Poulson v LANGTHORN - [2013] WASC 278

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: POULSON -v- LANGTHORN [2013] WASC 278

CORAM: EDELMAN J

HEARD: 25 JULY 2013

DELIVERED : 30 JULY 2013

FILE NO/S: SJA 1023 of 2013

BETWEEN: CHRISTOPHER JAMES POULSON
Appellant
AND
TRENT ALLAN LANGTHORN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HOGAN
File No  :JO 5418 of 2010, JO 5419 of 2010

Catchwords:

Criminal law - Obligation to give adequate reasons for decision - Section 31 of Magistrates Court Act 2004 (WA) - Whether the Magistrate's reasons reveal a reasonable possibility that an erroneous process of reasoning was adopted - Whether Magistrate impermissibly speculated about the evidence of a witness - Whether Magistrate required to direct herself about dangers of relying on evidence of distress

Legislation:

Magistrates Court Act 2004 (WA), s 31
Criminal Procedure Act 2004 (WA), s 120(2)
Criminal Appeals Act 2004 (WA), s 14(2)

Result:

Leave granted on ground 1 and appeal allowed
Leave to appeal refused on ground 2
Leave to appeal granted on ground 3 but ground 3 dismissed

Category: B

Representation:

Counsel:

Appellant: Ms S Vandogen SC
Respondent: Ms G Cleary

Solicitors:

Appellant: Holborn Lenhoff Massey
Respondent: Director of Public Prosecutions (WA)

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

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Azarian v The State of Western Australia [2007] WASCA 249
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
Eades v The Queen [2001] WASCA 329
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Francis v Todd [2011] WASC 185
Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
Mahmood v The State of Western Australia [2009] WASCA 220
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995)
R v Douglass [2010] SASCFC 66
R v Flannery [1969] VR 586
R v McDougall [1983] 1 Qd R 89
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Starling v Edmunds [2012] WASC 14 (S)
Tran v Claydon [2003] WASCA 318
Vo v The State of Western Australia [2010] WASCA 24
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181

Table of contents

Introduction
An outline of the facts

The events of 3 August 2009 (the first charge)
The events of 19 October 2009 (the second charge)
The defence case

Ground 1: Inadequate reasons

The law in relation to adequacy of reasons
The fundamental issues in the case

The question asked by the learned Magistrate
The three areas of alleged inadequacy of reasons

Particular 1:    The failure to identify whether Mr Poulson's denials were rejected beyond reasonable doubt
Particular 2:    The failure to make a finding of fact about Mr Poulson's alleged confession
Particular 3:    The failure to deal with submissions about Ms A's credibility

Ground 2: Speculation by the learned Magistrate in assessing the evidence of Ms Hollis

Ground 3: Failure of the learned Magistrate to warn against the use of evidence concerning Ms A's distress

Conclusion

The complainant and her husband's name have been anonymised in these reasons, and one paragraph has been suppressed, pursuant to s 36C Evidence Act 1906 (WA).

EDELMAN J:

Introduction

Mr Poulson is the managing director and owner of Searchsmart.[1] He was charged with two counts of indecent assault of one of Searchsmart's employees, Ms A. The first count was an allegation that Mr Poulson had touched Ms A's breasts without her consent. The second count was an allegation that on another occasion Mr Poulson kissed Ms A on the mouth without her consent.[2]
[1] ts 6 (14 March 2012).
[2] ts 2 - 5 (14 March 2012).
On 28 November 2012, Mr Poulson was convicted of both counts in the Magistrate's Court. He seeks leave to appeal to this Court from those convictions. His proposed grounds of appeal are as follows:
(i)that the reasons given by the learned Magistrate for conviction were inadequate;
(ii)that the learned Magistrate engaged in impermissible speculation when assessing the evidence of a witness, Ms Hollis; and
(iii)that the learned Magistrate failed to warn herself that she could not use evidence that Ms A was distressed to support Ms A's evidence.
The appeal should be allowed on the first ground only. The reasons of the learned Magistrate, although cogently expressed, do not exclude the possibility that an impermissible course of reasoning was adopted in reaching the ultimate conclusion that the offences were proved beyond reasonable doubt.

An outline of the facts

There is no dispute about the facts found by the learned Magistrate. Her Honour set the background facts out in a cogent and crisp introduction to her reasons,[3] which I rely upon, in part, in my summary below.
[3] Reasons [1] - [24].
Mr Poulson is the managing director of Searchsmart. Searchsmart sells advertising on Google. In January 2007, Searchsmart engaged Mr A as an independent consultant, or agent, to sell Google's advertising.[4] In early 2008, Mr A's wife began work for Searchsmart as a telemarketer and then as an administrator. By 2009, Searchsmart had around 17 employees.[5]

The events of 3 August 2009 (the first charge)

[4] ts 2 (15 March 2012).

[5] ts 2 (3 August 2012).

The first charge was based on the following allegation by Ms A which I summarise from the learned Magistrate's reasons supplemented by Ms A's evidence.[6]
[6] ts 12 - 13 (14 March 2012); Reasons [11].
On 3 August 2009, Mr Poulson came over to Ms A's workstation while the other employees were in a meeting room. She was sitting down. Mr Poulson massaged her shoulders. She shrugged her shoulders. He took his hands off. Then he put his thumbs on her shoulders and his fingers touching her chest. She said, 'Don't or you'll get in trouble'. He took his hands off but remained standing there. A few seconds later he put his hands back on Ms A's shoulders. He started massaging further down. At this point his fingertips were on her breasts, just touching her nipples. She turned around and looked him in the eye. She said, 'Don't. It's not right.' She turned away from him. He put his hands on her shoulders again. Again, she said, 'Don't. It makes me feel uncomfortable'. He looked at her breasts and said, 'Sorry, but they're really nice'.
Ms A took the day off work on 4 August 2009, with a medical certificate.
Evidence was given from Ms A and Ms A's psychologist, Mr Taylor, concerning a text message she sent to him and a telephone call he received from her on 3 August 2009.[7] He described statements by Ms A to him in that telephone call that Mr Poulson had touched her breasts. He also described Ms A's distressed demeanour. There was also evidence given concerning what Ms A had told her husband about the incident on 3 August 2009.

