Scott v Director of Public Prosecutions (WA) - [2022] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SCOTT -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2022] WASC 172
CORAM:   MCGRATH J
HEARD:   22 MARCH 2022
DELIVERED          :   18 MAY 2022
PUBLISHED           :   18 MAY 2022
FILE NO/S:   SJA 1063 of 2021
BETWEEN:   DAVID SCOTT
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D SCADDAN
File Number            :   AL 149 of 2021

Catchwords:

Criminal law - Magistrates Court - Appeal against conviction - Procedural fairness - Whether self-represented accused denied legal representation - Whether appellant chose to represent himself at trial - Right to legal representation - Whether learned Magistrate erred in applying s 25A of the Evidence Act 1906 (WA) by ordering accused not to directly question the complainant

Legislation:

Criminal Code (WA), s 298(b)
Evidence Act 1906 (WA), s 25A
Magistrates Court Act 2004 (WA), s 30
Mental Health Act 2014 (WA)

Result:

Leave to appeal not granted on grounds 1, 2, 3 and 4
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr S D Packham

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Dunn v The Queen [2015] WASCA 126
McInnes v The Queen [1979] HCA 65; (1979) 143 CLR 575
McPherson v The Queen (1981) 147 CLR 512
O’Connell v The State of Western Australia [2012] WASCA 96
Samuels v The State of Western Australia [2005] WASCA 193; [2005] 30 WAR 473
VJS v The State of Western Australia [2017] WASCA 172

MCGRATH J:

On 13 August 2021, the appellant was convicted, after trial in the Magistrates Court, of the offence of impeding his mother's normal breathing by manually applying pressure to her neck in circumstances of aggravation, contrary to s 298(b) of the Criminal Code (WA).[1]
[1] Prosecution Notice lodged 26 January 2021, charge number AL 149 of 2021.
The appellant appeals the conviction on four grounds. The first ground contends that the appellant, not being legally represented at trial in the Magistrates Court, was not afforded procedural fairness and thereby suffered a miscarriage of justice. By the second ground, the appellant contends that the learned Magistrate erred in the application of s 25A of the Evidence Act 1906 (WA), by ordering that the appellant not directly question the complainant and further, that her Honour did not accurately repeat the questions that the appellant wished to ask of the complainant. By the third ground, the appellant contends that her Honour erred in law by permitting propensity evidence to be admitted. Finally, the appellant contends that the proceedings were 'affected to his detriment' due to the complainant being mentally unwell.
For the following reasons, I have determined that leave to appeal should not be granted and that the appeal should be dismissed.
In these reasons for decision, I will consider and assess the following:
(1)The Magistrates Court proceedings;
(2)The grounds of appeal; and
(3)The merits of the appeal.

