CRAMPHORN -v- BAILEY [2012] WASC 462 (30 November 2012)

4 The appellant also stated at the directions hearing that one of the things that she was prevented from doing at the trial was presenting evidence of a history of domestic violence against her by Mr Michalaros. She submitted a large bundle of documents to this court which she said she wished to rely upon on the appeal. She was informed that if she wished to rely upon any fresh evidence she would have to file an affidavit annexing that evidence and explaining why it was not reasonably available to her at the time of the trial.

5 At the conclusion of the directions hearing, orders were made requiring the appellant to file an affidavit setting out any fresh evidence on which she intended to rely within seven days. An affidavit was not filed within the stipulated time frame.

6 An affidavit was filed on 8 November 2012. That affidavit does not annex the documentary material that was referred to at the directions hearing. Rather, it annexes a 20page typewritten document which is essentially the appellant's submissions on the appeal. Somewhat confusingly, these submissions refer to 16 grounds of appeal. These extend beyond the issues referred to at the directions hearing. There was no application to amend the grounds of appeal.

7 On the hearing of the appeal, though there was no application to amend the grounds, the appellant made oral submissions which largely reflected those contained in the affidavit. Bearing in mind that the appellant has at all times represented herself it is appropriate to make some allowances for the failure to follow proper procedure. I am also satisfied that the respondent had a fair opportunity to address the issues argued by the appellant. In these circumstances I will deal with this appeal on the basis that the appropriate grounds of appeal to consider are those contained in the affidavit of 8 November 2012.

8 It was not, however, possible to make allowances in respect of further 'evidence' that the appellant sought to rely on or to hand up at the hearing of the appeal. There are of course, very good reasons why fresh or new evidence should be provided under cover of an affidavit. This had been clearly explained to the appellant at the directions hearing on 3 October 2012. At the appeal hearing I did extend a further, limited, opportunity to file an affidavit within 7 days. I will refer to the circumstances of that later in these reasons.

9 The prosecution case was that at about 11.00 pm on 18 February 2012, the appellant and Mr Manuel Michalaros, were travelling together in a Jeep Cherokee on Mounts Bay Road in Perth. The appellant, who owned the vehicle, was driving and Mr Michalaros was in the passenger seat. They were engaged in an argument that had become significantly more heated over the course of the journey, which had started in Rockingham. In the boot of the car were the packed suitcases of Mr Michalaros.

10 It was alleged that whilst driving the car, the appellant struck Mr Michalaros to the face with her hand knocking his glasses to the floor of the car. She then stopped the car suddenly, pulling up in the middle of the road. She got out of the car and removed Mr Michalaros' suitcases and threw them on to the road. He sought to recover them and placed them back in the car. The appellant then flagged down a passing vehicle and asked for assistance.

11 The occupants of the passing vehicle stopped and one of them telephoned the police. At this point, Mr Michalaros was standing some distance away on the side of the road with his belongings.

12 The appellant returned to her vehicle intending to drive away. Mr Michalaros approached the car and removed the keys. Either at that time or earlier when he was attempting to place his suitcases in the car, the appellant struck him causing scratches to his head, face and chest and tearing his shirt.

13 At the scene the police served a police order on the appellant. One of the conditions of the order was that she not communicate with Mr Michalaros for the following 24 hour period. It was alleged that within that period she sent him a number of abusive and threatening text messages.

14 As is evident, there were a number of alleged individual acts of violence. The magistrate sought clarification as to which of them was relied upon by the prosecution as constituting the assault offence. The prosecutor responded by saying that the prosecution relied upon sch 1 of the Criminal Procedure Act 2004 (WA) (CPA). It is clear that this was a reference to cl 8 sch 1 div 2 of the CPA which provides that where it is alleged that a person has committed more than one assault on a person during a single incident, the person may be charged with one offence of assault.

15 The magistrate then asked what the prosecution's position was in the event that he found that there were defences available which had not been negatived for one of the alleged individual acts of assault. The response of the prosecutor was to say that in that event, that part of the charge would not be proven and could not be taken into account in sentencing.

