Yza v WA Police - [2024] WASC 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   YZA -v- WA POLICE [2024] WASC 187
CORAM:   FORRESTER J
HEARD:   14 MARCH 2024
DELIVERED          :   20 MAY 2024
FILE NO/S:   SJA 1081 of 2023
BETWEEN:   YZA
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1081 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE TAVENER
File Number            :   MC ARM 11646 of 2022

Catchwords:

Criminal law - Single judge appeal - Whether learned magistrate erroneously found that parenting agreement contained a provision for removal of a child by one parent from the care of another at the request of the child - Whether learned magistrate erred by failing to comply with s 39G of the Evidence Act 1906 (WA) in giving reasons inconsistent with how a jury would have been directed in accordance with s 39F

Legislation:

Criminal Code Act Compilation Act 1913 (WA)
Evidence Act 1906 (WA)
Criminal Appeals Act 2004 (WA)

Result:

Leave to appeal is granted on ground 1 and ground 2
Appeal allowed
Conviction and sentences set aside
Order as to costs set aside

Matter remitted to Magistrates Court

Category: B

Representation:

Counsel:

Appellant	:	Mr W Yoo and Mr R Napper
Respondent	:	Mr J F Bennett

Solicitors:

Appellant	:	Aboriginal Legal Service of Western Australia
Respondent	:	State Solicitor's Office of Western Australia

Cases referred to in decision:

Kritskikh v Director of Public Prosecutions [2022] WASC 130
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

FORRESTER J:

Introduction

On 25 August 2023, the appellant was convicted after trial of an offence that on 17 December 2022 she unlawfully assaulted the complainant in circumstances of aggravation, namely being in a family relationship with the complainant, contrary to s 313(1)(a) of the Criminal Code (WA).
The appellant was sentenced to a fine of $1,000, and was ordered to pay costs in the amount of $137. The learned magistrate made a spent conviction order.
The appellant has appealed against her conviction.
For the reasons which follow, leave to appeal should be granted, the appeal allowed and the conviction and sentence set aside. The matter will be remitted to the Perth Magistrates Court before a different magistrate to be heard according to law.

Trial

Prosecution case

The prosecution opened as follows:[1]
Saturday, 17 December 2022, about 11.12 pm the [complainant] has attended 121 Victoria Road, High Wycombe, which is the home address of the accused. They are separated and share two children together. The [complainant] received information that caused him to be concerned for the welfare of the children, sir, so he has attended to collect them from the address. On arrival, the accused has exited the address, been abusive towards the [complainant] whilst he was collection the children (sic) … as well as the children's property. The accused has followed the [complainant] and subsequently assaulted him whilst he was trying to get the children and their property in the car to leave. She has done this by way of punching and scratching the [complainant]. As a result, the [complainant] sustained scratches and marks to his body and face, and his t-shirt was ripped during the assault.
[1] Transcript, Magistrates Court of Western Australia, 10 August 2023, 2 - 3 (ts 10 August 2023).
Following the opening address, counsel for the accused sought further and better particulars of the 'actual assault'.[2] In response, the prosecutor stated:[3]
It is a bit of a messy incident, sir. It is a little bit hard to articulate exactly which ones caused which injuries. I can't speak to causation. I can only speak to the whole incident resulting in those injuries, your Honour. In relation to what's articulated in the material facts, sir, at one stage the accused was thrown by the [complainant] to prevent him – to prevent her from hitting him. So there have been some punches and some scratching before that.
He has essentially put her in a bearhug to prevent her from continuing that assault. She has broken free from him, pulled at his t-shirt which has caused it to rip. After that, she swung her arm at the [complainant], making contact with his torso. She has followed him when he has tried to walk to his vehicle. It's articulated as continued to punch and slap him around his torso and head.
She has slapped him at the back of the head, grabbed his arm and shoulder as he was attempting to get into the vehicle on the front passenger side. He has broken free from her grasp on him, and then she has continued to slap and grab the [complainant], sir. And that has resulted in the injuries, so it's quite a – it's not a long incident but there is a lot going on in that short period of time.

Accused's case

[2] ts 3, 10 August 2023.

[3] ts 4, 10 August 2023.

Counsel for the appellant informed the learned magistrate that the issues of identity, time and place were not in issue.[4] It was admitted that there was an application of force, although the extent of it was a matter for his Honour. It was also not in issue that the complainant and the accused were in a family relationship.[5] Counsel said:
What is going to be at issue here, it boils down to two main issues is number one is going to be consent as an issue to begin with. And also the defence of provocation is raised in this trial.[6]

Evidence

Complainant

[4] ts 4, 10 August 2023.

[5] ts 4 - 5, 10 August 2023.

[6] ts 4 - 5, 10 August 2023.

