Supljeglav v Director of Public Prosecutions for Western Australia
[2023] WASC 453
•29 NOVEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SUPLJEGLAV -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 453
CORAM: TOTTLE J
HEARD: 20 NOVEMBER 2023
DELIVERED : 29 NOVEMBER 2023
FILE NO/S: SJA 1059 of 2023
BETWEEN: PETAR SUPLJEGLAV
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1059 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L DIAS
File Number : RO 5178 - 5182/2021
Catchwords:
Criminal law - Appeal - Aggravated assault occasioning bodily harm - Inconsistent verdicts - Complainant's credibility - Use of corroborating evidence to support guilty verdicts - Whether verdicts of guilt inconsistent with the acquittals on the other counts - Turns on own facts
Criminal law - Appeal - Aggravated assault occasioning bodily harm - Unreasonable verdicts - Whether guilty verdicts could not be supported by evidence adduced at trial - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Criminal Code Act Compilation Act 1913 (WA), s 304(1)(b), s 313(1)(a), s 317(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | C M Townsend |
| Respondent | : | M L Wong |
Solicitors:
| Appellant | : | Perrella Legal |
| Respondent | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
DPJB v Western Australia [2010] WASCA 12
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
LNN v Western Australia [2021] WASCA 39
MEN v Western Australia [2020] WASCA 118
NTH v Western Australia [2020] WASCA 22
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
TWG v Boucher [2020] WASC 98
Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
TOTTLE J:
Introduction
On 19 May 2023, following a two-day trial, the appellant was convicted of two offences of assault occasioning bodily harm in circumstances of aggravation contrary to s 317(1) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code).[1] A sentence of seven months imprisonment, suspended for eight months, was imposed. At the same hearing the appellant was acquitted of two other charges, common assault in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code,[2] and endangering the life, health or safety of a person contrary to s 304(1)(b) of the Criminal Code.[3]The complainant was the appellant's wife with whom he was living with at the material times.
[1] RO 5180/2021 and RO 5181/2021.
[2] RO 5179/2021.
[3] RO 5182/2021.
When delivering oral reasons for her decision the learned magistrate expressed concerns about aspects of the complainant's evidence.[4] These concerns led her Honour to conclude that she could not be satisfied beyond reasonable doubt that the appellant was guilty of the common assault charge.[5] The magistrate acquitted the appellant of the endangering life charge on the grounds that the appellant's evidence was inconsistent with the objective evidence adduced by the appellant.[6]
[4] Transcript of primary court dated 19 May 2023, 57.
[5] Transcript of primary court dated 19 May 2023, 59.
[6] Transcript of primary court dated 19 May 2023, 60.
Relying heavily on the concerns expressed by the magistrate about the complainant's evidence the appellant seeks leave to appeal on the grounds that the verdicts of conviction were:
(a)inconsistent with the verdicts of acquittal; and
(b)unreasonable and not supported by the evidence.
For the reasons set out below leave to appeal is refused in respect of each ground and the appeal is dismissed.
The cases at trial
The following summary of the parties' respective cases at trial substantially reproduces the summary contained in the respondent's written outline of submissions.
Common assault in circumstances of aggravation charge - charge one
The complainant's evidence was that the first incident occurred just before Christmas in 2016.[7] She said that she had a headache, so she lay down in the master bedroom and turned the air conditioning on. The appellant came into the room and an argument ensued about whether the air conditioning should be on or off. The complainant said that the appellant grabbed her around the throat and pushed her backwards onto the bed.[8] She said he was squeezing tightly.[9] She tried to say words like 'stop' but could not due to the pressure he was applying to her throat.[10] The complainant said she then woke up, confused.[11] The appellant was not in the room. When she went to speak, her throat was sore. The complainant then remembered what had happened.[12]
[7] Transcript of primary court dated 29 August 2022, 10.
[8] Transcript of primary court dated 29 August 2022, 11.
[9] Transcript of primary court dated 29 August 2022, 11.
[10] Transcript of primary court dated 29 August 2022, 11.
