A -v- DOUBIKIN [2019] WASC 426 (27 November 2019)

1. The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[2] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[3] If leave for appeal is refused on a ground of appeal the ground is taken to be dismissed.[4]

1. The facts of the appellant's offence as found by the magistrate are as follows.[5]
2. On 13 July 2017, when EF was 10 years old, the appellant grabbed EF forcefully around the neck. She did so because she wanted EF to clean up some Lego bricks that he had been playing with and to look at her. The appellant then pinched EF on the neck when he did not turn to face her. The appellant's conduct in grabbing EF on the neck and in pinching EF's neck caused EF to suffer a number of red marks (at least four) on the right side of his neck.
3. As is apparent from the facts of the appellant's offence as found by the magistrate, her Honour found that the unlawful assault was constituted by the appellant grabbing EF's neck and pinching EF's neck.[6]

1. The prosecution called six witnesses at trial including AB, CD, EF and GH. CD is the brother of AB and EF. GH is the father of AB, CD and EF.
2. The appellant elected to give evidence in her defence. She also called one further witness.
3. The evidence‑in‑chief of AB, CD and EF was substantially comprised of visually recorded interviews conducted with each of them by officers from the Child Assessment Interview Team (CAIT). The visually recorded interviews were admissible 'as the whole or a part of the evidence in chief' of AB, CD and EF under s 106HB(1) and s 106HB(4) of the Evidence Act 1906 (WA) (the Act). AB, CD and EF did not give any supplementary oral evidence‑in‑chief in relation to the allegations the subject of the charges.

1. The first of the appellant's grounds of appeal is expressed in the following terms:

The learned Magistrate erred in law when, contrary to Section 97 of the Evidence Act 1906 (the Act), she allowed the child EF to testify without being sworn and without having complied with the requirements of Section 100A of the Act.

1. It is convenient at the outset to set out the statutory provisions that are relevant to the determination of the ground of appeal.
2. Section 97(1) of the Act relevantly provides:

Subject to any other Act in which express provision is made to the contrary, in any ... criminal proceeding, ... every witness other than -

(a) a witness the evidence of whom may be received pursuant to this Act though not given on oath; ...

shall give evidence on oath.[7]

1. Section 100A of the Act relevantly provides:

(1) Where in any ... criminal proceeding, ... the court ... is satisfied that a person who is tendered as a witness does not understand the nature of, or the obligation imposed by, an oath or affirmation but does understand -

(a) that he is required to speak the truth and, where the witness is a compellable witness, to tell what he knows about the matter to which the testimony relates; and

(b) that he will be liable to punishment if he does not do so,

the evidence of that person may be received without an oath and without formality.

(2) In taking into account the weight and credibility that ought to be afforded to testimony given by a witness otherwise than on oath or affirmation regard shall be had to the manner and circumstances in which it is given and received and to the fact that it was given without the sanction of an oath or affirmation.

(3) [repealed]

(4) Before evidence is received pursuant to this section the court ... shall explain or cause to be explained to the person tendered as a witness that he is required to speak the truth and, where the witness is a compellable witness, to tell what he knows about the matter in question and that he will be liable to punishment if he does not do so.

(5) ...

(6) References in this section to -

(a) a person who is tendered as a witness;

(b) [repealed]

extend to a child who is of or over the age of 12 years and who is tendered as a witness, and the provisions of this section have effect accordingly.

(7) Except as provided in subsection (6), this section does not apply to a child, as defined in section 106A.

(8) ...

1. Section 106A of the Act relevantly defines the term 'child' to mean any boy or girl under the age of 18 years.
2. Section 106B of the Act relevantly provides:
   • (1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (3), give evidence on oath or after making an affirmation.
   • (2) ...

(3) A person referred to in subsection (1) ... is competent to take an oath or make an affirmation if in the opinion of the court or person acting judicially the child understands that -

(a) the giving of evidence is a serious matter; and

(b) he or she in giving evidence has an obligation to tell the truth.

1. Section 106C of the Act relevantly provides:

A person referred to in s 106B(1) ... who is not competent to give evidence under s 106B(3) may give evidence without taking an oath or making an affirmation if the court...forms the opinion, before the evidence is given, that the person is able to give an intelligible account of events which he or she has observed or experienced.

1. Section 106HA of the Act relevantly provides:

(1) Section 106HB applies to a visual recording of an interview with a child conducted before or after the coming into operation of section 20 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 if -

(a) the interview was conducted by a person of a prescribed class; and

(b) the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent.

...

(3) A visual recording of an interview with a child, or a person with a mental impairment, to which section 106HB applies is referred to as a visually recorded interview.

1. Finally, s 106HB of the Act relevantly provides as follows:

(1) In any proceeding for an offence (the proceeding) one or more visually recorded interviews may be admitted as the whole or a part of the evidence in chief of a witness -

(a) irrespective of the age or maturity of the witness at the time of the proceeding; and

(b) even if the witness is capable of giving evidence at the proceeding.

...

(4) A visually recorded interview is admissible under subsection (1) to the same extent as if statements made in it by the witness were given orally in the proceeding in accordance with the usual rules and practice of the court concerned.

(5) If a visually recorded interview is admissible under subsection (1), the judge in the proceeding may give any directions the judge thinks fit as to -

(a) the presentation of it and the excision of matters from it; and

(b) the manner in which further evidence in chief of the witness may be given and in which any cross‑examination and any re‑examination of the witness is to be conducted in the proceeding.

...

(6a) If a visually recorded interview of a witness is admitted under subsection (1), then, while the recording is played to the court, the witness must not be present in court, or be visible or audible by closed circuit television or by means of any similar technology to anyone in the court other than, in the case of a trial by jury, the judge.

The manner in which the evidence of AB and CD was adduced

1. In dealing with the ground of appeal it is, I think, useful to set out by way of background the manner in which the evidence of AB and CD was adduced.
2. AB was born on 25 October 2010. He was therefore 8 years old at the time of giving evidence. CD was born on 29 August 2008. He was therefore 10 years old at the time of giving evidence. Accordingly, s 106B of the Act applied to both AB and CD. However, when AB and CD were called to give evidence the magistrate did not make any inquiry of either boy to satisfy herself that he was competent to give evidence on oath or affirmation pursuant to s 106B(1) of the Act, or able to give evidence without taking an oath or making an affirmation pursuant to s 106C of the Act. Rather, when AB was called and the connection was made with the remote room from which AB was giving his evidence the prosecutor, without intervention from the magistrate, commenced to question him as follows:[8]

[AB], can you hear me? AB? --- Yes.

Can you hear me? --- Yes.

Okay. Can you see me? --- Yes.

Okay. Can you see the ---

Yes? What can you see, AB? --- Security cameras and the magistrate.

That's a good boy. How old are you now, AB? --- Because I'm watching on the security camera.

Okay. How old are you now AB? --- Eight.

You're eight now. Okay. Do you remember I spoke with you just a little while ago? --- Yes.

Okay. Remember I asked you do you know the difference between the truth and a lie? --- Yes.

Can you see me? --- Yes.

Okay.

[Interjection by court officer stating that the 'other' TV is not working]

Can you see me, AB --- That TV is not working.

Okay. Can you see me now? --- Yes.

Okay. Now, remember I asked you about the truth and a lie and you know the difference? --- Yes.

Okay. My shirt is black, isn't it? --- No.

So did I tell a lie or did I tell the truth? --- Lie.

