Shi v WA Police
[2024] WASC 475
•12 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SHI -v- WA POLICE [2024] WASC 475
CORAM: FORRESTER J
HEARD: 14 NOVEMBER 2024
DELIVERED : 12 DECEMBER 2024
FILE NO/S: SJA 1040 of 2024
BETWEEN: GUANGMING SHI
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1040 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MYERS
File Number : AR 17415 of 2023
Catchwords:
Criminal law - Single Judge Appeal - Appeal against conviction - Whether verdict of learned magistrate was unreasonable and unsupported by evidence
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
Extension of time granted
Leave to adduce additional evidence granted
Leave to appeal granted
Appeal allowed
Conviction and sentence set aside and judgment of acquittal entered
Costs of the appeal and Magistrates Court to be paid to the appellant to be taxed if not agreed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P Lochore |
| Respondent | : | Ms K Dias |
Solicitors:
| Appellant | : | William Gerard Legal |
| Respondent | : | State Solicitor's Office (WA) |
Cases referred to in decision:
M v The Queen (1994) 181 CLR 487
NYL v The State of Western Australia [2022] WASCA 41
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The Queen v Dossi (1918) 13 Cr App R 158
XHA v The State of Western Australia [2022] WASCA 8
FORRESTER J:
Introduction
On 12 June 2024 in the Armadale Magistrates Court the appellant was convicted after trial of a charge that between 11 to 14 December 2023 at Huntingdale, he wilfully and unlawfully damaged a dividing boundary fence, being half the property of Hayley Weston and Tobin Green to the value of $2,600.40.
The appellant has appealed his conviction.
The issue I am required to determine is whether the verdict was unreasonable and unsupported by the evidence.
For the reasons which follow the appeal should be allowed and a judgment of acquittal entered.
Trial
Prosecution opening
The prosecution case was that the appellant (who leased the house in which he lived) and his neighbours (the complainants) were in dispute about the fence which divided their properties. The complainants considered it needed repair; the appellant refused to permit them to do so.
The complainants replaced the fence at their own cost. However, it was alleged that between 11 and 14 December 2023, the appellant pushed and pulled on the fence and struck it with various items causing dents and causing it to bend at certain places.
Defence opening
The defence case was that the appellant did not cause any damage to the fence. In the alternative, he denied doing so wilfully.
Counsel for the appellant opened on the basis that there was no consent by the appellant to the removal of the original fence by the complainants. The defence case was that any issues with the new fence were not caused by the appellant but by the way it was installed.
Prosecution case
The prosecution called one witness.
Evidence of Tobin John Green
Mr Green was one of the complainants. Mr Green had lived at his property with his partner, Ms Weston, since June 2021.
Mr Green gave evidence that when he moved into the property, the boundary fence with the appellant's property was in very poor condition. He considered the fence unsafe and sought to have it replaced.[1]
[1] Exhibit 1; Transcript, WA Police v Guangming Shi, Magistrates Court of Western Australia, 4 June 2024, 13 ‑ 14 (ts 4 June 2024).
Mr Green first approached the appellant in person on 23 November 2023 and offered to replace the fence at his own cost. The appellant told Mr Green that he did not consider the fence needed to be replaced. Mr Green then contacted the appellant's son, who was the owner of the property, by email. The appellant's son also refused his permission for the fence to be replaced.[2]
[2] ts 4 June 2024, 16 ‑ 17.
An ongoing dispute ensued between the neighbours regarding the boundary fence. It is not necessary to detail it for the purposes of this appeal.
Ultimately, Mr Green unilaterally had the old fence replaced with a Colorbond steel fence on 8 December 2023. He said that when the new fence was installed it was perfectly straight all the way through and was in perfect condition.[3]
[3] ts 4 June 2024, 18 - 19.
In response to a question about what happened between 11 and 14 December 2023, Mr Green said the appellant 'repeatedly damaged the [new] fence, hitting it with pipes, and pulling on it back and forth, trying to pull the fence down'.[4]
[4] ts 4 June 2024, 18.