[11] Transcript of primary court dated 29 August 2022, 11.
[12] Transcript of primary court dated 29 August 2022, 11.
The complainant did not take any photographs on that occasion but said that she told her mother what had happened.[13]
[13] Transcript of primary court dated 29 August 2022, 26.
The complainant's mother gave evidence that she asked the appellant on one occasion 'why does he strangle [the complainant]?' The appellant responded that strangulation does not leave marks and it was 'to shut her up'.[14]
Assault occasioning bodily harm in circumstances of aggravation charges - charges two and three
[14] Transcript of primary court dated 29 August 2022, 80.
On 20 April 2017, the complainant was injured in a motor vehicle accident. The complainant jumped on the boot of the family car as the appellant was driving it down the street in which the matrimonial home was located. The complainant fell off the car and hit her head on the surface of the road. She suffered a fractured skull. She was hospitalised for approximately three weeks.
In early July 2017, the complainant was trying to leave the family home in the midst of an argument with the appellant.[15] She said that she went into the garage. As she was standing behind her car door, the complainant said the appellant picked up an empty glass bottle and smashed it on her head.[16] She described that he used his right hand to hit her on the left side of her head. She felt blood running down her face and ran into the house. The children were present - she told them that she tripped over something in the garage. She received a large cut on her head, which she photographed using her phone not long after the incident.[17] Those photographs were produced as evidence at trial.[18]
[15] Transcript of primary court dated 29 August 2022, 14.
[16] Transcript of primary court dated 29 August 2022, 14.
[17] Transcript of primary court dated 29 August 2022, 15 - 16.
[18] Exhibits 2A and 2B.
Again, the complainant said she told her mother what had happened: that the appellant had hit her with a bottle.
The complainant's mother gave evidence that she observed in '2017 at some stage' a three to four centimetre cut on the complainant's forehead.[19] She confirmed, under cross-examination, that the complainant told her she had received the cut after the appellant 'threw'[20] a bottle at her. She said under cross-examination that she observed this was a 'fresh cut'.[21]
[19] Transcript of primary court dated 29 August 2022, 79 - 80.
[20] Transcript of primary court dated 29 August 2022, 81.
[21] Transcript of primary court dated 29 August 2022, 83.
Around 17 August 2017, about a week after the complainant's birthday, she and the appellant were arguing at the family home. She said that the appellant came towards her and grabbed both of her hands.[22] The complainant said the appellant twisted her hands and she felt her middle finger break.[23] After that, the complainant said the appellant hit her on the left side of her face and then again on the right side.[24] Again, the complainant took photographs of her injuries - her hand and her face - with her phone about two days later.[25] Those photographs were also produced as evidence at trial.[26]
Endangering the life, health or safety of a person charge - charge four
[22] Transcript of primary court dated 29 August 2022, 18.
[23] Transcript of primary court dated 29 August 2022, 18.
[24] Transcript of primary court dated 29 August 2022, 19.
[25] Transcript of primary court dated 29 August 2022, 19.
[26] Exhibits 3A and 3B.
The final incident the complainant described was alleged to have taken place on the day before the couple's wedding anniversary in October 2017.[27] The complainant said that she was sitting in the office at the family home when the appellant entered asking for his cigarettes. She said that when she replied that she did not know where they were, the appellant picked up the complainant's phone and threw it at the wall behind her.[28] She said that he then picked up a bottle of methylated spirits and poured it over her head, before taking a lighter out of his pocket and pretending to light it, goading her.[29] He then left. The complainant said that she sat in the office for a couple of hours, before going into the main area of the house and asking the appellant if she could use his phone to call her mother.[30]
[27] Transcript of primary court dated 29 August 2022, 21 - 22.
[28] Transcript of primary court dated 29 August 2022, 22.
[29] Transcript of primary court dated 29 August 2022, 22.
[30] Transcript of primary court dated 29 August 2022, 24.