1. At this point the prosecutor requested that the visually recorded interview conducted with AB be played.[9] There was then some discussion between the magistrate and counsel as to whether s 106HB(6a) of the Act precluded AB from watching the recording of the interview conducted with him as it was played.[10] At the end of this discussion the visually recorded interview was played to the court.[11] After the recording had been played, a second visually recorded interview that had been conducted with AB was also played to the court.[12] Once the recordings of both interviews had been played the recordings were tendered and the prosecutor informed the magistrate that that was the evidence‑in‑chief of AB.[13]
2. At the conclusion of AB's evidence‑in‑chief the magistrate asked the appellant's counsel if 'he would like her to ask some questions of [AB] to begin with' or whether he was content to proceed.[14] The appellant's counsel informed the magistrate that he was content to proceed unless her Honour wanted to clarify something.[15] The magistrate then had a brief exchange with AB during which she asked questions of AB that were directed at ensuring that AB understood that he was to be questioned by the appellant's counsel and that he could see the appellant's counsel on his screen in the remote room.[16] AB was then cross‑examined.[17] He was not re‑examined.[18] The magistrate excused him from further attendance.[19]
3. A similar course was followed when CD was called by the prosecutor to give evidence (CD being called after EF). Once the connection with the remote room had been established the prosecutor spoke to CD, without any intervention by the magistrate, as follows:[20]

Thank you. Your Honour. This may take about 30 minutes, perhaps, this one. So the next witness will be [CD]. [CD], can you see me? ‑‑‑ No.

Can't? Can you see me now? --- Yes.

Do you remember me? --- Yes.

Okay. Thank you, [CD]. Remember we spoke earlier and I asked you the difference between a truth and a lie? Remember we had that talk? ‑‑‑ Yes.

Do you remember that? Okay? --- Yes.

So if I said to you my shirt is red, is that a lie or a truth? --- Lie.

That's a lie. What colour is my shirt? --- Blue.

That's the truth, isn't it? --- Yes.

Now, [CD], how old are you, now? --- I'm 10.

You're 10 now? Okay? --- Yes.

And do you know why you're before the court here today? --- Yes.

1. At the conclusion of the above exchange the prosecutor informed CD that a recording was going to be played and that he would be able to hear the recording but not see anything on the screen.[21] The visually recorded interview conducted with CD was then played to the court. At the conclusion of the playing of the recording the prosecutor tendered the recording and concluded the examination‑in‑chief.[22] CD was then cross‑examined.[23] At the conclusion of cross‑examination CD was re‑examined very briefly.[24] CD was then excused from further attendance by the magistrate.[25]

1. EF was born on 19 February 2007. He was therefore 12 years old at the time of giving evidence.
2. When EF was called to give evidence the magistrate did not require him to take the oath or make an affirmation. Nor did she give any explanation as to why she did not think that it was necessary for EF to give evidence on oath or affirmation. Rather, the process that occurred when EF was called to give evidence was similar to the process that occurred when AB and CD were called to give evidence. Thus, when the prosecutor called EF and the connection was made with the remote room in which EF was situated, the prosecutor spoke to EF, without intervention from the magistrate, as follows:[26]

Thank you, your Honour. I will just - [EF], can you hear me? --- Yes.

Okay. Your name is [EF], isn't it? --- Yes.

How old are you, [EF]? --- 12.

You're 12 now. Can you see the court? --- Pardon?

Can you see the court? Can you see us at the court? --- Yes. Yes ---

What can you see? --- I can see a magistrate.

Okay. Thank you. Now, [EF], can you see me? --- Yes.

Okay. Now, remember how we talked earlier about lies and the truth? ‑‑‑ Yes.

Alright. And you remember what we talked about? Now, I'm wearing a black shirt, aren't I? --- No.

What colour is my shirt? --- Blue.

Okay. So I told you a lie; isn't that right? --- Yes.

Okay. And you told me the truth, because my shirt is blue; is that right? ‑‑‑ Yes, that is correct.

1. At the end of the above exchange the prosecutor in effect informed EF that the recording of his interview was going to be played to the court and that he would be able to hear the recording.[27] The visually recorded interview conducted with EF was then played to the court.[28] Once the recording had been played the prosecutor tendered the recording and concluded his examination‑in‑chief.[29] EF was then cross‑examined.[30] At the conclusion of cross‑examination EF was re‑examined very briefly.[31] EF was then excused from further attendance by the magistrate.[32]

1. The analysis of the ground of appeal must start with s 97(1)(a).
2. So far as s 97(1)(a) is concerned, in the circumstances of the present case there is no other applicable Act in which 'express provision is made to the contrary' within the meaning of the section. Further, the prosecution and trial of the appellant was a 'criminal proceeding' within the meaning of the section. Therefore, unless the evidence of EF was permitted to be received pursuant to the Act though not given on oath or affirmation, the effect of s 97(1)(a) is that EF was, as is made clear by the use of the word 'shall' in the section, required to give evidence on oath or affirmation.
3. As I have already pointed out, EF was 12 years old at the time that he gave his evidence. Accordingly, s 106B and s 106C of the Act did not apply to the giving of the evidence by EF. Section 106B and s 106C only apply to children who are under 12 years of age.[33]
4. It is at this point that attention must be returned to the above cited s 100A of the Act. Section 100A(1) applied to EF by virtue of s 100A(6). The result, reading s 97(1)(a) in light of s 100A(1), is that EF was required to give his evidence on oath or affirmation unless the magistrate was satisfied that EF did not understand the nature of, or the obligation imposed by, an oath or affirmation but did understand:
   1. that he was required to speak the truth and to tell what he knew about the matter to which his testimony related; and
   2. that he would be liable to punishment if he did not do so.
5. It is only if the magistrate was satisfied of these matters that EF was permitted to give evidence without taking an oath or making an affirmation and without formality.
6. In the present case the magistrate did not make any inquiry directed at ascertaining if EF did not understand the nature of, or the obligation imposed by, an oath or affirmation but did understand that he was required to speak the truth and to tell what he knew about the matter to which his testimony related, and that he would be liable to punishment if he did not do so. Further, her Honour did not, prior to permitting EF to commence giving his evidence (EF's evidence commencing from the very first question asked of him by the prosecutor) or at any time thereafter, state that she had made findings to this effect. In these circumstances the only inference that can, in my opinion, be reasonably drawn is that the magistrate did not, prior to permitting EF to give evidence, satisfy herself that EF did not understand the nature of, or the obligation imposed by, an oath or affirmation but did understand that he was required to speak the truth and to tell what he knew about the matter to which his testimony related, and that he would be liable to punishment if he did not do so. Her Honour erred in failing to satisfy herself of these matters.
7. In any event, in the absence of an appropriate inquiry undertaken by the magistrate, there was no evidence upon which her Honour could properly have concluded that EF did not understand the nature of, or the obligation imposed by, an oath or affirmation but did understand that he was required to speak the truth and to tell what he knew about the matter to which his testimony related, and that he would be liable to punishment if he did not do so. Neither the prosecutor's questioning of EF to which I have referred, nor the visually recorded interview conducted with EF, provided a basis for the magistrate to make findings to this effect.
8. Furthermore, even if it is assumed, contrary to my above expressed views, that it was open to the magistrate on the material before her to make the necessary findings under s 100A(1), and that she did in fact make those findings, the magistrate did not, prior to EF commencing to give his evidence, comply with the mandatory requirements of s 100A(4). That is, the magistrate did not explain or cause to be explained to EF that he was required to speak the truth and to tell what he knew about the matter in question, and that he would be liable to punishment if he did not do so.
9. Given that the magistrate failed to satisfy herself of the matters specified in s 100A(1) and failed to comply with the requirements of s 100A(4), EF was not a witness the evidence of whom could be received pursuant to the Act though not given on oath or affirmation within the meaning of s 97(1)(a). The evidence given by EF was not by law permitted to be received other than on oath or affirmation.
10. For the reasons I have stated, I am satisfied that the magistrate made an error of law when she permitted EF to give his evidence without taking an oath or making an affirmation, and then further erred by not explaining, or causing to be explained, to EF that he was required to speak the truth and to tell what he knew about the matter in question and that he would be liable to punishment if he did not do so. [34] This ground has been made out.
11. Needless to say, the magistrate should have been alerted to the requirements of s 97(1)(a) and s 100A by the prosecutor and defence counsel. It is very regrettable that this did not occur. In this respect the magistrate did not receive the assistance that she was entitled to expect.
12. Finally, I note that in the written outline of submissions filed on behalf of the respondent it is asserted that the manner in which an inquiry for the purposes of s 100A(1) is to proceed is not prescribed and is generally within the discretion of the presiding judicial officer, and that 'it is not apparent that the [judicial officer] must ask the questions necessary to obtain sufficient information'.[35] It is the position that s 100A(1) does not prescribe the manner in which an inquiry for the purposes of the section must be undertaken, and that the way in which the judicial officer conducts the inquiry is generally speaking a matter for the judicial officer's discretion. However, to the extent that the respondent's submission suggests that the inquiry can be undertaken by persons other than the judicial officer (for example, by counsel) and although it is not strictly necessary for me to express a view on the point in order to deal with the ground of appeal, I state for the purposes of completeness that in my opinion on the current state of the authorities it is incumbent on the judicial officer to themselves undertake the necessary inquiry unless there is some sound reason for not doing so.[36]

Did the error result in a substantial miscarriage of justice?