The Magistrates Court proceedings

The appellant was charged that on 24 January 2021, he impeded another person's, namely his mother's, normal breathing by manually applying pressure to her neck in circumstances of aggravation, being that he was in a family relationship with the victim and that children were present when the offence was committed, contrary to s 298(b) of the Criminal Code.
On 14 July 2021, the trial was held in the Magistrates Court. The prosecution relied upon testimony from six witnesses namely, Ms Pamela Smith, the complainant and mother of the appellant;[2] Mr Jacob Green, the appellant's brother;[3] Dr Tania Botha, medical practitioner;[4] Ms Kelli Buckley, WA Police officer;[5] Mr Brendon Mencshelyi, WA Police officer,[6] and Mr Christopher Bell, WA Police officer.[7] The appellant gave evidence on his own behalf at trial.[8]
[2] ts 9 - 49 (14/07/2021).
[3] ts 50 - 67 (14/07/2021).
[4] ts 68 - 72 (14/07/2021).
[5] ts 72 - 78 (14/07/2021).
[6] ts 78 - 85 (14/07/2021).
[7] ts 85 - 90 (14/07/2021).
[8] ts 90 - 102 (14/07/2021).
The complainant, Ms Pamela Smith, gave evidence that on 24 January 2021, the appellant was present in the family home along with his two young daughters and Mr Jacob Green, his 16‑year‑old brother.[9] The complainant gave evidence that a dispute arose that escalated to the appellant head-butting her twice to the head region.[10] The complainant stated that the appellant then grabbed her by her throat with his hand and commenced strangling her.[11] The complainant stated that she was unable to breathe and that the appellant's hand was on her neck for a couple of minutes.[12]
[9] ts 9 (14/07/2021).
[10] ts 15 - 16 (14/07/2021).
[11] ts 17 (14/07/2021).
[12] ts 17 (14/07/2021).
Mr Jacob Green is the 16‑year‑old brother of the appellant.[13] Mr Green gave evidence that he observed the appellant assault the complainant.[14] Mr Green observed the complainant leaning against a wall with the appellant standing next to her. The complainant was falling down between the wall and the doorframe and 'it appeared that he had just had his hand around her neck.'[15] Mr Green stated that he did not see the appellant's hand on the complainant's neck but 'that it appeared to be the case.' Mr Green recalled that the appellant was yelling and maybe swearing at that time and that he therefore called emergency services.[16]
[13] ts 51 (14/07/2021).
[14] ts 51 (14/07/2021).
[15] ts 53 (14/07/2021).
[16] ts 53 - 54 (14/07/2021).
Dr Botha gave evidence that she examined the complainant on 24 January 2021, observing that the right side of the complainant's neck was swollen and tender over the neck muscle. Further, Dr Botha observed that the complainant was very emotionally distressed.[17]
[17] ts 69 (14/07/2021).
Officer Buckley gave evidence that on 24 January 2021 she attended at the complainant's residence. The officer observed that the complainant was very distressed and upset.[18]
[18] ts 73 (14/07/2021).
Officer Mencshelyi gave evidence that on 24 January 2021 he attended at the complainant's residence. The officer arrested the appellant. The prosecution played the first 30 seconds of the officer's body‑worn camera recording during his evidence.[19] The officer stated that the complainant was visibly distressed.[20] Officer Bell gave evidence that on 26 January 2021 he conducted a record of interview with the appellant.[21]
[19] ts 79 (14/07/2021).
[20] ts 80 (14/07/2021).
[21] ts 85 (14/07/2021); Exhibit 1, Video record of interview with appellant on 26 January 2021.
The appellant, during his testimony, stated that he did not strangle his mother and that he did not head-butt her. Rather, he stated that he was seated throughout the argument.[22] His defence at trial relied upon the contention that the complainant was both unreliable and not credible. The appellant contended that the complainant had mental health issues and was affected by medication, including morphine. Further, that the complainant has a history of making allegations against people, including her ex-husband.

Magistrate's reasons for decision

[22] ts 91 - 92 (14/07/2021).

The learned Magistrate stated that she was satisfied that the complainant's evidence was truthful and credible, giving a reliable account of events.[23] The learned Magistrate observed that Mr Green's evidence was consistent in many respects with the complainant's evidence concerning the events that occurred up to the commencement of the incident. Further, that he observed the appellant next to the complainant and that she slid down the wall with the appellant's hand near her head.[24]
[23] ts 9 (13/08/2021).
[24] ts 9 (13/08/2021).
The learned Magistrate did not accept there had been collusion between the witnesses.
The learned Magistrate determined that the complainant's historical experiences, including the medical issues and relationships with her previous partners, raised by the appellant, had no relevance to the allegation.[25]
[25] ts 13 (13/08/2021).
The learned Magistrate stated that there was an argument between the appellant and the complainant concerning whether the appellant's two children would attend an Australia Day event. The appellant took exception to the two children attending the event. The complainant and the appellant exchanged words, with the complainant telling the children to go to the laundry door. The appellant then struck the complainant twice to the head and grabbed her on the right side of the neck, the force of which restricted her breathing causing her to crumple to the floor.[26]
[26] ts 16 (13/08/2021).
The learned Magistrate found the appellant did manually apply pressure to the right side of the complainant's neck using his hand. The manual pressure applied by the appellant impeded the complainant's normal breathing. Further, there was no lawful reason to apply that pressure. Accordingly, the learned Magistrate was satisfied beyond a reasonable doubt that the prosecution had proven each element of the charge.[27]
[27] ts 17 (13/08/2021).