The complainant's mother gave evidence that she asked the appellant why he tipped methylated spirits over the complainant and goaded her with a lighter.[31] She said he responded simply that the 'lighter was dead' and that that was the 'end of subject'.[32]
[31] Transcript of primary court dated 29 August 2022, 80 - 81.
[32] Transcript of primary court dated 29 August 2022, 80 - 81.
In addition, the prosecution adduced evidence of a handwritten note from the appellant to the complainant that the latter found in 2018 in one of her notebooks.[33] In the note, the appellant said that he had 'hurt my bub mentally and physically on too many occasions'.[34] The note was produced as an exhibit.[35]
[33] Transcript of primary court dated 29 August 2022, 24.
[34] Transcript of primary court dated 29 August 2022, 25.
[35] Exhibit 4.
Before turning to the detail of the appellant's case it is necessary to refer to a further aspect of the evidence. The complainant and appellant separated in December 2017. The appellant left the matrimonial home. On 20 January 2018 the complainant returned to the matrimonial home ostensibly to collect some of her belongings. The appellant tendered a USB stick containing video footage captured by CCTV of the complainant damaging articles at the property.[36] In one segment of the video footage the complainant can be seen hitting one article with a hammer and in another the complainant can be seen puncturing the tyres on bicycles.
[36] Exhibit 7.
The appellant denied that any of the alleged offending had occurred. Broadly, the defence asserted that the complainant was not a credible witness. It was suggested that:
(a)The complainant suffered seizures from 2016 onwards,[37] which the defence said informed her account of being choked in relation to charge one. It was put to the complainant that after a seizure she could not recall anything, and that she had previously injured herself while having a seizure.[38] The suggestion, confirmed by the defence in closing, was that her description of the aftermath of the alleged strangulation was entirely consistent with her having suffered a seizure which was 'very convenient' in terms of the complainant not giving a detailed description of what occurred after she claimed to have been choked.[39]
(b)In relation to charge two, the appellant gave evidence that the photograph relied upon by the complainant had been sent to the appellant when it was taken, via text message, with an explanation from the complainant that she had tripped over some equipment and injured herself.[40] The appellant said he no longer had access to that text message.[41]
(c)In relation to charge three, the bruising and injuries in the photographs offered by the prosecution were said to have shown residual bruising from the car accident the complainant had in April 2017.[42] The defence tendered medical records including a document referred to by the magistrate as a 'discharge summary'.[43] The suggestion was raised that other injuries to the complainant may have been self-inflicted.[44]
(d)The defence adduced evidence in relation to charge four, comprising a photograph of the complainant's phone - clearly post-dating the day on which she had said the appellant smashed her phone.[45]
[37] Transcript of primary court dated 29 August 2022, 36 et seq.
[38] Transcript of primary court dated 29 August 2022, 37 - 39.
[39] Transcript of primary court dated 19 May 2023, 14.
[40] Transcript of primary court dated 30 August 2022, 141.
[41] Transcript of primary court dated 30 August 2022, 141.
[42] Transcript of primary court dated 30 August 2022, 142 - 143.
[43] Exhibit 11.
[44] Transcript of primary court dated 30 August 2022, 135.
[45] Transcript of primary court dated 30 August 2022, 143 - 144, exhibits 6A and 6B.
The appellant accepted he wrote the note saying that he had 'hurt [his] bub, mentally and physically' but explained that 'it was expressed poorly' and that references to physical harm were references to the car accident in which the complainant was injured. He denied physically assaulting her.[46]
[46] Transcript of primary court dated 30 August 2022, 163.
The magistrate's reasons
Having directed herself in relation to the onus and standard of proof and the elements of the charges in orthodox terms the magistrate summarised the evidence of the prosecution witnesses (the complainant, the complainant's mother and an investigating police officer) and the evidence of the appellant. The magistrate then turned to her assessment of the witnesses. In relation to the complainant her Honour said:[47]
[T]he complainant generally - at times she was vague and evasive in her responses to questions under cross-examination. She, for example, said, 'I don't recall, I can't recall, I don't know,' or failed to make appropriate concessions in circumstances where it would be expected that she could provide a response, or there was contrary evidence put to her.