1. Despite my finding that the ground of appeal has been made out, I may dismiss the appeal if I consider that no substantial miscarriage of justice occurred as a result of the identified error of law.[37]
2. The respondent submits, in essence, that no substantial miscarriage of justice occurred as a result of the error made by the magistrate in permitting EF to give his evidence while not under oath or affirmation because it is clear from her Honour's reasons for decision, and can be safely concluded, that in finding the appellant guilty of the offence her Honour relied only on what EF had said during the visually recorded interview and did not place any reliance on EF's unsworn oral evidence.
3. The appellant submits that it is simply not possible to conclude that EF's unsworn oral evidence did not play any role in the magistrate's decision to find the appellant guilty of the offence.
4. Implicit in the respondent's submission that the magistrate's non‑reliance on EF's unsworn oral evidence enables me to conclude that her Honour's error of law did not occasion a substantial miscarriage of justice is the assumption that by virtue of the terms of s 106HB(1), the visually recorded interview conducted with EF was evidence that the magistrate could take into account and rely upon in deciding if the State had proved the appellant's guilt notwithstanding that EF was erroneously permitted to give evidence without taking an oath or making an affirmation.
5. There is, in my opinion, a real question as to whether, as a matter of statutory construction, s 106HB(1) overrides the operation of s 97 and s 100A(1). That is, there is, in my view, a real question as to whether s 106HB(1) permits a visually recorded interview to be admitted as 'the whole or a part of the evidence in chief' of a child who is at the time of giving evidence 12 years old in circumstances where the child is erroneously permitted to give evidence without taking an oath or making an affirmation. However, the question is not one that counsel for either party had given any detailed consideration to prior to the hearing of the appeal.[38] Consequently, I did not have the benefit of counsel's considered and detailed submissions on the point. This being the case, and given that it is not, in my view, for reasons that will become apparent, necessary for me to determine the question in order to deal with the appeal, I will refrain from addressing the question and expressing a concluded view in relation thereto. However, my approach in this regard should not be construed as an acceptance of the correctness of the assumption made by the respondent that I have identified.
6. Putting to one side the above referred to issue, in order to deal with the respondent's submission that no substantial miscarriage of justice occurred as a result of the magistrate's error it is necessary to determine if it can be safely concluded that her Honour did rely solely on what EF said during the visually recorded interview and not on any of EF's unsworn oral evidence in finding the appellant guilty of the offence. It is to this question that I now turn. I note that the respondent accepts that if I am not satisfied that the magistrate did not place any reliance on EF's unsworn oral evidence, it will not be possible for me to find that no substantial miscarriage of justice has occurred.

Did the magistrate rely solely on what EF said during the visually recorded interview?

1. In order to deal with the question whether the magistrate relied solely on what EF said during the visually recorded interview and not on any of EF's unsworn oral evidence, it is necessary to make some more detailed reference to the evidence adduced from EF in relation to the charge and to the magistrate's reasons for decision.

The evidence adduced from EF in relation to the charge

1. As I have already indicated, EF's evidence‑in‑chief was substantially comprised of the visually recorded interview conducted with him.
2. During the interview EF did not give evidence of the specific occasion that the magistrate found constituted the offence. Rather, during the interview he said, in substance, the following:
   1. The appellant hit, kicked and punched him a lot;[39]
   2. The appellant kicked him and his brothers after they did not pick up the Lego;[40]
   3. When he came home from school and was on the TV or computer the appellant would pinch him and do other things 'which is absolutely annoying';[41]
   4. The appellant would pinch him 'so hard' and it really hurt, and was painful;[42]
   5. On the occasions that he was watching TV and the appellant pinched him the appellant pinched him 'anywhere ... she could do', that she usually pinched him 'twice or once', and that she usually pinched him on the back 'or maybe on the neck which is more painful';[43] and
   6. The first person he told about the appellant kicking, hitting and pinching him was his dad.[44]
3. In cross‑examination EF said that the appellant would only pinch him if he was really naughty and he did not 'do anything right for her.'[45] He said that the appellant would pinch him when he was 'watching TV and all' and not doing the right thing.[46] He agreed that the appellant would pinch him to try and get him up to do his homework.[47] He said that he could not remember an occasion when the appellant put her hand around his head area to get him to turn his head towards her and to look at her.[48] He agreed that when the appellant pinched him in front of the TV she was trying to get him up.[49] He said that he had no memory of the appellant actually grabbing him on the neck.[50]

1. In her reasons for finding the appellant guilty of the offence the magistrate referred to the following evidence adduced during the trial:
   1. The photograph taken by GH on his mobile phone of EF's neck at about 1.00 pm on 13 July 2017 which showed at least four red marks on the right side of EF's neck;[51]
   2. GH's evidence that when he attended at the appellant's home on 13 July 2017 to pick up EF and his brothers, he observed EF to be distraught and upset with marks and blood on his neck and with his skin broken by several piercings;[52]
   3. GH's evidence that when he asked EF about the marks on his neck EF had told him that the marks were caused by the appellant;[53]
   4. GH's evidence that he had seen the appellant kick the children using the front part of her foot, pinch the children and punch the children in the back;[54]
   5. The statements made by EF in the interview that the appellant pinched him 'so hard', that it really hurt, that the appellant 'usually pinched [him] twice or once, and that the appellant usually pinched him on the back 'or maybe on the neck which is more painful';[55]
   6. The appellant's evidence that she was not certain how EF got the marks on his neck, that he was kneeling on the carpet, that she squatted down next to EF and then fell, and that the boys had had a 'good punch‑up' earlier that morning;[56]
   7. The appellant's evidence that when she was squatting down next to EF she put her left hand to the back of his head and that as he moved his head she fell onto some Lego which was on the floor;[57]
   8. The appellant's evidence that she was not certain if she had caused the marks on EF's neck or if the boys had;[58] and
   9. The appellant's evidence that she did not grab EF around the neck.[59]
2. The magistrate, having referred to the above evidence, said the following:[60]

In my view, the evidence as to how the marks on [EF's] neck appeared is much more compelling than the evidence in respect of the other two charges. It is clear that the marks appeared proximate to when [GH] attended the address that day. I accept his evidence that when he arrived that day, [EF] was distraught and upset. He described not only marks on [EF's] neck but also blood and broken skin, with several piercings. When confronted by [GH], [the appellant] did not deny that she could have caused the injuries.

Because I am satisfied the injuries were caused shortly before [GH] arrived, I do not accept [the appellant's] evidence that the boys had a punch-up earlier that morning, and, therefore, the injuries could have been caused then. [The appellant] said she placed her left hand to the back of [EF's] neck. She had already asked [EF] several times to look at her. She had wanted [EF] to clean up the Lego.