The complainant gave evidence that on 17 December 2022, he received a text message from his son which read '000'. The complainant called his son who asked '[c]an you come and get me, please? I don't feel safe. Mum is drunk.' The complainant asked to speak to the appellant on the phone and when he told the appellant what his son had told him, '... that's when things got a bit heated.'[7]
[7] ts 4, 10 August 2023.
The complainant and his brother drove to the appellant's address, where the appellant lived. Four children were at the premises. Two of the children are the complainant's biological children and two are his stepchildren.
Upon arrival at the appellant's house, the complainant walked to the back door, opened it and said to the children '[c]ome on, let's go.'[8] The children had already packed their things so they came out and were trying to get to the car. The complainant was filming at the time. As they were trying to leave, the accused was 'sort of like attacking, or like verbally attacking'.[9]
[8] ts 6, 10 August 2023.
[9] ts 6, 10 August 2023.
As they were trying to leave, the appellant 'bailed me up to the fence area'. At the time the complainant was holding his daughter.[10] The complainant stated:[11]
And then that's when she has – I said, 'I'm calling the police. They're coming'. And I think that's when she said, 'I don't even care.' And then she proceeded to knock the phone out of my hand. And then whilst I was holding [the child] grabbed me by the shirt ...
[10] ts 7, 10 August 2023.
[11] ts 6, 10 August 2023.
The complainant handed the child and his phone to his brother and told his brother to '[j]ust record.'[12] His brother had attended the address with him for the complainant's safety; he had told his brother not to intervene and he 'just wanted him there just in case something really bad happened'.[13]
[12] ts 7, 10 August 2023.
[13] ts 7, 10 August 2023.
The complainant tried to put the children's belongings in the car and he and the appellant were shouting at one another. He said that was when he was repeatedly getting hit, scratched and grabbed on the throat by the appellant as she was stopping him from putting the children's belongings into the car.[14]
[14] ts 7, 10 August 2023.
After getting hit quite a few times, the complainant restrained the appellant. Her grabbed her arm and 'wrapped [the appellant] up in her own arms' to stop himself from getting hit.[15] Apart from the 'couple of times' he flung his arms to stop himself from being hit by the appellant, that is the only time that he grabbed hold of the appellant.[16]
[15] ts 7, 10 August 2023.
[16] ts 7, 10 August 2023.
The complainant clarified that, as he was trying to put belongings in the car, he was getting punched in the back and side of the head by the appellant, and had his shirt ripped off.[17] The complainant stated that he could not remember fully what happened, which is one of the main reasons he asked his brother to record.[18]
[17] ts 7, 10 August 2023.
[18] ts 7 - 8, 10 August 2023.
The complainant admitted to threatening the appellant during this incident, by saying, 'if you touch me again, that will be the last thing you ever do.'[19] He said this because 'the only thing I had was verbal', because he did not want to hit her or retaliate.[20]
[19] ts 8, 10 August 2023.
[20] ts 8, 10 August 2023.
As the complainant got in the car, the appellant punched the window at the front of the car and threatened that Coffin Cheaters were waiting down the road.[21]
[21] ts 8, 10 August 2023.
The complainant reported the incident to the police and waited at the end of the road for them.[22]
[22] ts 8, 10 August 2023.
Footage from the complainant's mobile phone was then played. The first recording ended when the appellant knocked the complainant's phone from his hand. The second recording was taken by the complainant's brother after the complainant gave him the phone.[23]
[23] ts 9 - 10, 10 August 2023.
Before cross-examination, counsel for the appellant informed the learned magistrate, in the absence of the complainant, that he was going to submit in closing that the provisions of s 39A of the Evidence Act 1906 (WA) would be relevant to the proceedings.[24] He referred to Kritskikh v Director of Public Prosecutions[25] and submitted that his Honour would be required to determine the issues in the case consistently with the provisions of s 39D and s 39F of the Evidence Act. In particular, counsel submitted that those provisions would be relevant to determining the extent or gravity of the provocation and whether the complainant's response was proportionate.[26]
[24] ts 12, 10 August 2023.
[25] Kritskikh v Director of Public Prosecutions [2022] WASC 130.
[26] ts 12 - 13, 10 August 2023.
In cross-examination, the complainant agreed that he had been in a relationship with the appellant for approximately 10 years, and they separated in September 2022.[27] He acknowledged the relationship could fairly be described as 'sadly toxic'.[28] He agreed that he had been violent towards the appellant on more than one occasion. He accepted he had been convicted of an assault of the appellant and a breach of police order against her, both of which occurred 10 years ago.[29]
[27] ts 13, 10 August 2023.
[28] ts 14, 10 August 2023.
[29] ts 14, 10 August 2023.
The complainant said there had been many occasions where he had had fights with the appellant and '[i]t's very violent between both of us, and very toxic.'[30]
[30] ts 15, 10 August 2023.
The complainant acknowledged sending the appellant a message on 19 July 2022 in which he said, in part:
I'm truly sorry and deeply saddened for what I have done. I know exactly what I have done to you and us, and I'm going to change it so I never hurt anyone I love again. I don't need to tell you, or to be told, I know exactly how I've acted in the past and what I will continue to do without getting help …[31]
[31] ts 15, 10 August 2023.
The complainant said that throughout their relationship, in the eyes of the appellant he had always been 'the bad one in the relationship'.[32] He said he was 'made to be aggressive', saying, '[y]ou poke a tiger in a cage for a long time, the tiger is going to get shitty.' He acknowledged that he was the tiger in that scenario.[33]
[32] ts 15, 10 August 2023.
[33] ts 16, 10 August 2023.
The complainant said he knew that the appellant did not want him to speak with a deep voice when telling the children off because it brought back trauma for her from her past with her father and brother.[34]
[34] ts 16, 10 August 2023.
The complainant agreed that on 25 September 2022, he left the house he was sharing with the appellant after 'she told him she didn't want to be a stay at home mum, and that I can have the f'ing kids. So I left with my kids.'[35] He did not allow her to then see the children for a month.[36]
[35] ts 17, 10 August 2023.
[36] ts 17, 10 August 2023.
On 7 October 2022, the complainant and the appellant signed a parenting agreement drafted by the complainant.[37] The complainant accepted the arrangement was not '50:50'.[38] He agreed that he declined to participate in mediation, notwithstanding the provision in the agreement for it.[39]
[37] ts 17, 10 August 2023.
[38] ts 19, 10 August 2023.
[39] ts 25, 10 August 2023.
The complainant accepted that he did not mention his telephone conversation with the appellant in his witness statement but denied that he had made it up.[40]
[40] ts 26 - 27, 10 August 2023.
The complainant agreed that he called the police on his way to the appellant's house on 17 December 2022, but decided not to wait until they arrived. He parked on the appellant's property and did not ask for permission to do so, saying 'I've always got permission.'[41] He agreed that:
[41] ts 28, 10 August 2023.
(a)he did not go to the front door, saying they had always used the back door when he lived there;[42]
[42] ts 28 - 29, 10 August 2023.
(b)he did not knock on the back door; he opened it immediately;[43]
(c)he said, '[h]ey, hey, hey. Come on, come on, come on' and the appellant said, '[n]o, no, [complainant's name] stop.'[44] The appellant was not the aggressor to the complainant at that point;[45]
(d)he did not see any physical injuries on the children before he walked away with them;[46]
(e)he was recording and she said, '[y]ou can film me all you want' and started approaching him, at which point he said, '[n]o, don't come fucking near me. No. No. Go away';[47]
(f)the appellant said, 'I can explain what happened.' In effect, he cut her off and told his eldest son to 'come on.' He did not try to engage in any meaningful conversation with the appellant;[48]
(g)he was walking away with the children as the appellant started shouting. He denied escalating the situation by doing so;[49]
(h)he yelled 'the cops are coming' and the appellant responded, 'I don't fucking care, cunt';[50]
(i)he told the complainant twice, 'hit me', which he guessed was taunting her;[51]
(j)it was an option for him to leave when the appellant started to scratch and hit him. However, he said he tried to do so and was grabbed by the throat and hit and stopped;[52] and
(k)at one stage he called the appellant a 'whore'.[53]
[43] ts 29, 10 August 2023.
[44] ts 29, 10 August 2023.
[45] ts 31, 35, 10 August 2023.
[46] ts 36, 10 August 2023.
[47] ts 30 - 31, 10 August 2023.
[48] ts 31 - 32, 10 August 2023.
[49] ts 32, 10 August 2023.
[50] ts 34, 10 August 2023.
[51] ts 35, 10 August 2023.
[52] ts 37, 10 August 2023.
[53] ts 37, 10 August 2023.
In re-examination, he said that the appellant had not seen the children for a month after he left the family home because he wanted a parenting plan in place first:
… to protect the kids to make sure that they had a choice if they wanted - I don't believe in forcing anyone to do anything that they don't want to do. And they wanted - they wanted to see the mum, but I wanted to protect them in a way because I know what she's like.[54]
[54] ts 38, 10 August 2023.
He did not wait for police because his son had told him he was scared and wanted to come home. He had already spoken to the appellant on the phone and they had started to fight.[55]

Video recordings

[55] ts 39 - 40, 10 August 2023.