A prior conviction for a serious dishonesty offence was put to her, the extortion. There was some inconsistencies between her evidence and the evidence of a corroborating witness as to whether the accused hit the complainant with the bottle as opposed to whether the bottle was thrown at her. There was also an inconsistency between her evidence and the evidence of the corroborating witness, or evidence put forward - a witness put forward as corroborating as to the date when she was hit, whether it was after the accident on 20 April 2017, which is what the prosecution case is, as opposed to when the corroborating witness says. She said it was before that accident.
So there were some inconsistencies there in terms of the evidence. There were also inconsistencies put to her regarding different dates and statements - her two statements in relation to the bottle incident, whether it was July 2017 or July 2018. She then says she has an independent recollection of the date of the second incident and did not need to refer to anything or in particular photographs to ascertain dates, however, there's contrary evidence from a prosecution witness on that issue.
[47] Transcript of primary court dated 19 May 2023, 57 - 58.
The magistrate, however, concluded that the complainant provided cogent evidence, particularly in relation to charges two and three:[48]
Nevertheless, ultimately, she did provide cogent evidence, including details about the alleged incidents, the subject of the charges, and she did withstand cross-examination, and specifically in relation to the alleged incident, the subject of charges 2 and 3, her evidence is corroborated by photographs.
[48] Transcript of primary court dated 19 May 2023, 58.
The magistrate found the complainant's mother to be a credible witness. Her Honour observed:[49]
The second prosecution witness, Ms Jaclin, she had a good demeanour. She was consistent within her evidence, albeit she had to clarify an issue. She did not exaggerate or embellish, and I thought she was - I considered she was forthcoming. She did withstand cross-examination and overall, I found her to be a compelling and persuasive witness and cogent in her evidence, and she gave evidence of admissions made by the accused. I thought she was impressive in her demeanour, honest, however, the delay in providing her statement from when the conversation occurred does affect up to a point reliability.
…
and I should say in relation - just going back to Ms Jaclin, I found her to be a credible witness.
[49] Transcript of primary court dated 19 May 2023, 58.
The magistrate's observations about the accused were as follows:[50]
In relation to the accused, he made blanket denials in relation to the incidents. His credibility was undermined. I've considered he is of poor character, his criminal record, offences of dishonesty, misleading authorities. He's a self-confessed liar. He admitted to lying when it suited him. His evidence I considered to be self-serving. He did write that note. He provided an explanation for it, which I did not find plausible. I thought it was unconvincing, and I didn't accept his evidence that he did not hurt the complainant physically. I considered his demeanour was poor. I considered he was not reliable. I considered he was evasive, and I reject his evidence denying the allegations.
[50] Transcript of primary court dated 19 May 2023, 59.
The magistrate's reasoning in respect of the common assault charge was as follows:[51]
But ultimately, I've got to be satisfied beyond reasonable doubt in relation to the charges. What I will say in relation to the elements of charge 1, there is an absence of corroborating evidence in relation to that charge. Given the issues which I've raised reflecting adversely on the complainant regarding her - which reflect adversely on her, in the absence of corroborating evidence I've got [some doubt] regarding her version of events, and I can't be satisfied beyond reasonable doubt in relation to the elements of charge 1, I find the accused not guilty.
[51] Transcript of primary court dated 19 May 2023, 59.
The magistrate's reasoning in respect of the first assault occasioning bodily harm charge was as follows:[52]
In relation to charges 2 to 3 where there is corroboration with the photographs, and I find ultimately that corroboration does support the complainant's version, and whilst there is an inconsistency for charge 2 between what the complainant said happened being hit by the bottle and what the witness Ms Jaclin says, the corroborating witness or witness put forward corroborating - she says that the accused admitted throwing it, or no, sorry, she said that the complainant told her that the accused threw it. There is that inconsistency.
Ultimately, I find that the accused did - this is charge 2 now. That the accused did cause that injury by a bottle using force with the bottle and so caused that - so did engage in that act and cause the injury from doing so using the bottle.
