bodily injury interfered with the complainant's health or comfort

Criminal law - Appeal against conviction - Power of appellate court to substitute a conviction of common assault for conviction of assault occasioning bodily harm - Where common assault is an available alternative charge supported by the evidence but alternative was not left for the jury - Where prosecutor, appreciating that there was a contested issue as to whether the alleged bodily injury interfered with the complainant's health or comfort, advised the trial court that the State did not seek to rely on common assault as an alternative offence - Where State does not seek a substituted conviction of common assault on appeal

Legislation:

Criminal Appeals Act 2004 (WA), s 30(5)(c)
Criminal Code (WA), s 10A, s 10B, s 313, s 317, s 397(2)

Result:

Leave to appeal granted
Appeal allowed
Conviction set aside and judgment of acquittal substituted

Category: A

Representation:

Counsel:

Appellant	:	S Vandongen SC & S Nigam
Respondent	:	L M Fox

Solicitors:

Appellant	:	Nigams Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

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

Bailey v The State of Western Australia [2018] WASCA 169
Calabria v The Queen (1983) 151 CLR 670
Clarke v The State of Western Australia [2018] WASCA 14
De-Abreu v The State of Western Australia [2020] WASCA 145
Dimer v The State of Western Australia [2020] WASCA 111
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
James v The Queen [2014] HCA 6; (2014) 253 CLR 475
Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505
JAW v The Queen [2013] WASCA 261
KND v The State of Western Australia [2017] WASCA 36
Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) CLR 486
McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51
MEN v The State of Western Australia [2020] WASCA 118
Newland v The Queen [2018] WASCA 124
Owners of the Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Richards [2017] QCA 299
R v Vella (1938) St R Qd 289
Rofail v The State of Western Australia [2019] WASCA 166
Scatchard v The Queen (1987) 27 A Crim R 136
Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47
Smejlis v Matthews [2004] WASCA 158
Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603
Thwaites v The State of Western Australia [2004] WASCA 197
Valerio v The State of Western Australia [No 2] [2018] WASCA 158; (2018) 53 WAR 280

JUDGMENT OF THE COURT:

Summary

The appellant was tried by judge and jury on one count of extortion and one count of assault occasioning bodily harm. He was acquitted of extortion and convicted of assault occasioning bodily harm.
The assault alleged by the State was the appellant grabbing the complainant's upper left arm during the course of a heated argument. The bodily harm alleged by the State was a bruise to the complainant's upper left arm. The complainant did not say that either the appellant grabbing his arm or the bruise caused him any pain, and gave evidence that he only noticed the bruise later on when he had a shower.
The appellant was fined $5,000 and a spent conviction order was made in respect of the offence of assault occasioning bodily harm.
The appellant now appeals against his conviction of assault occasioning bodily harm on the sole ground that the jury's verdict of guilty was unsafe and unsupported by the evidence. The appellant relies both on the insufficiency of the evidence led at trial to prove the offence, and the alleged inconsistency between the verdicts for the extortion and assault occasioning bodily harm offences.
In our view, the verdicts were not inconsistent and it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant unlawfully assaulted the complainant. However, as the State now concedes, it was not open on the evidence for the jury to be satisfied, beyond reasonable doubt, that the assault occasioned bodily harm to the complainant. To prove bodily harm, the State had to prove that the bodily injury it alleged (a bruise on the complainant's upper left arm) interfered with his health or comfort. There was no evidence capable of establishing that fact beyond reasonable doubt. Therefore, the appeal must be allowed and the appellant's conviction of assault occasioning bodily harm must be set aside.
A question then arises as to whether this court should convict the appellant of the alternative offence of common assault. The State accepts that the question of whether the bruise interfered with the complainant's health and comfort, so as to constitute bodily harm, was at issue in the trial. The State also accepts that, appreciating that the question was in issue, the prosecutor decided not to rely on common assault as a statutory alternative to the charge of assault occasioning bodily harm. In these circumstances, the State concedes that it is not appropriate, as a matter of discretion, for this court to substitute a judgment of conviction of common assault. For the following reasons, that concession should also be accepted. The appeal should be allowed, the conviction of assault occasioning bodily harm set aside and a judgment of acquittal of assault occasioning bodily harm entered.

The indictment

The appellant was charged and tried on two counts in the indictment.
Count 1 alleged that, on 4 July 2018 at South Fremantle, the appellant, with intent to extort or gain, orally demanded that the complainant purchase goods from his business, without reasonable cause and with threat of injury or detriment if the demand was not complied with.
Count 2 alleged that, at the same date and place, the appellant unlawfully assaulted the complainant and thereby did him bodily harm. 'Bodily harm' is defined in s 1 of the Criminal Code to mean:
any bodily injury which interferes with health or comfort.

Prosecution case at trial

The prosecution case was that, at about 10 am on Wednesday 4 July 2018, the appellant and three other persons attended the complainant's cafe in South Fremantle. Working at the cafe at that time were two female staff members and the cafe's chef, Mr Ho.[1]
[1] Trial ts 20.
The three men with the appellant were:[2]
(1)Jeremy Johnson, a sales representative for the appellant's business called Pezzano Enterprises.
(2)The appellant's younger cousin, whose name is also Giovanni Pezzano.
(3)Another male person, Arslan Magomedov.
[2] Trial ts 20 - 21.
The purpose of the appellant's attendance was to convince the complainant to take deliveries of fresh produce from Pezzano Enterprises. The four men and the complainant discussed the proposal in the alfresco area of the cafe. The complainant told the men that he was happy with his current supplier and did not want to buy produce from Pezzano Enterprises. The appellant then became angry and started shouting and swearing at the complainant. The complainant was taken down the side of the cafe building by the appellant, who put his arm around the complainant's shoulder and tightly pinched a tendon in the complainant's neck. Mr Magomedov followed the two men down the side of the building. Mr Johnson and the appellant's cousin remained in the alfresco area.[3]
[3] Trial ts 20 - 21.
While the appellant was pinching the tendon of the complainant's neck, the appellant told the complainant that he was 'going to buy the veggies from us and, if you don't, you're going back to where you came from in a coffin'. The appellant also said that he would destroy the complainant's business if the complainant did not buy fruit and vegetables from him. These threats were the subject of the extortion charge.[4]
[4] Trial ts 21 - 22.
As the appellant was making these threats, he was pressing his thumb very tightly into the complainant's upper left arm, leaving a bruise. This was the subject of the assault occasioning bodily harm charge.[5]
[5] Trial ts 22.
The complainant agreed to buy fruit and vegetables as he feared for his safety if he refused. Two days later, on Friday 6 July 2018, a Pezzano Enterprises truck arrived at the cafe with an order form, but was turned away. The complainant reported the matter to police on Monday 9 July 2018.[6]
[6] Trial ts 22.

Defence case at trial

The appellant's case at trial was that he was the owner of several multi-million dollar businesses, including Pezzano Enterprises which had an annual trading income of $16 million and a trading profit of $2.5 million. The appellant was asked to attend the complainant's cafe by Mr Johnson, who had previously arranged to visit with the chef. The appellant went with Mr Magomedov, who was an investor visiting from Malaysia and was staying at the appellant's house, and the appellant's cousin who was visiting from Italy on a working holiday.[7]
[7] Trial ts 25 - 26.
The appellant and Mr Johnson spoke to the complainant while Mr Magomedov and Mr Johnson went to purchase a coffee from the cafe. The complainant was rude, insulting and dismissive, which upset the appellant, and there were harsh words between the two men. The appellant's case was that the alleged extortion and assault never occurred.[8]
[8] Trial ts 27 - 28.

Prosecution evidence at trial

The following is a summary of the evidence of the witnesses called by the State at trial.