The defence argues that if the injuries occurred at this time, then it was by accident when [the appellant] fell over. The prosecution, as I've mentioned, has the burden of persuading the court beyond reasonable doubt that it was not accidental. The injuries shown on the photograph and the description of the injuries by [GH], which included the presence of blood, is, in my view, more consistent with a forceful grabbing of [EF's] neck as opposed to the placing of a hand on his neck.

I do not accept [the appellant's] evidence that she fell as she described. Also, the appearance of the marks on [EF's] neck, in my view, is consistent with the pinching of the skin. [EF], in his interview, described his mother pinching him on the neck, and I accept his evidence in this respect.

When I take into account [EF's] statements in his interview, the fact that he was distraught when his father arrived, the appearance of the marks and the description of the marks given in evidence by [GH], I am satisfied beyond reasonable doubt that [the appellant] grabbed [EF] around the neck as she was wanting him to clean up the Lego and him to look at her. She then pinched him on the neck as he did not turn to face her. I am, therefore, satisfied beyond reasonable doubt that [the appellant] assaulted [EF] by grabbing his neck and pinching him and that the assault was unlawful in that it was not an accident. Accordingly, there will be a judgment of conviction.

1. The magistrate's above statements that the appellant said in her evidence that she placed her left hand to the back of EF's neck are incorrect. The appellant gave no such evidence. The appellant denied grabbing EF around the neck. Her evidence was that she grabbed EF around the back of his head between his ears.[61]
2. It is worth noting that in the above cited portion of the magistrate's reasons, her Honour did not make reference to GH's evidence that EF told him that the appellant had caused the marks on his neck.
3. Having made the above cited statements, the magistrate concluded her reasons for decision by saying the following:[62]

There were a significant number of allegations by the children concerning [the appellant's] behaviour generally towards them. Those allegations included kicking and punching. I did not place any weight on those allegations because they were of a general nature and not specific. The only allegation I placed weight on was [EF's] allegation as to pinching when he said his mother pinched him on the neck. This was relevant to the last charge because, in my view, it was consistent with and supported by the other evidence on this charge. So, accordingly, there will be judgments of acquittal with regard to the earlier charges and a judgment of conviction in respect of the last charge.

1. It is apparent from the magistrate's reasons for decision that her Honour, in finding the appellant guilty, expressly took into account, and accepted, EF's statements in the visually recorded interview that the appellant would pinch him on the neck. However, nowhere in the magistrate's reasons is there a reference to the unsworn oral evidence given by EF. Her Honour's statement that the only allegation she placed weight on 'was EF's allegation as to pinching when he said his mother pinched him on the neck' can only have been a reference to EF's statements made during the interview as opposed to EF's unsworn oral evidence because EF, in his unsworn oral evidence, did not say that his mother had pinched him on the neck. In his unsworn oral evidence EF went no further than saying that his mother would pinch him.
2. In light of the magistrate's reasons for decision, I am satisfied that the only statements made by EF that her Honour took into account and accepted in finding that the appellant assaulted EF by grabbing EF's neck and pinching EF's neck were the statements made by EF in the visually recorded interview that his mother would pinch him on the neck. I am satisfied that the magistrate did not, in finding that the appellant had unlawfully assaulted EF by grabbing EF's neck and by pinching EF's neck, place any reliance on any statements made by EF in his unsworn oral evidence to the effect that the appellant would pinch him or any statements made by EF in his unsworn oral evidence relating to any other physical force used by the appellant against him or his brothers. I note in this regard that EF did not, in his unsworn oral evidence, give evidence that the appellant kicked or punched him or his brothers.
3. The difficulty with the respondent's argument, however, as I see it, is that although only the statements made by EF during the visually recorded interview were taken into account and accepted by the magistrate in finding the appellant guilty of the offence, it is not possible to conclude that the way in which EF gave his unsworn oral evidence and/or the substance of some of the answers that EF gave in his unsworn evidence did not in any way impact on the magistrate's assessment of EF's credibility, that is, on her decision to take account of, place weight on and accept the relevant statements made by EF during the visually recorded interview. This is not a case in which the cross‑examination of EF was brief or directed to peripheral and inconsequential matters only. To the contrary, the cross‑examination ran for in excess of 12 pages of transcript and attempted to address not only the substance of the allegation the subject of the charge concerning EF but also some other issues relating to the other charges that had been laid against the appellant. Furthermore, during cross‑examination EF confirmed on two occasions that he was telling the truth during the visually recorded interview,[63] and on a number of other occasions confirmed the truth of various answers that he had given during the visually recorded interview.[64] In addition, the magistrate did not make any statements expressly disavowing reliance on the manner in which EF had given his unsworn oral evidence. Nor did the magistrate make any statements to indicate that the manner in which EF answered questions during the interview or the substance of his answers to those questions had impacted on her assessment of the credibility of the relevant statements made by EF during the interview so as to provide a basis for inferring that the manner in which EF gave his unsworn oral evidence played no role in her decision to take into account and accept the statements. In these circumstances, and while acknowledging that the magistrate did not in her reasons for decision make any express reference to the unsworn oral evidence given by EF as bearing upon the assessment of the credibility of EF's relevant allegations made during the visually recorded interview, I am simply unable to satisfy myself that EF's unsworn oral evidence did not have some, even if only a very limited, impact on the magistrate's assessment of the credibility of EF's statements made during the visually recorded interview about the appellant pinching his neck. For these reasons I do not accept the respondent's submission that it can be safely concluded that the magistrate did not, in finding the appellant guilty of the offence, place any reliance on EF's unsworn oral evidence.

Can it be said that no substantial miscarriage of justice occurred as a result of the magistrate's error?

1. Despite the respondent's concession that the conclusion that I have expressed in the preceding paragraph precludes me from finding that the magistrate's error did not occasion a substantial miscarriage of justice, I propose for the purposes of completeness to address this issue.
2. The respondent's concession is consistent with the decision in Vine v The Queen.[65] In Vine v The Queen the applicant appealed against his convictions for offences of sexual misbehaviour against an 8‑year‑old female. The applicant appealed on the ground that the complainant, whose evidence was not corroborated, was permitted to give evidence without taking an oath or making an affirmation even though the Judge had not made a finding under s 106B of the Act that she was not competent to give evidence on oath. In allowing the appeal, Rowland J, with whom Franklyn and Walsh JJ agreed, said the following:[66]

It is only after the enquiry under s 106B has been undertaken, and the Judge reaches a conclusion that the child is not competent to give evidence on oath or affirmation, that s 106C can apply.

In this case, the learned trial Judge has not made a finding under s 106B that the child was not competent to give evidence on oath. In those circumstances, the failure to make that finding is not really a miscarriage of justice point to justify the use of the proviso to s 669(1) of the [Code]. It goes to the basic nature of the trial itself which, unless the Act is complied with, requires the witness to give evidence on oath or on affirmation, cf Lau (1991) 58 A Crim R 390. For those reasons, shortly expressed, it is unnecessary to go into the further grounds of appeal that have been mentioned in this appeal. I would allow the appeal, set aside the convictions, and direct a retrial.

1. Rowland J's reference to s 669(1) of the Code was an error and was obviously an intended reference to s 689(1) of the Code. Section 689(1) of the Code provided:

The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal.

Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.