So I find the elements of charge 2 established beyond reasonable doubt, namely, that the accused struck, touched, moved or otherwise applied force to the complainant without her consent, the assault was unlawful, that is, not authorised, justified or excused by law, the complainant suffered bodily harm and that bodily harm resulted from the assault by the accused, and otherwise they were married.
[52] Transcript of primary court dated 19 May 2023, 59.
The magistrate's reasoning in respect of the second assault occasioning bodily harm charge was as follows:[53]
So charge 3 is the exhibits 3A and 3B. 3B, that the part of the complainant's face below her eyes, particularly on the left side, is swollen. So defence made submissions about the bruising and whether she had residual bruising on or around her eyes, black eyes from the accident, but to me I see bruising below the eyes and the cheek and that's consistent with the complainant's version as to how that injury was caused.
…
I didn't see that that's residual bruising, and what I will say in relation to exhibit 11 in terms of affecting the weight, the points that defence have highlighted or rely on, they relate to the admission.
Even though that's a discharge summary, there's no context provided for those observations, but I would note they seem to be on admission 20 April 2023, and again on admission 'O/E', on examination, so that seems to be - so it goes to weight really as to whether that's actually - that there's bruising there. I don't see anything in those comments out of context to say that they were actually observations made on discharge because of course she discharged herself without permission.
Charge 3. So as I said, again, they are corroborated by photographs, so I find that those elements of that offence are established beyond reasonable doubt.
[53] Transcript of primary court dated 19 May 2023, 60.
The magistrate's reasoning in respect of the endangering life charge was as follows:[54]
In relation to charge 4, the evidence of the complainant is inconsistent with objective evidence tendered on behalf of the accused in respect of a significant aspect relating to the mobile phone, and I've just reconfirmed that. In my view, this undermines her version as to whether the accused smashed that phone and casts some doubt regarding her version of events in relation to the allegations surrounding that incident so much so that I cannot be satisfied beyond reasonable doubt that the accused did the act in the manner alleged, and I find him not guilty of that charge.
[54] Transcript of primary court dated 19 May 2023, 60.
Grounds of appeal
The grounds of appeal are as follows:
(1)The guilty verdicts with respect to [the assault occasioning bodily harm] charges are inconsistent with the not guilty verdicts with respect to the [common assault and endangering life] charges.
(2)The guilty verdicts were unreasonable and not supported by the evidence adduced at trial.
Leave to appeal
Part 2 of the Criminal Appeals Act 2004 (WA) governs appeals from courts of summary jurisdiction. The appellant requires leave to appeal in respect of each ground of appeal.[55] Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.[56] To meet this threshold the ground of appeal must have a rational and logical prospect of succeeding, in effect, having a real prospect of success.[57] If leave to appeal is refused, the appeal is taken to be dismissed.[58]
[55] Criminal Appeals Act 2004 (WA) s 9(1).
[56] Criminal Appeals Act 2004 (WA) s 9(2).
[57] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[58] Criminal Appeals Act 2004 (WA) s 9(3).
Ground 1
In his written submissions filed on 13 October 2023 the appellant gave the following particulars of ground 1:
Particulars
a)The Learned Magistrate found that there were issues that reflected adversely upon the Complainant.
b)Those issues resulted in the Learned Magistrate not finding charges RO 5179 and 5182 of 2021 proven, beyond a reasonable doubt.
c)The Learned Magistrate erroneously utilized, challenged, evidence of corroboration to cure those adverse issues in circumstances where it was inappropriate to do so.
Inconsistent verdicts - relevant legal principles
In LNN v Western Australia,[59] the Court of Appeal reaffirmed that the test to be applied when an appeal is brought on the ground that a verdict is inconsistent with other verdicts is whether the inconsistency is of such a character that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness.[60] In other words, can it be concluded that the different verdicts cannot have been the product of the deliberations of a reasonable jury applying their minds properly to the fact-finding process in relation to each of the counts?