Complainant's evidence-in-chief

The complainant gave evidence that he was one of two investors in the cafe business. On 4 July 2018, he was working at the cafe with the chef, Mr Ho, a waitress, Michela Orisini, and a barista, Diana Manzocchi.[9]
[9] Trial ts 30 - 31.
The complainant was working behind the bar when four men arrived carrying two boxes of fresh vegetables, which were placed on tables in the alfresco area of the cafe. One of the men, Mr Johnson, entered the cafe, asked for the chef and went straight into the kitchen. The other three men, who the complainant had not met before, stayed in the alfresco area. Mr Ho and Mr Johnson walked out to the alfresco area, and the complainant finished what he was doing and also went outside. The complainant was not aware that the men were coming to supply vegetables.[10]
[10] Trial ts 33 - 34.
Two of the men (contextually Mr Magomedov and the appellant's cousin) went into the cafe, and the complainant spoke to the appellant in the alfresco area. At this time Mr Ho and Mr Johnson were standing in the alfresco area. The appellant told the complainant that he was from the Pezzano family, and they wanted to supply vegetables to the cafe. The complainant said that he was not interested and was happy with the current supplier. The appellant said that he had the best product and prices, and the complainant repeated that he was not interested and was happy with the cafe's current supplier.[11]
[11] Trial ts 34 - 36.
The appellant then became agitated and the conversation heated. When the complainant repeated that he was not interested, the appellant started to point his finger at the complainant's chest and repeat himself. The appellant was very upset and angry. The complainant told the appellant not to touch him, and asked the appellant to leave. The complainant tried to go back into the cafe, but was stopped at the door by Mr Magomedov.[12]
[12] Trial ts 36 - 37.
Mr Magomedov had his hand on the complainant's back, and the appellant was holding the sleeve of the complainant's long-sleeved T‑shirt. The appellant said they would go for a walk in a park next to the cafe, and the complainant reluctantly agreed in order to get the men away from the cafe. The complainant did not go to the park, but turned a corner down the side of the cafe which he mistakenly thought was covered by CCTV cameras. They walked about 30 metres along the side of the building, near to a side entrance. As soon as they turned the corner, the appellant put his arm on the complainant's shoulder and started squeezing the tendon between the neck and shoulder quite hard, which was quite painful. Mr Magomedov was walking behind them.[13]
[13] Trial ts 38 - 39.
As they were walking down the side of the building, the appellant told the complainant:[14]
You know what we are going to do? You're going to buy veggies from us, otherwise you're going to back where you came from in a coffin.
[14] Trial ts 39.
Just before the side door to the cafe, the men stopped and the complainant turned around. The appellant took his hand from the complainant's neck, but grabbed his upper left arm in a grip.[15] When asked whether he felt anything while the appellant was gripping his arm, the complainant responded:[16]
Well, at that stage the tension was very, very high so the adrenalin was really running so you did not really feel much. I mean, I was more concerned about my safety.
[15] Trial ts 39 - 40.
[16] Trial ts 40.
The appellant was very close to the complainant's face and repeated the threat. The appellant also said that he was going to destroy the complainant's business. The appellant told the complainant that he was sending a representative with a price list, and the complainant would start to buy vegetables from them on a Monday. The appellant said, 'Do you agree with that', and forced the complainant to shake his hand. Out of fear, the complainant said that he agreed, and was allowed to walk away back into the cafe. The complainant did not see what happened to the appellant after he walked away.[17]
[17] Trial ts 40 - 42.
The appellant did not notice anything in relation to his upper left arm after the appellant left. Later that day, the complainant saw a bruise on his arm as he was having a shower. He did not have any further contact with Pezzano Enterprises. The following Monday, he made a complainant to police, who took a photograph of the bruise on his arm.[18]

Exhibits tendered through the complainant

[18] Trial ts 42 - 43.

Exhibits tendered through the complainant included a photograph of a bruise on his upper left arm, taken at the police station when he reported the matter on Monday 9 July 2018.[19] The bruise shown on the photograph appears consistent with having been caused by a thumb pressing hard into the appellant's upper arm some days previously.
[19] Exhibit 5.
Exhibits tendered through the complainant also included CCTV footage showing the inside of the cafe and part of the alfresco area of the cafe. The cover of the camera showing part of the alfresco area was said by the complainant to have been dirty,[20] and the vision of the alfresco area appears as if it were shot through a translucent screen.
[20] Trial ts 65.
At 9.46 am, Mr Ho can be seen walking out to the alfresco area with Mr Johnson. The complainant follows them outside shortly after the door is closed, and can be seen talking to the appellant at 9.47 am. The view of the men talking is not clear, and they move out of camera view at about 9.48 am. Mr Ho walks alone back into the cafe at 9.48 am.[21]
[21] Exhibit 6.
At 9.49 - 9.50 am, the complainant is seen walking inside and back to the kitchen of the cafe, and then going back outside with Mr Ho. In his evidence-in-chief, the complainant, after watching the footage, said that he did that because the men said that they had called the day before and someone agreed for them to show up and bring vegetables. Mr Ho and the complainant went outside and said that they did not know anything about this.[22]
[22] Exhibit 6; trial ts 56.
Mr Magomedov and the appellant's cousin can be seen entering the cafe at 9.50 am, and appear to be waiting near a service area. The legs of the complainant and two other men can be seen in the alfresco area. At one point the appellant's cousin can be seen greeting a young female. Mr Magomedov and the appellant's cousin walk towards the service area and out of view of the camera at 9.52 am.[23]
[23] Exhibit 6.
At 9.53 am, the appellant can be seen moving his hand in a pointing gesture towards the complainant. The complainant attempts to re-enter the cafe, but is met at the door by Mr Magomedov. There appears to be a discussion. The appellant's cousin can be seen pacing in the cafe area before moving to stand behind Mr Magomedov at the entrance to the cafe. The complainant can be seen walking away from the front door of the cafe with the men, and out of the view of the CCTV camera, at 9.54 am. It is not clear whether or not Mr Magomedov has his hand on the complainant's back as they walk away. The movement of the appellant, complainant and Mr Magomedov is consistent with them walking down the side of the cafe.
The complainant can be seen walking back into the cafe at 9.58 am. During the period between the men walking away from the front door of the cafe and the complainant's return, Mr Johnson and Mr Ho can be seen talking with each other, at times in what appears to be a quite animated fashion, in the alfresco area. Their attention does not appear to be on events at the side of the cafe for any significant period of time. Ms Manzocchi and Ms Orisini can be seen standing near the front doors for a time, but they quickly appear to return to the service areas. Apart from a very brief period when Ms Manzocchi looks through a window in the direction of the area at the side of the building, they do not appear to be focussed on events occurring at the side of the building.
After a discussion between the four members of the appellant's group, the appellant, Mr Magomedov and the appellant's cousin can be seen walking away from the alfresco area at 9.59 am.[24] Mr Johnson walks into the cafe and moves out of sight of the camera towards the kitchen/service area. Mr Johnson walks out of the cafe from the same direction at 10.01 am.
[24] Exhibit 6.
The vision of the complainant's discussion with the appellant in the alfresco area is not at all clear. Generally, the vision is from a camera behind the service area through the front door of the cafe. There is some vision from the camera in the alfresco area but it is obscured by dirt on the lens, the fact that much of the alfresco area is out of the camera's field of vision and, when the men are gathered at the door, by the people crowded together.
The CCTV camera did not cover the side of the cafe where the threats and assault allegedly occurred.[25]

Cross-examination of the complainant

[25] Trial ts 52.

The following points emerged in cross-examination of the complainant:
(1)The complainant was not at the cafe on Tuesday 3 July 2018 as it was his day off.[26]
(2)The cafe would purchase about $50,000 - $60,000 a year worth of fresh produce.[27]
(3)The complainant did not initially refer to coming back into the cafe to get Mr Ho in his evidence-in-chief, and remembered that after seeing the CCTV footage.[28]
(4)The complainant accepted that the appellant was quite friendly when he introduced himself to the complainant. The complainant accepted that he told the appellant, 'You start off giving cheap prices, then you will put the prices up.', and that they would start off giving fresh produce and 'then maybe not so fresh produce'. The complainant said that he said these things to the appellant after the appellant said that the complainant didn't care about his own business.[29]
(5)Mr Johnson was never rude to the complainant, and Mr Magomedov and the appellant's cousin purchased and paid for coffee when they were in the cafe.[30]
(6)When asked why he did not contact police for 5 days, the complainant said that a police officer he only knew as 'Felon', who was a friend of Ms Mazzocchi, came and spoke to him at the cafe at about 1.30 pm on the day of the alleged offence.[31]
(7)The complainant did not seek medical attention before reporting the matter to police on Monday 9 July 2018, because he did not think it was necessary. He went to see a doctor on 10 July 2018, on the recommendation of the police.[32]
(8)At one point during the cross-examination, the complainant gave evidence that the appellant made the comment about sending him back in a coffin three times. He accepted that his statement to police referred to the comment being made twice.[33]

Evidence of Mr Ho

[26] Trial ts 77.