Grounds of appeal

The appellant filed a handwritten document on 6 September 2021, outlining four grounds of appeal in the following terms:
(1)According to Dietrich v The Queen, a judge faced with an accused who is charged with a serious offence and unable to obtain legal representation should adjourn, postpone or stay the trial until legal representation is available.
(2)Unable to communicate with the witness due to judge's decision to relay question through the Bench. This convoluted process disrupted cross-examination.
(3)Propensity evidence typically inadmissible due to its prejudicial nature to the accused. In this, the mental health and attitude of my mother.
(4)Court proceedings were affected to my detriment due to my mother's mental health. Without representation on my behalf, the balance of fairness was unequal.
This is an appeal under Pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[28] An appeal may be made on the basis that the court of summary jurisdiction has made an error of law or fact, or both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[29]
[28] Criminal Appeals Act 2004 (WA), s 9(1).
[29] Criminal Appeals Act 2004 (WA), s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[30] A reasonable prospect of success means a ground has a real, rational and logical prospect of succeeding and is more than arguable.[31] The court may dismiss or allow the appeal.
[30] Criminal Appeals Act 2004 (WA), 9(2).
[31] Samuels v The State of Western Australia [2005] WASCA 193; [2005] 30 WAR 473 [56] (Steytler P, Wheeler and Roberts‑Smith JJA).

Assessment of grounds of appeal

The appellant did not file a written outline of submissions, rather he forwarded a letter to the court dated 30 December 2021. At a directions hearing before a Registrar, the appellant confirmed that the letter dated 30 December 2021 was to be relied upon as his written outline of submissions.