[59] LNN v Western Australia [2021] WASCA 39.
[60] LNN v Western Australia [99] (Buss P, Mitchell & Vaughan JJA).
In NTH v Western Australia,[61] the Court of Appeal observed that an appellant who alleges factual inconsistency faces a high hurdle. Their Honours expressed the applicable principles as follows:[62]
[61] NTH v Western Australia [2020] WASCA 22.
[62] NTH v Western Australia [60] - [61] (Buss P, Mazza & Beech JJA).
An appellant alleging factual inconsistency faces a high hurdle. Such an appellant must satisfy the court that, as an exercise of fact finding, in logic and reasonableness, the verdicts cannot stand together, meaning that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion. If there is a proper way by which the appellate court may reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense. If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.
Even where the appellate court is not persuaded that the verdicts may be reconciled in the sense we have explained, the verdicts are not necessarily inconsistent. In a passage that has been adopted in this court many times, in DPJB v Western Australia, Owen JA made the following points:
1.If a jury returns an acquittal in relation to a count in respect of which a prosecution witness has given evidence, it does not follow that the jury must have concluded that the witness was generally untruthful or his or her credibility was compromised. The jury might not have disbelieved the witness but thought the evidence lacked the requisite particularity as to time, place or circumstances to justify a conviction. Similarly, the jury might have regarded the witness's evidence as generally credible but thought that, in relation to some issues, the witness's recollection was faulty.
2.The court should be aware of the possibility that the jury may have taken a 'merciful' view of the facts and acquitted the accused on some counts for which, on the evidence, the accused ought to have been convicted. Although the jury's actions may be logically questionable, it is perhaps understandable and the court should not shut its eyes to the fact that it is part and parcel of the administration of justice by juries.
3.In assessing whether differing verdicts can stand together, the presence or absence of corroboration may be a relevant point of differentiation. For example, in MFA v R [2002] HCA 53; (2002) 213 CLR 606 the accused was charged with nine sexual offences against a male youth. Those offences were said to have occurred on four separate occasions. The jury acquitted the accused on seven counts relating to three of the occasions, but convicted him of two counts committed on the other occasion. The High Court dismissed his appeal on the ground of inconsistent verdicts. The differing verdicts were explicable on the basis that the two counts in respect of which the accused was convicted were the only counts which were substantially supported by the evidence of another witness.
4.The fourth point is closely related to the third. The presence or absence of evidence adduced by the accused which casts doubt on the prosecution case in respect of a particular count may explain differing verdicts. For example, in Lefroy the accused was charged with six counts of indecent dealing. The complainant was a pupil of the accused, a school teacher. Two of the counts were said to have taken place in the classroom while other students were present, two were said to have taken place at the accused's home and two were alleged to have taken place in a public shower block during a camping trip. The accused was convicted of the two counts which were said to have taken place in his home, but acquitted of the other four. The Court of Criminal Appeal found that the differing verdicts could be explained by the fact that the accused adduced evidence showing that other students had not seen anything untoward happen in the classroom and that the public showers were seldom used during camping trips to that location.
5.It may be more difficult to reconcile differing verdicts when the offences were said to have occurred at the same time or been part of one course of conduct. For example, in R v LR the accused was charged with six counts of rape. Three counts related to the alleged penetration of the complainant's mouth and three related to the penetration of her vagina. The prosecution case was that the accused had forced himself on the complainant and carried out the offences in one episode. The accused admitted two counts of oral penetration but claimed that it was consensual. He denied any vaginal penetration. The jury convicted the accused of two counts in relation to the oral penetration, but acquitted him in relation to the three counts of vaginal penetration and the remaining count of oral penetration. The court took the view that it was extremely difficult to identify any rational basis upon which the verdicts could be reconciled. If the jury did not regard the complainant's evidence as sufficiently reliable to be satisfied that four acts of non consensual penetration occurred, it was difficult to see how they could have been satisfied that the two admitted acts of oral penetration said to have been committed in the same course of conduct were non consensual.