The prosecution tendered a series of photographs of the fence as it was on 14 December 2023. Mr Green pointed out on the photographs a section of the fence that was leaning over from the centre. He also pointed out a section with dents in it, taken from his side of the fence.
Mr Green said the appellant hit the fence with a pipe on the day the fence was installed, that night and the following morning and said, '[a]nd then there was more damage that continued over the following week, we have recorded video of.'[5]
[5] ts 4 June 2024, 19.
Mr Green said he obtained a quote to replace the fence following on from the damage he claimed the appellant caused.[6]
Prosecution application
[6] ts 4 June 2024, 19 ‑ 20; Exhibit 4.
During Mr Green's evidence in chief, the prosecution applied to amend the prosecution notice to allege that the damage was caused between 8 and 14 December 2023. This was because the complainant had given evidence that the appellant had hit the fence with a pipe on the day of and the day after the installation of the new fence.
The application was opposed on the basis that the application was made too late and that the allegation contained in the Statement of Material Facts was that the damage caused by the appellant was 'misaligned fence panels'.
The magistrate refused the application.
Evidence of Tobin John Green (resumed)
Two videos taken by Mr Green or taken in his presence were tendered. They showed the appellant on his side of the fence holding on to the fence and pushing and pulling it back and forth.[7] Mr Green said those recordings were made four or five days after the initial damage.[8] The date stamp shows 14 December 2023.
[7] ts 4 June 2024, 23 - 28.
[8] ts 4 June 2024, 23.
In cross-examination, Mr Green accepted that there had been earthworks near the original fence prior to its removal.[9] Mr Green also agreed there was a structure (on the appellant's side) in direct contact with the original fence.
[9] ts 4 June 2024, 37.
Mr Green agreed that he was served with a violence restraining order at around 11.00 am or 11.30 am on 8 December 2023, after the original fence had been removed, but before the new one had been installed.[10] One of the conditions of the order was that he not damage any of the appellant's property and he was also not permitted to go onto the appellant's property.[11]
[10] ts 4 June 2024, 47.
[11] ts 4 June 2024, 48.
Mr Green said that he used extra bolts and fasteners on his own side of the fence to compensate for not being able to go on the appellant's side. He denied touching any of the appellant's structures as he put up the fence, but said in some sections the fence might have been in contact with the appellant's structures.[12] When asked if he damaged the appellant's chicken coop, he said, '[n]ot to my knowledge, no'[13] and, later, said he was not aware of causing any damage.[14] However, when shown images, he accepted that he or his brother‑in‑law had damaged the appellant's chicken coop,[15] saying the coop was crossing his boundary and by the looks of it, the coop became bent when he pushed the fence to get the correct line.[16]
[12] ts 4 June 2024, 53 - 54.
[13] ts 4 June 2024, 57.
[14] ts 4 June 2024, 59.
[15] ts 4 June 2024, 63.
[16] ts 4 June 2024, 65.
Mr Green accepted that, after he installed the new fence, the base of it could still move, because the concrete could take up to a week to truly set. He did not agree he did not use enough concrete; he said he used twice the amount he would normally use.[17] He did agree that the fence was already structurally weak by 14 December 2023, but said that was because the appellant had already pulled on it and banged on it on 8 December 2023, before the concrete had had a chance to set.[18] He did not accept that the fence was not properly installed.[19]
Defence case
Evidence of Guangming Shi (appellant)
[17] ts 4 June 2024, 55.
[18] ts 4 June 2024, 56.
[19] ts 4 June 2024, 67.
The appellant gave evidence with the aid of an interpreter.
The appellant said he had lived at his address for 14 years. The property was owned by his son. He said Mr Green contacted him and asked for $2,000 but the appellant said he would get his son to contact Mr Green.[20]
[20] ts 4 June 2024, 75.
His son decided to seek a court order in relation to the fence and he made an application. The hearing was listed for 8 January 2024. After he heard about the court hearing, the complainant used his digger to scratch the fence and the complainant's dogs climbed on the fence and frightened them, so they applied for a restraining order to protect them and the property.[21]
[21] ts 4 June 2024, 78 ‑ 80.