Ground 1 - legal representation

By ground 1, the appellant contends that he was unable to obtain legal representation and therefore, the trial should have been adjourned or stayed until he was represented by counsel.
It is necessary that the procedural history be outlined to understand the reason why the appellant was self‑represented at trial.
On 24 January 2021, the appellant was charged and remanded in custody.
On 27 January 2021, the appellant appeared before a Magistrate who informed the appellant that he should consult a duty lawyer.[32] Therefore, the matter was adjourned to permit the appellant to speak to a duty lawyer.
[32] ts 2 - 3 (27/01/2021).
On 28 January 2021, the appellant reappeared in the Magistrates Court and confirmed that he had not been able to meet with a duty lawyer. Accordingly, the matter was further adjourned to 4 February 2021 to permit the appellant to meet with a duty lawyer.[33]
[33] ts 3 (28/01/2021).
On 4 February 2021, legal counsel appeared on behalf of the appellant. Counsel submitted that the appellant would be pleading not guilty and applied to adjourn the matter for one week in order to make a bail application. Accordingly, the appellant entered a plea of not guilty.[34]
[34] ts 2 (4/02/2021).
During the hearing of 4 February 2021, counsel informed the Court that it was unlikely that the appellant would receive representation through the Legal Aid Commission. Therefore, the learned Magistrate informed the appellant that if he was unable to obtain legal aid funding, then he must instruct private lawyers or represent himself at trial.[35] At this hearing, the learned Magistrate outlined the procedure of the court and informed the appellant that he should discuss the disclosure brief with Legal Aid. The appellant indicated that he understood the procedure when asked by the learned Magistrate.[36]
[35] ts 2 (4/02/2021).
[36] ts 4 - 5 (4/02/2021).
On 11 February 2021, a counsel appeared on behalf of the appellant at the hearing of his application for bail. Counsel informed the Court that it was unlikely the appellant would receive a grant from the Legal Aid Commission for legal representation given the nature of the charges.[37] Accordingly, the learned Magistrate listed the charge for trial, to be held on 14 July 2021, and directed that the disclosure brief be personally served on the appellant. The learned Magistrate dismissed the application for bail and therefore, the appellant remained in custody.[38]
[37] ts 5 (11/02/2021).
[38] ts 9 - 10 (11/02/2021).
On 20 May 2021, the matter was listed before a learned Magistrate to determine the prosecution's application to adduce evidence from a medical practitioner at trial by way of video‑link. During that hearing the appellant, representing himself, opposed the application submitting that he would prefer if the medical practitioner was present in the courtroom.[39] The application was granted.[40]
[39] ts 2 (20/05/2021).
[40] ts 3 (20/05/2021).
On 14 July 2021, the appellant appeared and represented himself before the learned Magistrate for his trial. At the commencement of the trial, the learned Magistrate informed the appellant that the matter would be proceeding to hearing. The appellant indicated that he understood.[41] At that time, the appellant made no application to adjourn or stay the trial, nor did he make any submissions seeking legal representation. The appellant made submissions concerning the use of footage from a body‑worn camera held by the police and, further, that he wished to cross‑examine the complainant regarding health records.[42]
[41] ts 2 (20/05/2021).
[42] ts 3 (20/05/2021).
The learned prosecutor then delivered an opening address. The appellant informed the Court that he had prepared a written opening statement, which he read to the Court.[43] The trial was then conducted with the appellant cross-examining each prosecution witness, adducing evidence and giving evidence on his own behalf. The prosecutor and the appellant both delivered a closing address.
[43] ts 7 (20/05/2021).
The common law of Australia does not recognise the right of an accused facing serious charges to be provided with counsel by the State at public expense.[44] The Dietrich principles require, in the absence of exceptional circumstances, that a trial of a serious criminal offence be adjourned, postponed or stayed if an indigent accused person seeks an adjournment to obtain legal representation.[45]
[44] McInnes v The Queen [1979] HCA 65; (1979) 143 CLR 575, 579 (Barwick CJ); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 297 - 298, 311 (Mason CJ and McHugh J).
[45] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
In VJS v The State of Western Australia,[46] Mazza JA stated that a person cannot be said to be deprived of a fair trial by reason of lack of representation if he or she refuses to take reasonable steps that are necessary to obtain representation. Further, assuming that an accused person wishes to be legally represented at trial, the onus is upon the accused to seek a stay and to prove, on the balance of probabilities, that he or she is indigent and that he or she has been unable to obtain legal representation, and that any such inability is not due to his or her fault.[47]
[46] VJS v The State of Western Australia [2017] WASCA 172 [157].
[47] VJS v The State of Western Australia [2017] WASCA 172 [158].
The appellant at no time applied for an adjournment or stay of the proceedings to obtain legal representation. Further, the appellant has not proven nor attempted to prove that he is indigent. The appellant did make an application for a grant of aid from the Legal Aid Commission, which was rejected. The appellant was informed by the respective presiding Magistrates at mentions prior to his trial that he needed to obtain legal representation and that if he did not, he would be representing himself at trial. The appellant did not obtain privately funded legal representation nor did he raise with the Court that he wished the matter to be adjourned or stayed pending the appointment of counsel. The appellant had ample time to address the issue of legal representation but he did not do so. Rather, the appellant, knowing that he would be representing himself, attended at his trial obviously prepared to conduct his own defence.
In Dunn v The Queen, Buss JA set out the established principles concerning a trial judge's duty to an accused who is self‑represented as follows:[48]
[200]In R v White [2003] VSCA 174; (2003) 7 VR 442, Chernov JA (Charles JA relevantly agreeing) said that when an accused is unrepresented at his or her trial 'the judge must ensure that the accused is fully aware of the legal position in relation to the substantive and procedural aspects of the case without effectively advising him or her of what course should be followed, or unduly interfering in the Crown's case as if the judge was the accused's counsel' (original emphasis).
[201]In O'Connell v The State of Western Australia [2012] WASCA 96, Mazza JA (Martin CJ & Buss JA agreeing) observed [106]:
A criminal trial is an adversarial process. It is not the role of the trial judge, when faced with an unrepresented accused, to play the part of his or her advocate and give the advice, guidance and representation which counsel would have provided: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 334 - 335 (Deane J). However, consistent with a trial judge's duty to ensure a fair trial, he or she is under an obligation to give an unrepresented accused such information and advice as is necessary to ensure that he or she has a fair trial: MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 534 (Mason J). There is no limited category of matters of which a judge must advise an unrepresented accused: MacPherson v The Queen (524) (Gibbs CJ and Wilson J). The scope of the assistance to be given depends on the particular litigant and the nature of the case. The touchstones are fairness and balance: Tomasevic v Travaglini (2007) 17 VR 100 [14] (Bell J).
[48] Dunn v The Queen [2015] WASCA 126 [200] - [201].
It is not the role of the presiding Magistrate to provide legal advice to a self‑represented party. However, the Magistrate is obliged to give an unrepresented accused such information and advice as is necessary to ensure a fair trial.[49] The nature of the assistance that the Magistrate must provide to the self-represented accused depends upon the particular accused and the nature of the case with the touchstone being fairness and balance.[50]
[49] McPherson v The Queen (1981) 147 CLR 512, 534 (Mason J).
[50] McPherson v The Queen (1981) 147 CLR 512, 524 (Gibbs CJ & Wilson J); O’Connell v The State of Western Australia [2012] WASCA 96 [106].

