Vahedi v Director of Public Prosecutions (WA) - [2025] WASC 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   VAHEDI -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2025] WASC 358
CORAM:   MCGRATH J
HEARD:   9 DECEMBER 2024
DELIVERED          :   29 AUGUST 2025
FILE NO/S:   SJA 1067 of 2024
BETWEEN:   ARMAN VAHEDI
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

ON APPEAL FROM:
For File No:   SJA 1067 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DE MAIO
File Number            :   FR 8902/2023

Catchwords:

Criminal law - Appeal against conviction - Impeding another person's breathing in circumstances of aggravation - Whether the magistrate made express errors of fact - Materiality of errors of fact - Significance of error of fact - Whether errors results in the appeal being allowed - Procedural fairness - Liberato direction

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA) s 298

Result:

Leave to appeal granted on grounds 2 and 5
Appeal allowed
Conviction set aside and a retrial ordered

Representation:

Counsel:

Appellant	:	Mr P D Yovich SC
Respondent	:	Ms N Sinton

Solicitors:

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

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

Attorney-General (NSW) v Quinn (1990) 170 CLR 1
D v Director of Public Prosecutions [2024] WASC 48
De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57
Kioa v West (1985) 159 CLR 550
MEN v The State of Western Australia [2020] WASCA 118
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Teakle v The State of Western Australia (2007) 33 WAR 188
WS v Gardin [2015] WASC 97

MCGRATH J:

The appellant was convicted after trial in the Magistrates Court of one count of impeding another person's breathing in circumstances of aggravation contrary to s 298 of the Criminal Code 1913 (WA). The learned Magistrate imposed a fine of $2,000 and granted the appellant a spent conviction.
The appellant now appeals his conviction on five grounds with each ground contending that the learned Magistrate made an express error of fact. The respondent submits that the learned Magistrate did not make the contended express errors of fact but if her Honour did so, then the errors are not material and therefore, there is no substantial miscarriage of justice. The respondent further submits that the proviso is not relied upon and therefore, if any one of the errors of fact are made out then the appeal should be allowed.
For the following reasons, I grant leave to appeal and allow the appeal. Consequently, the conviction is set aside, and a re‑trial is ordered before a different magistrate.

Magistrates Court proceedings

The trial in the Magistrates Court was heard on 3 May 2024 and 27 June 2024. The prosecution case was that during the night of 15 July and the morning of 16 July 2022, the appellant and his partner (the complainant) were at home in their bedroom arguing about financial issues. It was common ground at trial that at some point during the argument, the appellant put his hand on the complainant's shoulder and that she stated the words 'don't touch me'.
However, the recollection of the appellant and the complainant then diametrically diverged in respect to what occurred at that point in time. The prosecution alleged that the argument escalated resulting in the appellant grabbing the complainant by the throat and pushing her down so that she was flat on her back on the bed. The appellant then proceeded to apply pressure to the complainant's throat with his forearm and thereby impeded her breathing.[1] The appellant denies doing so.
[1] ts 6 (3/5/2024).
At trial, the prosecution called two witnesses namely, the complainant,[2] and Dr Cullinan, medical practitioner.[3] The witness statement of Constable Brysse was read into evidence.[4] The appellant elected to give evidence.[5] I will outline succinctly the testimony of each of the witnesses.

Complainant's testimony

Examination in chief

[2] ts 9 ‑ 107 (3/5/2024).

[3] ts 45 ‑ 48 (3/5/2024).

[4] ts 2 (27/6/2024).

[5] ts 4 ‑ 63 (27/6/2024).

The complainant gave evidence that she married the appellant in 2002, and they separated in 2022.[6]
[6] ts 10 (3/5/2024).
The complainant stated that the appellant always had control over the finances since he started his own business in 2008. The appellant told the complainant that the best financial approach was to have her salary paid into an offset account controlled by him. The appellant declined to give internet banking access to the complainant.[7] However, the complainant stated that she was permitted a credit card to use for transactions.
[7] ts 11 (3/5/2024).
The complainant stated that after she returned from maternity leave she worked for the appellant. Her salary was paid into a business account controlled by the appellant.[8]
[8] ts 10 (3/5/2024).
The complainant stated that on 8 June 2022, she received a binding financial agreement from the appellant with a request that she sign the document.[9] The complainant sought legal advice and as a consequence declined to sign the binding financial agreement.
[9] ts 11 ‑ 12 (3/5/2024).
Further, the complainant stated that in July 2022, the appellant informed her that he was intending to transfer $1.5 million from the joint banking account to his business trading account.[10] Consequently, on 12 July 2022, the complainant asked her employer to deposit future salary payments into her own personal bank account (that had been opened in 2019).[11]
[10] ts 12 (3/5/2024).
[11] ts 12 - 13 (3/5/2024).
The complainant stated that on 15 July 2022, a discussion with the appellant commenced during the evening concerning finances and her salary being paid into her personal bank account.[12]
[12] ts 3 - 14 (3/5/2024).
At 11.30 pm on 15 July 2022, the complainant was asleep in bed when she awoke with a kick to her back. When she asked the appellant why he kicked her, he said that his leg must just have jolted.[13] The appellant then commenced discussing finances which resulted in him mimicking the complainant.[14] At that time, the appellant touched the complainant's shoulder causing the complainant to tell him not to touch her. Consequently, the complainant recalled that, 'in a split second he was grabbing my neck, pinning me down on the bed and pressing my throat'.[15]
[13] ts 14 (3/5/2024).
[14] ts 14 - 15 (3/5/2024).
[15] ts 15 (3/5/2024).
The complainant stated that her neck was grabbed by the appellant's right hand.[16] The complainant described the appellant grabbing her left arm with his right arm and then pressing his left arm on her throat whilst she was lying down.[17] The complainant described feeling pressure on her neck[18] which lasted for approximately 45 seconds.[19] The complainant stated that when the appellant commenced the assault by grabbing her neck, she tried to push him away and scratched him with her long nails.[20]
[16] ts 15 (3/5/2024).
[17] ts 16 (3/5/2024).
[18] ts 16 - 17 (3/5/2024).
[19] ts 18 (3/5/2024).
[20] ts 18 (3/5/2024).
The prosecution particularised the forearm pressure, and not the initial grab to the neck, as the act that unlawfully impeded the complainant's breathing.[21]
[21] ts 6 (3/5/2024); ts 12 (16/8/2024).
The complainant stated that the pressure lasted for 'I can't say like 1 to 2 minutes' and 'lets say 45 seconds to 1 minute or so'.[22] The complainant stated that she gave up struggling whereupon the appellant stopped applying the pressure, got up and went to the nearby ensuite bathroom.[23]
[22] ts 18 (3/5/2024).
[23] ts 15 ‑ 18 (3/5/2024).
Shortly after, the complainant went into the bathroom, and she observed redness around her neck. The complainant stated that she used her mobile phone to take photographs, but the appellant grabbed her mobile phone stating 'now you want to take photos to make it difficult for me?' The appellant left the bathroom and returned to the bedroom. The complainant stated that the appellant then commenced taking photographs of his injuries which she observed to be scratches to his face.[24] The complainant gave evidence that she then commenced walking up and down in the walk-in robe and the appellant followed her, saying 'yes good girl. You have to hit me. Hit me'.[25]
[24] ts 19 (3/5/2024).
[25] ts 19 (3/5/2024).
After the incident, the appellant locked the doors of the bedroom and the complainant spent the night in the same room as the appellant.[26] In the morning, the complainant took photographs of her neck and her right arm to show the injuries sustained to her body comprising a bruise to her neck and scratches to her arm.[27] The complainant stated that the injuries depicted in the photographs were caused by the appellant's assault the night before.[28]
[26] ts 20 (3/5/2024).
[27] ts 20 ‑ 22 (3/5/2024); Exhibits 1.1 ‑ 1.3 - photographs of injuries taken on 16 July 2022.
[28] ts 22 (3/5/2024).
The complainant stated that she subsequently attended on a medical practitioner that morning.[29]
[29] ts 24 (3/5/2024).
The complainant gave evidence that she remained in the relationship with the appellant until 24 March 2023.[30]
[30] ts 24 (3/5/2024).
The prosecution produced a National Australia Bank (NAB) bank statement for the personal bank account showing the transfer of her salary to that account on 14 July 2022.[31]
[31] ts 30 - 31 (3/5/2024); Exhibit 3 - NAB statement for complainant's bank account.
The prosecution also produced the video footage taken from the appellant's mobile phone on the night of the incident. The complainant identified that the appellant was saying the words 'hit me again hit me'.[32]