The events of 19 October 2009 (the second charge)

[7] ts 18 (14 March 2012) (Ms A).

The second charge arose from an incident on 19 October 2009. Ms A's evidence about that incident, as summarised by the Magistrate, was as follows.
Mr Poulson came and sat down at Ms A's desk. Mr Poulson asked to see braces which had been fitted to Ms A's teeth some months previously. Ms A looked up. Mr Poulson put his hands on either side of Ms A's cheeks and pulled her head up. She said that she felt 'obligated, intimidated to show him my teeth. It made me feel like a little kid'.[8] Ms A opened her lips in a smile‑like fashion. Mr Poulson quickly leaned forward and kissed her on the lips. She pulled away and Mr Poulson walked off.
[8] ts 24 (14 March 2012).
Ms A took leave from Searchsmart in November. She and her husband ceased working for Searchsmart on the day that she returned from leave.
Ms A did not tell anyone about this incident until she told her psychologist on 1 December 2009.[9]

The defence case

[9] Reasons [23].

Mr Poulson gave evidence denying both charges. He said that on 3 August 2009 he thought that Ms A appeared distressed.[10] He said that he asked her what was wrong and then 'massaged her shoulders to try and soothe her down'. He said that he 'just thought that might have helped her relax'.[11] He denied that he touched Ms A's breasts, and denied that he touched her nipples.[12]
[10] ts 6 (3 August 2012).
[11] ts 7 (3 August 2012).
[12] ts 8 (3 August 2012).
Mr Poulson also gave evidence that when he arrived in the office he would greet 'the girls in the office' and give them 'a kiss on the cheek'.[13] Mr Poulson led evidence from other female employees who testified that they had no problem with Mr Poulson giving them hugs, kisses to the cheek and shoulder massages.[14] The learned Magistrate, in a restrained manner, accurately described Mr Poulson's conduct as 'inappropriate'.[15] Her Honour explained that Mr Poulson's conduct in relation to those other employees did not affect her Honour's assessment of the likelihood of his offences.[16]
[13] ts 6 (3 August 2012).
[14] Reasons [36].
[15] Reasons [29].
[16] Reasons [10].
As to the second charge, Mr Poulson said that he had kissed Ms A on the lips outside the office, at a birthday party, but he denied kissing her on the lips on 19 October 2009.[17]
[17] ts 16 (3 August 2012).
In the learned Magistrate's reasons, her Honour explained that Mr Poulson claimed that he had[18] been 'set up by the As as part of a plan to try [to] avoid any legal consequences from Mr A's ventures with SC'.
[18] Reasons [28].
This allegation concerning set‑up related to conduct by Mr A from mid‑2009 when Mr A had set up a new company called SC. By November 2009, Mr Poulson believed that SC was competing with Searchsmart and believed that Mr A was soliciting Searchsmart clients for SC.
Suppressed[19]
[19] Suppressed
On 15 December 2009, Ms A complained to the police about the two incidents which formed the basis of the charges against Mr Poulson.[20] Mr Poulson's defence relied upon the timing of Ms A's complaint.

Ground 1: Inadequate reasons

The law in relation to adequacy of reasons

[20] ts 30 (14 March 2012).

A failure to give adequate, or sufficient, reasons for decision can amount to a miscarriage of justice.[21]
[21] Criminal Appeals Act 2004 (WA) s 8(1)(b).
The duty to give adequate reasons is an incident of judicial power. There are several general purposes for the duty. First, sufficient reasons expose decisions to scrutiny. Secondly, they promote general acceptability of judicial decisions. Thirdly, providing sufficient reasons is consistent with the court's democratic institutional responsibility to the public.[22]
[22] Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181, 214 [55] - [56] (French CJ & Kiefel J); AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, 470 [89] (Heydon J).
Section 31 of the Magistrates Court Act 2004 (WA) also moulds the common law duty to give sufficient reasons. It provides as follows:
Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
These are material similarities with the required content of reasons for decision by a trial judge sitting without a jury where the 'judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied'.[23]
[23] Criminal Procedure Act 2004 (WA) s 120(2).
The Explanatory Memorandum to the Magistrates Court Bill 2003 (WA) explained that the purpose of cl 31 (which became s 31 of the Act) was to specify 'the factual and legal components that are to be included in written reasons for judgment' in order 'to ensure consistency between the material content of the court's judgments, to facilitate understanding by the parties affected and to aid determination of whether grounds of appeal exist'.[24] These purposes inform the subject matter for which reasons must be adequate. In other words, 'adequate reasons' is shorthand for reasons which are adequate for purposes which include to ensure consistency, to facilitate understanding by the parties affected and to aid determination of whether grounds of appeal exist.
[24] Explanatory Memorandum, Magistrates Court Bill 2003, 10.
The provision in s 31 that the Court must give the reasons for its identification of the facts accepted in coming to its decision says nothing about the content of those reasons. The enactment of s 31 occurred against the common law background I have described which required adequacy of reasons. It appears from the Explanatory Memorandum that this common law background was maintained: '[the] Court must also give reasons for judgment thus complying with the minimum requirements set by the Full Court regarding judgments'.[25]
[25] Explanatory Memorandum, Magistrates Court Bill 2003, 10.
The extent of reasons which are required for the adequacy of final decisions or important interlocutory rulings will naturally vary according to the circumstances. In considering the extent of the reasons which must be given in particular circumstances regard must be had to these purposes for giving reasons.
When assessing the adequacy of reasons which are given, regard must be had to the findings can be inferred from the reasons.[26] Further, an assessment of the adequacy of the reasons, including findings which can be inferred from the reasons, must be considered in light of all the relevant surrounding circumstances. These circumstances include the manner in which the case is conducted, the significance of evidence or legal issues, concessions which are made and matters which are not disputed, whether the decision was reserved and the time period for which it was reserved, whether there were substantial oral or written submissions, and the nature and content of those submissions in relation to the issues concerned.[27]
[26] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 (Meagher JA); Bennett v Carruthers [2010] WASCA 131 [27] (Mazza J; McLure P & Newnes JA agreeing).
[27] Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995) 6 (Owen J)); Francis v Todd [2011] WASC 185 [18].
Although the nature of the reasons necessary to satisfy the obligation to give adequate reasons will depend on the circumstances of the particular case, in comments approved in this jurisdiction,[28] Meagher JA described 'three fundamental elements' of reasons:[29]
First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered ... Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached ... Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: ...
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
[28] Tran v Claydon [2003] WASCA 318 [38] (McLure J; Steytler & Johnson JJ agreeing).
[29] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443.
A consideration of factual circumstances in some of these areas might involve a fine line between a complaint of inadequate reasons and a complaint that the reasons reveal an error of law. This can be the case where, as in this case, one proposed ground of appeal is that the reasons of the trier of fact might have involved an impermissible reasoning process. In Fleming v The Queen,[30] a joint judgment of the High Court of Australia said this of s 33(2) of the Criminal Procedure Act 1977 (NSW) which required that 'a judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied':
if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.