[27] Trial ts 77.

[28] Trial ts 78 - 79.

[29] Trial ts 80 - 81.

[30] Trial ts 82.

[31] Trial ts 85 - 86.

[32] Trial ts 88.

[33] Trial ts 96 - 99.

Mr Ho gave evidence, through an interpreter, that he was the head chef at the cafe. He said that, at about 10 - 10.30 am on Wednesday 4 July 2018, Mr Johnson (who Mr Ho described as an Indian man) came to the cafe. Mr Johnson spoke to Mr Ho in the kitchen, and said that he was a wholesale vegetable supplier and had left two samples of vegetables. Mr Ho told Mr Johnson that the cafe already had a supplier and they did not need any samples. Mr Johnson then left.[34]
[34] Trial ts 110 - 11.
About 5 minutes later, three men came into the cafe and insisted that they had to keep the samples. The men said that the cafe had to use their supply of vegetables, and the cafe's current supplier was no good. The complainant refused to accept the samples and the appellant (who Mr Ho described as the 'heavily built man') asked the complainant to go out of the restaurant and talk to him. Initially, the complainant said there was no need to talk because they did not need another supplier.[35]
[35] Trial ts 112 - 113.
The next part of Mr Ho's evidence was not very clear. He described the complainant and appellant going to the 'entrance of our restaurant' and staying there 'within five minutes'. Mr Ho said that 'Finally, [the complainant] followed [the appellant] through the main entrance of the restaurant to the back door of the restaurant, so outside'.[36] Mr Ho described standing 'outside the restaurant at the main entrance' beside a person who was, contextually, Mr Magomedov. Mr Ho asked Mr Johnson what was happening, and no one responded.[37] Mr Ho indicated, by reference to a photograph (exhibit 1.2), that he was standing in the alfresco area, just outside the glass doors, when he said this to Mr Johnson.[38] Mr Ho said that the appellant was inside the cafe when he was insisting that the complainant take the samples.[39]
[36] Trial ts 113 - 114.
[37] Trial ts 112 - 114.
[38] Trial ts 119 - 120.
[39] Trial ts 120 - 121.
Mr Ho gave evidence to the effect that he saw the complainant follow the appellant outside towards the side of the cafe. Mr Ho saw the appellant grab the complainant's shoulder as they walked towards the back door of the restaurant. He saw this while standing in the alfresco area with Mr Johnson, Mr Magomedov and the appellant's cousin.[40]
[40] Trial ts 122 - 123.
In cross-examination, Mr Ho confirmed that he could see, from the side of the restaurant, the appellant and the complainant, he was checking to see what was happening and that only the appellant and complainant walked around the side of the restaurant. He said that the only contact he saw between the men was at the glass doors of the entry to the cafe, which was where he saw the appellant grab the complainant's shoulder.[41]

Evidence of Constable Belton

[41] Trial ts 125 - 126.

Constable Belton is a police officer who gave evidence about arresting the appellant on 24 July 2018, and messages found on the appellant's phone which are not presently relevant. He also gave evidence that Mr Magomedov arrived in Perth from Kuala Lumpur on 3 July 2018.[42]

Evidence of Ms Manzocchi

[42] Trial ts 1239, 133.

Ms Manzocchi was working at the cafe as a barista on 4 July 2018. She described Mr Johnson arriving with a crate of vegetables which he put on a table in the alfresco area. He asked for the chef, and spoke to Mr Ho in the kitchen and alfresco area. She saw the complainant go outside as well.[43]
[43] Trial ts 140 - 141.
Three other men then arrived and two of them came inside the cafe while the appellant (who Ms Manzocchi recognised from working at a business he supplied) stayed outside with Mr Johnson, the complainant and Mr Ho. The appellant and complainant were talking and, by the body language, it was not a friendly conversation. The complainant was being defensive, and the appellant was moving toward the complainant.[44]
[44] Trial ts 141 -142.
Ms Manzocchi described the complainant trying to come back inside the cafe, and being blocked by Mr Magomedov and the appellant. She heard Mr Magomedov say, 'We need to talk'. The appellant had his hand on the complainant's upper arm, and the appellant and Mr Magomedov walked along the side of the cafe to a point she could not see them.[45]
[45] Trial ts 142 - 146.
Ms Manzocchi described the complainant's return and the departure of the men. She said that she called a friend of hers, who was a policeman, and gave some information to the complainant. The complainant was upset and left the cafe. She also described a Pezzano Enterprises delivery truck arriving at the cafe the following Friday with some delivery forms, and being turned away by the other owner of the cafe.[46]
[46] Trial ts 146 - 148.
In cross-examination, Ms Manzocchi accepted that, in her police statement of 11 July 2018 and in proofing by the prosecutor, she had referred to arms 'interlocking' rather than the appellant holding the complainant's arm. However, she maintained that the appellant was holding the complainant's arm as they walked down the side of the building.[47] She denied that she only had a 'flash glimpse' of the men as they walked down the side of the cafe, and could not recall saying that to the prosecutor in proofing.[48] She said that both the appellant and Mr Magomedov had contact with the complainant.[49]
[47] Trial ts 155 - 156.
[48] Trial ts 156 - 157.
[49] Trial ts 159.
The prosecutor formally conceded that, on 3 October 2019, Ms Manzocchi advised the State that:[50]
Either [the appellant] or [Mr Magomedov] had their arm interlocking with [the complainant]. The taller male had hold of [the complainant's] neck. I only had a flash (glimpse) of them as they walked past the window on the side of the building toward the back of the building.
[50] Trial ts 163.

Defence evidence at trial

The following is a summary of the evidence of the witnesses called by the appellant at trial.

Appellant's evidence

The appellant gave evidence that he was the director of several companies, including Pezzano Enterprises which was a fruit and vegetable wholesale business established by the appellant's father in 1956.[51] The profit generated by the business in July and August 2019 was over $250,000, which represented an annualised profit of $1.6 million.[52] The receivables for the business in July 2018 totalled $942,429.[53] It wrote off bad debts in July 2018 to September 2019 totalling $74,150.08, and did not send 'anyone around to try and collect that money'.[54]
[51] Trial ts 164.
[52] Trial ts 165 - 166.
[53] Trial ts 170.
[54] Trial ts 173.
Mr Magomedov was an investor in some of the appellant's other businesses,[55] who arrived in Perth on 3 July 2018 to view one of the businesses in which he had invested. The appellant collected Mr Magomedov, who was staying at the appellant's house, from the airport.[56]
[55] Trial ts 166.
[56] Trial ts 175.
As a result of text messages received from Mr Johnson, the appellant planned to attend an arranged meeting with the chef at the complainant's cafe on 4 July 2018. He had Mr Magomedov and his cousin with him and, after visiting the cafe, they intended to go and view the business in which Mr Magomedov had invested. The appellant thought the meeting was with the chef and did not know that the complainant, who he had never met, was to be at the meeting. On the way to the cafe, the appellant learned that one of Pezzano Enterprises twelve delivery trucks had been involved in an accident, and two drivers were lucky to escape with their lives.[57]
[57] Trial ts 174 - 177.
The appellant had a discussion with the complainant, Mr Johnson and Mr Ho in the alfresco area, while Mr Magomedov and the appellant's cousin went into the cafe to get a coffee. The appellant introduced himself to the complainant, who was very blunt, abrupt and rude and responded by saying, 'You haven't got a meeting here today'. The appellant asked Mr Johnson whether a meeting had been made, and Mr Johnson said, 'There was a meeting made today with Chef Nicola who was a chef on duty yesterday at [the cafe]'. The appellant said, 'I don't have a chef by that name who works here'. Mr Ho interrupted by saying, 'Yes, boss, Chef Nicola was on duty yesterday'. The complainant then said that Chef Nicola was in fact not a chef, he was a dishwasher.[58]
[58] Trial ts 178 - 179.
At this point the conversation became agitated. The complainant said that Pezzano Enterprises would start by giving cheap prices, and then would push their prices up. The appellant felt that the complainant was slandering his business, and said that was not true. The appellant told the complainant that he could lock in prices for a season or a year. The complainant then said, 'You start off by giving fresh produce, then your produce turns to rubbish'. The appellant told the complainant that this was not true, and they supplied 'the most credible chefs in this town and the best establishments as well'. The appellant made the complainant aware of who they did business with.[59]
[59] Trial ts 180.
The complainant then said, 'I'm not interested', and walked back to the cafe. The appellant approached the complainant and said:[60]
I want, like, an explanation to why you're lying about the meeting, the position of your chef, how we conduct ourselves as a business. I see you're disrespecting me, my staff, your staff, and also my business.
[60] Trial ts 181.
Mr Magomedov approached towards the door where the appellant was with the complainant. Mr Magomedov said, 'Gentlemen, calm down. There's people in the restaurant'. The appellant said to the complainant, 'I need an explanation to why you're slandering my business and why you're lying'. The two men then left the area and walked down the side of the cafe.[61]
[61] Trial ts 182.
The appellant gave the following account of his conversation with the complainant down the side of the cafe:[62]
So I started off by saying, 'In all the years that I've been doing this, never ever have I been treated in such a way. We came here invited out of respect. Obviously, if your chef calls a meeting, he would not call it if he was happy with his current supplier. So - - -
And did [the complainant] respond to you?---No, he wasn't talking at that stage.
Can I ask, how did the conversation conclude? How did you part ways?---Okay. So I just wanted to find out why he was being how he was, so I asked him, 'Do you have any problems with me or my family?' and he said no, he hasn't. And I said to him, 'If you haven't got a problem with me,' I said, 'if I was to offer you fresher produce, cheaper pricing, better payment terms, better customer service, and a larger array of exclusive lines, would you allow me to supply [the cafe]?'
And what did [the complainant] respond?---He agreed. He shook my hand. And I said to him, 'I'll do you proud and I'll show you everything that you've said. I'll do you proud and I'll prove to you that we are the best at what we do in this town.'
[62] Trial ts 183.
The appellant's evidence was that he never touched the complainant, never pinched his shoulder or squeezed his arm. He had no contact with the complainant when they were walking.[63]
[63] Trial ts 181 - 183.
The appellant described leaving the cafe, informing Mr Johnson of the proposal to supply the cafe as he did so.[64] The appellant said that he would have made a profit of only about 2% in supplying the cafe with $50,000 - $60,000 worth of vegetables per annum.[65]
[64] Trial ts 183 - 184.
[65] Trial ts 184.
The appellant maintained this account under cross-examination.