Cross-examination of the complainant

[32] ts 29 (3/5/2024); Exhibit 2 - phone footage taken from appellant's phone dated 16 July 2022.

In cross-examination, the complainant stated the appellant had told her that the offset bank account was set against the interest payable for the mortgage, and that at the end of each financial year money was transferred to reduce the tax liability.[33] The complainant accepted that the appellant told her that the binding financial agreement separated finances so that her money could be deposited into her account.[34] The complainant identified the email she received from the appellant attaching the binding financial agreement and confirmed that the translation of the words was 'Take a look at this honey. This is a draft. We can talk at night. Kisses'.[35]
[33] ts 53 (3/5/2024).
[34] ts 54 (3/5/2024).
[35] ts 55 (3/5/2024); Exhibit 5 - email sent by the appellant to the complainant dated 8 June 2022.
The complainant identified a text message that she sent to the appellant concerning the binding financial agreement dated 6 June 2022. The complainant confirmed that whilst she intended to consult a lawyer she had not done so at the time of sending the text message to the appellant.[36]
[36] ts 57 (3/5/2024).
In respect to the incident, the complainant confirmed that she was kicked by the appellant whilst in bed.[37] After being kicked, the complainant and the appellant commenced discussing finances. The appellant then touched her shoulder with his right hand with her responding by saying 'don't touch me.'[38]
[37] ts 58 (3/5/2024).
[38] ts 60 (3/5/2024).
The complainant stated that 'in a split second' the appellant then grabbed her neck with his right hand and pinned her down.[39] He was then pushing her down with his hand on her throat. The complainant stated that the appellant would have been using his left hand to push her down because he 'is lefty anyway.'[40]
[39] ts 60 (3/5/2024).
[40] ts 61 (3/5/2024).
The complainant stated that it may have been the appellant's left hand that grabbed her throat but clarified that her throat was grabbed by one of his hands and the other hand pushed her left hand. The complainant stated that she gets confused with left and right.[41] The complainant stated, 'he grabbed my neck with one hand and pushed my left hand with the other hand'.[42] The appellant used his body weight to stop her moving and she could not breathe due to his hand around her neck.[43]
[41] ts 61 (3/5/2024).
[42] ts 61 (3/5/2024).
[43] ts 63 (3/5/2024).
The complainant stated that when she was pushed down, she started to scratch him and then he went from the neck to the forearm. The complainant stated that whilst the appellant's forearm was across her throat he had also pinned her left arm with his right arm and that her right arm was restrained by the same arm he had across her throat, which was stopping her moving.[44]
[44] ts 63 (3/5/2024).
The appellant gave evidence that she did kick the appellant in the 'butt' after being released but only after being goaded by him to do so. The complainant accepted that as the appellant was walking around after the incident, he was saying words to the effect 'hit me the way that you hit me'.[45] The complainant could not recall whether she punched the appellant but accepted that she scratched his face.
[45] ts 77 (3/5/2024).
The complainant was cross-examined on the sequence of the events and her police statement.[46] The complainant agreed that her account of the appellant having mimicked her or mocked her is not in her statement to police, but maintained that she did tell the police that fact.
[46] ts 38 - 41 (3/5/2024).
The complainant stated that the appellant had not previously been violent towards her.[47] The complainant stated that she had no recollection as to whether she had previously hit the appellant in August 2021.[48] The complainant was asked whether she had thrown punches at the appellant in December 2021. The complainant stated that the appellant was having an affair with another woman and that it did not become physical, but she did punch him to the chest.[49] The complainant ultimately accepted that she had struck the appellant on two previous occasions before July 2022.[50]
[47] ts 41 (3/5/2024).
[48] ts 42 (3/5/2024).
[49] ts 42 (3/5/2024).
[50] ts 42 (3/5/2023).
The complainant was examined concerning her disagreement with the appellant over financial issues.[51] The complainant stated that prior to the disagreement over the binding financial agreement, there were disagreements arising from the appellant telling her 'you are spending lot of money and you are not earning enough', while the appellant was receiving all of her salary.[52] The complainant recalled that in January 2022, the appellant told her that she was spending too much and that 'we have to do something about it'.[53]
[51] ts 49 (3/5/2024).
[52] ts 49 (3/5/2024).
[53] ts 49 (3/5/2023).
The proposition was put to the complainant that the appellant had told her that she and the appellant were not earning enough to cover joint expenses. The complainant stated that the appellant used the words 'you are not earning enough, and you are spending too much'.[54] The complainant gave evidence that she did not spend too much.
[54] ts 51 (3/5/2024).
The complainant stated that the argument on 14 July 2022 concerned her wish to control her salary and she was being asked to sign the document. The complainant stated that she understood the offset account and recalled being shown a joint assets and liabilities document in January 2022.[55] The complainant accepted that the appellant told her that the purpose of the binding financial agreement was to separate finances.[56]
[55] ts 53 (3/5/2024).
[56] ts 54 (3/5/2024).
The defence case proposition was put to the complainant being that she assaulted the appellant by 'yelling and punching him' to his face and head and that she stated derogatory words. The complainant did not accept that proposition. Further, it was put to the complainant that the appellant did not grab her neck with his hands nor put his forearm across her neck. The appellant did not accept that proposition and stated that the appellant did impede her breathing.[57]
[57] ts 101 (3/5/2024).
The complainant went to the police with the alleged complaint in September 2023.[58]

Dr Cullinan

[58] ts 38 (3/5/2024).