The fundamental issues in the case

[30] Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, 263 [30] (the Court).

There was no dispute that if Mr Poulson had touched, and kissed, Ms A as she alleged then each of these matters would amount to an indecent assault. The fundamental issue in relation to each charge was whether the event had occurred.

The question asked by the learned Magistrate

After a succinct and cogent outline of the facts the learned Magistrate correctly explained that 'the issue for resolution is whether the court can accept beyond reasonable doubt that Mr Poulson has touched Ms A in the manner she alleges'.[31]
[31] Reasons [10].
The ultimate conclusion of the learned Magistrate was that she was satisfied beyond reasonable doubt that Mr Poulson indecently assaulted Ms A on the two occasions alleged.[32]
[32] Reasons [41].
The learned Magistrate, with respect, asked the correct questions at the start of her reasons and answered the correct questions at the conclusion of her reasons. The issue in relation to this proposed ground of appeal is whether the reasons given by her Honour which explained her reasoning towards those conclusions were adequate.

The three areas of alleged inadequacy of reasons

Senior counsel for Mr Poulson submitted that the learned Magistrate's reasons were inadequate in three respects. Each of these particulars as to inadequacy was relied upon individually as well as collectively. In the order in which oral submissions were made, these particulars were as follows.
(1)The reasons fail to identify whether the learned Magistrate rejected Mr Poulson's denials to the required standard of proof.
(2)The reasons fail to include any finding about whether Mr Poulson confessed to Mr and Ms A that he touched Ms A's breasts.
(3)The reasons fail to deal with the submissions made concerning why Ms A's evidence lacked credibility.
Each of these matters is addressed in turn below.

Particular 1: The failure to identify whether Mr Poulson's denials were rejected beyond reasonable doubt

This is the decisive particular, and ground, of appeal. The particular was expressed as a failure by the learned Magistrate to identify whether Mr Poulson's denials were rejected beyond reasonable doubt. But based upon the oral submissions, the particular is better characterised as asserting that the reasons are not sufficient to exclude the possibility of an impermissible process of reasoning. One indicator of this is the failure by the learned Magistrate expressly to find Mr Poulson's account to be 'not reasonably possibly true'.[33]
[33] Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, 1090 [14] (the Court).