Evidence of Mr Johnson

Mr Johnson gave evidence that he worked as sales accounts manager for Pezzano Enterprises. His job was to bring in business and maintain it. He described calling the cafe on 3 July 2018, and speaking to 'Nic' and arranging to meet and provide samples to the other chef who would be working at the cafe the following day. He contacted the appellant and arranged for him to attend the meeting.[66]
[66] Trial ts 219 - 221.
Mr Johnson gave evidence about arriving at the cafe on 4 July 2018, leaving some samples of fruit and vegetables on an outside table and going inside and speaking with Mr Ho, who came with him to the alfresco area. After about 10 minutes, the appellant, the appellant's cousin and another man (who Mr Johnson did not know, but contextually was Mr Magomedov) arrived. The appellant's cousin and Mr Magomedov went into the cafe.[67]
[67] Trial ts 222 - 224.
The complainant came out 'a little bit aggressive' and asked what was happening. Mr Johnson introduced himself and the appellant, and said that they had an appointment with Mr Ho. The complainant said that he did not believe they had a meeting, but Mr Ho said that it was organised. They proceeded to show their samples, and the complainant said, 'You guys come with good produce and pricing, and that everything goes crap after that'. The appellant said, 'That's the reason why I'm here, to showcase my produce. And I stand behind it… if you use us for a whole week and if you think at the end of the week that you are not happy, you don't pay me'.[68]
[68] Trial ts 225 - 226.
The appellant and complainant went for a walk down the side of the cafe, while Mr Johnson and Mr Ho remained near the front door of the cafe. Mr Ho then went inside and Mr Johnson was by himself in the alfresco area. Mr Johnson could not hear the complainant's and appellant's conversation. He did not see any physical contact between the two men. After the appellant and complainant finished their conversation, he saw the men shake hands. The appellant approached Mr Johnson, and said that he could go and see the complainant and that 'everything is fine'. At this time the appellant's cousin and Mr Magomedov were still in the cafe.[69]
[69] Trial ts 226 - 227, 229.
Mr Johnson then followed the complainant into the cafe. The complainant went down some stairs, and Mr Johnson asked the lady at the counter if he could speak to the complainant. She called him and he said, 'No, I'm busy'. Mr Johnson asked to see Mr Ho, and when Mr Ho came out Mr Johnson asked if he would like to keep the samples. Mr Ho told Mr Johnson to take the samples away, and that he had Mr Johnson's contact details. Mr Johnson left his business card, took the samples and left the cafe. The appellant had already departed.[70]
[70] Trial ts 227 - 228.
Mr Johnson maintained this account in cross-examination. He said that the complainant's and appellant's conversation down the side of the cafe lasted 10 - 15 minutes, and they were in the corner of Mr Johnson's eye the whole time.[71] Mr Magomedov and the appellant's cousin were in the cafe the whole time.[72] Mr Johnson said that an account for over $1,000 a week would be a large account.[73] Mr Johnson accepted that, at one point, the appellant told the complainant that the complainant was not doing the right thing by his business by not being interested.[74] He definitely did not see the appellant pointing his finger into the complainant's chest.[75]
[71] Trial ts 228 - 229.
[72] Trial ts 229.
[73] Trial ts 229.
[74] Trial ts 231.
[75] Trial ts 231 - 232.

The cases left for the jury

In her summing up, the trial judge identified the following elements of the extortion offence, which the State had to prove beyond reasonable doubt:[76]
(1)The alleged offender was the appellant and not some other person (which was not in issue).
(2)The appellant made an oral demand to the complainant that the complainant purchase the appellant's vegetables. The issue for the jury was whether the appellant made a demand, or whether it was really just an offer.
(3)The demand was accompanied by a threat of injury or detriment, in this case that the complainant would be sent home in a coffin or that his business would be destroyed.
(4)The appellant had an intention to extort or gain anything from the complainant.
(5)The appellant did not have a reasonable cause for making the threat or demand (which was not in issue).
[76] Trial ts 254 - 258.
The trial judge identified the following elements of the assault offence, which the State had to prove beyond reasonable doubt:[77]
(1)The alleged offender was the appellant and not some other person (which was not in issue).
(2)The appellant assaulted the complainant, by grabbing him by the arm.
(3)The complainant suffered bodily harm.
(4)Bodily harm (meaning any bodily injury which interferes with health or comfort) resulted from the assault by the appellant.
(5)The assault was not authorised, justified or excused by law (which was not in issue).
[77] Trial ts 259 - 260.

General principles

This court recently summarised the general principles governing the determinations of appeals alleging that a jury's verdict is unreasonable or cannot be supported in MEN v The State of Western Australia.[78] It is unnecessary to repeat that summary.
[78] MEN v The State of Western Australia [2020] WASCA 118 [403] - [410], [705].
As was noted in that summary, the High Court recently described the functional demarcation between the province of the jury and the province of the appellate court in Pell v The Queen.[79] The court emphasised that the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community.[80] By contrast:[81]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citation omitted)
[79] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394.
[80] Pell [37] - [38].
[81] Pell [39].
The demarcation of the role between this court and the jury also has significance for this court's assessment of the defence witnesses. The appellant referred to the approach of the High Court in Pell, in assessing the contradictions between the evidence of the complainant in that case and a number of Crown witnesses whose evidence was not challenged by the Crown. By contrast, in the present case the prosecution did attack the evidence of the defence witnesses on credibility grounds. This court's assessment of the evidence must allow for the possibility that the jury might have considered that the manner in which the defence witnesses gave their evidence impacted adversely on the jury's assessment of their credibility.
The principles applicable to an appeal brought on a ground that a verdict is unreasonable or cannot be supported having regard to the evidence because it is inconsistent with other verdicts given by the jury are also well established. The test to be applied by an appellate court is whether the inconsistency is of such a character that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness. In other words, can it be concluded that the different verdicts cannot have been the product of the deliberations of a reasonable jury applying their minds properly to the fact‑finding process in relation to each of the counts?[82] As was noted by Buss P, with whom Mazza and Mitchell JJA agreed, in KND v The State of Western Australia:[83]
It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense. The critical issue is whether it was logically and reasonably open to the jury to acquit on two counts and convict on the other.
[82] Bailey v The State of Western Australia [2018] WASCA 169 [40] and cases there cited.
[83] KND v The State of Western Australia [2017] WASCA 36 [36].