Section 30 of the Magistrates Court Act 2004 (WA) expressly provides for the court's duties in respect of self‑represented parties in both civil and criminal proceedings in the Magistrates Court.[51]
[51] Magistrates Court Act 2004 (WA), s 30.
Section 30 of the Magistrates Court Act prescribes that:
In a case where a party is self‑represented, the Court must inform the party of –
(a)the need, when cross‑examining a witness called by another party, to ask the witness about any evidence of which the witness or the other party has not previously had notice that the self‑represented party -
(i)intends to adduce; and
(ii)intends to allege will contradict the witness's evidence;
and
(b)the consequences of not doing so.
The effect of s 30 of the Magistrates Court Act is that a Magistrate who presides over a trial is required to adequately explain to a self‑represented party the rule in Browne v Dunn, which is a rule of practice to achieve fairness to witnesses and a fair trial.
The appellant did not raise, during this appeal, that the presiding learned Magistrate did not comply with s 30 of the Magistrates Court Act. The learned Magistrate did comply with s 30 at the commencement of the trial.[52]
[52] ts 3 - 4 (14/07/2021).
It is necessary to have regard to the entire trial record to determine whether the appellant received a fair trial. I have done so. The learned Magistrate diligently ensured that the appellant had a fair trial. The learned Magistrate assisted the appellant throughout the trial, consistent with her obligations. Having reviewed the trial record, I am of the view that despite the difficulties that the appellant had representing himself at trial, he was able to fully put his defence to the learned Magistrate and was afforded a fair trial.
Accordingly, ground 1 is without merit and, therefore, leave to appeal is not granted.