The following day the complainant attended on a medical practitioner Dr Trudi Cullinan. Dr Cullinan gave evidence stating that the bruising she observed on the complainant's neck was consistent with the complainant's account of the appellant's attempt to strangle her and put his forearm across her neck. In particular, Dr Cullinan stated that the complainant's account was consistent with the finger marks but that the finger marks were also consistent with 'something else'.[59]
[59] ts 47 (3/5/2024).
The prosecution led two photographs that the complainant took of her neck on the morning after the alleged offending which, on the prosecution case, showed some bruising to the right side of the neck.[60] The prosecution case was that the bruising shown by the photographs consisted of a number of roughly oval shaped areas of discolouration.
[60] Exhibits 1.1 and 1.2.
In cross-examination, Dr Cullinan recalled that the complainant told her during the consultation that she 'didn't feel in danger' from the appellant and that the conduct of the appellant was 'very out of character for him'.[61]

Constable Brysse

[61] ts 48 (3/5/2024).

The statement of Constable Brysse was read into evidence.[62] Constable Brysse stated that on 23 April 2023, whilst she was on duty at the Cannington Police Station, the appellant attended and made a report of domestic violence. Constable Brysse produced an incident report which she entered on the police digital evidence management system.[63] On 25 April 2023, the appellant forwarded ten images via email to Constable Brysse.[64]

Appellant's testimony

Examination in chief

[62] ts 2 (27/6/2024).

[63] Exhibit 11 - document attesting the appellant has no criminal record; ts 2 - 23 (27/6/2024).

[64] Exhibits 10.1 - 10.10 - images sent by the appellant to the police on 25 April 2023.

The appellant gave evidence that he was employed as a chemical engineer who migrated to Australia from Iran on 4 January 2004. The appellant stated that he had no criminal record.[65]
[65] ts 5 (27/6/2024).
The appellant gave testimony that on 25 November 2022, he received an email from the complainant stating that she wanted a divorce.[66]
[66] ts 6 ‑ 7 (27/6/2024).
In respect to the family finances, the appellant stated that a family trust structure was created which gave a tax benefit of distributing income to joint accounts.[67]
[67] ts 7 (27/6/2024).
In 2018, the price of oil declined causing financial problems within the family. The appellant stated that the complainant always had her own bank account but, in January 2022, agreed that there should be some form of financial separation.[68] Therefore, the appellant forwarded an email to the complainant on 8 June 2023 attaching the relevant financial separation papers.[69] Consequently, on 9 June 2023, the complainant forwarded an email to the appellant expressing that she was unhappy with the proposal.[70]
[68] ts 11 (27/6/2024).
[69] Exhibit 5 - email from appellant to complainant dated 8 June 2023.
[70] Exhibit 6 - email from complainant to appellant dated 9 June 2023.
The appellant stated that as at June 2022 he usually slept in the master bedroom and that the complainant slept in bedroom 3 at the family residence. The appellant considered that the relationship was 'just going down and down by the day'.[71]
[71] ts 13 (27/6/2024).
The appellant stated that the complainant decided to pay her salary into her own bank account contrary to the appellant's wish that the finances be paid into a joint account. On 15 July 2022, at approximately 9.00 pm, the appellant was in his bed in the master bedroom when the complainant entered and commenced lying in the bed sitting up.[72] At that time, the complainant commenced talking about finances with her demeanour becoming irritated and angrier as she discussed the issue.[73] The appellant said that at that time, he put his right hand on her shoulder and she 'essentially exploded'.[74] The complainant commenced a tirade of abusive comments to the appellant and then commenced assaulting him.
[72] ts 14 ‑ 15 (27/6/2024).
[73] ts 16 (27/6/2024).
[74] ts 18 (27/6/2024).

The appellant stated that the complainant had hit him to the face on two previous occasions in August and December 2022 by using a closed fist to his face.[75] On those previous occasions the appellant never struck her back though he was being physically assaulted. On this occasion, the complainant put her nails on his neck and pulled backwards. As the appellant was trying to retrieve his mobile phone, he was kicked in his leg, back and upper legs. As the appellant retrieved his mobile phone, the complainant continued to pull her fingers on his neck.[76]
[75] ts 19 ‑ 20 (27/6/2024).
[76] ts 22 (27/6/2024).
The appellant stated that he then moved to the walk‑in robe and commenced filming.
The appellant gave evidence that he was left-handed but does use his right hand and that the complainant is right‑handed.[77]
[77] ts 25 (27/6/2024).
During the trial, a series of photographs taken the night of the incident, showing injuries to the appellant's neck, jawline, back, upper chest, and upper right arm were tendered in evidence.[78] The appellant stated that he commenced taking the photographs not long after the altercation, most likely within one hour.[79] The appellant had previously forwarded the photographs to the police.
[78] Exhibits 9.1 ‑ 9.12A.
[79] ts 37 (27/6/2024).
The appellant provided a description of each photograph. In respect to photograph marked as exhibit 9.8 and 9.8A, the appellant described exhibit 9.8 as 'it's my back. This is my middle back. And this is underarms essentially. And there are a few marks there'.[80] The appellant pointed to 'big blue marks' which were caused by the fist of the complainant and another mark was identified as being on the side of the body, 'towards the centre'.[81] The appellant agreed with the description of that injury as being an oblique linear red mark whilst the other mark was a 'circular purply mark'.
[80] Exhibit 9.8; ts 32 (27/6/2024).
[81] ts 33 (27/6/2024).
The appellant stated that at no time did he apply force to the complainant's neck or press her neck in any way.[82]

Cross-examination of the appellant

[82] ts 39 (27/6/2024).

In cross‑examination, the appellant confirmed that he was concerned that if there were separate bank accounts, they may be unable to pay incoming bills.[83] The appellant rejected the proposition that he was angry about the finances because the complainant had organised a separate bank account for her finances.[84] The appellant denied that he raised his voice at the complainant and maintained that he merely touched the complainant on the shoulder and that she then commenced striking him to the face and head in anger.[85]
[83] ts 42 (27/6/2024).
[84] ts 43 (27/6/2024).
[85] ts 44 (27/6/2024).
In cross‑examination, the video showing the complainant, taken after the incident, was shown to the appellant who stated that at that time the complainant had stopped being aggressive.[86]
[86] ts 55 (27/6/2024).
The appellant gave evidence that upon retrieving his mobile phone, he then retreated to the walk-in robe of the bedroom. The appellant stated that the complainant then followed him there and that she only calmed down when he activated his mobile phone camera and pointed the camera at her.[87] At that time, the altercation continued but there was no further physical acts by either the complainant or the appellant.

Magistrate's reasons for decision

[87] ts 5 - 6 (27/6/2024).