Although the learned Magistrate began with the correct question and concluded with an answer to that question, I have concluded, after considerable reflection on the reasons given by the learned Magistrate, that I cannot exclude a reasonable possibility that the learned Magistrate engaged in an impermissible process of reasoning. The process which cannot reasonably be excluded is that the learned Magistrate
(i)compared the strength of Ms A's evidence with matters related to Mr Poulson's evidence,
(ii)doubted the reliability of Mr Poulson although concluding that Ms A was reliable, and
(iii)reasoned from (ii) that the offences were therefore proved beyond reasonable doubt.
It is necessary to explain why the learned Magistrate's reasons leave open the reasonable possibility that this process of reasoning was engaged. Then I will turn to explain why this process of reasoning is erroneous.
There are four factors which cumulatively point to this process of reasoning as a reasonable possibility.
First, there is the sequence of reasoning employed by the learned Magistrate in the section of her Honour's reasons involving assessment of the evidence. That sequence can be summarised in four steps. The first two steps in the sequence were as follows.
(i)Her Honour posed the question as being whether Ms A's evidence could be accepted beyond reasonable doubt.[34]
(ii)Her Honour then considered a number of matters affecting whether Ms A's evidence was reliable and credible.
[34] Reasons [25].
As to step (ii) in the sequence of reasons, there were five uncontroversial factors concerning the first charge which militated against the reliability of Ms A's evidence.[35] As I explain below at [83] ‑ [86], those factors were not in dispute.
[35] Reasons [25].
The learned Magistrate also considered another factor concerning the second charge which militated against accepting Ms A's evidence.[36] This factor was the delay in making a complaint either to Mr Taylor or to her husband. Her Honour explained Ms A's reasons for not making that complaint[37] and her Honour also explained why she rejected the underlying basis for this criticism of Ms A.[38] Her Honour concluded that she accepted Ms A's explanation about why she told no one.[39]
[36] Reasons [26].
[37] Reasons [27].
[38] Reasons [28] - [29].
[39] Reasons [31].
Another matter affecting reliability to which her Honour referred concerned submissions about the open lay out of the area. At trial, counsel for the defence submitted that 'it defies belief that Mr Poulson would do this ... out in the open'.[40] However, her Honour explained that Ms A's work space was in a confined area. She also described, and implicitly rejected, the submission by counsel for Mr Poulson that Ms A could not have been traumatised.[41]
[40] ts 17 (15 October 2012).
[41] Reasons [32].
Her Honour then explained how Mr Taylor's and Mr A's evidence provided support for Ms A's evidence.[42] Her Honour also concluded that although the timing of Mr Poulson filing a writ might have influenced Ms A to make her complaint to the police, that issue did not detract from her Honour's assessment that Ms A had been truthful.[43]
[42] Reasons [34] - [35].
[43] Reasons [35].
In the course of assessing these matters affecting Ms A's credibility and reliability, her Honour concluded that Ms A was 'a credible witness'.[44] After having set out matters which concerned the credibility and reliability of Ms A's evidence, her Honour then moved to a third step in the reasoning sequence.
(iii)Her Honour considered submissions by which counsel had attempted to persuade the court 'to accept Mr Poulson's evidence'.[45] In this third step, her Honour also considered matters which militated against accepting Mr Poulson's evidence.
[44] Reasons [33].
[45] Reasons [36].
One of the matters considered in the third step of her Honour's reasons was an alleged admission against interest by Mr Poulson which, in a curious submission, was said by trial counsel to support Mr Poulson's case.[46]
[46] Reasons [36].
A second matter was a statement that Mr Poulson made in his video record of interview that Mr A had told him (Mr Poulson) that nothing had happened. The trial judge implicitly found that this statement was untrue, although no express finding was made about the related evidence concerning whether Mr Poulson had confessed to the first charge.[47]
[47] Reasons [38].
A third matter relating to Mr Poulson's evidence which the learned Magistrate mentioned was an inconsistency in Mr Poulson's evidence concerning whether 19 October 2009 was his first day back after a business trip or his first day back after a prostate operation which Mr Poulson said had the effect that he could not have sat on Ms A's desk.[48]
[48] Reasons [39].
A fourth matter was that the learned Magistrate described Mr Poulson's poor memory in relation to many questions asked of him in court and in his record of interview, although he professed a clear recollection of what Ms A said to him when she greeted him on 19 October 2009. Her Honour considered that this 'impacted upon the reliability' of Mr Poulson's evidence.[49]
(iv)After having set out the matters relating to whether Mr Poulson's evidence should be accepted, the fourth stage of her Honour's reasoning involved expressing two 'conclusions'. Her Honour concluded that Ms A impressed as a reliable witness.[50] And then her Honour decided that the offences had been proved beyond reasonable doubt.
[49] Reasons [39].
[50] Reasons [40].
This fourth step in the learned Magistrate's reasons was set out under the heading 'Conclusion'.
The admirably clear structure of the learned Magistrate's reasons, which I have divided into four stages, indicates a reasonable possibility that a process of reasoning was engaged by which the learned Magistrate, after indicating that the ultimate question was whether the offences had been proved beyond reasonable doubt, and the primary question was whether to accept Ms A's evidence beyond reasonable doubt,
(i)assessed the strength of Ms A's evidence and found it to be credible;[51]
(ii)weighed that evidence against matters related to Mr Poulson's evidence, including referring to matters which impacted upon the reliability of Mr Poulson's evidence; and
(iii)concluded that Ms A was reliable,[52] and that because Ms A's evidence was reliable, and implicitly because her evidence was more reliable than that of Mr Poulson, the offences had been established beyond reasonable doubt.
[51] Reasons [33].
[52] Reasons [40].
Secondly, in addition to the sequence of reasoning there is a further factor supporting the reasonable possibility of a process of reasoning involving a comparison of reliability leading to the conclusion that the offences were therefore proved beyond reasonable doubt. This is the fact that her Honour did not at any stage in the reasoning process conclude that Mr Poulson's account was not 'reasonably possibly true'. The highest her Honour expressed her conclusions in relation to Mr Poulson was that there were factors which 'impacted upon the reliability of Mr Poulson's evidence'.[53]
[53] Reasons [39].
Thirdly, when her Honour turned to matters related to Mr Poulson's evidence, her Honour's discussion was introduced with the description that counsel was 'attempting to persuade the court to accept Mr Poulson's evidence'.[54] This is an accurate description of the unfortunate remarks by defence counsel in closing who urged the learned Magistrate, as a first step, to accept Mr Poulson's evidence.[55] This was to urge an erroneous step in the reasoning process. Although the acceptance of Mr Poulson's evidence would require dismissal of the charges, the proper question to ask in relation to his evidence should have been whether, in the words of the High Court which I discuss below, Mr Poulson's evidence should be rejected as not reasonably possibly true. The manner in which counsel posed the question, reflected in the learned Magistrate's reasons, tended towards an erroneous approach which compares relative reliability as the assessment of whether the offence is proved beyond reasonable doubt.
[54] Reasons [36].
[55] ts 15 (15 October 2012).
Fourthly, her Honour's express findings about Ms A were not expressed as findings beyond reasonable doubt: reference was made to Ms A's 'truthfulness',[56] her 'reliability',[57] and her 'credibility'.[58] Indeed, in the section entitled 'conclusion', immediately before her Honour's ultimate conclusion that the offences were proved beyond reasonable doubt, her Honour concluded that 'Ms A impressed as a reliable witness'.[59] In other words, although her Honour treated the primary question for resolution as whether Ms A's evidence should be accepted beyond reasonable doubt, and although her Honour expressly, and ultimately concluded that the offences were proved beyond reasonable doubt, none of the express findings towards that ultimate conclusion, or towards the answer to the primary question concerning Ms A's reliability or credibility, were expressed beyond reasonable doubt.
[56] Reasons [35].
[57] Reasons [40].
[58] Reasons [33].
[59] Reasons [40].
For these four reasons, the reasons of the learned Magistrate disclose a reasonable possibility that the offences were found to be proved beyond reasonable doubt because of a weighing process of the relative reliability of Ms A and Mr Poulson. I turn then to why, in the particular circumstances of this case, the reasonable possibility of such a process of reasoning involves a miscarriage of justice arising from an inadequacy of reasons.