Ground 2 - s 25A of the Evidence Act

By ground 2, the appellant contends that the learned Magistrate erred in law, in that he was unable to communicate with the witness due to her Honour's decision 'to relay questions through the Bench and this convoluted process disrupted cross-examination.'
At trial, the learned Magistrate required the appellant to conduct part of his cross-examine of the complainant through the Bench by stating his questions to her Honour and for the question to be repeated by her to the complainant. In doing so, her Honour relied upon section 25A of the Evidence Act which relevantly provides:
25A. Cross‑examination by accused in person
(1)In any criminal proceeding where an accused person who is not represented by counsel wishes to cross‑examine a witness, the court, having regard to the nature of the charge, the wishes of the witness, and the availability of any necessary facilities or equipment, may –
(a)order that during the cross‑examination the accused person and the witness are to be in separate rooms and that either –
(i)the witness is to be in a room outside the courtroom that is connected to the courtroom by a video link as defined in section 120; or
(ii)the accused person is to be held in a room outside the courtroom that is connected to the courtroom by a video link as defined in section 120;
(b)if it is not possible to make an order under paragraph (a), an order that during the cross‑examination the accused person and the witness are to be separated by a screen, one‑way glass, or other device, that -
(i)prevents the witness from seeing the accused person; and
(ii)allows the accused person, the judge and any jury to see the witness;
(c)whether or not an order is made under paragraph (a) or (b), make an order that forbids the accused person from putting a question to the witness directly and requires the question, having been first stated by the accused person to the judge or a person approved by the judge, to be repeated accurately to the witness by the judge or approved person.
(2)An order made under subsection (1)(a)(ii) may be made despite section 88 of the Criminal Procedure Act 2004.
(3)An order made under subsection (1) may be varied or revoked at any time.
The learned Magistrate, prior to the commencement of the evidence of the complainant, informed the appellant that, given that the charge involved an allegation of an assault in a family relationship, any cross‑examination of the complainant may be asked through her, rather than directly. [53] The learned Magistrate stated, 'You don't get to ask questions of the complainant directly unless the complainant consents for you to do so'.[54]
[53] ts 4 (14/07/2021).
[54] ts 4 (14/07/2021).
Her Honour outlined the procedure for asking questions, including that each question should contain 'one idea per question' and that the questions should be kept short.[55]
[55] ts 4 (14/07/2021).
Immediately prior to the commencement of the cross‑examination, the complainant stated that she was content for the appellant to ask questions directly to her.[56] Therefore, the learned Magistrate permitted the appellant to conduct an extensive cross‑examination until there was a short adjournment during the testimony of the complainant. Upon resuming, her Honour asked the complainant whether she remained content for the appellant to ask her questions directly in cross‑examination.[57] The complainant requested that the questions now be asked of her through the learned Magistrate.
[56] ts 23 - 24 (14/07/2021).
[57] ts 41 (14/07/2021).
Accordingly, the learned Magistrate ordered that any further cross‑examination was to be conducted pursuant to s 25A of the Evidence Act. That her Honour made that order is most understandable. The learned Magistrate observed that during the appellant's cross‑examination of the complainant, he had not asked the complainant a single question concerning the alleged offence that was the subject of the trial.[58] The cross-examination largely concerned the mental health of the complainant, traversing suicide attempts made by the complainant some 25 years previously. The prosecutor observed that the complainant was clearly distressed immediately prior to the adjournment being taken.[59] The learned Magistrate appropriately exercised her discretion in directing that the further cross-examination be conducted through her Honour pursuant to s 25A of the Evidence Act.
[58] ts 41 (14/07/2021).
[59] ts 41 (14/07/2021).
The cross‑examination was then recommenced, with the appellant's questions being relayed through the learned Magistrate to the complainant. Her Honour, though, was confronted with a cross‑examination, which was largely meandering, involving prolix questions that were raising irrelevant issues. However, the transcript of the cross-examination discloses that the learned Magistrate undertook that task diligently and without error.
Ground 2 is without merit and therefore, leave to appeal is not granted on that ground.