The first video recording of the incident shows the complainant going to the back door of the house, but not entering. As he approached the house, children can be heard crying.[56] The complainant opened the door, and his two children came out towards him, the son carrying bags.[57] Someone called out 'no' a number of times, but it is not possible to say who that was.[58] The appellant then followed out after her children, calling to the complainant to stop.[59] She was holding a broken tablet in her hands. The complainant firmly told the appellant to stop. She told him he could film her all he wanted. He told her not to come near him and to go away. The appellant said she could explain, but the complainant continued to say 'no'. She said nothing had happened; she was in the back shed, and said '[f]or fuck's sake.'[60]
[56] Exhibit 1, 00:00:04.
[57] Exhibit 1, 00:00:10.
[58] Exhibit 1, 00:00:08.
[59] Exhibit 1, 0:00:10.
[60] Exhibit 1, 00:00:22 - 00:00:24.
The complainant, apparently ignoring the appellant, asked one of the appellant's older children to get the younger children's tablets, but the youngest child said she had hers. As he walked away, the appellant screamed something like, 'I'm going to smash you'.[61] As she completed saying that, the complainant yelled, '[t]he cops are coming'.[62] The appellant said, '[f]uck you' and the complainant repeated 'the cops are coming', in a loud voice. The complainant responded, 'I don't fucking care, cunt',[63] as the complainant walked off. The appellant followed the complainant and he told her to '[h]it me', twice.[64] She walked in front of the complainant and said, she was going to hit him.[65] The video then ended.
[61] Exhibit 1, 00:00:37 - 00:00:38.
[62] Exhibit 1, 00:00:37.
[63] Exhibit 1, 00:00:42 - 00:00:44.
[64] Exhibit 1, 00:00:42 - 00:00:44.
[65] Exhibit 1, 00:00:45.
The second recording[66] is of two minutes duration. It commences at a point where the complainant was restraining the appellant from behind, with his arms around her torso. In response to one the appellant's older children, he said that he was just holding her, and that the police were already on their way.[67] The complainant let the appellant go, and she slapped him, not hard, in the face.[68] She came towards him, grabbing his shirt, as he backed up.[69] He told her to stop touching him and walked off to the car.[70] She followed, and their youngest son told their youngest daughter, with some urgency, to get into the car.[71] The appellant hit the complainant in the back of the head,[72] and started to grapple with the complainant, who said to her, '[y]ou hit me one more fucking time, it will be the last thing you ever fucking do. Get the fuck off of me.'[73] By this stage, the complainant's shirt was torn away from his neck.
[66] Exhibit 2.
[67] Exhibit 2, 00:00:04 - 00:00:14.
[68] Exhibit 2, 00:00:16.
[69] Exhibit 2, 00:00:19.
[70] Exhibit 2, 00:00:23.
[71] Exhibit 2, 00:00:36.
[72] Exhibit 2, 00:00:43.
[73] Exhibit 2, 00:00:56 - 00:01:51.
The appellant asked why he was there, and he shouted, very loudly, '[b]ecause my children called me, and said you are going to beat the fucking shit out of them, that's why. That is why I am here.'[74] The appellant asked, '[r]eally?'[75] She was still grabbing at the appellant, and was very close to him as he was at his car with the door open. He went to the boot and asked for someone to open it.[76] He and the appellant were in darkness at the rear of the car but there appeared to be more minor grappling. The complainant yelled, again very loudly, '[f]uck off, you fucking whore.' The appellant responded, saying, '[s]orry. What did you say? What did you say?', he yelled '[f]uck off' and told her to get inside now, that the police were on their way.[77] She asked, '[a]re they? Are they?' He shouted, loudly, that it was because he had called them. She asked, '[w]hen, what?' He said, '[o]n the way up.' The appellant said something to the effect of, '[o]n the way up? So you didn't even wait …'[78] The complainant then yelled, again at the top of his voice, '[o]h my god, you're ripping the kids' shit. You don't care about anyone.'[79] The appellant asked, much more quietly, '[w]ho's here right now? Who's here right now?' The complainant responded, '[g]et the fuck off of them.' She said, '[w]ho?' He said, '[t]he fucking kids' shit. You've ripped my fucking shirt, you've punched me, you've scratched me, you've threatened to fucking hit them, get the fuck inside.'[80] The footage then ended.

Donna Joanne Strange

[74] Exhibit 2, 00:00:56 - 00:01:03.

[75] Exhibit 2, 00:01:03.

[76] Exhibit 2, 00:01:08 - 00:01:09.

[77] Exhibit 2, 00:01:16 - 00:01:27.

[78] Exhibit 2, 00:01:30 - 00:01:34.

[79] Exhibit 2, 00:01:35 - 00:01:39.

[80] Exhibit 2, 00:01:41 - 00:00:56.

Constable Strange was one of the officers who arrested and interviewed the appellant. She gave evidence that the appellant declined to make a complaint about some bruises she said she had on her, and therefore photographs were not taken.[81] She said the video recordings were not shown to the appellant prior to the record of interview being conducted.[82]

Record of interview

[81] ts 48 - 49, 10 August 2023.

[82] ts 47, 10 August 2023.

The appellant participated in a record of interview the following day. In that interview, she started with a free narrative account of the events. She said she was outside drinking with 'the boys' (her eldest son and friends) when her (youngest) son walked out and showed her his tablet, with the complainant on a call. She did not want to talk to him so gave the tablet back to her son.[83] Her son said that 'Dad is coming to get us.' She asked what for, and her son said that he wanted to go home because he was bored.[84]
[83] Exhibit 3, 00:05:38 - 00:06:02.
[84] Exhibit 3, 00:06:06 - 00:06:19.
The appellant said the next minute she was in tears and everyone was in tears. Her son was upset that she would be going to gaol, because the complainant likes to always get the police involved when she has been drinking, because she gets 'mouthy'.[85]
[85] Exhibit 3, 00:06:26 - 00:06:44.
When he arrived, the complainant walked straight into the house holding up his phone. She asked what it was all about. He was swearing and carrying on, getting the kids into the car. She asked what had happened, because she was 'totally oblivious'.[86] She walked up to the car to say 'see you' to the children and he was in her face, yelling and screaming at her. At the back of the car, he pushed her and she tore his t‑shirt.[87] He grabbed her and pushed her, and went to the other side of the car, where he was choking her and she defended herself and hit him.[88] Her middle son was calling out to the complainant to let her go, and the complainant did let her go, and left.[89] She had a swollen and bruised arm from hitting his car which she showed the officer, who commented it was quite swollen and bruised.[90]
[86] Exhibit 3, 00:07:06 - 00:07:27.
[87] Exhibit 3, 00:07:31 - 00:07:48.
[88] Exhibit 3, 00:07:52 - 00:08:01.
[89] Exhibit 3, 00:08:06 - 00:08:14.
[90] Exhibit 3, 00:08:26.
The appellant said her eldest children were 13 and 17 years old and their daughter was 4 years old and their son was 8 years old.[91] She said the complainant had left her in September, and became upset.[92]
[91] Exhibit 3, 00:09:45.
[92] Exhibit 3, 00:10:26.
She said of the custody arrangements:
He lets me see them whenever he wants. I have no say. He just comes takes them, lets me have them whenever, does whatever, lets me talk to them whenever he lets me talk to them … my understanding was he was letting me have them until Monday … But unfortunately he's drilled into the kids head that if they want to come home, they can come home, he will come and get them any time … So last - I'm so sick of the pain that I'm going through. It took me by surprise. That's why I was like, 'Why? Why did you call your dad? Like – cos 'I miss them so much.'[93]
[93] Exhibit 3, 00:11:25 - 00:12:42.
She said when the complainant first left, she was not allowed to see the children for a month because he wanted to let the children settle in. On the first occasion after that, her daughter asked for her dad at bed time and the complainant came to get their daughter but their son did not want to leave.[94] However, the complainant said if one left, both had to, so their son left in tears.[95]
[94] Exhibit 3, 00:14:10 - 00:14:25.
[95] Exhibit 3, 00:15:10.
The appellant said the children say they want to go home when they get bored because the complainant will give them their tablets.[96] She said it was fair enough if they wanted to go; she could not force them to stay.[97]
[96] Exhibit 3, 00:14:28.
[97] Exhibit 3, 00:15:17.
The appellant said she did not want to talk to the complainant that night because of the 'stuff he's put me through, all the threats he's made, I'm sick of it'. When asked what type of threats, she responded, '[w]hat type of threats? Violence, I've had enough.'[98]
[98] Exhibit 3, 00:16:28 - 00:16:40.
The appellant said she could not have her kids taken away from her; she needed to see her kids. She did not see the point in living without her kids and had had thought of self‑harm. The appellant said she had tried to go to the Family Court and to access mediation, but she could not cope.[99]
[99] Exhibit 3, 00:17:35 - 00:18:23.
On the night, after the appellant had initially refused to speak to the complainant, she tried to call the complainant, but he did not answer.[100] Before the complainant arrived, she was crying with her children. She asked her son why he called his dad, and he said he did not know, and he was 'bawling his eyes out'.[101] Her son thought she was going to gaol.[102]
[100] Exhibit 3, 00:19:18.
[101] Exhibit 3, 00:19:53.
[102] Exhibit 3, 00:20:39.
The appellant agreed that when she drinks she and the complainant both get violent,[103] and they both get 'mouthy'.[104] She had had probably 12 Carlton Draughts, but was 'very easy' to get intoxicated.[105] Her children were upset and saying they did not want to go.[106] The appellant said:
I think the reason why I snapped at Peter as well is he won't let me see the kids now and I'm sick of him saying it. Because I've done this. He even told me last night I would never see the kids again.[107]
[103] Exhibit 3, 00:20:09.
[104] Exhibit 3, 00:21:00.
[105] Exhibit 3, 00:21:21 - 00:21:27.
[106] Exhibit 3, 00:21:56 - 00:22:07.
[107] Exhibit 3, 00:22:10 - 00:22:23.
The appellant repeated that the complainant walked into the house filming with his phone, and went through the house collecting the children's belongings. The complainant flung a tablet belonging to his stepson off the bench and smashed it. She asked him why he did that. He told the children to get into the car. His son was saying sorry, and that he had just wanted to see his dad.[108]
[108] Exhibit 3, 00:22:50 - 00:23:40.
The appellant said there was nothing that happened until she walked out to say goodbye to the children. The complainant was in her face yelling and screaming at her and shoved her, so she grabbed and ripped his shirt. They went to the other side of the car and he grabbed her neck and was choking her. She tried to hit him but did not know if she made contact.[109]
[109] Exhibit 3, 00:23:58 - 00:24:35.
The appellant said she was pretty much ignoring the complainant a lot; she could not remember a lot of what they were saying. She suggested that was because of trauma and probably intoxication as well.[110] She said she had nothing to hide, saying, 'I'm in the wrong … I put my hands on someone, smashed things, I got angry.'[111]
[110] Exhibit 3, 00:25:00 - 00:25:40.
[111] Exhibit 3, 00:30:00 - 00:30:13.
The appellant said she did not remember if the complainant had hit her; but she did have bruises all over her (at which point she ran her hand up the length of her arm). She did remember him shoving her, her ripping his shirt and her being at one side of the car with him holding her neck and her trying to hit him then. She knew they both hit each other, in the sense that they made contact.[112]
[112] Exhibit 3, 00:30:55 - 00:31:57.
The video recordings were not played to the appellant, but were described, in part, to her. She appeared surprised when told she was recorded slapping, grabbing and scratching the complainant.[113] When she was told that at one stage she had her forearm pushing the complainant's chin up, she said she remembered that.[114]