1. Thus Vine v The Queen is authority for the proposition that a failure to comply with the requirements of s 106B and s 106C of the Act means that the trial process has miscarried irremediably with the result that the proviso cannot operate.[67] Although doubts have been expressed in subsequent cases about the correctness of this aspect of the decision,[68] it has not been overturned and consequently remains binding on me. Moreover, although the decision concerned s 106B and s 106C of the Act I do not consider that this provides a sound basis for saying that the conclusion expressed therein does not apply equally to a failure to comply with the requirements of s 100A.
2. It is clearly a matter of grave importance to the running of a criminal trial that the evidence of witnesses, particularly children, is received properly.[69] Given the importance of this occurring, the fact that I am not satisfied that the magistrate did not place reliance on the unsworn oral evidence of EF and the decision in Vine v The Queen, I am not persuaded that no substantial miscarriage of justice occurred as a result of the magistrate's error in permitting EF to give evidence without taking an oath or making an affirmation. Further, even if contrary to the view I have expressed the decision in Vine v The Queen does not require me to conclude that the magistrate's error resulted in a substantial miscarriage of justice, the fact that I am not satisfied that the magistrate did not place any reliance on EF's unsworn oral evidence in convicting the appellant of the charged offence in itself, as is conceded by the respondent, precludes me from concluding that no substantial miscarriage of justice has occurred. This is not a case in which it can be argued that the appellant's counsel's failure to object to EF giving unsworn evidence provides a basis for concluding that no substantial miscarriage of justice occurred. There was no objectively rational forensic reason for counsel's failure to alert the magistrate to the requirements of s 97(1)(a), s 100A(1) and s 100A(4).[70]

1. In the course of his oral submissions the respondent's counsel raised an additional argument in apparent support of the contention that the error that I have found was made by the magistrate did not result in a substantial miscarriage of justice.[71] The argument was not one that had been advanced in the written outline of submissions filed for the appeal on the respondent's behalf. Nor, with respect, was the argument as presented one that I found altogether easy to follow. However, the thrust of the argument, as I understood it, is that in the case of a summary trial, as opposed to a trial before a jury, there is a reduced prospect of a substantial miscarriage of justice occurring as a result of a failure to comply with the requirements of s 100A(1) and s 100A(4) because in the case of a summary trial the trier of fact is a legally qualified decision maker and is therefore less likely to assign too much weight to the impermissibly given unsworn evidence (that is, to fall into the trap of 'false equivalence'). In my view this argument is misconceived and without merit. In circumstances in which a magistrate, in contravention of statutory requirements, permits a witness who by law should be giving sworn evidence to give unsworn evidence, the fact that the magistrate (as opposed to a jury) may appreciate that less weight should be placed on the unsworn evidence is not to the point. Further, and in any event, given that the magistrate failed to direct her mind to, and satisfy herself of, the matters specified in s 100A(1), there is simply no proper basis for concluding that her Honour did not place excess or undue weight on the unsworn evidence.

1. For the reasons I have given the appeal must be allowed on ground 1.

1. The second of the appellant's grounds of appeal is expressed in the following terms:

Her Honour erred in law and fact when, contrary to section 100A(2) of the Evidence Act 1906, she failed when assessing the weight and credibility that ought to be afforded to [EF's] testimony to have regard to the fact that he gave unsworn evidence.

1. I have referred to the terms of s 100A(2) above.
2. The use of the word 'shall' in s 100A(2) imposes a mandatory obligation on the court to have regard to the matters specified in the section in the circumstances specified in the section. The oral evidence of EF was given otherwise than on oath or affirmation. Therefore, the magistrate was required, in taking into account the weight and credibility that ought to be afforded to the evidence, to have regard to the manner and circumstances in which it was received and the fact that it was given without the sanction of an oath or an affirmation.
3. In her reasons for decision the magistrate made no reference to the fact that EF's oral evidence was not given on oath or affirmation. She did not direct herself in accordance with the terms of s 100A(2). In these circumstances the only inference that is reasonably open to be drawn is that her Honour did not, in arriving at her decision to find the appellant guilty of the charged offence, have regard to the manner and circumstances in which EF's oral evidence was given and received or to the fact that it was given without the sanction of an oath or affirmation. Moreover, given my finding that it cannot be concluded that the magistrate did not place any reliance on EF's unsworn oral evidence in finding the appellant guilty of the offence, it necessarily follows that her Honour's failure to have regard to the matters specified in s 100A(2) amounted to an error of law.
4. In relation to this ground the respondent submitted that if it is accepted, contrary to the conclusion that I have expressed in dealing with ground 1, that the magistrate did not, in finding the appellant guilty of the offence, place any reliance on EF's unsworn oral evidence, the magistrate did not have to assess the weight and credibility of this evidence and consequently did not, as is alleged by this ground, err in failing to have regard to the matters specified in s 100A(2).[72] Implicit in this submission is the proposition that s 100A(2) did not apply to the visually recorded interview conducted with EF that was admitted as his evidence‑in‑chief pursuant to s 106HB(1). To put it another way, the submission assumes the correctness of the proposition that in a case in which a child over the age of 12 gives evidence without taking an oath or making an affirmation, the trier of fact is not, in assessing the weight and credibility that ought to be given to answers provided by the child during a visually recorded interview admitted under s 106HB(1) as the whole or a part of the child's evidence‑in‑chief, required by reason of s 100A(2) to have regard to the fact that the answers provided during the interview were given without the sanction of an oath or an affirmation. Although it might be argued that there is authority which provides some support for this proposition,[73] the issue is not one which is, in my respectful view, clear cut. Moreover, once again the issue is not one in relation to which I received the benefit of counsel's considered and detailed submissions. In these circumstances, and given that it is not, in light of my decision that it cannot be concluded that the magistrate did not place any reliance on the unsworn oral evidence of EF, necessary for me to express a concluded view on the issue I do not propose to do so.
5. I have already referred in dealing with ground 1 of the appeal to the argument advanced by the respondent's counsel during the hearing of the appeal that a reason for concluding that the magistrate's error the subject of that ground did not give rise to a substantial miscarriage of justice is that it is less likely that a legally qualified decision maker, as opposed to a jury, will give excess weight to evidence not given under the sanction of an oath or affirmation. To the extent that the argument was also intended to apply to ground 2 of the appeal on the basis that it is unlikely that the magistrate, a legally qualified decision maker, would, despite her failure to direct herself in terms of s 100A(2), give undue weight to the unsworn oral evidence of EF, I reject the argument. In circumstances in which a magistrate erroneously fails to have regard to the matters specified in s 100A(2), which is what I have found occurred in this case, there is simply no basis for concluding that the magistrate would nonetheless not have placed 'excess' or undue weight on the evidence.
6. For the reasons I have given, this ground has been made out. Moreover, there is no basis on which I can conclude that the error did not occasion a substantial miscarriage of justice.

1. The appellant's third ground of appeal is expressed as follows:

Her Honour erred in law and fact when she failed to consider whether the prosecution had negated the defence of 'discipline of children' pursuant to section 257 of the Criminal Code.

It is lawful for a parent or a person in the place of a parent, or for a schoolmaster, to use, by way of correction, towards a child or pupil under his care, such force as is reasonable under the circumstances.

1. Although in light of my decision on grounds 1 and 2 it is not strictly necessary for me to deal with this ground I propose to do so for the purposes of completeness. Obviously, my remarks must be read on the assumption, contrary to the conclusion that I have arrived at in relation to ground 1, that the evidence of EF was received in accordance with s 97(1)(a) and s 100A(1).

1. The appellant submits that on the evidence before the magistrate the defence provided for by s 257 of the Code was enlivened, that the State therefore had to prove beyond reasonable doubt that the assault the subject of the charge was not a lawful use of force within the meaning of s 257, that the magistrate did not consider if the State had negated the defence provided for by s 257, and that the magistrate therefore made an error of law. The appellant submits that the defence provided for by s 257 was enlivened because the magistrate found that the assault occurred in the context of the appellant disciplining EF.
2. The appellant acknowledges that her counsel at trial failed to draw the magistrate's attention to s 257. However, she submits that this did not alleviate the requirement for the magistrate to decide if the State had disproved the defence.
3. The respondent submits that the magistrate did not err as alleged. The respondent submits that given that the appellant's evidence was a disavowal of any intentional contact with EF's neck, it was simply not open to the magistrate to conclude that the appellant might have injured EF when disciplining him and that the State had therefore failed to prove that the relevant assault was unlawful.