The appellant said that there was a shed, about 10m by 6m, as well as a chicken nest, attached to the original fence.[22]
[22] ts 4 June 2024, 84.
The appellant said that the complainant left quite a big gap in the new fence and did not use enough bolts, meaning that the fence was loose and made noise when the wind blew or when his pets climbed the fence. He said that the complainant did not dig deep enough holes for the fence posts.[23]
[23] ts 4 June 2024, 87.
The appellant said that he took a video clip of his chicken coop at 10.58 am on 8 December 2023 and then referred to a photograph showing damage to the chicken coop, taken at 4.30 pm on the same day.[24]
[24] ts 4 June 2024, 88 ‑ 89.
The appellant denied banging on the new fence. He said he was banging on the damaged metal panels from his shed.[25] He admitted being the person shown in the video recordings of the fence being pulled back and forth. He said:
On that morning I noticed my shed has started leaning towards the fence. As I just mentioned, the shed started leaning towards the fence because the structure was damaged. I noticed the new panels were not bolt up and I tried to see how strong the fence could be as well as to push stuff on my side backwards.[26]
[25] ts 4 June 2024, 95.
[26] ts 4 June 2024, 97.
The appellant denied trying to pull the fence down or being responsible for its misalignment.[27]
[27] ts 4 June 2024, 97 ‑ 99.
In cross-examination, the appellant denied shaking the fence on 8 December 2023.[28] Some confusion then arose as to whether at any point in evidence in chief he had said that he had shaken the fence on that date.[29] However, while the transcript suggests that in evidence in chief he motioned shaking the fence, it is not at all clear that the appellant was then saying that he did so on 8 December 2023. His evidence regarding that was not translated at the time.[30]
[28] ts 4 June 2024, 107.
[29] ts 4 June 2024, 107.
[30] ts 4 June 2024, 85 ‑ 86, see also ts 4 June 2024, 112 ‑ 113.
The appellant said the fence was not straight in the sense that it was leaning to his side[31] and it was wobbly and could not stand firmly without bolts.[32]
Decision
[31] ts 4 June 2024, 110 - 111.
[32] ts 4 June 2024, 112.
The learned magistrate delivered her decision on 12 June 2024.
Her Honour directed herself in an orthodox manner as to general principles, and no complaint is made in relation to those directions.
With reference to the photographs which were tendered, her Honour accepted that there were dents on some of the panels of the fence. However, she considered that those dents were on both sides of the fence. As the photographs showed the panels had been stored on the ground at one stage and as there were no photographs provided of the panels newly installed, her Honour was not satisfied beyond reasonable doubt that the appellant had damaged the panels.
Her Honour found that the footage taken by Mr Green clearly showed the appellant grabbing the fence and pushing and pulling on it beside the lemon tree. Her Honour described these actions as 'vigorous'.[33] The learned magistrate considered that the photographs in Exhibit 3 showed the fence to be bowed in this area and was satisfied that the bowing was caused by the actions of the appellant.
[33] Transcript, WA Police v Guangming Shi, Magistrates Court of Western Australia, 12 June 2024, 6 (ts 12 June 2024).
The learned magistrate did not accept that the fence was poorly installed and found that the appellant acted in the way that he did with the intention of causing damage, not to test the strength of the fence.[34]
[34] ts 12 June 2024, 6.
Grounds of appeal
The appellant appealed his conviction on four grounds. Grounds 1 and 2 were abandoned at the hearing of the appeal. However, as grounds 3 and 4 refer to grounds 1 and 2, I will reproduce them in their totality.
1.The magistrate erred in fact, in that it was not open to her Honour to find … that the appellant damaged the fence (causing bending) on 14 December 2023 on the basis of:
(a)the videos in exhibit 5 showing the appellant shaking the fence on 14 December 2023; and
(b)a photograph (exhibit 3) showing the fence as it was later that day, in circumstances where her Honour found that the second damage allegation the subject of the prosecution's opening and evidence (the dents) was found not proven beyond a reasonable doubt as 'there are no photos of the panels newly installed'.