Inconsistent verdicts

We are far from satisfied that the verdicts in this case are inconsistent.
The prosecution case on the extortion charge depended on the appellant having said to the complainant words to the effect that, if he did not buy vegetables from Pezzano Enterprises, he would be 'going back to where [he] came from in a coffin', and his business would be destroyed. Those words were spoken out of earshot of all witnesses in the trial other than the complainant. There was no corroboration of that aspect of the complainant's evidence.
By contrast, there was evidence tending to support the complainant's account of the appellant gripping his upper arm and causing a bruise. The jury had before it a photograph of the bruise.
The jury could reasonably have been satisfied, based on the complainant's evidence and the photographic evidence, that the appellant gripped the complainant's upper left arm and caused a bruise. However, in the absence of any supporting evidence as to the critical words spoken to the complainant other than the complainant's evidence, the jury might have had a reasonable doubt as to whether those words were spoken. That would not necessarily have involved the jury forming an adverse view as to the complainant's general credibility. The jury may have allowed for the possibility that the complainant misunderstood or misinterpreted what was said by the appellant in the course of what was, on both the appellant's and complainant's accounts, a very heated argument. The jury may also have allowed for the possibility that the complainant may not be expected to accurately recall the precise words spoken in the course of a heated argument when he gave his police statement 5 days later. A concern about mis-recollection may have been exacerbated by the inconsistency in the complainant's account as to how many times the threat about putting him in a coffin was repeated (twice in his account to police and evidence in chief, which increased to three times under cross-examination).
Further, the jury might have been satisfied that the complainant's account of events and conversations was entirely accurate and still have found the appellant not guilty of the extortion charge. In that event, the jury might have had a reasonable doubt as to whether the appellant had an intention to extort or gain anything from the complainant at the time the threats were made. This point was noted by the trial judge in summarising the appellant's position at trial in her Honour's summing up:[84]
And so the real issue for you is whether or not the words were said. But in any event, [the appellant's] position is that he did not have an intention to extort or gain anything from [the complainant].
And amongst other things, he relies on the fact that there was no credible motive for him threatening [complainant] for what he submits to you in the grand scheme of things was a very small account.
[The appellant's] evidence was to the effect that he was somewhat upset with [the complainant] because he felt that [the complainant] had been very blunt and rude and had disrespected his business.
But [the appellant's] position is that he'd gone there for a legitimate reason in circumstances where he believed that there was an appointment with the chef to have a discussion about the supply of his product. So there are the two positions there. (emphasis added)
[84] Trial ts 258.
The jury might have been satisfied that the words alleged by the complainant were spoken, but had a reasonable doubt as to whether the appellant said the words with any relevant intention. The jury may have thought that the evidence did not exclude the reasonable possibility that the appellant was in an emotional state and simply blowing off steam in the course of a heated argument, without actually intending to extort or gain anything from the complainant by making the threats. There was, of course, no direct evidence of the appellant's intention other than his own evidence that he had no relevant intention. The jury could only have convicted the appellant of the extortion charge if satisfied that the only reasonable inference to be drawn from the facts established by the evidence was that the appellant had such an intention. The jury also needed to reject the appellant's evidence that he had no such intention, and be satisfied that there was no reasonable possibility that the appellant's denial was true.
Therefore, there are two ways in which the jury's different verdicts on extortion and assault occasioning bodily harm counts can properly be reconciled. The submission that the verdicts are inconsistent is not established.

Unlawful assault

It is next convenient to consider whether it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant unlawfully assaulted the complainant. In this case, the application of force relied on by the State was the appellant gripping the complainant's arm as they argued at the side of the cafe. There was nothing to suggest that the complainant might have consented to that application of force, or that the application of force was authorised, justified or excused by law. While there was some evidence from Ms Manzocchi that the appellant held the complainant's arm as the complainant was led down the side of the cafe, that was not the application of force relied on by the State at trial to constitute the assault. That is, in the circumstances of this case, the question is whether it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant gripped the complainant's upper left arm as the men argued near the side door of the cafe.
The main evidence of that event was, of course, the evidence of the complainant. His evidence was consistent with the CCTV footage to the limited extent that it recorded the relevant events. The complainant's evidence was supported by the bruise shown on his arm in the photograph taken by police.
Mr Johnson's statement provided only limited support for the appellant, as on his evidence he was by the cafe's front door at the relevant time. While he claimed to be able to see the appellant and complainant out of the corner of his eye, the jury could well have considered (particularly having regard to the CCTV footage) that he was not watching the men the entire time. Also, Mr Johnson did not see the appellant making the pointing motion depicted on the CCTV footage and wrongly claimed that Mr Magomedov and the appellant's cousin were in the cafe when the appellant and complainant walked around the corner. The jury could reasonably consider Mr Johnson to have been an unreliable observer of the events, and consider that he would not have been in a position, or paying sufficient attention, to see the assault if it had occurred.
The appellant's evidence that no physical contact occurred between him and the complainant was inconsistent with the evidence of the complainant, Ms Manzocchi and Mr Ho.
There were difficulties with Mr Ho's evidence, which was inconsistent in various respects with the CCTV footage and the evidence of all other witnesses. However, while the reliability of Mr Ho's general account must have been doubted, he did see the appellant grab the complainant's shoulder in the manner which the complainant had described.
There were also some inconsistencies between the complainant's evidence and the evidence of Ms Manzocchi that she saw the appellant holding the complainant's arm as they walked down the side of the cafe. The complainant described his neck or shoulder, rather than his arm, being held at that time. The weight to be given to Ms Manzocchi's evidence was limited by her prior inconsistent statement about arms 'interlocking'. However, that inconsistency in Ms Manzocchi's statements might be explained by the fact that it appeared that English was not Ms Manzocchi's first language.[85]
[85] Trial ts 155.
Notwithstanding the issues concerning the detail of some aspects of Mr Ho's and Ms Manzocchi's evidence, it remained the case that both observed the appellant making physical contact with the complainant. That aspect of their evidence was inconsistent with the appellant's evidence that no physical contact occurred. The jury may have rejected the appellant's evidence on the basis of its inconsistency with three other witnesses and because they considered that the manner in which the appellant gave his evidence impacted adversely on the jury's assessment of the appellant's credibility.
The appellant submits that the evidence of Mr Ho, Ms Manzocchi and Mr Johnson that they did not see the assault presented a 'solid obstacle' to the jury finding that the appellant assaulted the complainant in the manner alleged. We do not accept that submission. Our review of the photographic evidence of the cafe and its surrounds, and the CCTV footage, leads us to the conclusion that the area where the complainant said the relevant assault occurred would not have been visible from the positions of Mr Ho, Ms Manzocchi and Mr Johnson. The CCTV footage also shows that Mr Ho, Ms Manzocchi and Mr Johnson were not paying attention to the side of the cafe at the time the appellant and complainant were speaking in that location. It was well open for the jury to take the view that, if the appellant had assaulted the complainant in the manner described by the complainant, it would not have been captured on CCTV or observed by Mr Ho, Ms Manzocchi or Mr Johnson.
The appellant submits that Ms Manzocchi's evidence of observing the appellant holding the complainant's arm as they walked to the side of the cafe (before the assault described by the complainant) also harms the prosecution case. It is submitted that, if that evidence were accepted, it would provide a possible alternative explanation of the bruise on the complainant's upper arm, other than the later assault by the appellant which the prosecution identified as the charged act.[86] We do not accept that submission. The possibility that the bruise may have been caused by an earlier uncharged assault may have some significance in considering whether the State had proved that the charged assault occasioned bodily harm. But that possibility does not provide a basis for rejecting the complainant's evidence that the charged assault occurred at all.
[86] Appeal ts 18 - 19.
In our view, it was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant gripped the complainant's upper left arm in the course of a heated argument between the two men near the door at the side of the cafe. Having regard to the matters noted at [82] above, it was therefore open to the jury to be satisfied, beyond reasonable doubt, that the appellant unlawfully assaulted the complainant in the manner alleged by the prosecution.