On 16 August 2024, the learned Magistrate delivered her reasons for decision in convicting the appellant. I will not outline the entirety of the findings made by her Honour at this juncture given that the appellant impeaches a number of the significant findings in the five grounds of appeal. Therefore, the reasoning of the learned Magistrate will be relevantly considered when determining the grounds of appeal.
The learned Magistrate directed herself in respect to the presumption of innocence, the onus of proof and the standard of proof.[88] The learned Magistrate stated that she would 'apply a Liberato direction'. Her Honour did so.[89] Further, her Honour directed that the court must not speculate and must be dispassionate in respect to the drawing of inferences.
[88] ts 2 - 3 (16/8/2024).
[89] ts 3 (16/8/2024).
The learned Magistrate outlined the testimony of the complainant. The learned Magistrate considered the testimony concerning the financial relationship between the appellant and the complainant. In particular, the learned Magistrate, without error, outlined the testimony in relation to the complainant directing her salary into her own bank account. Her Honour observed that the NAB bank statement corroborated that testimony. The learned Magistrate outlined that the appellant presented a binding financial statement to the complainant for her to sign. The complainant declined to sign the document after receiving legal advice.[90] In July 2022, the complainant recalled that the appellant changed bank accounts from Westpac to NAB in order to obtain another loan. Consequently, the complainant set up her own account by way of debit card.
[90] ts 3 (16/8/2024).
The learned Magistrate then outlined the testimonies of the complainant and appellant concerning the incident. The learned Magistrate, after outlining that evidence and making specific factual findings, found that the appellant was not an honest and credible witness. Accordingly, her Honour stated that she would put his testimony to one side and then determine whether the prosecution had proven its case beyond a reasonable doubt. The learned Magistrate stated that the complainant was the only witness who was able to give evidence as to the assault upon her.[91] Her Honour found that the complainant was 'steadfast in her account as to the most important aspects of the incident'.[92] The learned Magistrate found that the complainant's testimony concerning the initial grabbing of her throat was corroborated by the medical evidence.
[91] ts 12 (16/8/2024).
[92] ts 12 (16/8/2024).
Her Honour noted, though, that initial grabbing of the throat was not the act particularised by the prosecution as being the act that impeded the complainant's breathing. The learned Magistrate stated that the action of placing a forearm across the neck would not necessarily leave bruising or any marks.[93]
[93] ts 12 (16/8/2024).
The learned Magistrate found the charge proven beyond a reasonable doubt.

Grounds of appeal

The notice of appeal pleads five grounds of appeal in the following terms:
1.The learned Magistrate made a material error of fact in finding that the appellant had given evidence that the complainant was left-handed, resulting in her wrongly concluding that photographic evidence was consistent with the complainant's account and not the appellant's account.
2.The learned Magistrate made a material error of fact in finding that there were no injuries to the appellant's back, and thus that the injuries he had suffered were not consistent with his account.
3.The learned Magistrate made a material error of law, alternatively fact and law, in the approach to applying the burden and standard of proof in determining whether the complainant's evidence was credible and reliable.
Particulars:
(a)In relation to the complainant's evidence of how the appellant restrained both of her arms when he was doing the act said to constitute the offence, the Magistrate said that the complainant's account:
(i)'was not so fanciful that it could be rejected'; and
(ii)That it 'was not inconceivable' that the appellant was able to restrain her right arm and hand from moving with his left elbow.
(b)In relation to the sequence of events after the alleged offence was committed, and the appellant and complainant each gave evidence that they went into a walk-in robe adjacent to the master bedroom where the offence was alleged to have occurred, the learned Magistrate said that she could not draw an inference that the complainant's evidence about that issue was not logical, because the complainant was not cross-examined 'as to the logic of her actions'.
(c)In relation to the absence of an injury to the complainant's neck consistent with the act constituting the offence, the learned Magistrate said that the action of 'placing a forearm across her neck would not necessarily leave bruising or any marks the next day', despite the complainant's account that this action:
(i)involved pressing down on her throat;
(ii)prevented her from breathing; and
(iii)lasted, on her best estimate, at least 45 seconds while she struggled against it.
4.The learned Magistrate made a material error of law, alternatively fact and law, in her approach to applying the burden and standard of proof, and the reasoning process required by Liberato v The Queen, in her analysis of the appellant's evidence.
Particulars
(a) The learned Magistrate, in contrast to her treatment of the absence of evidence of an injury consistent with the application of force the subject of the charge as particularised in ground 3, particular (c), found that the injuries on the appellant were not consistent with his account, because:
(i)There were no injuries to his back (when this was an error of fact); and
(ii)'There were no injuries to the appellant's 'legs, upper and lower back, where he says the complainant punched and kicked him. There are no areas of redness in the absence of injuries, such as bruising, which might not occur in any event' (emphasis added).
(b)The learned Magistrate drew adverse conclusions about the appellant on the basis that he 'paints a picture of a violent and unstable complainant at times', but that he 'fails to give examples ... of this beyond the two occasions I've mentioned earlier', in circumstances where the appellant did not allege that physical violence had happened on more than two occasions, and the complainant admitted that she had physically struck him on two prior occasions.
(c)The learned Magistrate drew speculative conclusions adverse to the appellant from a bank statement tendered by the prosecution in the circumstances particularised in ground 5.
5.The learned Magistrate made material errors of law, alternatively fact and law, in her use of evidence derived from a bank statement tendered by the prosecution as exhibit 3, which relevantly covered a period of 18 days from 14 July 2022 to 1 August 2022.
Particulars
(a)The learned Magistrate erred in finding that the appellant had given evidence that the complainant had engaged in 'wild spending', when his evidence was not to that effect.
(b)The learned magistrate erred in drawing a speculative conclusion that a single bank statement, was capable of showing that the complainant was not 'wildly spending money on herself without contributing to the family's purse, as (the appellant) made out was her desire', in circumstances where the unchallenged evidence was:
(i)that the family finances were complex, involving multiple bank accounts to which both the appellant and complainant had access;
(ii)that the appellant and complainant's combined spending was exceeding their combined income;
(iii)that in a period of 3 years before separation, the complainant had spent $1.1.million; and
(iv)in around June 2021, the appellant had seen expenses of around $210,000 on one of three credit cards, most of which the complainant had spent.
(c)The prosecutor did not cross-examine the appellant to challenge his evidence that the family expenses were exceeding their income, and did not submit in closing that the appellant's evidence to that effect should not be accepted, nor did he invite the learned Magistrate to use exhibit 3 in the way in which she did.
(d)The learned Magistrate's use of the bank statement in the manner described, without notice to the defence and in the circumstances described in Particulars (b) and (c), denied the appellant procedural fairness.