The test to be applied in determining if the prosecution was required to negate the defence

1. In order for the magistrate to have been required to determine whether or not the prosecution had negated the defence provided for under s 257 of the Code and therefore proved the unlawfulness element of the charged offence, there had to be, at the close of the evidence, some evidence which, taken at its highest in favour of the appellant, could lead a reasonable trier of fact, properly instructed, to have a reasonable doubt as to whether the prosecution had negated the defence.[74] If there was some evidence which, taken at its highest in favour of the appellant, could lead a reasonable trier of fact, properly instructed, to have a reasonable doubt as to whether the prosecution had negated the defence under s 257, the fact that the appellant's counsel did not raise or rely upon the defence did not absolve the magistrate from having to decide if the prosecution had disproved the defence.[75]

1. The prosecution case as opened was that the appellant had grabbed EF, who was at that time 10 years old, around the neck and used her nails to cause scratch marks to EF's neck.[76]
2. On the appellant's evidence she did not grab EF around the neck. Her evidence was that she took hold of him by the head when she wanted him to pick up Lego bricks that he had been playing with and to look at her. In other words, the appellant denied that she had engaged in the alleged conduct the subject of the charge, namely a grabbing of EF around the neck. However, this in itself did not mean that the defence provided for by s 257 was not something that needed to be negated by the prosecution. The magistrate still had to decide if, on the evidence adduced and on the facts found by her on the basis of that evidence, the defence under s 257 needed to be negated by the prosecution (or to put it another way, whether a reasonable trier of fact, properly instructed, could as opposed to would be left with a reasonable doubt as to whether the prosecution had negated the defence under s 257).
3. As I have pointed out, the facts found by the magistrate on the basis of the evidence before her, were that the appellant had grabbed EF forcefully around the neck when she was wanting him to clean up some Lego bricks that he had been playing with and to look at her, and that when EF did not turn to face her she pinched EF on the neck causing him to suffer a number of red marks on the right side of his neck. Thus, on the facts found by the magistrate the appellant used, by way of correction of EF's behaviour in failing to pick up the Lego bricks and turning to look at her, force against EF. In these circumstances, I am of the opinion that the appellant had discharged the evidential onus, and that the evidence was sufficient to require the magistrate to decide if the State had negated the defence under s 257 of the Code; that is, had proved that the force used by the appellant against EF, by way of correction, was not reasonable under the circumstances.
4. The magistrate's reasons for convicting the appellant do not contain any reference to s 257. I am satisfied that she did not give consideration to whether or not the State had disproved the defence. For the reasons I have stated this was, in my respectful opinion, an error of law. The ground of appeal has been made out.
5. Despite my finding that the magistrate made an error of law, I may dismiss this ground of appeal if I consider that no substantial miscarriage of justice has occurred.
6. In Cramer v The Queen[77] White J (with whom Pidgeon and Steytler JJ agreed on this point) said the following:

In R v Terry [1955] VicLawRp 22; [1955] VLR 114, Sholl J pointed out that there are strict limits to the right of a parent to inflict reasonable and moderate corporal punishment on his or her child for the purpose of directing the child in wrong behaviour. Such limits are: (i) the punishment must be moderate and reasonable; (ii) it must have a proper relation to the age, physique and mentality of the child; (iii) it must be carried out with a reasonable means or instrument. That case is referred to in the decision of Kennedy J in Higgs v Booth, unreported; SCt of WA; Library No 6420; 29 August 1986), in which his Honour pointed out that the provisions of s 257 of the Criminal Code reflect the attitudes of the 19th century and should be applied having regard to the standards currently prevailing in the community. His Honour also pointed out that the force applied is to be used only by way of correction and not of retribution.

1. What is reasonable under the circumstances is clearly a question of fact requiring the application of judgment.
2. EF was at the time of the offence a 10‑year‑old boy. The behaviour that EF was engaging in at the time that the appellant assaulted him in the way found by the magistrate was failing to clean up some Lego bricks and failing to turn to face the appellant. In my opinion, having regard to the standards prevailing in the community, it would not reasonably have been open to the magistrate to find that the State had not proved beyond reasonable doubt that the appellant's conduct in forcefully grabbing EF around the neck and pinching EF on the neck, in order to correct EF's behaviour comprised of failing to clean up some Lego bricks and failing to turn to face the appellant, was reasonable under the circumstances.
3. For these reasons, although I am satisfied that the magistrate erred in failing to consider whether the prosecution had proved that the appellant did not, by way of correction, use against EF such force as was reasonable under the circumstances, I am also satisfied that no substantial miscarriage of justice occurred as a result of the error. Therefore, although the ground of appeal has in my opinion been made out, I would not allow the appeal on this basis.

1. Ground 4 of the appeal is in the following terms:

The verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported and, pursuant to Section 8(1)(b) of the Criminal Appeals Act, a miscarriage of justice was therefore occasioned when her Honour found the charge proved;

Particulars:

4.1 The evidence did not support a finding beyond reasonable doubt the injury was not caused by accident.

1. Given my decision on grounds 1 and 2 it is not strictly necessary for me to deal with this ground. Nonetheless, I propose to do so for the purposes of completeness. Again, my remarks in dealing with this ground must be read on the assumption, contrary to the conclusion that I have arrived at in relation to ground 1, that the evidence of EF was received in accordance with s 97(1)(a) and s 100A(1).

1. In considering whether the magistrate's verdict was unreasonable and cannot be supported by the evidence the test to be applied is as follows:[78]

[W]hether it was open to the [magistrate] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [magistrate] must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude the satisfaction of guilt to the requisite standard.

1. The appellant submits that on the evidence adduced at trial it was not open to the magistrate to be satisfied beyond reasonable doubt that the injuries to EF's neck were not caused by accident when the appellant fell against EF. In support of this submission the appellant makes the point that the prosecution did not adduce any medical evidence as to the likely cause of the injuries (for example, that they were consistent with a pinching as opposed to the appellant's hand coming into contact with EF's neck as she fell).[79]
2. The respondent submits that it was open to the magistrate to make the findings that she did on the evidence of EF and GH, and upon the express rejection of the appellant's evidence, and that the appellant has therefore failed to establish that the magistrate must have had a reasonable doubt about the appellant's guilt.

1. I have already, in dealing with grounds 1 and 2, set out the evidence given by EF in relation to the charged offence. However, it is useful, I think, in dealing with this ground to set out in detail the other evidence adduced during the trial in relation to the charge. That evidence came from GH and the appellant. EF's brothers, AB and CD, did not give any evidence in relation to the charged offence.

1. GH's relevant evidence‑in‑chief was as follows.[80]
2. On 13 July 2017 he attended the house where the appellant and the boys were living at the time. This was a day on which he was picking up the boys as part of a routine changeover. The appellant and the boys were in the front room of the house which is the downstairs guest bedroom. The room was being used like a Lego playroom. When he went into the room EF seemed quite distraught and upset. EF had a mark on his neck with a little bit of blood. EF's skin was broken. The injury on EF's neck appeared to have several piercings where the skin was broken.
3. He took a photograph of the marks on EF's neck. He took the photograph at around 1.00 pm with his mobile phone.
4. He spoke to the appellant about what had happened. The appellant referred to AB as having caused the injuries to EF's neck. She denied causing the injuries.
5. He spoke to EF. He asked EF what had happened. EF 'referred to [him] that it was a result of her, not [AB]'.[81]
6. In cross‑examination GH did not give any further evidence about his observations of EF, or his interactions with EF and the appellant on the day in question. However, he did assert that he had over the years seen the appellant hit, pinch and slap the children, lightly kick the children with the front part of her foot, and lightly punch the children in the stomach, ribs and back.[82]
7. In re‑examination GH, in the context of being asked why he took the photograph of EF, said that he had taken the photograph because EF was very distraught and upset, and had given him 'a different version of the events'. [83]