2. The magistrate erred in law in finding … that a fence with insufficient strength would fall over rather than bend or be wobbly, when there was no evidence to support that finding.
3. Pursuant to s 8(1)(b) of the Criminal Appeals Act a miscarriage of justice occurred, in that, having regard to:
a)the whole of the evidence at trial;
b)the prosecution evidence of the fence being pushed or pulled on or about 8 or 9 December 2023 that was the subject of the prosecution's unsuccessful application to amend the prosecution notice midtrial;
c) the evidence for which leave is sought to adduce on appeal; and Particulars: Prosecution disclosure (not tendered): Quote 12/12/2023 'replace vandalized fence'
d) the matters in grounds 1 and 2, it was not open to the learned magistrate to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.
4. Pursuant to s 8(1)(b) of the Criminal Appeals Act a miscarriage of justice occurred as the appellant was deprived of a fair trial by the prosecution running the trial in a manner that was latently duplicitous and not electing which damage was the charged conduct.
Particulars
1. The prosecution notice charged a single act of damage, being that the appellant 'willfully (sic) and unlawfully damaged dividing boundary fence' on 14 December 2023.
2. The prosecution notice was amended at trial to allege a date range of 11 to 14 December 2023.
3. The prosecution opening (4 June 2024, TS 10) revealed latent duplicity by alleging two acts of damage by different means, being 'causing dent [sic]' and 'causing the fence to bend at certain places'.
4.The prosecution evidence revealed that:
a.the dents were alleged to have been caused at from 11 to 14 December 2023; and
b.acts causing bending were alleged to be on both 8 and 14 December 2023.
5. The prosecution applied to amend the prosecution notice to allege a date range of 8 to 14 December 2023 (TS 25). Defence counsel objected (TS 26). The application was refused due to the 'injustice to the defence' (TS 27).
6. The Magistrate found the appellant not guilty of the dent damage and guilty of the bending damage.
Application for extension of time
The notice of appeal was filed a day out of time. An extension of time is required. The respondent did not oppose the application. Given the very short extension required and the explanation provided, the application should be granted.
Application to adduce additional evidence
The appellant applied to adduce additional evidence at the appeal, namely a document from a fencing contractor entitled 'Estimate'. It is an estimate dated 12 December 2023 to remove an old fence and supply and install a new fence 'to replace vandalized fence'. The document is similar to Exhibit 4, which was the quote tendered during the complainant's evidence. However, Exhibit 4 was dated 13 May 2024, and is also for a greater quoted sum.
On behalf of the appellant it is said that the document sought to be adduced was disclosed as part of prosecution disclosure prior to trial.
Statutory framework
Appeals against conviction
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[35]
[35] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[36] meaning that the ground is required to have a rational and logical prospect of succeeding.[37] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[38]
[36] CA Act s 9(2).
[37] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[38] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[39]
Application to adduce additional evidence
[39] CA Act s 14(2).
An appeal court must decide an appeal on the evidence and material that were before the lower court.[40] However, the court has broad powers to admit other evidence, pursuant to s 40(1) of the CA Act.
[40] CA Act s 39(1).
Disposition - appeal against conviction
Ultimately, the trial in this matter was about whether the appellant, in pushing and pulling the fence as he was recorded doing on 14 December 2023, damaged the fence, and if so, whether he did so wilfully.
Unfortunately, there was a great deal of focus on other, irrelevant, issues at the trial. This appears at times to have diverted the parties from properly dealing with the elements of the offence under consideration.
As I have indicated, grounds 1 and 2 were abandoned at the hearing of the appeal. This was largely because the issues raised by those grounds were subsumed within grounds 3 and 4.
Ground 3
Ground 3 asserts, in effect, that the verdict was unreasonable and not supported by the evidence.
The principles governing an appeal on the ground that the verdict is unreasonable and unsupported by the evidence are well settled.[41]
[41] M v The Queen (1994) 181 CLR 487; NYL v The State of Western Australia [2022] WASCA 41.
The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict; the appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
There is no doubt that, on 14 December 2023, the appellant vigorously pushed and pulled the fence in question. He was recorded doing so, and admitted it in his evidence. However, he denied that his conduct damaged the fence, and claimed that, even if he did damage the fence, he did not wilfully do so.