Closing submissions

Prosecution's closing submissions

[113] Exhibit 3, 00:34:05.

[114] Exhibit 3, 00:34:25.

The prosecution submitted that the video recording of the incident spoke for itself, and that the complainant was not intimidating or violent towards the appellant 'save and except for when he had already been pushed past the point after being assaulted and having a shirt ripped, then he has been responded by restraining [the appellant] twice'.[115]

Appellant's closing submissions

[115] Transcript, Magistrates Court of Western Australia, 25 August 2023, 3 (ts 25 August 2023).

Written submissions were filed on behalf of the appellant. The defence of provocation was said to be raised based by the electronic record of interview, where the appellant says she 'snapped', and the video recordings of the incident itself.[116]
[116] Appellant's written submissions filed 15 December 2023 [14] (Appellant's written submissions).
It was submitted that the provocation was:
(a)forcibly removing the appellant's children in unfair circumstances where the complainant made no reasonable attempts to talk to her about the situation; and
(b)calling the appellant a 'whore' which is an insult.[117]
[117] Appellant's written submissions [14].
It was contended that the appellant's previous relationship with the complainant involved family violence, including controlling behaviour which included denying the appellant access to her children. In assessing the gravity of the provocation, a direction under s 39F was warranted to the effect that:
(a)family violence may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial;
(b)experience shows that people may react differently to family violence and there is no typical, proper or normal response to family violence.[118]
[118] Appellant's written submissions [20] - [21], 14.
In oral submissions, the appellant's counsel submitted that the evidence showed that the complainant did not know there to be any danger to the children and he had other reasonable options than to do what he did. He went into the appellant's property without her prior permission. His recording of her was 'inherently a provocative action'. The complainant decided to ignore the appellant and forcibly remove the children and it was only after he yelled that the police were coming that the appellant yelled back at him.[119]
[119] ts 4, 25 August 2023.
The complainant's actions in total constituted wrongful acts or insults which would have deprived a person with the appellant's characteristics of the power of self‑control and to assault him. It was not a significant assault so as to say that her assault was disproportionate to the provocation.[120]

The learned magistrate's reserved decision on 25 August 2023

[120] ts 6, 25 August 2023.

The learned magistrate noted that the defence of consent had not been further articulated, and that was for good reason. He considered the facts were 'not largely in dispute.'[121]
[121] ts 6, 25 August 2023.
His Honour summarised the evidence. In the course of summarising the complainant's evidence, his Honour said:
He has explained there was an agreement in place, and I understand there was an agreement in place, that if one of the children asked - there were two children - if one of the children asked to be brought back from the other parent's house that would happen.[122]
[122] ts 7, 25 August 2023.
The learned magistrate diverted from his summary of the evidence to consider whether the complainant's conduct in filming the appellant was provocative in and of itself, and said it would not be sufficient provocation to justify someone else attacking another person and said:
It is slightly a different situation to the usual situation in that here a man had gone to the house, a person had gone to the house, who used to live at that house. There was an agreement between those two people that he could go to the house under certain circumstances. The [appellant] was aware that he was going to the house under those circumstances, that is the parental agreement, to collect the children.[123]
[123] ts 9, 25 August 2023.
His Honour referred to the allegations made by the appellant in the electronic record of interview in which she alleged that the complainant had pushed her and choked her and noted that there was no choking shown in the video. He referred to the police evidence that the appellant had declined to have photographs taken of injuries she claimed to have and said:
There were no injuries she complained of that were visible and certainly none were pointed out, so it's a concern that she did raise that issue of being choked when that did not happen and that's not shown on the video. That clearly affects her credibility …[124]
[124] ts 9, 25 August 2023.
The learned magistrate said:
She said, 'I snapped at [the complainant] because he would not let me see the kids.' According to her, she got in her face, he - she ripped her shirt (sic). 'Then he choked me. I may have hit him and he left,' so she's not particularly accurate in her recollection of what happened, so her reliability and credibility is not particularly strong on this night probably due to the amount of alcohol she had drunk. She said she was sick of the threats, but she did not expand on that particular issue.[125]
[125] ts 9, 25 August 2023.
Concluding his summary of the evidence, his Honour again referred to the evidence that the appellant had said she had bruises but declined to take the matter any further.[126]
[126] ts 10, 25 August 2023.
The learned magistrate then said:
Now the first thing I should say that on that night there was an arrangement between … the two parties, that one could go over to the other place. There's nothing unusual about that sort of type of arrangement.[127]
[127] ts 10, 25 August 2023.
His Honour observed that both the complainant and the appellant behaved badly that night, reflecting the 'history of unpleasantness' between them. It did not take much for one to trigger the other, and the appellant was intoxicated.[128]
[128] ts 10, 25 August 2023.
His Honour said, of the complainant calling the appellant a 'whore':
… in the context of their relationship … I'm not of the view that in of itself is sufficient, and I also appreciate the submissions are there are a number of layers.
I don't accept that … going to the house, staying out the back, collecting the children, calling some (sic) a whore, is provocative to the level required by the defence. Also the reaction of [the appellant] was clearly heavily affected by her intoxication. There was let's say actions by the complainant that his loud voice was clearly meant to annoy, to upset, and it did, but not to the extent where that allowed [the appellant] to attack him in the manner in which she did.
We're back to it's a situation where the children were going to be removed by the action - by the activation of that agreement … The two parties clearly are not civil to one another when they come together … on this occasion, [the appellant] was particularly - well in my view, she was aggressive, and she became very quickly aggressive primarily due to the impact of the alcohol. She simply kept on attacking him.
The presence of the children should have been enough to constrain her. It wasn't. She then attacked the defendant (sic), so I'm not accepting of the defence of provocation as raised. The series of acts are not such to cause a person of her disposition, to put it generally, to act in the way in which she did.
…
As I say, both people behaved badly, but on this occasion [the appellant] went too far and the provocative acts as alleged were not sufficient to cause - to allow her to behave in the way in which she did by assaulting her former partner.[129]
[129] ts 10 - 11, 25 August 2023.
Having found that the prosecution had excluded provocation, the learned magistrate found the appellant guilty of the offence.