It was conceded by counsel for the respondent, that a necessary intermediate step of reasoning (express or implied) required the rejection of the evidence of Mr Poulson as not reasonably possibly true.[60] I explain below:
(i)why I accept that concession in the circumstances of this case; and
(ii)why it is therefore an error of law to engage in an exercise of weighing the relative reliability of the accused and the complainant and to reason that the preferred reliability of the complainant is sufficient to accept the evidence of the complainant beyond reasonable doubt, or to prove the offence beyond reasonable doubt.
[60] ts 34 - 35.
Senior counsel for Mr Poulson relied heavily upon the decision in Douglass v The Queen.[61] In Douglass, the Court of Criminal Appeal in South Australia and the High Court of Australia considered appeals by Mr Douglass from his conviction for aggravated indecent assault. The victim was his granddaughter, CD, who was 3 years old at the time of the offence. The offence alleged was that Mr Douglass had persuaded CD to hold his penis on an occasion when the two were alone in a shed.
[61] R v Douglass [2010] SASCFC 66; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086.
The conviction was imposed by a trial judge sitting without a jury. The only evidence of the offence came from CD. Mr Douglass also gave evidence at the trial denying the offence. The joint judgment in the High Court observed that the trial judge was not able to identify the shed in which the offence occurred because CD gave inconsistent accounts on this point.[62] However, the High Court observed that the trial judge had been 'satisfied beyond reasonable doubt that the accused contrived to have CD touch his penis during or about the time he urinated in a shed'.[63]
[62] Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, 1088 [3] (the Court).
[63] Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, 1088 [7] (the Court).
The opening remarks of the trial judge in relation to the count of aggravated indecent assault were: 'I am satisfied beyond reasonable doubt of the truthfulness of CD's evidence about [Mr Douglass] contriving to have her touch or hold his penis while urinating. I explain why.'[64] The trial judge then referred to a number of matters which were said to support CD's evidence as well as inconsistencies in her evidence.[65] The trial judge then considered the topics on which CD was cross‑examined.[66] The trial judge concluded that 'bearing all these matters in mind' he was satisfied beyond reasonable doubt that the offence had been committed.
[64] R v Douglass (Unreported, District Court of South Australia, 1 October 2010) [82] (Barrett J).
[65] R v Douglass (Unreported, District Court of South Australia, 1 October 2010) [82] (Barrett J).
[66] R v Douglass (Unreported, District Court of South Australia, 1 October 2010) [87] - [91] (Barrett J).
One ground upon which Mr Douglass appealed was that the trial judge did not give sufficient reasons for preferring CD's evidence over Mr Douglass'. In the Court of Criminal Appeal, Doyle CJ (with whom Anderson and David JJ agreed) dismissed the appeal. The Court of Criminal Appeal held that when a finding or the resolution of a case turns on credibility it may be enough for the judge to say that the judge believes one witness in preference to another.[67] The Court of Criminal Appeal concluded that[68]
the Judge does not explain how and why he came to the conclusion that he could and should reject the denials by Mr Douglass, and make a finding of guilt beyond reasonable doubt. But to my mind, the explanation is obvious. Having considered the evidence as a whole, and being satisfied of the truth and reliability of C’s evidence, the Judge necessarily rejected the denials by Mr Douglass.
[67] R v Douglass [2010] SASCFC 66 [47].
[68] R v Douglass [2010] SASCFC 66 [64].
The Court of Criminal Appeal further concluded that in 'the particular circumstances, it was not necessary for the Judge to spell out why he rejected Mr Douglass’s denials. Indeed, there is little he could say other than that; because he accepted and acted on the evidence of [CD], he necessarily rejected the evidence of Mr Douglass.'[69]
[69] R v Douglass [2010] SASCFC 66 [65].
Mr Douglass appealed to the High Court of Australia.
One of his grounds of appeal was that the Court of Criminal Appeal should have found that the trial judge did not give sufficient reasons because 'the discharge of that obligation required that the judge give some explanation of why he had excluded [Mr Douglass'] evidence as not reasonably possibly true'.[70]
[70] Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, 1089 [8].
The other ground of appeal was that the verdict could not be supported by the evidence. Counsel relied upon the failure by the trial judge to address the question of the reliability of CD's evidence, as distinct from CD's truthfulness, in the sense of the capacity of the evidence to establish the commission of the offence to the criminal standard.[71]
[71] Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, 1090 [15].
The High Court of Australia upheld both grounds in a single joint judgment. In relation to the first ground of appeal, the High Court held that the Court of Criminal Appeal had erred in its decision that the acceptance of the evidence of CD necessarily meant that the evidence of Mr Douglass had been rejected. This was because the Full Court of the Supreme Court of South Australia had[72]
overlook[ed] that the judge's acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by [Mr Douglass'] evidence, he could not convict unless satisfied that it was not reasonably possibly true.
[72] Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, 1089-1090 [13].
The joint judgment concluded that[73]
the failure to record any finding respecting [Mr Douglass'] evidence left as one possibility that the judge simply preferred CD's evidence and proceeded to convict upon it by applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error.
[73] Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, 1090 [13].
The Court also referred, with approval, to the decision of Gummow and Hayne JJ in Murray v The Queen[74] in which their Honours had held that references by the trial judge to the jury accepting the accused's evidence or version of events were apt to mislead the jury about the decision they had to make. The Court in Douglass explained that the proper method of reasoning was not a matter of preferring one version of events over another or comparing alternatives other than 'being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant'.[75] The Court emphasised that the question is whether the evidence, taken as a whole, proves the elements of the offence beyond reasonable doubt.
[74] Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193, 213 [57].
[75] Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, 1089 [8] quoting Murray v The Queen (2002) 211 CLR 193, 213 [57] (Gummow & Hayne JJ).
Although the circumstances and decision of the trial judge in Douglass are different from those in this case, it is clear from Douglass that it can be an error of law to engage in a reasoning process which involves the implicit comparison, or weighing, of different alternatives without a finding that the evidence of the accused is not reasonably possibly true.
The decision of the learned Magistrate in this case is a step removed from Douglass. Unlike the trial judge in Douglass, the learned Magistrate's reasons, read as a whole, involved more than a finding of the truthfulness of Ms A's evidence. The reasons contained an express finding that Ms A's evidence was reliable and an ultimate conclusion which must have involved an ultimate acceptance of Ms A's evidence beyond reasonable doubt.
If, as part of her assessment of all the circumstances, the learned Magistrate had expressly concluded that Mr Poulson's denial of the offence was not reasonably possibly true, and explained why, then there would have been no substance in this ground of appeal.
However, as I have explained above, it is open to infer from her Honour's reasons that the learned Magistrate engaged in a process of reasoning by which she found Ms A's evidence to be credible,[76] weighed that against matters relating to Mr Poulson's evidence and concluded that Ms A was reliable[77] and that Mr Poulson was less reliable (or not reliable), and for that reason concluded that the offence was proved beyond reasonable doubt (and, implicitly that Ms A's evidence should be accepted beyond reasonable doubt).
[76] Reasons [33].
[77] Reasons [40].
In some cases it may be that the reasonable possibility that a trier of fact has engaged in the process I have described might not involve any substantial miscarriage of justice,[78] requiring any appeal to be dismissed. But the proviso was not invoked on this appeal and it is not necessary to consider it.
[78] Criminal Appeals Act 2004 (WA) s 14(2).
Ground 1 should be upheld on the basis of this particular. But, for completeness, I address below the other two particulars relied upon for this ground of inadequate reasons.