The complainant's evidence was to the effect that the appellant had also pushed and pulled the fence on 8 December 2023 (which the appellant denied) and had weakened the foundations of the fence so that, when he did so on 14 December 2023, he caused the fence to have the appearance shown in Exhibit 3.
Because of the angle from which they were taken, the recordings from 14 December do not clearly show the effects, if any, of the appellant's conduct. They do not show what the fence looked like prior to that conduct. No recording was made showing the alignment immediately afterwards.
The evidence also established that there were structures on the appellant's side which had had to be pushed back to enable the new fence to be installed. No evidence was led as to whether those structures impinged on the new fence in any way.
There were no images showing the fence as constructed, or at any time prior to the alleged offence. The photographs exhibited, taken very shortly after the incident on 14 December 2023,[42] showed only the fence line, and not any damaged panel or panels in any detail.
[42] Exhibit 3.
When asked about those images, the complainant said:
You can clearly see that the fence is buckled and out of alignment and is now loose because the foundations have been damaged.[43]
[43] ts 4 June 2024, 29.
Mr Green also said that, as a result of the appellant 'pushing and pulling the fence' as shown in the footage (on 14 December 2023):
The fence would have been thrown out of alignment, and instead of being straight, like a zigzag coming through.[44] (emphasis added)
[44] ts 4 June 2024, 28 - 29.
However, neither of these passages constitute unequivocal evidence that the appellant's conduct on 14 December 2023 was responsible for the misalignment of the fence. Further, the images taken on 14 December 2023 are not capable of resolving this issue.
Those images, the clearest of which appears below, do show an apparent misalignment of the fence. It is more difficult to accept they show the fence to be 'buckled'. The images also do not clearly show that the misalignment's location along the fence is the same location as the appellant was shaking the fence, although it does appear proximate to that location.
There was no evidence as to whether it was one or more individual panels which were bent, or whether the joins between the panels were made loose, or whether only the foundations were loose, enabling the misalignment as between panels. No evidence was led as to what was required to correct the misalignment.
The complainant gave evidence that the quote dated 13 May 2024[45] was:
[T]o replace the whole section of fence because the whole section is damaged from him heaving on the fence left and right and it has affected all the foundations of the fence because it hadn't even set before he was hanging off it. So this is the entire fence all the way through, 16.5 panels.[46]
[45] Marked as Exhibit 4.
[46] ts 4 June 2024, 19 ‑ 20.
These passages, taken together, suggest that the complainant was talking, at least in large part, about the effects of conduct allegedly engaged in by the appellant closer to 8 December 2023, when the cement had not set. This is reinforced by evidence the complainant gave in cross‑examination. The complainant said that he used 'rapid set' cement, which sometimes set within an hour or two, but can take up to a week to 'truly set'[47] and the following exchange then occurred:
I'm suggesting to you a properly installed fence shouldn't be able to be pushed and pulled easily? - - No, it shouldn't be able to, no, unless it's damaged before the concrete has time to set.
And the fence was already structurally weak before this 14 December, when you can see [the appellant] pulling and pushing on the fence? - - Yes, because he was pulling on the 8th as well and banging the fence and trying to push it over before the concrete even had a chance to set, but we don't have footage of that.[48]
[47] ts 4 June 2024, 55.
[48] ts 4 June 2024, 56.
There was, therefore, clear evidence that there were allegations of at least two discrete incidents in which the appellant pushed and pulled on the fence - one on or about 8 December, and another on 14 December.
The prosecution was on notice of the fact that it was confined to conduct of the appellant within the date range stated in the prosecution notice. It had been refused an amendment expanding the date range.
The evidence at trial was such that the only occasion within the date range in the prosecution notice on which the damage could have been done was 14 December 2023, in the incident which was recorded. Further, after her Honour refused the amendment of the date range in the prosecution notice, the appellant's counsel conducted the trial on the basis that the appellant could only be liable for damage done on 14 December 2023, if any damage was proved to have been done.