Grounds of appeal

The appellant's grounds of appeal (as amended) are:[130]
Ground 1:
The learned Magistrate erred in fact by finding that a parenting agreement contained a specific provision (T7, 2nd paragraph on 25 August 2023). Namely, that one parent could remove their child from the other's care when requested by the child.
Ground 2:
The learned Magistrate erred in law by not complying with Evidence Act 1906 (WA) s 39G. Namely, the learned Magistrate gave reasons that were inconsistent with how a jury would have been directed in accordance with s 39F.
[130] Appellant's application for amendment of the notice of appeal filed 19 December 2023.

Statutory framework

The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[131]
[131] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[132] meaning that the ground is required to have a rational and logical prospect of succeeding.[133] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[134]
[132] CA Act s 9(2).
[133] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[134] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[135]
[135] CA Act s 14(2).

Disposition

Ground 1

The appellant submitted that the learned magistrate made an error of fact as to the existence of a parenting agreement which included a condition that one parent could collect their child from the other if one of the children asked. The particular passage complained of in the ground of appeal says:
He has explained there was an agreement in place, and I understand there was an agreement in place, that if one of the children asked - there were two children - if one of the children asked to be brought back from the other parent's house that would happen.[136]
[136] ts 7, 25 August 2023.
It is not clear whether this was a finding of fact on the part of the learned magistrate or part of his summary of the complainant's evidence. Regardless, that was not the evidence of the complainant.
In the course of cross-examination, the appellant's counsel put to the complainant that the appellant had, in effect, been forced to sign a parenting agreement, and that that agreement was not 50:50. The complainant denied the appellant had been forced into signing the agreement,[137] but agreed that the arrangement was not a balanced one, saying it could not be balanced due to the appellant's work.[138]
[137] ts 17, 10 August 2023.
[138] ts 19, 10 August 2023.
Counsel then sought to tender the parenting agreement. The learned magistrate queried its relevance.[139] In the course of the legal argument which followed, in the absence of the complainant, the appellant's trial counsel indicated it contributed to the overall picture of the relationship dynamic as being one where 'the complainant has always exercised control over [the appellant] through the children and who gets to see the children'[140] and said it was a matter of credibility that:
[the complainant] … is going to say the parenting agreement says that, in a certain situation, he can essentially go into the house and pick up the children whenever he wishes … And I'm going to submit that's not true because the parenting agreement does not contain a provision to that effect.[141]
[139] ts 19 - 20, 10 August 2023.
[140] ts 20, 10 August 2023.
[141] ts 21, 10 August 2023.
His Honour indicated that the parenting agreement did not really matter, in circumstances in which any parent, on being contacted by their child indicating they were at risk would be expected to attend their location.[142] Counsel responded that the parenting agreement was also relevant to assessing the gravity of the provocation faced by the appellant, in that the relationship needed to be explained in full, and it could not be understood 'without understanding that there was a parenting agreement.'[143]
[142] ts 22, 10 August 2023.
[143] ts 22, 10 August 2023.

The learned magistrate indicated that, if she testified, the appellant could speak to that issue. However, the prosecutor objected to the complainant being asked his view of the meaning of the parenting agreement, and his Honour ruled that the complainant could not be asked about that, on the basis that the document 'speaks for itself'.[144]
[144] ts 23 - 24, 10 August 2023.
Ultimately, however, the appellant's trial counsel chose not to tender the parenting agreement. He did not seek to cross‑examine the complainant further as to any view as to his entitlement to take the children from the appellant.
The only suggestion in the course of the trial about there being any aspect of the parenting agreement which constituted 'an arrangement' whereby one of the parties could go to the house of the other, or where the children could be removed from a parent under the agreement, came from the legal argument in the absence of the complainant. The complainant did not give any evidence to that effect.
While the appellant, in her record of interview, referred to the manner in which the complainant acted in relation to the children and access, she did not reference the parenting agreement in this regard. She did, however, talk about her inability to cope with Family Court proceedings in the context of needing to see her children.[145]
[145] Exhibit 3, 00:17:35 - 00:18:23.
As I have indicated, it is not clear whether the passage complained of in the ground of appeal constituted a finding of fact or a mistaken summary of the complainant's evidence. However, that passage was not the only occasion on which his Honour referenced the parenting agreement. His Honour referred to it again in the course of the summary of the complainant's evidence when he said:
He said he was kicked out of the house and he took the children. Eventually they signed a parenting agreement, which, as I said, include those conditions that one could collect the other (sic).[146]
[146] ts 8, 25 August 2023.
The learned magistrate referred to this issue again when considering whether the complainant's recording of the incident constituted 'sufficient provocation to justify someone else attacking another person', saying:
There was an agreement … that [the complainant] could go to the house under certain circumstances, and the [appellant] was aware that he was going to the house under those circumstances, that is the parental agreement, to collect the children.[147]
[147] ts 9, 25 August 2023.
The learned magistrate referred to the parenting agreement a third time when considering whether the complainant's conduct constituted provocation, saying:
We're back to it's a situation where the children were going to be removed by the action - by the activation of that agreement.[148]
[148] ts 11, 25 August 2023.
Not only was there no evidence as to the content of the parenting agreement at all in this regard, his Honour had been made aware, during legal argument, that whether the parenting agreement did include a term with that meaning was seriously in dispute. Despite this, the learned magistrate not only positively relied on there having been a condition in the agreement to that effect, but also relied on the fact that the appellant was aware of it, and had agreed to it, when determining that the complainant's conduct did not constitute provocation.
In addition, his Honour had prevented the appellant's trial counsel from cross‑examining the complainant as to his understanding of the terms of the parenting agreement, when that was a significant allegation being made as part of the defence case, namely, that the complainant was using the children and access to them to control the appellant.
For these reasons, having regard to the totality of his Honour's reasons for decision, I am satisfied that the learned magistrate did make the error of fact alleged.