Particular 2: The failure to make a finding of fact about Mr Poulson's alleged confession

One of the matters upon which Mr Poulson gave evidence concerned an alleged admission by Mr Poulson. Mr Poulson said that another employee, Ms Hollis, came to see him to say that Ms A was distressed and uncomfortable with Mr Poulson.[79] He said that he didn't remember the date of the conversation but he did not dispute the evidence that it was around 12 August 2012.[80] He said that there was no touching of breasts mentioned and that he told her that if she had a complaint then she should speak with her husband and write it down.[81]
[79] ts 8 (3 August 2012) (Mr Poulson).
[80] ts 9 (3 August 2012) (Mr Poulson).
[81] ts 9 (3 August 2012) (Mr Poulson).
Mr Poulson gave evidence that he went to see the As after that meeting. He thought it was on the same night.[82] He said that he met with Mr and Mrs A and told them that they should write down what happened and give it to him the next morning.[83] Mr Poulson said that Mr and Mrs A came to see him the next morning at Mr Poulson's house and said that nothing had happened.[84]
[82] ts 9 (3 August 2012) (Mr Poulson).
[83] ts 10 (3 August 2012) (Mr Poulson).
[84] ts 11 (3 August 2012) (Mr Poulson); Reasons [38].

In contrast, Ms A gave evidence that she and Mr A went to Mr Poulson's house on the morning after the incident on 3 August 2012. She said that Mr Poulson did not deny touching Ms A's breasts and that he said 'Sorry. I didn't mean to upset her. I won't touch her ever again'.[85] In cross‑examination, Ms A contradicted her earlier evidence saying that Mr Poulson 'denied the breast but admitted touching me on the shoulders'.[86] Mr A's evidence was that Mr Poulson had, by conduct and words, admitted touching Ms A's breasts.[87]
[85] ts 23 (14 March 2012) (Ms A).
[86] ts 83 (14 March 2012) (Ms A).
[87] ts 7 - 9, 41 - 42 (15 March 2012).
Mr Poulson did not accept that he had confessed to touching Ms A on the breast.[88] Mr Poulson said that Mr A had told him (Mr Poulson) that nothing had happened. The trial judge rejected this evidence that Mr A said nothing had happened.[89]
[88] ts 10 - 11, 31 - 32 (3 August 2012).
[89] Reasons [38].
Senior counsel for Mr Poulson submitted that the learned Magistrate's reasons are inadequate because they do not reveal whether, or how, her Honour resolved the issue of whether Mr Poulson confessed to having touched Ms A on the breast.
There are two reasons why this particular of ground 1 cannot succeed on its own and why it does not provide any substantial support to the particular above.
First, reading the reasons of the learned Magistrate as whole, her Honour did reach a conclusion on this issue. Her Honour discussed the evidence of the meeting and, on three occasions, described the evidence of Ms A as evidence that Mr Poulson had denied 'the breast but admitted touching me on the shoulders'.[90] The trial judge acknowledged that this was inconsistent with the evidence of Mr A.[91] But the trial judge concluded generally that Ms A was 'truthful',[92] 'reliable',[93] and 'credible'.[94] No such conclusion was expressed in relation to Mr A.
[90] Reasons [19], [35], [37].
[91] Reasons [37].
[92] Reasons [35].
[93] Reasons [40].
[94] Reasons [33].
Secondly, even if the trial judge had not reached a conclusion on this issue which was favourable to Mr Poulson it is difficult to see how a determination that Mr Poulson had confessed, rather than making a self‑serving denial, could assist to show that the learned Magistrate's reasons were inadequate to demonstrate why Mr Poulson had been convicted. In other words, it was not suggested, nor could it be suggested, that absent a finding that Mr Poulson confessed there was insufficient evidence to convict him of the first charge. An express finding that Mr Poulson had not confessed would only have assisted his case by affecting the credibility of Ms A and Mr A. Such a finding would be inconsistent with Ms A's evidence in chief and inconsistent with Mr A's evidence that Mr Poulson had confessed. But, as I have explained, unlike her evidence in chief Ms A's evidence in cross‑examination supported Mr Poulson on this point. Further, the learned Magistrate placed little weight on Mr A's evidence other than to say that it was 'essentially consistent' with Ms A's evidence except for the inconsistency concerning the alleged admissions.[95]

Particular 3: The failure to deal with submissions about Ms A's credibility

[95] Reasons [35].

There is also no merit in the final particular of this ground. The argument of senior counsel for the appellant was that the learned Magistrate described five inconsistencies in Ms A's evidence but did not address them. Those inconsistencies were:
(i)There is no reference to breasts in Ms A's own notes (which is a reference to the omission of any mention of Mr Poulson touching Ms A's breasts in the contemporaneous notes made by Ms A on 3 August 2009).[96]
(ii)Mr Taylor's record of the touching occurring in the context of an embrace is inconsistent with Ms A's evidence of how the touching occurred.
(iii)Ms A failed to refer to the touching of her breasts when giving evidence of what she told her husband about the incident.
(iv)Ms A did not confide in her doctor the following day when she received a medical certificate for a day's sick leave.
(v)Ms A provided no written complaint of her allegation to her employer.
[96] ts 48 (14 March 2012), 42 (15 October 2012).
Senior counsel submitted that although the first inconsistency was summarised in her Honour's earlier summary of the evidence,[97] which contained an implicit acceptance of Ms A's explanation for the omission,[98] none of the other four factors was dealt with by the learned Magistrate at all.
[97] Reasons [20].
[98] Compare ts 45 (14 March 2012), 20 (15 October 2012).
There was a simple reason for the learned Magistrate's failure to deal with these matters further. As senior counsel accepted, none was in dispute.[99] The learned Magistrate was setting out these uncontroversial factors as part of her Honour's assessment of Ms A's evidence. It was not necessary for her Honour also to say 'and I accept these uncontradicted matters'.
[99] ts 20.
There is no substance in this particular.