16 Whilst the magistrate did find the appellant guilty of the assault charge he found that that charge was only proven in respect of the striking to the head which had knocked off Mr Michalaros' glasses in the car. As to the other harmful acts that had occurred after the car stopped, the magistrate found that the prosecution had not excluded that these acts had occurred when the appellant was using such force as was reasonably necessary in order to resist the taking of her moveable property, namely her car: s 251 Criminal Code.

17 I mention that fact at this stage because it appears from the appellant's submissions that she has not understood the basis upon which she was convicted. A great deal of her argument related to the conflicting evidence of what occurred after the car stopped and whether she was acting within her rights in trying to resist Mr Michalaros taking the car keys and preventing her from leaving. The appellant clearly does not appreciate that she was not convicted in respect of any part of the alleged assault that occurred once the car was stopped. Her conviction for the assault related only to the striking in the car. That no doubt accounts for the comparatively low penalty imposed and the spent conviction order granted.

18 Mr Michalaros, who was the appellant's former de facto partner, was the complainant in this matter. He gave evidence that on the evening of 18 February 2012 he and the appellant drove from Rockingham to Perth. Mr Michalaros had booked a room at the Hyatt Hotel and the intention was to go to Rottnest Island for a day trip the following day. At this time they had been in a de facto relationship for between two and two and a half years.

19 Mr Michalaros said that during the drive he and the appellant began to argue. He said that they had not been intimate for about three weeks and the appellant said that she believed he was seeing someone else. He said she started to make unfavourable comparisons between him and her previous partner and that she intended going to see her previous partner and to resume a sexual relationship with him. Mr Michalaros said that he responded by saying, 'I wouldn't be surprised if you already have'.

20 At this point, Mr Michalaros said that they had arrived in Perth and were close to the Convention Centre. He said that the appellant was driving the vehicle and he was in the passenger seat. He said that, 'She whacked me in the mouth with her left hand, clenched fist'. He said that the impact caused his spectacles to be knocked off his face and they fell to the floor in front of him. He said that it felt like he had a fat lip, but that was not the case when he looked in the mirror.

21 Mr Michalaros said that the appellant slammed on the brakes of the car and brought it to a stop in the middle of Mounts Bay Road. He said that there was traffic behind them and cars were 'honking their horns'. He said that the appellant then got out and started throwing his suitcases, which were in the back of the car, into the middle of the road.

22 Mr Michalaros said that he tried to retrieve his suitcases and put them back in the car. He said that as he did this the appellant was 'clawing at my face' and that she ripped off his shirt. He said that he tried to put his bags back in the vehicle 'a few times' and that the appellant 'proceeded to still claw at my face, my head'. He said that by this time a number of people had stopped to observe.

23 Mr Michalaros said that he retrieved the keys from the car because he believed that the appellant was intoxicated. He said that as he took the keys the appellant 'continued to claw at me and scratch at me'. He said that he took his bags, placed them on the side of the road and waited for the police to arrive.

24 Mr Michalaros said that the police arrived after about 15 minutes. When they arrived the appellant was in the vehicle crying. He said he thought the police took the keys off him and moved the vehicle from the middle of the road. He said that the police looked at his injuries and took a brief statement from him. They told him that they were going to issue the appellant with a police order, though he was not provided with a copy of it. He said that the police told him that the police order would prevent the appellant from contacting him for 24 hours. He was then told to leave and caught a taxi to his home.

25 Mr Michalaros said that he received scratches and cuts during the altercation. He referred to three cuts on his chest when the appellant ripped off his shirt. He said there was also a claw mark about an inch below his left eye. He said there were about six or seven claw marks over his head and face.

26 Mr Michalaros said that after he got home he received a number of text messages from the appellant. He said that he knew they were from the appellant because of the content and because they came from her telephone number. Two strings of text messages were tendered in evidence. It is unnecessary to repeat the messages here other than to say that they are highly abusive and threatening in their content. They refer to the name of a person identified by Mr Michalaros as the appellant's former boyfriend and to an intention of resuming a sexual relationship with him. They also refer to a female identified by Mr Michalaros as a friend of the appellant. The content is consistent with the messages having come from the appellant and with the argument that he described as having occurred in the car.