Ground 2

By ground 2, the appellant alleges that the learned magistrate failed to comply with s 39G of the Evidence Act and gave reasons for decision 'inconsistent with how a jury would have been directed in accordance with s 39F'.[149]
[149] Appellant's application for amendment of the notice of appeal filed 19 December 2023.
In particular, the appellant submits that the learned magistrate should have had regard to s 39F(1)(a)(i) in combination with s 39F(2)(b), s 39F(1)(a)(iii) ‑ (iv), s 39F(1)(b)(i) and s 39F(1)(b)(iii).[150]
[150] Appellant's written submissions, 13 - 14.
Relevantly, the Evidence Act provides:
39D. Request for direction on family violence — general provision
(1)In criminal proceedings in which family violence is an issue, prosecution or defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with all or specified parts of section 39F.
(2)The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 39F if so requested, unless there are good reasons for not doing so.
(3)If a direction on family violence is not requested, the trial judge may give the direction if the trial judge considers that it is in the interests of justice to do so.
…
39F. Additional matters for direction on family violence
(1)In giving a direction requested under section 39C or 39D, the trial judge may include any of the following matters in the direction —
(a)that family violence —
(i)is not limited to physical abuse and may, for example, include sexual abuse, psychological abuse or financial abuse;
…
(iii)may consist of a single act;
(iv)may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial;
(b)if relevant, that experience shows that —
(i)people may react differently to family violence and there is no typical, proper or normal response to family violence;
…
(iii)it is not uncommon for a person who has been subjected to family violence not to report family violence to police or seek assistance to stop family violence;
(2)In making a direction under subsection (1), the trial judge may also indicate that behaviour, or patterns of behaviour, that may constitute family violence may include (but are not limited to) —
…
(b)isolating a person from family, friends or other sources of support;
39G. Application of s. 39E and 39F to criminal proceedings without juries
If a court is sitting without a jury, the court's reasoning with respect to any matter in relation to which sections 39E and 39F make provision must, to such extent as the court thinks fit, be consistent with how a jury would be directed in accordance with those sections in the particular case.
Sections 37 to 39G of the Evidence Act commenced on 1 October 2020. They can conveniently be termed the family violence provisions. They were comprehensively considered by Hall J (as his Honour then was) in Kritskikh v Director of Public Prosecutions.[151]
[151] Kritskikh v Director of Public Prosecutions [2022] WASC 130.
In Kritskikh, Hall J observed that there was tension between the mandatory terms of s 39D(2) on the one hand, and s 39F on the other, but held that it could be resolved by an interpretation that, when a direction is required, the content of that direction can be adjusted to meet the circumstances of the case.[152]
[152] Kritskikh [97].
Hall J further held that the effect of s 39D(3) is that, where no request for a direction is made, a judge may give a direction in accordance with s 39F if the judge considered that it is in the interests of justice to do so. His Honour considered that the word 'may' in this context is used to make clear that a judge has the authority to give a direction even in the absence of a request.[153]
[153] Kritskikh [98].
As to the effect of s 39G, his Honour was satisfied that it applies to magistrates. Having so determined, Hall J stated:
Accepting that s 39G applies to Magistrates Courts, the more difficult question is what the provision requires a magistrate to do. It does not, in terms, require the magistrate to articulate the directions that would be given to a jury. Rather, it requires that the court's reasoning be consistent with directions that would be given pursuant to ss 39E and 39F, to such extent as the court thinks fit.
The reference to 'reasoning' must be to the process by which the court reaches a conclusion. That process will only be evident from the content of any oral or written reasons given by the magistrate …
…
The requirement imposed by s 39G is that the reasons be consistent with how a jury would be directed in the particular case in accordance with ss 39E and 39F. The word 'consistent' relevantly means 'agreeing in substance or form; congruous, compatible with, not contradictory; marked by uniformity or regularity'. Reasons may be consistent with directions even though they are expressed in a different way. Indeed, it would not be expected that reasons would be in the same form as directions. Thus, consistency does not require formulaic words, rather it requires that the reasons be compatible with the directions that would be given to a jury in the particular case.
The evident purpose of these provisions is to ensure that common misconceptions about the way in which victims of family violence may behave, for example that they will promptly report family violence to the police or will not remain with the perpetrator of the violence, are dispelled and not taken into account in the reasoning process.
…
… the existence of s 39G allows for the possibility that judges and magistrates may also, consciously or unconsciously, hold such misconceptions and need to guard against the use of them in their reasoning.
This would suggest that it would be an error for a magistrate to reason in a way that is inconsistent with ss 39E and 39F. For example, if a magistrate was to make an adverse finding as to credibility on the basis that the person claiming self-defence had not complained of past family violence, without taking into account that it is not uncommon for a person who has been subjected to family violence not to report it to the police, that would arguably be inconsistent with s 39F(1)(b)(iii). This, of course, does not necessarily mean that a failure to complain, or a delay in complaining, is irrelevant. It simply means that in assessing the significance of any failure or delay it is important to take into account that there may be explanations for it that do not detract from the credibility of the witness.
The words 'to such extent as the court thinks fit' in s 39G are problematic. They cannot mean that a court may reason in a way that is consistent to only a limited extent. That literal meaning of the phrase would deprive the provision of any real effect by rendering the principles contained in 39E and 39F effectively optional. In this context consistency is not a value that lends itself to differing degrees of compliance. It would be expected that the reasoning would either be consistent or not consistent with how a jury would be directed.
In my view, the phrase 'to such extent as the court thinks fit' must mean that there is no set formula for the words that must be used when reasoning in a way that is consistent with the provisions. It may not be necessary in a particular case, for example, to refer to all of the individual subsections of s 39F. Whether the matters raised in s 39E and s 39F are relevant in a particular case will depend on the context. The phrase is intended to ensure that judges and magistrates only need to take into account such of the principles in their reasoning process as are relevant and raised by the evidence in the particular matter. However, if a principle is relevant on the evidence raised in a trial it is not open to a judge or magistrate to reason in a way that is plainly inconsistent with that principle. That would, for example, arise if the reasons drew on an assumption or misconception that is identified in s 39F.
Returning, then, to what a magistrate must do in order to comply with s 39G, the following approach is required:
1. Determine whether family violence is an issue in the case (either to self-defence or in some other way);
2. Determine whether in the circumstances of the case a jury would be directed pursuant to s 39E and/or s 39F (either because the parties would request directions or because the interests of justice would require it);
3. Determine what the content of those directions would be (that is, what parts of s 39E and/or s 39F are relevant in the particular case); and
4. Ensure that the reasons for decision are consistent with those directions (that is, that they are compatible with those directions and do not contradict them).[154]
[154] Kritskikh [102] - [111].
It was common ground at the appeal in this matter that s 37F and s 37G applied in this matter and that the learned magistrate did not expressly refer to any particular family violence provision in his reasons for decision.