Bodily harm

However, in our view there was no evidence capable of satisfying the jury, beyond reasonable doubt, that the assault alleged by the State occasioned bodily harm to the complainant.
The elements of the offence against s 317 of the Criminal Code, of which the appellant was convicted, were that the appellant unlawfully assaulted the complainant and that the appellant thereby did the complainant bodily harm. The term 'bodily harm' is defined in s 1(1) of the Criminal Code to mean 'any bodily injury which interferes with health or comfort'.
To prove that an assault occasioned bodily harm it is necessary for the prosecution to prove both that some bodily injury resulted from the assault and that the resulting bodily injury interfered with the health or comfort of the victim. Bodily injury which does not interfere with health or comfort, and discomfort in the absence of bodily injury, do not constitute bodily harm as defined in the Criminal Code. In Scatchard v The Queen,[87] the Court of Criminal Appeal held that evidence of pain without any evidence establishing bodily injury could not support a conviction of assault occasioning bodily harm. Conversely, evidence of a bodily injury which does not result in any pain or discomfort, and which does not interfere with health, will not constitute bodily harm.
[87] Scatchard v The Queen (1987) 27 A Crim R 136, followed in Thwaites v The State of Western Australia [2004] WASCA 197 [71].
In this respect, we agree with the observations of Jenkins J in Smejlis v Matthews,[88] a case where there was evidence of a bruise but no express evidence that the bruise interfered with her health or comfort:
In my opinion it does not necessarily follow that a bruise interferes with health. Whether a bruise interferes with health because it is an adverse change to the soundness of the body will depend upon the evidence given at the trial. I can also readily contemplate situations where a person receives a bruise but it does not hurt or interfere with the recipient's comfort. Thus in cases of bruising there must be some direct or circumstantial evidence to support a finding that the bruise interfered with health or comfort. By this I am not suggesting that the evidence must be of a particularly technical or sophisticated nature. For example it may be from a medical practitioner who gives an opinion as to the effect of the bruise on health or it may be from the recipient who gives evidence about the nature of the bruise and its effect.
[88] Smejlis v Matthews [2004] WASCA 158 [54].
In the present case there was evidence that the appellant gripped the complainant's upper left arm and caused a bruise. That is clear evidence that the appellant's assault caused the complainant to sustain a bodily injury. However, to establish bodily harm it was necessary to adduce evidence establishing, beyond reasonable doubt, that the bodily injury interfered with the appellant's health or comfort.
In the present case, there was no medical or other evidence that the bodily injury constituted or evidenced by the bruise interfered with the complainant's health in any way. Nor did the complainant give evidence that he felt any pain or discomfort as a result of the appellant gripping his upper arm (as opposed to the tendon between his neck and shoulder). Given the size of the bruise depicted in the photograph taken by police, and the complainant's evidence noted at [25] and [27] above, it cannot be inferred that the bodily injury must have caused the complainant discomfort either at the time it was inflicted or thereafter. It seems to us to be implicit in the complainant's answers to questions about the bruise that he did not experience pain or other discomfort as a result of any injury to his upper left arm.
There was, therefore, no evidence before the jury capable of satisfying them, beyond reasonable doubt, that the bodily injury alleged by the prosecution interfered with the complainant's health or comfort. The State concedes that the ground of appeal is established to this extent. For the above reasons, we would accept the State's concession that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence of assault occasioning bodily harm.

Appropriate orders

Given the above conclusions, s 30(3)(a) and s 30(5) of the Criminal Appeals Act require this court to allow the appeal and set aside the appellant's conviction of assault occasioning bodily harm.

Section 30(5) of the Criminal Appeals Act

The remaining question is whether this court should enter a judgment of acquittal of assault occasioning bodily harm under s 30(5)(b) of the Criminal Appeals Act, or whether the court should enter a judgment of conviction of common assault under s 30(5)(c) of that Act. Section 30(5) relevantly provides:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must —
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if —
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied … of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A …
Sections 10A and 10B of the Criminal Code are also relevant. Under s 10A(1):
A person charged with an offence cannot be convicted by the court dealing with the charge of any other offence instead of that offence unless —
(a)the accused is charged with the other offence as an alternative to that offence; or
(b)this Chapter provides otherwise.
Section 10B(1) and s 10B(2) of the Criminal Code provide:
(1)This section applies if a provision of this Code, or of another written law, that creates an offence (offence A) provides one or more alternative offences for offence A.
(2)If a person is charged with an offence (offence A), whether or not on indictment, the person, instead of being convicted as charged, may be convicted of any alternative offence that is provided for offence A.
Section 317 of the Criminal Code, which creates the offence of assault occasioning bodily harm, provides that the offence of common assault created by s 313 of the Criminal Code is an alternative offence.

The issue in this case

Under the above provisions, common assault was an available alternative offence to the charge of assault occasioning bodily harm. The appellant could have been convicted of common assault instead of being convicted of assault occasioning bodily harm, under s 10B(2) of the Criminal Code. We have concluded that the evidence led at the appellant's trial supported the conclusion that the appellant unlawfully assaulted the complainant. By its verdict, the jury must have been satisfied of facts that proved the appellant was guilty of common assault.[89] Section 30(5) will apply in these circumstances if, within the meaning of s 30(5)(c)(i) of the Criminal Appeals Act, the appellant 'could have been found guilty of' common assault instead of assault occasioning bodily harm.
[89] As to which, see Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603 [23], [26], [43].
This court has held that the power in s 30(5)(c) is enlivened only where the conviction for 'offence A' was entered following a trial or a trial by judge alone. The power is not engaged where the conviction for 'offence A' was entered following a plea of guilty.[90] The appellant in this case was convicted after trial by jury, so this limitation on the power in s 30(5)(c) does not present an impediment to its exercise in the present case.

Appellant's submissions

[90] Newland v The Queen [2018] WASCA 124 [28]; Dimer v The State of Western Australia [2020] WASCA 111 [102]; Rofail v The State of Western Australia [2019] WASCA 166 [29].

The parties filed supplementary written submissions on the construction and application of s 30(5)(c) of the Criminal Appeals Act. We found the appellant's supplementary submissions somewhat difficult to follow. However, it appears that, in substance, the appellant advances two submissions which seek to resist the application of s 30(5)(c) of the Criminal Appeals Act to the present case. Both submissions are founded on the uncontentious fact that, in the present case, the trial judge (with both parties' concurrence) did not leave common assault as an alternative verdict for the jury to consider.
First, the appellant submits that, as a matter of construction, s 30(5)(c) does not empower this court to substitute a conviction for an offence which was not left to the jury at trial as an available alternative offence. The appellant contends that it is not open to exercise the power in s 30(5)(c) because, in the absence of common assault being left as an alternative count for the jury, he could not have been found guilty of common assault at the trial that was had. Therefore, it was not the case in which the appellant 'could have been found guilty of' common assault within the meaning of s 30(5)(c)(i) of the Criminal Appeals Act.[91]
[91] In written submissions filed before the hearing and in oral submissions this was the appellant's primary position. However, his supplementary submissions appeared to retreat somewhat and advanced this construction as his secondary position.

Secondly, the appellant submits that, even if the power exists, the court should not exercise its discretion to substitute a conviction of common assault when the prosecution did not seek to rely on the statutory alternative offence at trial, the alternative offence was not left to the jury by the trial judge and the prosecution does not seek a substituted conviction on appeal.
The State denies the first of these submissions, but contends that the second should be accepted.[92]

Power to substitute a conviction

[92] Appeal ts 24 - 25.