6.In reconciling verdicts the court should have regard to the way in which evidence was given by the witnesses. There may be subtle differences in the way the evidence was presented that led to differing verdicts. The court should also be aware that pauses and other indications of indecision might not have been recorded in the transcript but nevertheless have been observed by the jury. In other words, the appellate court should not ignore the fact that differing verdicts may be explicable by the peculiar advantage that is available to the jury from hearing the evidence first-hand which is not available to an appellate court. (citations omitted)
The task of the court is to review the evidence and to determine whether, as a matter of logic and reasonableness, the different verdicts can stand together. All of the circumstances of the case must be taken into account in making that assessment.[63]
An overview of the opposing arguments
[63] DPJB v Western Australia [2010] WASCA 12 [82] (Owen JA).
The crux of the appellant's argument on this ground is that because the magistrate's observations about the complainant's evidence reflected on her credibility, rather than merely on the reliability of her evidence, it was not open to her Honour to rely on the corroborative evidence to bolster the complainant's evidence. The appellant contrasted the use of corroborative evidence in the case of TWG v Boucher,[64] in which the corroboration was relied on to address issues of reliability, with the magistrate's use of corroboration in this case to address issues of credibility. The appellant reinforced his primary argument with a contention that the magistrate had not explained how she was able to reconcile her critical observations about the complainant's evidence with her conclusion that the complainant's evidence about charges two and three was cogent.
[64] TWG v Boucher [2020] WASC 98.
The respondent contended that the appellant's argument (characterised as an argument that because the magistrate was not prepared to rely solely on the complainant's evidence in respect of charges one and four, her Honour was not entitled to rely on the complainant's evidence in respect of any of the charges) was misconceived for three reasons, summarised as follows:
(a)The appellant overstated the magistrate's adverse findings about the complainant's evidence.
(b)It was open to the magistrate to accept some aspects of the complainant's evidence and reject other aspects.
(c)The acquittals did not necessarily reflect a finding that the complainant's account was impossible or fabricated.
Ground 1 - disposition
In considering whether the complainant's account of the alleged assaults was corroborated by other evidence, the magistrate was adopting an entirely conventional and logical approach to fact finding.
The critical question is whether the magistrate's observations in relation to the complainant's evidence were such that her Honour could not, and should not, have placed any reliance on the complainant's evidence with the consequence that the corroborative evidence became redundant.
The most compelling response to this question is that the magistrate, who had the advantage of seeing the complainant give her evidence, considered that her criticisms of some of the complainant's evidence did not prevent her from relying on other aspects of the evidence. As is made clear in the authorities the magistrate was entitled to reject or not rely on some aspects of a witness's evidence but to accept and rely on other aspects. It is plain from the passage of the reasons quoted at [21] that her Honour made a positive finding that notwithstanding her concerns about some aspects of the complainant's evidence, her evidence in respect of the alleged assaults was cogent and not undermined in cross‑examination. The respondent is correct to say that the appellant overstates the nature and effect of the magistrate's critical observations of the complainant's evidence.
There is nothing to suggest that in approaching the complainant's evidence in this way the magistrate failed to use or palpably misused her advantage in assessing the complainant's credibility or made findings inconsistent with facts incontrovertibly established or which were glaringly improbable,[65] and the appellant did not contend otherwise.
[65] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [66] (McHugh J).
In any event, I have reviewed the transcript of the complainant's evidence. The complainant did respond to many questions asked in cross‑examination with responses to the effect that 'she did not know' or 'she could not recall' but, as the respondent contended, those responses were generally in relation to peripheral issues and not in relation to the immediate circumstances of the alleged assaults. Similarly, on my reading of the transcript, the subject matter of the cross-examination in respect of which the complainant's answers might most readily be described as evasive, was her activities in the former matrimonial home on 20 January 2018.