Applicable legal principles

This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) (CAA), which means that leave to appeal is required.[94] An appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[95]
[94] Criminal Appeals Act 2004 (WA) s 9(1).
[95] Criminal Appeals Act s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[96]
[96] Criminal Appeals Act s 9(2); Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
Section 14(2) of the CAA provides that even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The appellant's grounds of appeal contend both errors of fact and law.
In WS v Gardin,[97] Mitchell J stated the following in respect to s 14(2) of the CAA being interpreted in the context of an alleged error of fact:
In my view, where the reasons of a summary court indicate that the court has made an error of fact, but that the error was inconsequential or immaterial to the decision to convict, then this court can conclude that no substantial miscarriage of justice has occurred by reason of the error. That will be so whether or not this court is able to be satisfied, beyond reasonable doubt, of the accused's guilt from a review of the trial record. If the only errors established are factual errors of this kind, then this court will appropriately dismiss the appeal under s 14(2) of the Criminal Appeals Act.
However, where the primary court's reasons show the error of fact to be material to the decision to convict then there will ordinarily have been a substantial miscarriage of justice unless this court is satisfied on a review of the trial record that conviction was inevitable on the evidence adduced at trial.
This conclusion gives weight to the requirement that a summary court give reasons for its decision, and the reasons will ordinarily indicate whether an error of fact is inconsequential. If an error of fact may have significantly influenced a finding of guilt, depriving an accused of an opportunity of acquittal, then it may be fairly concluded that the trial process has miscarried. In such a case it will be no answer to say that the appellate court believes the accused to be guilty and it was merely open to the trial court to adopt a different view. In such a case it would also be open to the trial court, which is in the best position to determine questions of fact on evidence it has seen and heard, to take a different view from the appellate court.
[97] WS v Gardin [2015] WASC 97 [239] - [241].
The appellant submits that a similar approach is applicable in the present case in deciding whether, if an error of law is established, the appeal should nonetheless be dismissed pursuant to s 14(2) of the CAA.
The appellant submitted that an illustration of the applicable principle is the case of D v Director of Public Prosecutions for Western Australia.[98] In that matter, Lemonis J found that the learned trial Magistrate had made errors of fact, by mischaracterising the appellant's evidence, 'in a significant way concerning a matter that her Honour correctly described as crucial'.[99]
[98] D v Director of Public Prosecutions for Western Australia [2024] WASC 48.
[99] D v Director of Public Prosecutions for Western Australia [2024] WASC 48 [221].
Lemonis J allowed the appeal finding that he was not satisfied that there was no substantial miscarriage of justice because 'the error of fact made had the capacity to affect her Honour's assessment of the competing evidence regarding the crucial aspect of the interaction between the appellant and complainant'.[100]
[100] D v Director of Public Prosecutions for Western Australia [2024] WASC 48 [288].
I now turn to consider the respective grounds of appeal.

Ground 2

Ground 2 contends that the learned Magistrate made a material error of fact in finding that there were no injuries to the appellant's back and thus, the injuries he had suffered were not consistent with his account of the altercation with the complainant.
The learned Magistrate in considering the veracity of the appellant's account made the finding that 'the injuries on this person are not consistent with his account'.[101] The learned Magistrate stated that '[t]here are no injuries to his [the appellant's] back, certainly perhaps to the side of his torso and on his chest, but more to the front of his body'.[102] Further, her Honour stated:[103]
There are no injuries to Mr Vahedi's legs, upper and lower back, where he says the complainant punched and kicked him. There are no areas of redness in the absence of injuries, such as bruising, which might not occur in any event. He was taking photos very soon after he alleges she attacked him. She is smaller than he so injuries to his chest from her assaulting him from behind are not likely. I do not find that Mr Vahedi is an honest and credible witness.
[101] ts 11 (16/8/2024).
[102] ts 11 (16/8/2024).
[103] ts 11 ‑ 12 (16/8/2024).
The appellant submits that it is clear from the learned Magistrate's findings that the injuries to the appellant being 'to the side of his torso and on his chest, but more to the front of his body' and not to his back were material to her ultimate finding that the appellant was not a credible witness and thereby to her ultimate decision to reject his testimony.
The appellant submits that the objective facts from the evidence received at trial support findings that there were injuries to the appellant's back, notably a bruise to what the appellant described as 'a sort of a big blue mark here which is the result of the first hit of Laleh'.[104]
[104] ts 32 ‑ 33 (27/6/2024); Exhibit 9.8.
In cross‑examination, it was suggested to the appellant that this photograph showed 'the back but towards the front of your back' to which he responded the photograph showed his underarms and 'back, middle back'.[105]
[105] ts 52 ‑ 53 (27/6/2024).
Further, the appellant submits that exhibit 9.9 shows marks on his back which were caused from the complainant hitting him to his back when he was trying to get his mobile phone.[106] The appellant was not cross‑examined concerning exhibit 9.9.
[106] ts 33 ‑ 34 (27/6/2024).
Further, the appellant submits that there were some minor injuries to the appellant's chest about which he testified and is observed in exhibits 9.5 and 9.6. However, the appellant's evidence was that those injuries occurred at the beginning of the physical altercation and contrary to the learned Magistrate's findings, the appellant's evidence was not to the effect that he sustained 'injuries to his chest from her assaulting him from behind'.[107]
[107] ts 18, 30, 44 ‑ 45 (27/6/2024).
The appellant's ultimate submission is the credibility of both parties was highly significant given that the only two witnesses to the physical altercation were the complainant and the appellant. It is submitted that her Honour drew conclusions about the credibility and reliability of the appellant's version of events based upon factual errors. Therefore, these findings had a material impact on the ultimate determination of her Honour given that they were relied upon in her concluding she did not have evidence to support the appellant's version. However, to the contrary, she then used that evidence as a basis for rejecting his version of events and supporting the complainant's.
The respondent submits that her Honour knew what the appellant's injuries were and where they were located and that her Honour, to the contrary of the submission of the appellant, described the location of his injuries with some precision stating '[t]here are no injuries to his back, certainly perhaps to the side of his torso and on his chest, but more to the front of his body'.[108] The respondent submits that her Honour did not err in her understanding of the appellant's account in light of the photographic evidence of the appellant's injuries and that her findings were consistent and without error.
[108] ts 11 (16/8/2024).

I am satisfied that the learned Magistrate did err in fact. The evidence at trial does not support the finding that there were no injuries to the appellant's back. The appellant gave testimony that there were injuries to his back. As I have observed, the appellant gave testimony concerning the injuries he sustained namely that there were bruises to his 'back, middle back'. The photographic evidence was directly referred to by the appellant. It is difficult to discern the exact position that the markings are on the body of the appellant by merely observing the photographs. However, the appellant gave testimony concerning the manner in which he took the photographs and the position of the body depicted.
I am satisfied that the error of fact was a material error of fact. The learned Magistrate, having made the erroneous finding of fact, assessed the credibility of the appellant's testimony and hence his defence in light of that finding. Given that the trial was an oath versus oath case, the error was material. The erroneous finding of fact concerning the absence of injuries to the appellant's back was material to the reasoning of her Honour in not accepting the testimony of the appellant.
Therefore, I grant leave on ground 2 and find that the ground has been made out.