1. The appellant's relevant evidence‑in‑chief was as follows.[84]
2. She accepts that the photograph of EF was taken on 13 July 2017.
3. She is not certain how EF got the marks on his neck. She knows that she and EF had a fall in the bedroom. EF was kneeling down on the carpet and she was squatted to the right side of him facing him. EF was facing the wall.
4. The boys had had 'a good punch‑up fight' earlier that morning.
5. She does not disagree that there is a scratch shown in the photograph on EF's neck.
6. The first time she knew about the scratches on EF's neck was when she was shown the photograph taken by GH. GH came in and said, 'Do you know where this has come from? Have you done this?' At this point she 'started to doubt whether it was the boys fighting or not or if - when [she] fell'.
7. In cross‑examination the appellant said the following about the incident.[85]
8. On the morning in question EF was playing with the Lego in the guest bedroom at the front of the house. She wanted him to clean the Lego up because she had family coming over from interstate. She had been asking EF all week to clean the Lego up.
9. EF was kneeling down and facing the wall. She was squatted down to the right hand side. She asked EF several times to look at her and EF kept looking at her very quickly and then looking back at the Lego. She therefore said, '[EF], please look at me', and she put her left hand around the back of his head to hold onto it just to turn his head. As she did this EF went forward with his body and she fell on her right hand side.
10. When she grabbed EF by the head it was 'sort of, between the ears'. It could not be the case that she grabbed EF around the neck. The only thing that she can think of 'is when I fell that that happened'.
11. The first time that she knew about the marks on EF's neck was when GH showed her the photographs of the marks. GH showed her the photographs a couple of minutes after EF had ducked out of the room and she had picked herself up from falling on the Lego.
12. She was holding the back of EF's head between his ears when she fell. Her hand must have slipped when she fell.
13. Any parent would have got annoyed as a result of EF not picking up and putting away the Lego. However, she was not 'that annoyed'. She just asked EF to turn his head for her, she then asked him again and he did not turn his head, so she put her hand around the back of his head to turn his head.
14. She did not grab EF by the neck.
15. She fell on her right hand side when EF went forward with his body.
16. In re‑examination the appellant said that she is not certain if she actually caused the marks to EF's neck, that the boys were fighting earlier in the day and the marks could have happened then.[86]

1. In my opinion it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant had engaged in the conduct that her Honour found to constitute the offence. In this regard I make the following points.
2. First, EF's evidence was that there were occasions when the appellant deliberately pinched him on the neck, although he did not describe this as occurring on an occasion when he was being asked to pick up the Lego. In other words, on EF's evidence the appellant had demonstrated a propensity to pinch him on the neck.
3. Second, the appellant admitted in her evidence that earlier in the day that EF was observed with the marks to his neck, indeed only a couple of minutes before she was shown photographs of the marks to EF's neck by GH, there had been an incident during which she had asked EF to pick up the Lego and had grabbed EF, on her version on the back of his head, to make him turn his head to look at her.
4. Third, the appellant's evidence was that she was annoyed with EF for not picking up and putting away the Lego, although not 'that annoyed'.
5. Fourth, GH's evidence was that when he saw EF he had a mark on his neck with a little bit of blood and several piercings of the skin. In other words, the injuries to EF's neck had the appearance of being recently caused.
6. Fifth, the marks on EF's neck and piercings of the skin as described by GH and as shown in the exhibited photograph taken by GH[87] are, in my view, consistent with EF having been grabbed on the neck and pinched on the neck.
7. As to the last of the abovementioned points, I am not persuaded that the absence of medical evidence as to the likely cause of the injuries prevents the conclusion, which is in substance the conclusion that was reached by the magistrate, that the marks described by GH and shown in the exhibited photograph are consistent with EF having been grabbed on the neck and pinched on the neck.
8. In my opinion, when the above matters are taken into account in combination with each other, it was, even though EF did not give evidence of the incident the subject of the charge and testified that he had no memory of the appellant grabbing him on the neck, open to the magistrate to be satisfied beyond reasonable doubt that a very short time prior to the arrival of GH the appellant had, contrary to her evidence, deliberately grabbed EF on the neck with a degree of force and deliberately pinched him on the neck because she was annoyed about him not picking up the Lego and not turning to face her.
9. For the reasons I have stated, I refuse leave to appeal on this ground of appeal. Accordingly, the ground of appeal is dismissed.
10. I note that during the hearing of the appeal counsel for the respondent submitted that another piece of evidence that was probative of the appellant's guilt was the evidence of GH to the effect that EF had told him that the appellant had caused the marks on his neck. Counsel submitted that this piece of evidence was probative of the appellant's guilt because the relevant exchange between GH and EF formed part of the res gestae with the consequence that EF's statement to GH that the appellant had caused the marks on his neck was evidence going to prove that this is what in fact occurred. Counsel made this submission acknowledging that at trial the prosecution did not inform the magistrate that the evidence was being adduced as part of the res gestae, or inform the magistrate of any other basis on which it contended that the evidence was admissible.
11. The essence of the relevant principles in relation to the admissibility of evidence as part of the res gestae may, in my view, be stated as follows:[88]
    1. In general, a statement made spontaneously by an observer or participant during or immediately after an event which culminates in the charging of a criminal offence is admissible in evidence as part of the res gestae;
    2. For a statement to be admissible as part of the res gestae the statement must be consistent with the fact to be proved and must be so connected with the fact to be proved that, when taken in conjunction with other evidence in the case, it bears upon the probability of the fact having occurred; and
    3. The necessary degree of connection will ordinarily be found if the statement is made in close contemporaneity with the fact in issue and in circumstances which exclude or at least make it unlikely that the statement has been concocted or distorted to the advantage the maker.
12. I do not accept the submission that the making of the statement by EF to GH formed part of the res gestae. In my opinion, the evidence adduced at trial does not support a finding that EF's statement was made spontaneously (it was on GH's evidence made in response to a direct question from him). Nor, in my opinion, does the evidence adduced at trial support a finding that the statement was made during or immediately after the incident the subject of the offence. Even on the appellant's evidence, which probably put the time lapse between the incident and the statement made by EF to GH at its shortest, there must still have been some short delay between the incident and GH arriving at the house and having the relevant exchange with EF. In short, the evidence does not, in my view, establish the required degree of spontaneity, or contemporaneity with the relevant incident, to render the making of the statement by EF part of the res gestae.
13. In my opinion, GH's evidence of EF's statement to him was inadmissible hearsay and should not have been adduced. However, bearing in mind the point that I have already made about the magistrate not appearing to place any reliance on this aspect of GH's evidence in expressing her reasons for coming to the decision that she did, the fact that the evidence should not have been adduced is of no moment for the purposes of the appeal.
14. If contrary to my above expressed conclusion the evidence of EF's statement to GH was admissible as part of the res gestae, the evidence was not in my view probative of the appellant's guilt. I say this because EF's statement that the appellant had caused the marks on his neck revealed nothing about how the appellant had caused the marks. Accordingly, the statement was not actually inconsistent with the appellant's version of events.

Disposition - should the matter be remitted for a retrial?