Assessments of credibility and reliability

The learned magistrate did not make any express findings as to the complainant's credibility. To some extent, that is understandable, because the overwhelming majority of the conduct of the complainant on the night was recorded.
His Honour did make findings as to the credibility and reliability of the appellant. Again, to some extent, this was understandable. The appellant's account of the events of the night in question was markedly different to what was actually shown on the recordings. In making his findings as to the appellant's lack of credibility and reliability as to the events, his Honour's assessment was that it was 'probably due to the amount of alcohol she had drunk'.[155]
[155] ts 9, 25 August 2023.
His Honour did not consider the credibility or reliability of any part of the appellant's account of events other than on the night. While it was potentially open to his Honour to have rejected the appellant's account in this regard, he did not say that he had done so. Further, as he had attributed the lack of credibility and reliability of the appellant's account about the actual alleged offence as being 'probably' due to alcohol, it did not logically follow that her account as to the background of the relationship was not credible or reliable.
The complainant was not specifically asked about the appellant's account, but I am conscious that the appellant's trial counsel was prevented from cross-examining on the parenting agreement in this regard.

Section 39F(1)(a)(i) in combination with s 39F(2)(b))

The appellant argued that at trial that, in assessing the gravity of the provocation, the learned magistrate was required to consider an ordinary person who had been the victim of family violence which included violence, threats of violence and aggressive behaviour on the part of the complainant, as well as controlling behaviour, including denying the appellant access to her children.[156]
[156] Appellant's written submissions [33].
On appeal, it was submitted the fact that the complainant had prevented the appellant from seeing her children for approximately a month without any lawful basis constituted psychological abuse. Further, it was submitted that the 'perceived unfair agreement' was a form of psychological abuse. As to this 'agreement', the appellant relies on the content of her record of interview, and not the contents of any parenting agreement.[157]
[157] Appellant's written submissions, 13.
The respondent submitted that there was nothing in the learned magistrate's reasons which was inconsistent with s 39F(1)(a)(i) and s 39F(2)(b).[158]
[158] Respondent's written submissions filed 19 January 2024 [27.1] (Respondent's written submissions).
Whether the basis on which the appellant did not see her children for a month was lawful or not was not specifically explored at the trial. However, in her record of interview, the appellant did make it clear that she considered she had no say in when she saw or spoke to her two younger children, or when they would leave visits with her to return to the complainant's custody.[159] She gave examples of other incidents which had given rise to this perception. She said she had been unable to cope with the Family Court and mediation. She expressed distress and having previously had thoughts of self‑harm and potentially suicidal ideation at the prospect of not being able to see her children.[160]
[159] Exhibit 3, 00:11:26.
[160] Exhibit 3, 00:17:35 - 00:18:23.
The appellant said that, on the night, her children were crying because they did not want to leave and that her son had apologised for calling his father and her daughter was also upset he had done so. She said she thought the reason she thought she snapped at [the complainant] was that he would not let her see the kids now and that he had threatened her that she would never see the kids again. She said she was sick of the pain she was going through, and had been taken by surprise, and that she missed her children so much.[161]
[161] Exhibit 3, 00:15:22.
The learned magistrate, in his reasons for decision, said that there had been a 'history of unpleasantness' between the appellant and the complainant.[162] He summarised the appellant's account of the background to the incident by referring to the fact that the appellant had said 'I snapped at [the complainant] because he would not let me see the kids' and that she had said she was sick of the threats but did not expand on that particular issue.[163]
[162] ts 10, 25 August 2023.
[163] ts 9, 25 August 2023.
While it was unclear when during the evening the complainant was said to have made the threat that the appellant would never see her children again, or what the appellant meant by 'snapped at [the complainant]', it was apparent, from viewing the record of interview, that the appellant was expressing upset at the perceived imbalance in the control of access to her children. She was also expressing despair at the prospect of her children being taken away that night, which was unexpected, and being prevented from seeing them again in the future, in the context of having previously been prevented from seeing them for a month.[164]
[164] Exhibit 3, 00:17:40 -
His Honour had been requested to direct himself in accordance with s 39F(1)(i). It would have been of assistance for the appellant's trial counsel to have also specifically referred his Honour to s 39F(2)(b), given the reliance now placed on that provision. However, even without such a request, s 39G required his Honour's reasoning, to such an extent as his Honour thought fit, to be consistent with how a jury would have been directed under s 39F.
In his reasons for decision, his Honour referred to the arrangement between the two parties as being 'that one could go over to the other place'.[165] The learned magistrate said there was nothing unusual about that sort of arrangement and that the appellant was aware why the complainant was going to be at her house.[166] Later in his reasons, his Honour described the complainant as 'collecting the children',[167] and that 'the children were going to be removed by the activation of the agreement'.[168]
[165] ts 10, 25 August 2023.
[166] ts 10, 25 August 2023.
[167] ts 10, 25 August 2023.
[168] ts 11, 25 August 2023.
In referring to the arrangements in this manner, it is impossible to avoid the impression that his Honour considered the taking of the children to be little more than a day‑to‑day aspect of the matter. However, at no point in his reasons did the learned magistrate consider the submission that, in circumstances in which the appellant had previously been denied access to her children by the complainant, the complainant's 'collection' of the children, combined with the threat that she would never see her children again, was far from day‑to‑day, but actually constituted family violence.

In my view, in the absence of such consideration, the learned magistrate's reasoning was inconsistent with the provisions of s 39F(1)(a)(i) and s 39F(2)(b)

Section 39F(1)(a)(iii) - (iv)

The learned magistrate was not requested to direct himself in relation to s 39F(1)(a)(iii) or (iv). However, that did not necessarily mean that his Honour was not required to have regard to those provisions, if they applied in this case.
The appellant submitted that the learned magistrate should have considered the complainant's conduct on the night in question in the context of all of his previous behaviour, including but not limited to preventing the appellant from having access to their children, in considering the gravity of the provocation and the nature of the appellant's response to that conduct. The appellant submitted that instead, his Honour found that there was a previous arrangement, agreed to by the appellant, in accordance with which she knew the complainant to be acting.[169]
[169] Appellant's written submissions, 13.
The respondent submitted that the learned magistrate's reasoning was not inconsistent with s 39F(1)(a)(iii) ‑ (iv).[170]
[170] Respondent's written submissions [27.2].
The appellant's counsel on the appeal acknowledged that the appellant, in her record of interview, did not elaborate on what she referred to as violence and threats.[171] Specifically, she did not give information as to when those events occurred, or what they involved. It was therefore extremely difficult for the magistrate to make findings as to the extent of the family violence alleged by the appellant.
[171] ts 9.
The learned magistrate did consider various aspects of the complainant's conduct on the night in question and ruled them out as being sufficiently provocative. While his reasons in this regard were brief, his Honour did consider the conduct in combination. Further, in doing so, his Honour referred to the context of the relationship and the fact 'there are a number of layers'.[172]
[172] ts 10, 25 August 2023.
His Honour's findings as to the nature of the relationship were limited to findings that:
(a)it had a 'history of unpleasantness';[173]
(b)the level of aggravation between the appellant and the complainant was relatively high to start with;[174] and
(c)the two parties were clearly not civil to one another when they came together.[175]
[173] ts 10, 25 August 2023.
[174] ts 10, 25 August 2023.
[175] ts 11, 25 August 2023.
Again, as he did not refer to the appellant's account that she had been subjected to controlling behaviour in relation to her access to her children, it is difficult to know whether the learned magistrate had regard to it or not.
However, there is no indication that in considering whether provocation had been rebutted, his Honour did not consider the complainant's conduct on the night in combination, and in the context of the previous relationship history, rather than as a series of separate minor or trivial acts. His Honour also did not at any point reason that a single act could not constitute family violence. Accordingly, I am not satisfied that his Honour reasoned in a manner which was not consistent with s 39F(1)(a)(iii) ‑ (iv).