The construction issue concerns the meaning to be attributed to the phrase 'could have been found guilty of some other offence' in s 30(5)(c). Does it, as the appellant submits, require that the other offence was left to the jury as an alternative? Or is it enough that the other offence is a statutory alternative and that the evidence was capable of proving guilt of the other offence? For the reasons that follow, we prefer the latter construction.
The ordinary meaning of the language of the critical phrase is readily capable of bearing each of the competing constructions. A number of contextual and other considerations support the broad construction that we prefer.
In the course of oral submissions,[93] there was some discussion as to the mandatory nature of the powers conferred by s 30(5) of the Criminal Appeals Act. The appellant's supplementary written submissions suggest, although do not advocate for, a construction which requires the powers in s 30(5)(c) - (e) to be exercised if the preconditions to the exercise of those powers are satisfied.[94]
[93] Appeal ts 5 - 6, 8 - 9.
[94] Appellant's supplementary submissions, par 9.
We can see no basis in the statutory text for construing s 30(5) as giving the court a choice between the exercise of powers in (a) and (b) where none of the preconditions to the powers in (c) - (e) are satisfied, but no discretion in a case where the preconditions to one of the powers contained in (c) - (e) are met.
The language of the provision does not support the contention that the power conferred by s 30(5)(c) must be exercised whenever the conditions for the existence of the power are satisfied. Each paragraph of s 30(5) is separated by the word 'or'. The ordinary and natural meaning of the statutory text is that, where this court allows an appeal, it must set aside the conviction and must do one of the things described in par (a) - (e) of s 30(5). However, which option the court will take is left to the discretion of the court, subject to the option being available in the circumstances of the particular case. Where more than one option is available, the court will determine which is appropriate having regard to the interests of justice in all the circumstances of the case.
Once the statutory precondition to the existence of the power in s 30(5)(c) is met, the exercise of the power will be governed by the court's assessment of what the interests of justice require in all the circumstances of the case. That is the approach regularly taken by this court in deciding whether to exercise the powers (for which there are no relevant statutory preconditions) to order a new trial or to enter a judgment of acquittal when it sets aside a conviction.[95] There is no proper basis for construing s 30(5) as requiring some different approach to be taken in circumstances when the power in s 30(5)(c) is available to exercise.
[95] See Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630; Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47 [75] - [81]; Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434 [190] - [196]; Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [204] - [210]; Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505 [207] - [212], [248] - [255]; Clarke v The State of Western Australia [2018] WASCA 14; [314] - [320], [641] - [642].
This context counts against a narrow construction of the phrase 'could have been found guilty of some other offence' appearing in s 30(5)(c)(i) of the Criminal Appeals Act. It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.[96] Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.[97]
[96] Owners of the Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421.
[97] Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) CLR 486 [10].
The scope of the power in s 30(5)(a) to order a trial or new trial also counts against the appellant's construction outlined in [107] above. The section does not confine the court to ordering a new trial for offence A, and this court may in an appropriate case order a new trial for a lesser alternative offence. While decided in a slightly different statutory context, the High Court's decision in Sio illustrates that, while the alternative counts left to the jury may be a relevant consideration in deciding whether to order a retrial, that is not a controlling consideration.[98] If the court has power to order a new trial for an alternative offence that was not left to the jury at the original trial, there is no apparent policy reason why it should be denied power to substitute a conviction for the offence when satisfied that the jury must have been satisfied of facts that prove the offence at the first trial.
[98] Sio [79].
Section 30(5) is also enacted in a context where a trial judge is not bound to leave every available alternative verdict for a jury that may be supported by the evidence. In cases other than homicide, whether a judge leaves an alternative verdict is a matter for the discretion of the trial judge, depending on the particular circumstances of the case.[99] In James v The Queen,[100] the High Court rejected a submission that a trial judge was under a duty to leave every viable alternative verdict to the jury in every case. However, in our view, the way in which a trial judge exercises this discretion does not control the existence of this court's power under s 30(5)(c) to substitute a conviction of 'offence B' for the conviction of 'offence A'.
[99] JAW v The Queen [2013] WASCA 261 [35]; De-Abreu v The State of Western Australia [2020] WASCA 145 [96].
[100] James v The Queen [2014] HCA 6; (2014) 253 CLR 475.
The appellant's construction of s 30(5)(c)(i) would be apt to work an injustice in cases such as McKeagg v The Queen,[101] and Valerio v The State of Western Australia [No 2].[102] In those cases, this court substituted a conviction for an available alternative of attempting to manufacture a prohibited drug, when the evidence did not support a verdict that the drug had been manufactured. In McKeagg, the trial judge had not (due to a mis-construction of the term 'manufacture') left attempting to manufacture a prohibited drug as an alternative verdict.[103] Although it is not clear from the report of Valerio, attempted manufacture had not been left as an alternative offence in that case either. These cases illustrate the point that a decision not to leave an available alternative offence supported by the evidence may proceed from the court's and/or the parties' misapprehension as to what is required to establish the charged offence. It would be productive of injustice if this court were powerless to substitute a conviction in these circumstances.
[101] McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51 [59] - [64].
[102] Valerio v The State of Western Australia [No 2] [2018] WASCA 158; (2018) 53 WAR 280 [265].
[103] McKeagg [41].
The appellant's approach is also inconsistent with the course recently taken by this court in De-Abreu. There the accused was charged with offences including assault occasioning bodily harm, but this court found that it was not open to the jury to be satisfied that the bodily harm alleged by the State was occasioned by the assault. The court substituted a conviction of common assault.[104] Common assault was not left as an alternative offence at trial. The accused appealed on grounds that included the failure to leave alternative counts and that the verdict was unreasonable. As to the leaving of alternatives, the court observed:[105]
As will be seen later in these reasons when we deal with ground 4, it was not open to the jury to find on the evidence that S had suffered bodily harm. Given the paucity of evidence with respect to this element, his Honour should have directed the jury that an offence of common assault contrary to s 313 of the Code was an alternative offence. We realise that defence counsel did not seek such a direction from his Honour, however it appears that the direction was called for given the unsatisfactory state of the evidence concerning the alleged bodily harm suffered by S. His Honour's failure gives rise to a miscarriage of justice. It is in this respect and this respect only that the appellant's complaint concerning alternative offences has been made out.
[104] De-Abreu [247].
[105] De-Abreu [102].
In Scatchard,[106] the court declined to substitute a conviction of common assault for assault occasioning bodily harm. However, that was because, at the relevant time, the provisions of the Criminal Code did not allow for the substitution of a conviction of a summary offence for a conviction of an indictable offence.
[106] Scatchard 137, 139 - 140, 142.
The appellant's construction is also inconsistent with the approach taken by Latham CJ in refusing special leave to appeal to the High Court in R v Vella.[107] In that case the Queensland Court of Criminal Appeal had substituted a conviction of common assault for a conviction of assault occasioning bodily harm. In doing so, the court had applied s 688F(2) of the Criminal Code (Qld), which reflected the terms of the now repealed s 693(2) of Western Australia's Criminal Code (discussed below).
[107] R v Vella (1938) St R Qd 289.
Similarly to the present case, the appellant in Vella argued that it was not open to the court to substitute a conviction for common assault because, in directing the jury, the trial judge in that case had not told the jury it was open to them to bring in a verdict of common assault. In rejecting that argument, Latham CJ observed:[108]
All charges of assault, with whatever additional aggravating circumstances as compared with common assault, necessarily include the elements constituting the offence of common assault. Therefore it appears to me the section necessarily applies in such case.
[108] Spies [23]. To similar effect see the dicta of the Queensland Court of Appeal in R v Richards [2017] QCA 299 [67].
While these observations were made in refusing special leave, they were endorsed by the High Court in Spies where the court observed that:[109]
The classic case is a conviction for assault occasioning grievous bodily harm where the court is of the opinion that the prosecution has failed to prove, or there has been a misdirection on, the issue of grievous bodily harm. In those circumstances, the entry of a conviction for common assault would be a clear case for the exercise of the power under [an equivalent NSW provision].
[109] Spies [23].
There is some difference in the language used in s 30(5)(c) and that used in the statutes applied in Vella and Spies, in our view the differences are not relevantly material. The statutes considered in those cases required the appellate court to be satisfied that 'the jury could on the indictment have found' the accused guilty of some other offence.[110] However, the difference in statutory language is to be assessed having regard to the legislative provisions preceding the enactment of s 30(5)(c) of the Criminal Appeals Act.
[110] As to which, see Calabria v The Queen (1983) 151 CLR 670, 675 - 677; Spies [25]; Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47 [44].
The language of the provisions considered in Vella and Spies reflects that of s 693(2) of the Criminal Code, as it stood prior to the enactment of the Criminal Appeals Act in 2004. It is also relevant to note that, prior to 2004, provision for alternative verdicts was principally contained in Ch LXIII of the Code, including s 594 of the Code which provided:
Except as hereinafter stated, upon an indictment charging a person with an offence he may be convicted of any indictable or simple offence under this Code, or any other indictable offence, which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment.
Section 693(2) of the Criminal Code was in the following terms:
Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Criminal Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence not being a sentence of greater severity.
The provisions of the Criminal Code referred to above were substituted in 2004 with s 10A and s 10B of the Criminal Code (in the case of s 594 and other provisions of Ch LXIII) and s 30(5)(c) of the Criminal Appeals Act (in the case of s 693(2)). The language of s 30(5)(c) has been modernised, and altered to give it an obvious affinity with the terms of s 10B. However, there is nothing to suggest an objective legislative intention to depart from the approach established in Vella as appropriate for provisions such as s 693(2), and to allow for substitution only of a conviction for an offence which had been left as an alternative in the judge's direction to the jury.
The explanatory memorandum to the Bill for the Criminal Appeals Act indicated that s 30 of the Act:
Sets out the Court of Appeal's powers in relation to determining appeals against conviction by an offender. This provision is based on sections 689 and 693 of The Criminal Code and addresses in part the recommendation made in The Murray Report in relation to section 693 of The Criminal Code. With other sections, this addresses in part Recommendation 349 of the LRCWA Project 92 Report. (emphasis added)
The only recommendation in the Murray Report relating to s 693(2) was to make the exercise of the power mandatory when the preconditions to the existence of the power were satisfied. It is apparent that this recommendation was not adopted, so that recommendation was not the part of the Murray recommendations addressed by s 30 of the Criminal Appeals Act. The Commission's recommendation 349 was general and not expressed in terms which assist the construction of s 30(5)(c) of the Criminal Appeals Act. Nothing in the extrinsic material suggests a purpose of requiring a departure from the approach taken in Vella.
Having regard to this history, we do not regard the deletion in s 30(5)(c)(i) of the reference to the accused being convicted on indictment to indicate an objective intention to depart from the construction of the provisions such as s 693(2) adopted in Vella.
For the above reasons, we do not accept that this court lacks power to substitute a judgment of conviction of common assault in the circumstances of the present case.
In our view, an offender convicted of offence A 'could have been found guilty of some other offence (offence B)' within the meaning of s 30(5)(c) where offence B is a statutory alternative to offence A and the evidence led at trial is capable of proving, to the requisite standard, that the accused committed offence B. It is not essential to the existence of the power that the trial judge exercises his or her discretion to leave offence B to the jury as an alternative offence. Rather, the point at which the manner in which the trial judge exercised his or her discretion becomes significant is when considering whether the power in s 30(5)(c) should be exercised.