Ground 5

By ground 5, the appellant contends the learned Magistrate made material errors of law, alternatively fact and law, in her use of evidence derived from the bank statement tendered by the prosecution covering the period of 18 days between 14 July 2022 to 1 August 2022.[109]
[109] Exhibit 3.
The appellant contends that her Honour erred in stating in respect to the NAB bank statement:[110]
Furthermore, he accuses her of wild spending. I have only been able to have regard to the complainant's personal account which is exhibit 3. It's only a small snapshot, but it shows two deposits of the complainant's wages and, relevantly, her spending for the month following what is clearly the first deposit of her wages into that account. At this time, the parties had separated, but were still living under the same roof.
Mr Vahedi gave evidence that his wife wanted to spend her entire wages on herself and not contribute to the household finances. She did not accept, he said, the fact that his wage alone could not keep her in the manner she demanded to be kept. He expenses, however, as shown by exhibit 3, demonstrate clearly otherwise. The largest outgoings are those paid to Mr Vahedi. She is clearly not wildly spending money on herself without contributing to the family's purse, as Mr Vahedi made out was her desire.
[110] ts 10 (16/8/2024).
The appellant contends that the learned Magistrate erred in two ways. First, that in the context of the evidence as a whole, it was not reasonably open to draw any inference adverse to the appellant's credibility from exhibit 3, given how limited that document was in respect to financial transactions. Second, even if it was potentially relevant for the learned Magistrate to reason in the way that she did, it was procedurally unfair to the appellant for her Honour to do so, given the manner in which the prosecution case was conducted.
The appellant submits that at trial neither the prosecution nor the defence contended that exhibit 3 could impact on the credibility of the complainant, nor the appellant. The appellant submits that he was never shown exhibit 3 in evidence and therefore never asked about the specific significance of the transactions which were used by the learned Magistrate. He was examined about financial matters generally, and about whether they were a source of strain in his relationship with the complainant in the lead up to the incident. Further, he was questioned whether there was a discussion leading to an argument about finances on the night of the incident.[111]
[111] ts 41 ‑ 44 (27/6/2024).
The appellant's testimony concerning the family's financial circumstances as a whole were not challenged. The appellant gave evidence that the relationships combined spending exceeded its combined income during the three-year period prior to the separation, having spent $1.1 million and in around June 2012, of which the complainant had spent $210,000 on one of three credit cards.
The complainant was not cross-examined in respect to the appellant's contention prior to him giving evidence. The complainant on her own evidence accepted there were occasions where she spent in excess of what was available in the accounts to which she had access.[112] The appellant contends the learned Magistrate engaged in speculation by relying upon the document which she referred to as 'a small snapshot'. Such reliance could rationally affect the assessment of the appellant's credibility and, using it in that way, the learned Magistrate thereby made a material error.
[112] ts 13 (3/5/2024).
In respect to procedural fairness, the appellant submits that the learned Magistrate never alerted the defence to the possibility that she would draw the adverse inference that was drawn and thus the defence was never given the opportunity to make submissions concerning the matter. Thereby, the appellant contends the learned Magistrate denied him procedural fairness on an issue of potential significance. The appellant accepts that it is not suggested that he was denied procedural fairness in a general sense because in most respects he was able to present his case. Rather, he was not afforded procedural fairness in respect to this one issue. In the event that the learned Magistrate had alerted the appellant as to the use to which she intended to make of the financial records, then he would have been in a position to make the very submissions that he does in agitating this ground of appeal.
At trial, there was testimony from both the appellant and the complainant addressing the financial relationship within the marriage. The prosecution case was that the issue that precipitated the assault was the disagreement concerning the financial arrangements.
With respect, the reasoning of the learned Magistrate is concerning regarding the manner in which her Honour assessed the evidence. The learned Magistrate clearly used the financial issue in assessing the reliability and credibility of the appellant. Her Honour specifically assessed the credibility of the appellant's testimony in light of a number of factual findings. One such finding was that the complainant had not engaged in excessive spending as contended by the appellant. That finding was based solely on the bank statement and failed to properly consider other relevant evidence.
Her Honour did not expressly consider the testimony of the appellant concerning his recollection of the complainant's attitude to finances.
The respondent contends that the learned Magistrate did not use the document in her reasoning to 'demonstrate the absence of the complainant's spending' but rather to show that after her salary began to be paid into her own account, she continued to contribute financially by transferring money to the appellant's account shortly after the deposit of each fortnightly pay.[113] The respondent submits this limited use of the evidence was relevant to a proper consideration of the appellant's assertion that the complainant had 'decided not to contribute' to their finances.[114]
[113] Respondent's submissions [4].
[114] ts 14 (27/6/2024).
I do not accept the respondent's submission. The respondent may have relied upon the bank statement at trial for that limited purpose but the learned Magistrate relied on that document to make a negative credibility finding concerning a material aspect of the appellant's testimony.
I accept the appellant's submission that it was necessary that the learned Magistrate put the appellant on notice that exhibit 3 was to be used to ground a finding that was relevant to the credibility of the appellant. Her Honour did not do so.
In Kioa v West,[115] Mason J stated (citations omitted):[116]
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting …
In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case.
[115] Kioa v West (1985) 159 CLR 550.
[116] Kioa v West (1985) 159 CLR 550, 584 - 585.
In Teakle v State of Western Australia,[117] Buss JA stated (citations omitted):[118]
Absent a clear legislative intent to the contrary, a statutory power conferred on a court must be exercised with procedural fairness … The rules of procedural fairness are concerned with procedures rather than outcomes, and they are therefore rules which govern what a court must do in the course of deciding how a statutory power should be exercised. In other words, the rules of procedural fairness are to be applied to the procedures by which a decision pursuant to the exercise of the statutory power will be made.
[117] Teakle v The State of Western Australia (2007) 33 WAR 188.
[118] Teakle v The State of Western Australia (2007) 33 WAR 188, 205 [63].
Procedural fairness is a practical rather than abstract concept, and the concern of the law is to avoid practical injustice.[119] What is required by procedural fairness is a fair hearing, not a fair outcome, such that the relevant focus is to enquire as to the decision-maker's processes, rather than its actual decision.[120]
[119] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] - [38].
[120] Attorney-General (NSW) v Quinn (1990) 170 CLR 1, 35 - 36 (Brennan J).
A court must afford an applicant procedural fairness during a hearing. The court must be, and appear to be, impartial, and must provide each party to the proceedings before it with an opportunity to be heard, to advance their respective cases, and to answer the case put against them.
With respect, the learned Magistrate erred in not giving notice to the appellant concerning the use to which the bank statement was to be used in assessing the credibility of the appellant. In making this determination I am mindful that the trial was an oath versus oath proceeding.
Therefore, I am satisfied that leave to appeal must be granted on ground 5 and find that the ground has been made out.