The general rule is that a date specified in a charge is not a material matter that has to be specifically proved unless it is an essential part of the offence charged. However, that general rule may be overridden by considerations of fairness in a particular case, if the trial has been conducted on the basis that the offence occurred on a particular date and the accused has prepared his defence on that basis.[49]
[49] The Queen v Dossi (1918) 13 Cr App R 158, 159 ‑ 160 (Aitkin J); XHA v The State of Western Australia [2022] WASCA 8 [129].
In my view, having regard to the manner in which the prosecution proceeded in this case, it was obliged to prove that the damage alleged was done by the appellant on 14 December 2023.
The additional evidence sought to be adduced by the appellant is a quote very similar to that adduced in evidence at the trial, apart from the fact that it is dated 12 December 2023, that is, before the alleged offence. The 'damage' done was not identified in either document. The price quoted was different, but that was explained by the prosecution solely on the basis that 'prices have changed'.[50]
[50] ts 4 June 2024, 7.
Like the exhibited quote, the quote sought to be adduced by way of additional evidence (the initial quote) was for all of the fence panels to be replaced. Accordingly, any damage done after the initial quote was provided was unlikely to result in a more expensive quote. To that extent, the additional evidence is not capable of establishing that no further damage was done after 12 December 2023.
However, what the additional evidence does establish is that at least some damage (however caused) requiring the complete replacement of the fence had occurred prior to the alleged offending and, on the complainant's evidence, on or about 8 December 2023. That original damage cannot have been only the dents in the panels (which ultimately were not found to have been caused by the appellant), because there was only evidence of dents in two panels, and thus there would have been no need for all of the panels to be replaced.[51]
[51] Exhibit 3.
The appellant alleged that the fence was not damaged by his conduct on 14 December 2023; the fence was just poorly constructed. He said that the fence was loose, and when the wind blew, it made a big noise. When the dog and the cat climbed the fence, it made a big noise too. He also said that, from his research, the fence poles should have been installed more deeply.[52]
[52] ts 4 June 2024, 87.
The recordings of the appellant shaking the fence showed the overwhelming impact as being towards the upper half of the fence. The lower part of the fence did not appear to move at all. Further, despite the vigour with which the appellant shook the fence, it appeared to hold firm and be well connected. The complainant had given evidence that he built fences and walls for a living, and he had done Colorbond fences before.[53] He also gave evidence that he had installed twice the amount of bolts and fasteners on his side as he had been unable to go onto the appellant's side of the fence.[54]
[53] ts 4 June 2024, 49.
[54] ts 4 June 2024, 53.
There is certainly a possibility that the appellant caused or contributed to the bend in the fence by his conduct on 14 December 2023. The footage shows obvious force, in a similar location, with an alteration of the fence line consistent with the way in which the appellant moved the fence.
However, in my view the evidence is not capable of establishing, beyond reasonable doubt, that the appellant caused the damage on 14 December 2023. The evidence was incapable of establishing that fact because:
(a)there was no evidence that the damage was not done in the incident on 8 December 2023 or the next morning, when the fence was more likely to have been able to be damaged because the cement was not set;
(b)the complainant gave evidence that the appellant had damaged the foundations of the fence on or about 8 December 2023, and that the damaged foundations were the cause of the misalignment;
(c)there was no evidence adduced to the effect that the fence was not damaged in the manner shown prior to the appellant's conduct on 14 December 2023; and
(d)the quote dated 12 December 2023 established that damage had already been done (somehow), prior to that date, requiring the complete replacement of the fence.
In those circumstances, I am satisfied that the verdict was unreasonable and unsupported by the evidence.
Ground 3 should be allowed.
Ground 4
Having regard to the outcome of ground 3, it is unnecessary to consider ground 4.
Conclusion
1.Extension of time granted.
2.Leave is granted to adduce additional evidence.
3.Leave to appeal granted.
4.Appeal allowed.
5.The conviction and sentence are set aside and a judgment of acquittal is entered in lieu thereof.
6.Costs of the appeal and in the court below to be paid to the appellant to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
12 DECEMBER 2024
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