Ground 3 - propensity evidence

By ground 3, the appellant contends that propensity evidence was given by the complainant, Mr Jake Green and the prosecutor that 'suggested a personal tendency to behave on the basis of a particular mental state or attitude.'[60] There was no particularisation of this ground of appeal by the appellant in his letter to the court. In his oral submissions, the appellant appeared to conflate propensity evidence with the contention that the police and others had coerced or suggested to the complainant that the appellant had tendencies such as being aggressive and controlling and which therefore, had caused the complainant to give fabricated testimony.[61]
[60] Letter from the appellant to the Court dated 30 December 2021.
[61] ts 13 - 14 (22/03/2022).
The prosecution did not rely upon propensity evidence at trial. The prosecution did not make any application to adduce propensity evidence pursuant to s 31A of the Evidence Act nor did the prosecutor refer to any propensity evidence during his opening address. The prosecution case relied solely on the testimony of the witnesses present at the scene of the crime and the testimony of the medical practitioner who examined the complainant.
During the testimony of the complainant, primarily whilst being cross‑examined, she did refer to other conduct of the appellant. I will outline that testimony and the circumstances in which the evidence was adduced.
During the complainant's evidence‑in‑chief she was asked by the prosecutor, 'how would you describe your relationship with David [the appellant]?' To that question, the complainant stated that 'it was hard because he did criticise me and he's very controlling and we tend to do what David wants because we're scared of David.'[62]
[62] ts 10 (14/07/2021).
After the complainant gave evidence that she felt the first head-butt to her head, she was asked by the prosecutor, 'And firstly, how do you know who did that?' To that question the complainant stated, 'Well, I felt it for one reason and that's David's signature move, is the head-butt, and he has used it in the past.'[63]
[63] ts 15 (14/07/2021).
Subsequently, during her testimony the complainant was asked by the prosecutor, 'What happened next?', to which the complainant replied that her grandchild stated, 'Nanna, he strangled you, didn't he? I knew he would do that.'[64]
[64] ts 20 (14/05/2021).
During the cross-examination of the complainant, the appellant asked, 'Do you recall telling me that I'm at your house on parole and I don't get a say in regard to my children going to Australia Day with you?' The appellant then put the question again asking, 'you've never used the fact that I was at parole - on parole as a way to control me.'[65]
[65] ts 36 (14/07/2021).
The appellant subsequently suggested to the complainant that 'you are here because people have told you to press charges.' The complainant then asked the learned Magistrate whether she should answer that question. Her Honour answered yes. The complainant then answered the appellant's question, stating that she was in court giving evidence because she had encouraged her granddaughters to have a relationship with the appellant and that she had done everything she could whilst the appellant was in gaol. Further, that members of the family had told her that she should complain to the police and therefore, the complainant did so. [66]
[66] ts 46 (14/07/2021).
The appellant continued to ask questions of the complainant, imputing that others had coerced her to give false testimony. The appellant asked whether the complainant had been instructed by others to make her false claims and not because he had victimised her. To that question the complainant answered, 'I'm here because I love you. And you can't keep doing this. Otherwise, you're going to end up in jail forever if you end up killing somebody.'[67]
[67] ts 47 (14/07/2021).
The evidence concerning the appellant's previous incarceration was adduced by him during his cross-examination of the complainant. The appellant introduced the fact that he was on parole in the manner in which he structured his question of the complainant.
The other testimony given by the complainant that referred to previous conduct of the appellant, was responsive to the appellant's questions directed to the alleged motive of the complainant to lie and his assertion that her evidence was false as a result of suggestion by other persons.
In so far that the appellant contends that the police have coerced the complainant, then I am satisfied that the complaint is without merit. The learned Magistrate assessed the complainant and made the finding that she was both a credible and reliable witness. There is no evidentiary foundation to support the appellant's contention of coercion.
The prosecution did not adduce propensity evidence. The learned Magistrate did not rely upon any propensity reasoning in convicting the appellant. Whilst the learned Magistrate may have directed herself to disregard the evidence concerning the previous incarceration of the appellant and the other answers given by the complainant that I have outlined above, there was no perceptible risk that her Honour engaged in propensity reasoning. Her Honour delivered comprehensive reasons for decision in convicting the appellant. The learned Magistrate stated that the central issue at trial was whether the alleged offence occurred. Her Honour convicted the appellant based upon her acceptance of the complainant's reliable and credible testimony that was corroborated, in part, by Mr Green's testimony.