Ground 2: Speculation by the learned Magistrate in assessing the evidence of Ms Hollis

The second proposed ground of appeal is that the learned Magistrate erred in law and in fact by engaging in speculation when her Honour assessed the evidence of Ms Jane Hollis.
The relevance of Ms Hollis' evidence for the defence was that Ms A gave evidence that on 12 August 2012 she told Ms Hollis that Mr Poulson had been massaging her shoulders and that Mr Poulson had touched her breasts.[100] In cross-examination Ms A said that she had also told Ms Hollis that Mr Poulson touched her nipples.[101]
[100] ts 20 (14 March 2012).
[101] ts 78 (14 March 2012).
Ms Hollis' memory of the incident was more limited. Ms Hollis remembered Ms A saying that she (Ms A) felt uncomfortable with Mr Poulson.[102] Ms Hollis said that she didn't remember 'the whole words. I remember just feeling uncomfortable and I remember her mentioning him coming up behind her and touching her on her shoulders'.[103] She accepted that they were the things that stood out to her that she could recall.[104]
[102] ts 60 (15 March 2012).
[103] ts 61 (15 March 2012).
[104] ts 69 (15 March 2012).
It was not suggested that Ms Hollis' evidence was inadmissible. Counsel for the respondent submitted that Ms Hollis' evidence was relevant to confirm aspects of Ms A's story.
Senior counsel for Mr Poulson relied upon a selective part from a paragraph of the learned Magistrate's reasons in support of the submission that the Magistrate engaged in impermissible speculation. It is necessary to set out the paragraph in full with the part which is relied upon by senior counsel emphasised in italics.[105]
It seems to me extremely far fetched that Ms A would make a false allegation that her employer, who had also been a friend, had inappropriately touched her breasts in case this allegation was needed down the track. If the As were planning to manufacture such an incident for future reference one would have expected them to go about it in a different manner, particularly given Mr A's experience as a police officer. One would have expected a written complaint to have been lodged with Mr Poulson or at least with the person responsible for personnel. One would also expect that the person fabricating such a complaint would go to her psychologist and document the complaint with him. It seems to me that the fact that the complaint was not put in writing, that the first contact with anybody about the incident was the immediate text message to the psychologist followed by a distressed phone call to him are facts inconsistent with fabrication. So too is the fact that Ms A approached Ms Hollis in a very hesitant manner when raising the incident. Given the small number of employees in the organisation and the fact that Mr Poulson was demonstrative and purportedly caring (albeit in an inappropriate way) towards his employees it is understandable that Ms A found it embarrassing to refer to the nature of the incident. Ms A had been experiencing certain personal difficulties prior to August 2009. She had been seeing a psychologist for some time. It is highly unlikely that she would abuse her relationship with her own counsellor in order to set up a false allegation against her employer. Given Mr Poulson's inappropriate behaviour towards his female staff, it is possible that Ms Hollis believed that Ms A's complaint was confined to Mr Poulson's massages. (Although it is also possible that she has omitted any reference to breasts given that she is [s]till employed by Mr Poulson). Nevertheless, Ms Hollis has a poor recollection of what Ms A told her on 12 August 2009 and of what she in turn reported to Mr Poulson.
[105] Reasons [29].
There are two reasons why there is no substance to this ground upon which leave to appeal is sought.
First, I do not accept the written submission by senior counsel for Mr Poulson that the learned Magistrate, in this paragraph, is dealing directly with Ms Hollis' failure to mention that Ms A had told Ms Hollis of Mr Poulson touching Ms A on the breasts. Rather, the central subject matter with which this paragraph of the learned Magistrate's reasons is concerned is the far‑fetched nature of the allegation that Ms A made false accusations in case they were needed later. One reason why her Honour considered that this allegation was far-fetched was because Ms A had only approached Ms Hollis hesitantly and Ms A had found it embarrassing to refer to the nature of the incident.
When the paragraph is read as a whole the point that the learned Magistrate appears to be expressing in the first italicised sentence is that Ms A's hesitant, and embarrassed, approach to Ms Hollis may have resulted in Ms Hollis thinking that Ms A's complaint was confined to the massages generally. The tentative approach of Ms A provided support for the learned Magistrate's conclusion concerning the far-fetched theory that the As were planning to manufacture this incident for future reference.
Secondly, although the two matters in the italicised paragraph in the quotation above were not supported by evidence, neither involved any step towards any conclusion reached by her Honour. It would have been preferable for the learned Magistrate to have abstained from speculation about whether or not Ms Hollis had formed a mistaken impression from Ms A's hesitant approach. But this speculation had no effect on her Honour's reasoning. In the final sentence, her Honour explained why she did not need to resolve the two contradictory possibilities that she had raised. This was because Ms Hollis had a poor recollection of what Ms A told her and of what she reported to Mr Poulson.
This ground for leave to appeal has no rational or logical prospect of success. Leave is refused.