Ground 1

By ground 1, the appellant contends that the learned Magistrate made a material error of fact in finding that the appellant had given evidence that the complainant was left‑handed, resulting in her wrongly concluding that photographic evidence was consistent with the complainant's account and not the appellant's account.
Her Honour made the following finding which is impugned:[121]
Furthermore, the injuries on this person are not consistent with his account.
There are no injuries to his back, certainly perhaps to the side of his torso and on his chest, but more to the front of his body. That is consistent with the complainant's account of her struggle to get his hand off her neck. He is facing her and is above her. Mr Vahedi, she says, is left‑handed. Sorry, Mr Vahedi says she is left‑handed, so her dominant hand would make contact with the right side of his neck.
[121] ts 11 (16/8/2024).
Contrary to her Honour's finding, the appellant gave testimony that the complainant was right‑handed.[122] The complainant did give evidence that the appellant was left-handed.[123]
[122] ts 25 (27/6/2024).
[123] ts 61 (3/5/2024).
The appellant submits that the error of the learned Magistrate is significant when considered with the photographs tendered by the prosecution of the appellant's injuries.[124] The appellant submits that the photographs show considerable scratch marks predominantly to the right side of the appellant's neck. The case for the appellant at trial was that the photographs supported his version of events, being that the complainant had attacked him and scratched his neck during the course of the altercation rather than being defensive injuries during an attack by the appellant.
[124] Exhibits 9.1 ‑ 9.12.
The appellant submits that the complainant did not expressly say in her evidence‑in‑chief that she scratched the appellant's neck. The appellant relies upon the complainant's testimony during examination in chief in respect to this issue about scratching the appellant as follows:[125]
So I just want to take you back just slightly, just when Arman has first grabbed you by the throat with his hand, and you said you were reaching up towards his face. What were you - what were you doing when you were reaching up towards his face?‑‑‑I'm pushing him away and I had long nails. Like, I guess I scratched him.
Okay. Were you trying to scratch anywhere in particular? Did you ‑ ‑ ‑?‑‑‑At the time I wasn't thinking about anything particular. I was just thinking to get him off me.
[125] ts 18 (3/5/2024).
The complainant stated that the accused got off her and went to the bathroom, Subsequently, after the accused left the bathroom, she went into the bathroom herself and examined her neck, which she described as being very red.[126] The complainant stated that the appellant was taking photographs of 'his own injuries'.[127] The complainant was asked the following:
And could you see what injuries Arman had at this stage?‑‑‑He had his scratches on his face, not much, like - but to be honest, like, yes, when - when you do that that's what - what you expect.[128]
[126] ts 18 (3/5/2024).
[127] ts 19 (3/5/2024).
[128] ts 19 (3/5/2024).
In cross‑examination, the complainant was asked about scratching the appellant in detail. The complainant stated she did not scratch him at all at any time after he stopped applying pressure to her neck[129] and did not give any specific evidence about whether she had used her left hand to scratch the appellant's neck at all, although she left open the possibility that she had done so.[130]
[129] ts 67 (3/5/2024).
[130] ts 61 ‑ 63 (3/5/2024).
The complainant was extensively cross‑examined. The relevant portion of that examination that deals with the issue of the complainant using her hand to scratch the appellant is the following:[131]
[131] ts 60 - 61 (3/5/2024).
And then, that's when he first grabbed your neck with his right hand?‑‑‑Yes.
And his right hand was on the front of your neck, you say? ‑‑‑It was like, you know - in a split second he grabbed me and pinned me down.
Yes. And so he pushed ‑ ‑ ‑?‑‑‑:Like ‑ ‑ ‑
Yes? ‑‑‑ ‑ ‑ ‑ with his ‑ ‑ ‑
That's my next question. I'm doing this a bit at a time. You say he grabbed you with his right hand on your throat and pushed you down. So you were lying down? ‑‑‑So when he grabbed me ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ and pushed me down - so it was - so this is when I confused left and right. So my - what I remember, he was pushing me down with his hand on my throat to the - like my hip was on the bed.
Yes. And the hand that he was using to push you down on ‑ ‑ ‑?‑‑‑Well, he - so now that I see, he has just - it should have been his left. He is lefty anyway.
So you're now saying that it was his left hand that pushed you down onto the bed?‑‑‑Because what I remember when I started scratching him, he holding my - so I have to keep remembering. So my left hand - when I'm on my back ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ my left hand was - like when he was pressuring me - so if I assume somebody on top of me, when someone is grabbing you by neck and pressing your right - left hand, so which hand going to be?
All right. Okay. So I understand your explanation?‑‑‑And you're on top of me.
I'm trying to do this ‑ ‑ ‑?‑‑‑With one hand grabbing the neck, with the other hand, pushing the left hand down.
Yes. All right?‑‑‑So ‑ ‑ ‑
I understand. So did he grab your neck with his left hand and grab your left hand with his right hand at the same time and push you down?‑‑‑He grabbed my neck with one hand and pushed my left hand with the other hand.
Okay?‑‑‑So I'm not going to just say left, right, left, right, and get confused.
All right. I understand?‑‑‑One hand on the other hand. So you just ‑ ‑ ‑
Okay. But when he did that ‑ ‑ ‑?‑‑‑Yes.
When he did that, he was face-to-face with you?‑‑‑So first he grabbed me with the neck.
Yes?‑‑‑Then I started pushing him back.
Okay?‑‑‑Then when I started scratching him, he pushed my hand down. And then he went from the neck to the elbow. To the ‑ ‑ ‑
The appellant's submission is that the learned Magistrate's erroneous finding that the complainant was left‑handed infected her Honour's consideration of the evidentiary value of the exhibits showing the appellant's injuries. Her Honour, in particular, made the finding that the injuries to the appellant's neck 'are consistent with the complainant's account and not Mr Vahedi's'.[132] The appellant submits that the opposite is true based upon the erroneous foundation of that finding.
[132] ts 11 (16/8/2024).
The respondent submits that the error is immaterial as the complainant's evidence was not that she scratched at the appellant with her dominant hand, but with the hand that he then pushed down which was her left hand.[133]
[133] ts 61 (3/5/2024).
I accept the submission of the respondent. The testimony of the complainant, properly understood, was that she scratched at the appellant with her hand and that the appellant restrained that hand. It is clear that the appellant had genuine difficulty in stating with clarity which hand she used. Therefore, the error of fact is immaterial, and the ground should be dismissed on the basis that there has been no substantial miscarriage of justice.
Accordingly, leave to appeal on ground 1 is refused.