1. The more usual result when an appeal against a conviction entered in the Magistrates Court is allowed is to remit the matter to the Magistrates Court to be dealt with according to law. However, in this appeal the respondent is not seeking such an order. In arriving at this position the respondent has weighed the potential adverse impact on the emotional wellbeing of EF if he is again required to give evidence in a prosecution of his mother, against the relative seriousness of the offence of which the appellant was convicted.
2. The orders that can be made on an appeal of this type are set out in s 14 of the CAA. The power to order a retrial is discretionary in nature.[89] However, in the exercise of the discretion it is important to bear in mind that there is a public interest in the due prosecution and conviction of offenders and that it is desirable, if possible, for the guilt or innocence of an accused person to be determined by the trier of fact.[90]
3. There are a number of factors relevant to the determination of whether there should be a retrial in this case. The factors are as follows.
4. First, although any unlawful assault by a mother against her child carries with it a degree of inherent seriousness, the assault that the appellant was found to have committed does fall well towards the lower end of the scale of seriousness for such offences.
5. Second, the incident in question occurred almost two and a half years ago.
6. Third, the appellant was granted a spent conviction order and the period for which the $1,000 fine was suspended has now well and truly expired. In these circumstances, if the appellant was found guilty after a retrial it is likely that any further penalty imposed would be nominal. Indeed, it may well be that the sentencing magistrate would decide, in the exercise of their discretion, to impose no sentence pursuant to s 46 of the Sentencing Act 1995 (WA).
7. Fourth, EF is a 12‑year‑old boy. To require him to once again give evidence in a prosecution brought against his mother will almost undoubtedly have an adverse impact on his emotional wellbeing.
8. Fifth, the respondent is not seeking an order that the matter be remitted to the Magistrates Court for a retrial.
9. Considering the above factors in combination with each other, and making full allowance for the public interest in the due prosecution and conviction of offenders, I am satisfied that the appropriate outcome is not to remit the matter but to enter a judgment of acquittal. I appreciate that the appellant may view this result as a form of victory over the prosecution. It is not. The result is the product of the exercise of a discretion rather than a deficiency in the evidence that I have found to have been established.

1. For the reasons I have given I propose, subject to hearing from the parties, to make orders as follows:
   1. Leave to appeal on grounds 1 and 2 is granted;
   2. The appeal is allowed on grounds 1 and 2;
   3. Leave to appeal on ground 3 is granted;
   4. The appeal on ground 3 is dismissed;
   5. Leave to appeal on ground 4 is refused; and
   6. The appellant's conviction on 14 June 2019 for the offence of aggravated unlawful assault the subject of charge RO 9986/17, the sentence imposed for the offence and other orders imposed by the Magistrates Court in relation to the offence are set aside and in lieu thereof a judgment of acquittal is entered and the appellant is discharged from the charge.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The application is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).

[2] CAA, s 9(2).

[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[4] CAA, s 9(3).

[6] The facts of the offence as found by the magistrate were not precisely the same as the facts of the prosecution case as opened by the prosecutor. In his opening address the prosecutor informed the magistrate that the allegation the subject of the charge was that the appellant had 'grabbed [EF] ... around the neck and used her nails to cause scratch marks to her (sic) neck': ts 6, 4 April 2019. The prosecutor's reference to 'her' neck was obviously an error and intended to be a reference to 'his', that is, EF's neck.

[7] The reference in the section to the giving of evidence on oath must be read as including giving evidence on affirmation: Oaths, Affidavits and Statutory Declarations Act 2005 (WA), s 5(1).

[13] ts 15 ‑ 16, 4 April 2019. The visually recorded interviews should have been marked for identification, not tendered.

[22] ts 51, 4 April 2019. The visually recorded interview should have been marked for identification, not tendered.

[28] ts 30 ‑ 34, 4 April 2019. The visually recorded interview was conducted on 21 September 2017 when EF was 10 years old.

[29] ts 34 ‑ 35, 4 April 2019. The visually recorded interview should have been marked for identification, not tendered. However, so far as the determination of the appeal is concerned nothing turns on the fact that the recording was tendered.

[34] Revesz (1996) 88 A Crim R 253, 256 and 262; Lau v The Queen (1991) 6 WAR 30, 33 and 35.

[35] Respondent's submissions, [16] and [17].

[36] Revesz (260); GWD v The State of Western Australia [2010] WASCA 206 [41], [44]. Although both decisions were dealing with the requirement to make an inquiry under s 106B(3) and s 106C of the Act, there is no basis for concluding that the relevant statements made therein are not equally applicable to the inquiry required to be conducted under s 100A(1). Thus in Revesz Murray J stated, 'Before the evidence is taken, the trial judge must conduct an inquiry and make the appropriate finding' (260) (emphasis added). Further, In GWD v The State of Western Australia Mazza J, with whom Pullin and Buss JJA agreed, stated that 'invariably any inquiry requires the judicial officer to speak directly to the child' and that 'while counsel are not involved in the questioning of the child witness, counsel in accordance with their duties to the court and to their client, may make submissions as to the adequacy of the inquiry and the conclusion which the judicial officer should reach': [41] and [44] (emphasis added).

[38] Neither party addressed the issue in their written outlines of submissions filed in advance of the appeal hearing.

[39] Interview 21 September 2017, ts 13.

[40] Interview 21 September 2017, ts 16 ‑ 17.

[41] Interview 21 September 2017, ts 22 ‑ 24.

[42] Interview 21 September 2017, ts 24 ‑ 25.

[43] Interview 21 September 2017, ts 25 ‑ 26.

[44] Interview 21 September 2017, ts 36 ‑ 37.

[51] ts 72, 5 April 2019; ts 10, 14 June 2019. The photograph was tendered at the trial as exhibit 14.

[52] ts 71 ‑ 73, 5 April 2019; ts 10, 14 June 2019.

[53] ts 73, 5 April 2019; ts 10, 14 June 2019.

[54] ts 82, 103, 5 April 2019; ts 10, 14 June 2019.

[55] Interview 21 September 2017, ts 24 ‑ 26; ts 10, 14 June 2019.

[56] ts 122 ‑ 123, 5 April 2019; ts 10, 14 June 2019.

[57] ts 130 ‑ 131, 5 April 2019; ts 10 ‑11, 14 June 2019.

[58] ts 134, 5 April 2019; ts 11, 14 June 2019.

[59] ts 131, 5 April 2019; ts 11, 14 June 2019.

[60] ts 11 ‑ 12, 14 June 2019 (emphasis added).

[61] ts 130 ‑ 132, 5 April 2019; ts 12, 14 June 2019.

[62] ts 12, 14 June 2019 (emphasis added).

[65] Vine v The Queen (Unreported, WACCA, Library No 950423, 8 August 1995).

[68] Revesz (256 ‑ 257, 259, 262); Little v The Queen (Unreported, WACCA, Library No 970601, 1 October 1997) 5; GWD v The State of Western Australia [40].

[70] Pennington v The State of Western Australia [2013] WASCA 98 [118] ‑ [119]; Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 [25].

[72] Respondent outline of submissions, [45].

[73] RPM v The Queen [2004] WASCA 174 [92] ‑ [94], [130], [185] ‑ [191], [200], a case which was concerned with s 106H of the Act.

[74] Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1 [104] ‑ [105]; KNY v The State of Western Australia [2019] WASCA 89 [43]; Hawke v The State of Western Australia [2017] WASCA 40 [100] ‑ [101].

[75] Hawke v The State of Western Australia [101] ‑ [106].

[77] Cramer v The Queen (Unreported, WACCA, Library No. 980620, 28 October 1998) 4.

[78] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (footnotes omitted; original emphasis). See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 and The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [38] ‑ [44].

[79] Appellant's written outline of submissions, [40]. During the hearing of the appeal the appellant's counsel, although not expressly abandoning this submission, did appear to retreat from the submission by stating that the appellant was not challenging the fact that the magistrate could look at the photograph and draw her own conclusions: ts 11, 12 November 2019. Nonetheless, I will proceed on the basis that the submission is maintained.

[81] ts 73, 5 April 2019. GH's evidence of what EF had said to him was adduced without objection.

[88] Ratten v The Queen [1971] UKPC 23; [1972] AC 378, 378 ‑ 379; Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 295 and 304; Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 582 ‑ 583; Papakosmas v The Queen [1999] HCA 37; (1992) 196 CLR 297 [55] ‑ [56]; Armstrong v The State of Western Australia [2012] WASCA 42; (2012) 220 A Crim R 274 [46]; Liu v The State of Western Australia [2012] WASCA 218 [71]; Kelly v The State of Western Australia [2013] WASCA 114 [16].

[89] Watson v Vos [2019] WASC 327 [32].

[90] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49] ‑ [51].