Ground 4 - mental health of complainant

By ground 4, the appellant contends that the proceedings were 'affected to his detriment' due to the complainant's mental health. The appellant contends that the cross‑examination of the complainant 'revealed reasons to implement the Mental Health Act'.[68]
[68] Letter from the appellant to the Court dated 30 December 2021.
The appellant contended that the complainant was unreliable and lacked credibility. A central pillar of that defence appears to be that the complainant was mentally unwell and also adversely under the influence of morphine at the time of the incident. The cross‑examination was directed to the medical history of the complainant and her use of prescribed morphine. I will outline the testimony of the complainant concerning her medical history and the complainant's use of morphine.
During her evidence‑in‑chief, the complainant stated that she takes medication for epilepsy and that the medication does not impede her normal functioning but makes her 'feel a bit sick, that's all'.[69] Further, the complainant says that she suffers from pain caused by a peritoneal shunt and that the medication she takes for that ailment does not affect her.[70] The complainant stated that she has been on pain medication for a long time and that the medication does not affect her. The complainant stated, in evidence‑in‑chief, that she has tried morphine patches but that the patches are not good for her skin.[71]
[69] ts 18 (14/07/2021).
[70] ts 22 (14/07/2021).
[71] ts 22 (14/07/2021).
During cross‑examination, the appellant put to the complainant that she was wearing a morphine patch on the relevant date. The complainant initially denied wearing a morphine patch but readily accepted that she did so upon the appellant playing in the court body‑worn camera footage taken by a police officer.[72] The complainant stated the morphine patch was for pain whilst she awaits shoulder and knee operations.[73] The complainant, in cross‑examination, stated that although when she spoke to the police she was 'pretty much in shock', that the morphine patches were 10 milligrams and 'weren't a huge thing, and they don't make you stoned or anything'.[74]
[72] ts 25, 28 (14/07/2021).
[73] ts 28 (14/07/2021).
[74] ts 34 (14/07/2021).
Upon being cross‑examined as to her medical history, the complainant accepted that she overdosed 'many times' on Panadeine Forte 25 years earlier and was subsequently placed into a psychiatric ward.[75] Further, the complainant accepted that at that time she had written suicide letters. The complainant stated that the medical advice was that she had too much fluid on her brain and a shunt was fitted and that she subsequently recovered.[76] In further cross‑examination, the complainant once again accepted she tried to commit suicide 20 to 25 years prior to the date of the appellant's offending.[77]
[75] ts 31 (14/07/2021).
[76] ts 40 (14/07/2021).
[77] ts 40 (14/07/2021).
Dr Botha gave evidence that the complainant suffers from benign intracranial hypertension but that condition does not affect her functioning.[78] Further, Dr Botha stated that the complainant was not on morphine presently and that the strong pain medications she takes do not cause irregular moods.[79]
[78] ts 71 (14/07/2021).
[79] ts 71 (14/07/2021).
The appellant's assertion that his cross‑examination of the complainant revealed reasons to implement the Mental Health Act 2014 (WA) is without merit. First, only a psychiatrist may make an involuntary treatment order in respect of a person under the Mental Health Act.[80] A judicial officer has no capacity to make an involuntary treatment order.
[80] Mental Health Act 2014 (WA), s 24(1).
Second, there is no evidentiary basis to the appellant's assertion that the complainant was suffering any significant mental illness or was adversely affected by morphine at the time of the offending. In any event, the learned Magistrate made an express finding that the issues raised by the appellant concerning the complainant's historical experience, namely her medical issues, had no relevance in respect of the allegation. The learned Magistrate observed that the complainant's attempts on her own life occurred 25 years ago, prior to the appellant's offending, and that the complainant gave candid answers during her cross‑examination.[81]
[81] ts 13 (13/08/2021).
The learned Magistrate accepted the complainant's evidence that while she suffers from epilepsy, for which she takes medication, she has not had a seizure in many years.[82] Further, the learned Magistrate made a finding that whilst the complainant suffers from intracranial hypertension, and has a peritoneal shunt, the pain medication which she takes does not affect her.[83] The learned Magistrate considered the issue whether the complainant was under the influence of morphine and accepted the evidence of the complainant that she was not affected by the morphine patch. The learned Magistrate found the complainant was a credible and reliable witness.[84]
[82] ts 6 (13/08/2021).
[83] ts 7 (13/08/2021).
[84] ts 7 - 9 (13/08/2021).
Accordingly, ground 4 is without merit and leave is not granted on that ground.

Conclusion

Accordingly, leave is not granted on grounds 1 to 4 inclusive and therefore the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Judge
18 MAY 2022