Ground 4

By ground 4, the appellant contends that the learned Magistrate made an error of law, alternatively in fact and law, in the approach taken to applying the burden and standard of proof, and the reasoning process required by Liberato v The Queen, in the analysis of the appellant's evidence. As the appellant submits this ground alleges an analogous error to that alleged in ground 3.[134]
[134] Appellant's written submissions [57].
The appellant contends that the learned Magistrate erred in applying the standard of proof and the reasoning process in particularising the nature and manner in which the learned Magistrate dealt with the injuries to the appellant, the appellant's allegations of previous instances of violence perpetrated by the complainant and the use of the bank statement.
In respect to the injuries, the appellant particularises the complaint as comprising the learned Magistrate's findings that there were no injuries to his legs or upper and lower back where he says the complainant punched and kicked him. The appellant provides particulars of this contention under ground 2. I have considered the contention that the learned Magistrate made an error of fact when considering ground 2. I have found that ground 2 has been made out.
In respect to the bank statements the appellant provides particulars of this contention under the ground 5. I have considered the contention that the learned Magistrate made an error in fact and law when considering ground 5. I have found that ground 5 has been made out.
In respect to the alleged prior instances of violence, the appellant relies upon her Honour's observation regarding the prior violence perpetrated by the complainant against the appellant as follows:[135]
In cross‑examination, the complainant confirmed that she had been physically violent to Mr Vahedi twice. The complainant, on the other hand, did make it clear that Mr Vahedi had never been physically violent to her in the past. While counsel suggests that she speaks of his client in derogatory terms, that is not the case. The same cannot be said for Mr Vahedi. He paints a picture of a violent and unstable complainant at times. He fails to give examples, though, of this beyond the two occasions I've mentioned earlier.
[135] ts 42 (3/5/2024).

The general principles relating to a Liberato direction were recently summarised by Quinlan CJ and Beech JA in MEN v The State of Western Australia.[136]
[136] MEN v The State of Western Australia [2020] WASCA 118 [687] ‑ [689].
In Liberato v The Queen, Brennan J (who was in dissent) said:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
As the majority of the High Court held in De Silva v The Queen,[137] a Liberato direction is not required in every case even where there is a conflict between a complainant's and an accused's account. The majority held that a Liberato direction should be given where the trial judge perceives that there is a real risk that the jury will reason that the accused's evidence, or the accused's answers in a record of interview, can only give rise to a reasonable doubt if they believe the accused's account to be truthful, or that a preference for the evidence of the complainant over the accused's account suffices to establish guilt.[138] Further, and consistently with the approach adopted in relation to an accused person's evidence in De Silva v The Queen, there is no general requirement to give a direction akin to a Liberato direction in relation to each piece of evidence which might, even if not positively accepted, give rise to a reasonable doubt as to the accused's guilt.
[137] De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57.
[138] De Silva v The Queen [2019] HCA 48 [10] - [11].
The learned Magistrate gave a Liberato direction without error.[139]
[139] ts 3 (16/8/2024).
I accept the respondent's submission that on a fair reading of the learned Magistrate's observations concerning the previous allegations of violence perpetrated by the complainant against the appellant, her Honour did not make an adverse finding against the appellant on the basis that he only gave evidence of two prior incidents. Rather, her Honour's observation was to the effect that those two incidents, which amounted to the complainant hitting the appellant to the chest in the context, on one occasion, of discussing his infidelity,[140] do not establish that the complainant was 'violent and abusive' as contended by the appellant.[141]
[140] ts 42 (3/5/2024).
[141] ts 19 (27/6/2024).
In respect to the learned Magistrate's dealing with the evidence concerning the injuries to the appellant and the bank statements, I do not accept that the learned Magistrate misapplied the reasoning process required by the Liberato principle or reversed the onus of proof. The learned Magistrate, as I have found, erred in respect to the injuries and the bank statement. Having made those erroneous findings, the learned Magistrate applied applicable legal principle concerning the onus of proof. Whilst I have accepted that the errors did disadvantage the appellant and were material, I do not accept the learned Magistrate thereby reversed the onus of proof or misapplied the Liberato principle.
Accordingly, I am satisfied that there is no merit in the appellant's contention and therefore leave is not granted on ground 4.

Ground 3

By ground 3, the appellant contends that the learned Magistrate made a material error of law, alternatively fact and law in the approach to applying the burden and standard of proof in determining whether the complainant's evidence was credible and reliable. The appellant provides three particularisations of this ground.
First, the appellant submits that in relation to the complainant's evidence of how the appellant retrained both of her arms when he was doing the act that constituted the offence, the learned Magistrate stated that the complainant's account was not so fanciful that it could be rejected and further, that it 'was not inconceivable' that the appellant was able to restrain her right arm and hand from moving with his left elbow.
Second, the appellant contends that, in respect to sequence of events after the offence was committed, both the appellant and the complainant gave evidence that they went into a walk-in robe adjacent to the master bedroom. The learned Magistrate stated she could not draw an inference that the complainant's evidence about that issue was not logical, because the complainant was not cross-examined 'as to the logic of her actions.'
Third, in respect to the absence of injury to complainant's neck consistent with the act constituting the offence, the learned Magistrate stated that the action of 'placing a forearm across her neck would not necessarily leave bruising or any marks the next day'. The appellant submits that the learned Magistrate made this finding notwithstanding the complainant's testimony that this action involved pressing down on her throat, preventing her from breathing and continued for at least 45 seconds whilst she struggled against it.
I do not accept the appellant's contention. On a fair reading of the reasons for decision of her Honour, it is clear that her Honour understood and applied the onus of proof and the Liberato direction which she outlined without error. As was observed by Martin CJ in Strahan v Brennan,[142] in the context in which magistrates conduct their judicial business, it is not appropriate to scrutinise either the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Further, as the Chief Justice stated, it is not appropriate for the court to infer from infelicity of language that error is thereby demonstrated.
[142] Strahan v Brennan [2014] WASC 190 [90].
In this case, her Honour correctly observed that the appellant had given an account of events and if his evidence is not accepted, that evidence should be set aside and the court must then consider whether the prosecution has proved its case beyond a reasonable doubt.
In respect to the learned Magistrate's observations that the complainant's account of being restrained is 'not so fanciful' and 'not inconceivable', I accept the respondent's submission that these were not findings but responses to a submission made by defence counsel in his closing address proposing that the complainant's account was implausible. The relevant passage is the submission of counsel that 'this is where it starts to unravel a little, because, certainly, the left forearm can go on the throat, but can it go on the right hand and restrain the right hand as well'.[143]
[143] ts 73 ‑ 74 (27/6/2024).
Further, I accept the respondent's submission that her Honour's observation in respect to the 'logic' of the complainant's account was a response to defence counsel's submission that the complainant's account of entering the walk‑in robe, 'just doesn't make sense'.[144]
[144] ts 85 (27/6/2024).
Accordingly, there is no merit in the appellant's contention and leave is refused on ground 3.

Conclusion

Accordingly, leave to appeal is granted on grounds 2 and 5 and I find that the grounds have been made out. The respondent submitted that the proviso is not relied upon and therefore, if any one of the errors of fact are made out then the appeal should be allowed on the basis that there has been a substantial miscarriage of justice. Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered before a different magistrate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Hon Justice McGrath
28 AUGUST 2025