Finally, I do not accept the appellant's contention that the magistrate failed to explain how she reconciled her critical observations of the complainant's evidence with her acceptance of her evidence in relation to charges two and three. Her Honour provided that explanation in the passage quoted at [21] as expanded upon in the passages quoted at [25] - [26]. Her Honour explained that the complainant's evidence about the 'alleged incidents' was, in effect, cogent and detailed, not undermined by cross‑examination and corroborated by the photographs.
The appellant had not overcome the 'high hurdle' raised by an inconsistent verdicts appeal. Leave to appeal will be refused in respect of ground 1 and the appeal will be dismissed.
Ground 2
Ground 2 alleges error in finding the appellant guilty of charges two and three in circumstances where those verdicts were unreasonable or could not be supported on the evidence adduced at trial.
The appellant provided the following particulars for ground 2 in his submissions filed on 13 October 2023:
Particulars
a)The Learned Magistrate found that there were issues that reflected adversely upon the Complainant.
b)The Prosecution case required the Learned Magistrate accept the version of the Complainant insofar as it related to each respective charge.
c)The adverse issues found by the Learned Magistrate, went to the reliability and credibility of the Complainant.
d)The corroboration relied upon by the Prosecution could not, and should not, cure those issues as to credit.
Unreasonable verdicts
In MEN v Western Australia,[66] the Court of Appeal summarised the general principles governing the determination of appeals alleging that a jury's verdict is unreasonable or cannot be supported having regard to the evidence. The Court of Appeal has acknowledged that the same principles concerning a jury's verdict applies by analogy to a criminal trial before a judge sitting alone without a jury or before a magistrate.[67] There is no need to reproduce the principles in these reasons.
An overview of the opposing arguments
[66] MEN v Western Australia [2020] WASCA 118.
[67] Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA).
Essentially, the appellant's argument in respect of ground 2 was founded on the same proposition as ground 1 – the appellant was not a credible witness and the magistrate should not have relied on her evidence. The appellant argued that the acquittal in respect of charge four did not arise simply because an otherwise truthful witness was mistaken or there being a question as to their reliability. The appellant argued the magistrate:[68]
[S]hould not have used corroboration to cure that issue as to credibility. The existence of a 'corroborating witness' reliant upon the report of an act from a witness deemed not to be credible, cannot, and should not relieve the court of any reasonable doubt that the act occurred and the magistrate should have had a reasonable doubt about the appellant's guilt in respect of charges two and three.
[68] Appellant's submissions filed 13 October 2023 [78].
In summary, the respondent argued that the concerns that were expressed by the magistrate about aspects of the complainant's evidence were not such it could be said that the magistrate must have entertained a reasonable doubt as to the appellant's guilt.
Ground 2 - disposition
As ground 2 shares the same essential foundation as ground 1, the reasoning in respect of ground 1 in relation to the magistrate's approach to the complainant's evidence is sufficient to dispose of ground 2. For the reasons I have explained, I am not satisfied that there was any error in the magistrate's approach to fact finding. For the purposes of this ground, however, my review of the evidence must go further than is required to address the specific error raised by the appellant. In my assessment, having examined the totality of the evidence this is not a case in which the magistrate must have entertained a doubt about the appellant's guilt.
More specifically, the appellant's argument focuses too narrowly on one aspect of the evidence. When regard is had to:
(a)the complainant's evidence;
(b)the corroboration provided by the photographs;
(c)the corroboration provided by the complainant's mother including the evidence of the admissions made by the appellant to the complainant's mother;
(d)the admissions in the note written by the appellant and the magistrate's unchallenged rejection of the appellant's explanation for the admissions in the note;
(e)the magistrate's unchallenged rejection of the appellant's evidence that the bruising visible in the photographs taken in August 2017 was residual bruising from the April 2017 car accident; and
(f)the magistrate's unchallenged characterisation of the appellant as a 'self-confessed liar' and the rejection of his evidence generally,
it cannot be said that the magistrate must have entertained a reasonable doubt as to the appellant's guilt.
Leave to appeal in respect of ground 2 will be refused and the appeal will be dismissed.
Conclusion
The application will be dismissed and I will hear the parties in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
29 NOVEMBER 2023
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