Ground 3: Failure of the learned Magistrate to warn against the use of evidence concerning Ms A's distress

This proposed ground of appeal relies upon the learned Magistrate's treatment of evidence given by Mr Taylor.
Mr Taylor was Ms A's psychologist. Ms A gave evidence that at noon on 3 August 2012, the day of the first incident, she went home and telephoned Mr Taylor telling him that Mr Poulson had touched her on the shoulders and breast and that she had to say 'no' three times to Mr Poulson.[106]
[106] ts 18 (14 March 2012).
Mr Taylor also gave evidence about this phone conversation. He said that he had received the phone call from Ms A on 3 August 2009. He described Ms A's tone as 'very distressed'. He said that Ms A had told him that 'her boss had approached her to try and kiss her and that he had reached from behind and touched her breasts'.[107]
[107] ts 85 - 86 (15 March 2012).
In Grubisic v The State of Western Australia,[108] Hall J (with whom Pullin JA agreed and Buss JA agreed on this point) said that although evidence of recent complaint cannot be relied upon to prove the truth of what was said it 'is admissible as showing consistency. Such evidence is admissible as showing the credibility and reliability of the complainant.'
[108] Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524, 544 [105].
The learned Magistrate used the evidence of recent complaint by Ms A to Mr Taylor in that way. The key passage in the learned Magistrate's reasons was in very similar terms to the expression by Hall J. Her Honour said this:[109]
Although Mr Taylor's evidence is not evidence that the incidents occurred, his evidence as to the text and then telephone call, when the complaint was actually made and his assessment as to Ms A's distress during the telephone call do give some support to Ms A's case.
[109] Reasons [34].
The third proposed ground of appeal relies upon the inclusion by the learned Magistrate of the assessment by Mr Taylor that Ms A was distressed in her reasons concerning the complaint by Ms A to Mr Taylor. The proposed ground of appeal alleges that the learned Magistrate was required to warn herself that evidence of the distressed condition will generally carry little weight.[110]
[110] See R v Flannery [1969] VR 586, 591 (the Court); Eades v The Queen [2001] WASCA 329 [32] - [34] (Murray J; Templeman & Roberts-Smith JJ agreeing).
In a passage which has been approved on numerous occasions,[111] DM Campbell J explained the reason why a warning about the use of distress can be required.[112]
The reason for a warning is that distress may be feigned or may not reflect the complainant's state of mind at the time of the offence. But a warning is not called for in every case. It is not absolutely necessary that a jury be told that generally evidence of a distressed condition is of little weight.
[111] Eades v The Queen [2001] WASCA 329 [32] - [34] (Murray J; Templeman & Roberts-Smith JJ agreeing); Azarian v The State of Western Australia [2007] WASCA 249 [47] (Pullin JA) [155] (Miller JA); Vo v The State of Western Australia [2010] WASCA 24 [38] (Martin CJ; Owen & Buss JJA agreeing); Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524, 538 [72] (Buss JA) 544 [110] (Hall J).
[112] R v McDougall [1983] 1 Qd R 89, 91.
There are two reasons why I consider that in the particular circumstances of this case the learned Magistrate was not required to warn herself about the limited basis upon which the evidence of distress could be used.
First, the learned Magistrate did not use the evidence of distress as corroborating evidence that the assault took place.
In some circumstances, evidence of distress can be used as corroboration of the offence rather than merely for the purposes of assessing the credibility of the complainant.[113] In determining whether the distress provides corroboration of the offence factors to be considered include the age of the complainant, the time interval between the alleged assault and the observation of distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Having regard to those factors, if 'the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration'.[114]
[113] Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524, 547 [132] (Hall J).
[114] R v Flannery [1969] VicRp 72; [1969] VR 586, 591 (the Court); Azarian v The State of Western Australia [2007] WASCA 249 [44] (Pullin JA).
But, in this case, the evidence of distress was used only for the limited purpose of assessing the credibility of Ms A. The submissions at trial by counsel for the prosecution referred to the evidence of distress in the context of the recent complaint by Ms A. The focus of her demeanour was related to her recent complaint which was related to her credibility. In closing submissions, after describing the distress of Ms A, counsel for the prosecution concluded the submission with the words, 'It's an immediate complaint'.[115]
[115] ts 5 (15 October 2012).
In her Honour's reasons, she said that the evidence of distress was not evidence that the incidents occurred.[116] She made the observations that it provided 'some support' to Ms A's case in a passage immediately after explaining that Ms A was a credible witness and in the context of explaining the evidence of recent complaint which had been relied upon for purposes of supporting the credibility of Ms A.[117]
[116] Reasons [34].
[117] Reasons [33].
The need for a warning is diminished by the limited use of Ms A's distress merely as part of an assessment of credibility and in the broader context of the more significant point of recent complaint.
Secondly, the distress of Ms A in her phone call to Mr Taylor was not a particularly significant issue in the trial. The focal point was the complaint to Mr Taylor rather than the distressed demeanour in which the complaint had been made. There was some cross‑examination concerning distress but it was not substantial. Ms A was cross‑examined to suggest that she had had problems at home on 3 August 2012. She accepted that she had family problems and came to work upset on occasion[118] but she said that she was in an 'OK mood' on 3 August 2012 prior to the incident.[119]
[118] ts 66 (14 August 2012).
[119] ts 66, 73 (14 August 2012).
For these two reasons, in the circumstances of this case the learned Magistrate was not required to warn herself in relation to the use of Mr Taylor's evidence concerning Ms A's distress.

Conclusion

I would grant leave on the first ground and allow the appeal on that ground only. However, the label 'inadequate reasons for decision' is not really an apt description of this ground. The learned Magistrate's reasons were, with respect, extremely clear, and cogently expressed. The only reason why this ground of appeal succeeds is because it is open to infer from her Honour's reasons that she engaged in an impermissible process of reasoning. This conclusion is influenced by the recent decision of the High Court of Australia in Douglass v The Queen,[120] to which the learned Magistrate was not referred.
[120] Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086.
Counsel for the respondent to this appeal expressly disclaimed any reliance upon the proviso.
The second proposed ground upon which leave is sought has no 'rational and logical prospect of succeeding'.[121] Leave should be refused on that ground. I would grant leave on the third ground but would dismiss that ground.
[121] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56] (the Court); Mahmood v The State of Western Australia [2009] WASCA 220 [90] (Owen JA; McLure P & Miller JA agreeing).
Subject to anything which counsel might wish to say, the appropriate orders include for leave to be granted on the first and third ground, for the appeal to be allowed on the first ground and dismissed on the third ground and for the conviction to be quashed and a retrial to be held before a different magistrate.
In circumstances in which the Court of Appeal reserved its opinion in May 2013 on whether there is power to award costs to an appellant who obtains an order for a retrial it may be appropriate that determination of the availability of costs, hopefully in an agreed amount, be adjourned.[122]
[122] Starling v Edmunds [2012] WASC 14 (S).