Exercise of discretion in this case

It remains to consider whether this court should exercise the available power to substitute a judgment of conviction of common assault in the circumstances of the present case.
In the present case, the prosecutor opened on the basis that common assault was an alternative to the charge of assault occasioning bodily harm.[111]
[111] Trial ts 24.
In the course of the complainant's evidence, he was cross-examined by the appellant's trial counsel as follows:[112]
[112] Trial ts 88
And did you go and seek medical attention on Wednesday, after you had the incident?---No.
Did you go and seek medical attention on Thursday after the incident?‑‑-No.
Friday?---No.
Saturday?---No.
Sunday?---No.
Monday?---No.
Why not?---Because I didn't think it was necessary.
Because it wasn't - you didn't feel there was anything wrong with you, is that correct?---Well, there was a mark on my arm.
But you felt fine, fit and well, correct?---But then when I - sorry?
You felt fine, fit and well?---Not really. I wasn't - - -
After the jury retired on 8 October 2019, there was discussion between counsel and the trial judge as to whether offences under s 338A and s 338B of the Criminal Code should be left as alternatives to the extortion count charged under s 397(2) of the Criminal Code.[113] The prosecutor said that she would consider that question overnight, and advise the court by email whether those alternatives would be pursued.[114]
[113] Trial ts 206 - 216.
[114] Trial ts 211, 215.
At the beginning of the hearing on 9 October 2019, the trial judge referred to an email, copied to defence counsel, that the prosecutor had sent her Honour's associate the previous night. The trial judge said, 'So there are no alternatives to be left?', and the prosecutor responded, 'No.'[115] The email indicated that the State would not rely on the statutory alternative offences to s 397(2) of the Criminal Code, or the statutory alternative to s 317 of the Code. This indication was given after the appellant had completed his evidence, but before Mr Johnson was called as a defence witness.
[115] Trial ts 218.
In closing submissions, the prosecutor said:[116]
In relation to the second charge on the indictment which is an unlawful assault occasioning bodily harm charge, as indicated to you in the opening, what the State says the bodily harm there is the bruise on the upper right - upper left arm of [the complainant].
There's an exhibit, being a photograph of that taken on the Monday after the Wednesday by the police, and the State says that the bruise satisfies the definition of bodily harm in our Criminal Code, that it amounts to interfering with [the complainant's] health of comfort and that [the appellant] had no lawful excuse for inflicting that bruise. (emphasis added)
It appears from this submission that the prosecutor appreciated, prior to hearing defence counsel's closing submissions, that there remained a live issue as to whether the State had proved that the bruise interfered with the complainant's health or comfort.
[116] Closing Submissions ts 7.
The appellant's trial counsel advanced the following submissions on the issue of bodily harm in his closing address:[117]
Nine, there was no visit to the doctor until Tuesday, 10 July 2018 and this is only done upon the recommendation of police. I would suggest to you, members of the jury, that you can infer that there was no pain or discomfort, therefore no bodily harm. (emphasis added)
[117] Closing Submissions ts 28.

The judge's direction to the jury as to bodily harm, which did not clearly capture the above submission of defence counsel, was in the following terms:[118]
Bodily harm simply means any bodily injury which interferes with health or comfort.
Bodily injury must be more than a mere sensation of pain. Bruising can be bodily harm. And the State case is that the bodily harm was that [the complainant] received a bruise to his arm as a consequence of [the appellant] grabbing him by the arm.
The defence makes no admissions that there was a bruise but said that if there was a bruise the State can't prove beyond reasonable doubt that it was caused that day or indeed by [the appellant].
[118] Trial ts 259.
It appears from the above account that the prosecutor's decision not to seek to rely on the alternative offence at trial was not based on some misapprehension of the law or the way in which the case was contested by defence counsel. Defence counsel had cross-examined on the issue of whether the bruise interfered with the complainant's health and comfort and the prosecutor, appreciating this to be the case, said that she did not seek to rely on the alternative offence of common assault. Against that background, the State on appeal does not seek a substituted conviction of common assault under s 30(5)(c) of the Criminal Appeals Act.
The informed and conscious decision of the State not to seek to rely on common assault as an alternative offence counts strongly against the exercise of this court's discretion to substitute a conviction of common assault. Nothing in the way in which the parties approached the trial tends to undermine the decision not to seek a direction, or the trial judge's resulting decision not to leave common assault as an alternative offence.
In James, the court recognised that the attitude of the prosecution informed, although it did not necessarily control, a trial judge's decision to leave an alternative count to the jury. The plurality made the following observations as to the separation of prosecutorial and judicial functions:[119]
The view that it is the duty of the trial judge to invite the jury to determine the accused's guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict. At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused's guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence. (citations omitted)
[119] James [37].
Similarly in the present case, the separation of prosecutorial and judicial functions counts strongly against this court substituting a conviction which the prosecution, in an informed decision, chose not to seek at trial and which the State does not seek on appeal. In exercising its discretion in these circumstances, it is relevant for this court to bear in mind that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences.[120] The prosecutor's position is not controlling in relation to alternative offences, as the prosecutorial decision to charge an accused with a particular offence carries with it the prospect of conviction of an alternative offence provided for by statute. There will, for example, be cases where fairness to the accused may require that an alternative offence be left to a jury, or that a conviction be entered for an alternative offence on appeal, despite the prosecutor's objection. However, in an adversarial criminal justice system it will rarely be appropriate for this court to exercise its discretion to substitute a conviction for an alternative offence disavowed by both the prosecution and accused both at trial and on appeal.
[120] Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 [20].
In all the circumstances, it is not in the interests of justice for this court to exercise its power under s 30(5)(c) of the Criminal Appeals Act to substitute a conviction of common assault for the conviction of assault occasioning bodily harm. Rather, it is appropriate to exercise the court's power under s 30(5)(b) to enter a judgment of acquittal of assault occasioning bodily harm.

Orders

For the above reasons, the following orders should be made in this appeal:
(1)Leave to appeal is granted on the sole ground of appeal.
(2)The appeal is allowed.
(3)The appellant's conviction of assault occasioning bodily harm is set aside and a judgment of acquittal of assault occasioning bodily harm is entered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell
4 NOVEMBER 2020