Section 39F(1)(b)(i)

On a number of occasions, in summarising the relationship, his Honour referred to both the appellant and the complainant behaving badly. He said no one behaved better than the other. However, he considered that the appellant's intoxication clearly affected her reaction, and found that she was aggressive primarily due to the impact of alcohol. His Honour said that the presence of her children should have been, but was not, enough to constrain her and found that the series of acts were 'not such as to cause a person of her disposition, to put it generally, to act in the way in which she did.'[176]
[176] ts 11, 25 August 2023.
In finding that the complainant's conduct of removing the children in addition to other circumstances was not 'provocative to the level required by the defence',[177] the learned magistrate did not refer in any way to the fact that the appellant had expressly related her 'snap' to the fact that she was being deprived of access to her children. In referring to her 'disposition', he did not recognise that the appellant might have been more greatly impacted by the complainant's conduct than someone without her relationship history.
[177] ts 10, 25 August 2023.
Further, in my view, the observation that the appellant should have been constrained by the presence of her children implied that the appellant was expected to react in a particular way. Such reasoning failed to recognise that the appellant's response to the complainant's conduct might instead have been a reaction to the imminent removal of her children from her care and the prospect of future denial of access, in the context of the appellant's background of having been previously denied access to the children. Accordingly, I am satisfied that the learned magistrate reasoned inconsistently with s 39F(1)(b)(i).

Section 39F(1)(b)(iii)

The appellant contended that the learned magistrate made findings adverse to the appellant's credibility because she declined to take further the fact that she had bruises all over her and, in particular, that no photographs were therefore taken.[178]
[178] Appellant's written submissions, 14.
The evidence that the appellant had declined to make a formal complaint about her bruises was elicited in cross‑examination, in response to a question about the failure on the part of Constable Strange to take photographs of her injuries. Constable Strange said that she was unable to take photographs of the appellant's injuries without her consent.
The appellant identified two parts of his Honour's reasons for decision in which he referred to the fact that the complainant had told Constable Strange that she had bruises, but declined to take the matter any further.
The first such reference came during the summary of evidence, in which the learned magistrate referred to the record of interview of the appellant and said:
Now in the record of interview, [the appellant] said, 'He pushed me. He choked me. He had taken off. I kicked his car.' Now, as to the choking … as far as I can see from the video, and there was no choking by the complainant on the [the appellant]. She raised that issue. There was an issue raised of the police as to why they didn't take photographs of her. She said she had injuries. She declined to do so.
The police are not in a position to then forcibly require her to remove clothing so they can take photos of her. There were no injuries she complained of that were visible, and certainly none were pointed out, so it's a concern that she did raise that issue of being choked when that did not happen and that's not shown on the video. That clearly affects her credibility … which also comes back to the point on the night she agreed she had about 12 … Carlton Draughts, which is a considerable amount of alcohol…[179]
[179] ts 9, 25 August 2023.
In the course of the record of interview the appellant did identify bruising to her arm, and Constable Strange is seen in the interview to acknowledge that that the appellant's arm was swollen.
In my view, while unfortunately expressed, the learned magistrate's reasons can properly be understood as relating to the appellant's claim that she had been choked, in the sense that no such thing could be seen on the footage of the incident, and the appellant had no visible injuries relating to that, nor did she identify any. While it was strictly unnecessary in that context to refer to the fact that the appellant had declined to have photographs taken, his Honour was, in my view, doing no more than addressing the criticism implicit in the appellant's trial counsel's cross‑examination of Constable Strange for failing to have taken photographs.
A fair reading of the learned magistrate's reasons reveals that it was the finding that the choking did not happen which he considered affected the appellant's credibility. This is supported by the fact that his Honour related this to the appellant's alcohol consumption, a factor which had no relevance to her refusal the following day to make a complaint or have photos taken.
The second reference[180] came at the conclusion of the summary of evidence. That was the last evidence given at the trial, and so it was logical that it would appear at the end of any summary. While its relevance was questionable, even as part of the summary, it is unsurprising that the learned magistrate, if referring to notes in the course of his decision, would mention it.
[180] ts 10, 25 August 2023.
It is clear, in my view, that this reference did not form part of his Honour's reasoning, because it is followed by the words, '[n]ow the first thing I should say …' indicating the end of the summary of evidence and the commencement of his Honour's reasoning.[181]
[181] ts 10, 25 August 2023.
In my view, had his Honour reasoned that the appellant's credibility was affected by her failure to make a complaint, without giving consideration to the fact that it is not uncommon for a person who has been subjected to family violence not to report family violence to police, that would have been reasoning inconsistent with s 39F(1)(b)(iii). However, I am not satisfied that his Honour did so.

Conclusion as to ground 2

The learned magistrate's reasoning was, in material respects, inconsistent with the provisions of s 39F. Primarily, his Honour failed to identify the aspects of the appellant's account as to the relationship background which raised an issue as to whether she was a victim of family violence, namely psychological abuse. Had his Honour done so, he would then have been prompted to examine more closely the impact of the particular conduct of the complainant not only on the night in question but also in the preceding months, when considering whether the conduct constituted sufficient provocation to the appellant for her assault upon the complainant.
The learned magistrate's reasoning, which was inconsistent with the principle that there is no typical, proper or normal response to family violence, necessarily flowed from this primary failure.
Ground 2 has been made out.

Proviso

The respondent did not submit that, in the event that either of the grounds of appeal was made out, the appeal should nevertheless be dismissed on the basis that there was no substantial miscarriage of justice.
The appellant submits that, in circumstances in which family violence was significantly in issue, and provocation was the sole issue in the trial, the error was material. Further, it is argued that this is not a case in which, notwithstanding the errors, a conviction was inevitable on the evidence adduced.
I am satisfied that it is not appropriate to apply the proviso in this case. The combination of errors is material and it cannot be said that they would not have impacted on the outcome of the case.
The learned magistrate's errors in relation to the parenting agreement were compounded by the fact that he had earlier ruled that the appellant's trial counsel could not explore the terms of that agreement and, in particular, the complainant's understanding of them. It must be appreciated that that ruling was made on the understanding that the agreement would be tendered, which did not ultimately occur. Had it occurred, his Honour would have been in a position to assess the terms of the agreement himself. However, once it was not tendered, and having ruled that the complainant could not be asked about it, his Honour was not in a position to make a finding as to its terms.
This affected a proper evaluation as to whether the complainant's conduct in relation to the agreement was capable of constituting family violence, as the appellant effectively claimed in her record of interview, and how s 39F applied in this case.
Examination of his Honour's reasons for decision reveals that the findings that there was a term of the agreement which permitted the complainant to attend the appellant's house to collect the children if they wanted to leave, that the appellant had consented to such a term, and that the appellant knew the complainant was at her house in 'activation' of that term, were significant in determining the extent to which the complainant's conduct was capable of constituting sufficient provocation for the appellant's assault.
In circumstances in which the appellant was prevented from adducing relevant evidence as to the complainant's conduct in relation to the parenting agreement, it is not appropriate for me to make my own assessment of the evidence in order to apply the proviso.
The appeal must be allowed and the matter remitted to be heard before a differently constituted court.

Orders

1.Leave to appeal is granted on grounds 1 and 2.
2.The appeal is allowed.
3.The conviction and sentences imposed by the learned magistrate on 25 August 2023 are set aside.
4.The order as to costs in the sum of $137 is set aside.
5.The matter is remitted to the Armadale Magistrates Court, differently constituted, to be heard and determined according to law.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
20 MAY 2024