27 In crossexamination the appellant put to Mr Michalaros that the only reason he had pressed charges in this matter was because he had previously been charged with breaching a restraining order that she had against him. He denied that that was his motivation and agreed that he had been charged and was on bail for breaching a violence restraining order but said that their relationship had continued after that time.

28 The appellant put to Mr Michalaros that during the altercation on 18 February 2012 he had punched and pushed her. He denied that. She also put to him that the scratches he had received had occurred whilst he was trying to remove the keys from the ignition. She suggested that the scratches and ripped shirt occurred because Mr Michalaros was trying to deprive her of the ability to drive away in her own vehicle. Mr Michalaros said that he was not stealing her car keys but he thought that she was irrational and out of control and wanted to take the car keys so that she would not drive away. He suggested that she may have been driving whilst intoxicated.

29 Mr Carlisle said that he was in a car with three other friends travelling east on Mounts Bay Road on the evening of 18 February 2012. He said that he saw a silver Jeep stopped in the middle of the road. As the vehicle he was in was passing the Jeep it slowed down and the appellant approached and said, 'Could someone please hold this man down, he is attacking me'. Mr Carlisle said that there was a man on the other side of the vehicle but he was not in clear sight at the time.

30 The driver of the vehicle in which Mr Carlisle was a passenger pulled over. Mr Carlisle then called the police. As he was doing so he got out and walked towards the silver Jeep. He said that he saw the appellant get into the driver's seat of the silver Jeep and try to start the engine. He then saw Mr Michalaros put his hand down in the vicinity of the ignition and the appellant strike him once in the chest with a closed fist to get him away from the vehicle.

31 Mr Carlisle then saw Mr Michalaros walk around for a brief time before entering a rear door of the Jeep and reach forward in the vicinity of the centre console. He said that he saw the appellant strike Mr Michalaros twice on the head with a closed fist. He said he could see this because the interior light was on and the door was open at the back of the Jeep.

32 Mr Carlisle said that Mr Michalaros then got out of the vehicle and proceeded to look for some glasses which he appeared to have lost. He noticed that Mr Michalaros had a torn shirt and some blood on his head and on the shirt.

33 Mr Carlisle said that by this stage a number of people had stood in front of the Jeep to prevent the appellant from driving off because 'we believed that she was intoxicated'. He said that he saw the appellant drink out of a bottle in the vehicle that resembled a wine bottle, but he could not say what was inside.

34 In crossexamination Mr Carlisle was asked if he had seen Mr Michalaros punch the appellant to the back of the head. He said he did not recall seeing that. In reexamination he said he was watching the whole time and that Mr Michalaros could not have struck the appellant in the time from when he got off the telephone to the police at 11.25 pm to when the police arrived at 11.50 pm.

35 Mr Bartlett was another passenger in the vehicle in which Mr Carlisle was travelling. He said that as they approached the intersection of Spring Street he noticed a stationary vehicle with the hazard lights on in the central lane. As they approached the vehicle he noticed a suitcase fly out the left hand side of the car. As they got closer he saw the appellant who seemed quite distressed, and yelled out, 'Help, I've been assaulted. Please call the police.'

36 Mr Bartlett said that the driver of the vehicle he was in then pulled over and Mr Carlisle telephoned the police. He said that he got out of the vehicle to assess the situation and see if the appellant was in any danger. At this point he noticed Mr Michalaros nearby and that he had a torn shirt and blood on his forehead. He said that his impression was that the appellant was the aggressor.

37 Mr Bartlett said that Mr Michalaros appeared to be stopping the appellant from driving the vehicle. He said that Mr Michalaros told them that the appellant seemed, or was, drunk. He saw Mr Michalaros try to enter the left hand side of the vehicle and the appellant flailed her arms around and made contact with Mr Michalaros' head and upper body. He said that at this point a number of other bystanders stood in front of the vehicle to prevent the appellant from driving off.

38 Mr Bartlett said that the appellant continued to throw Mr Michalaros' belongings onto the road. Mr Michalaros tried to put them back in the vehicle but eventually placed them on the footpath. He said that Mr Michalaros was trying to find his glasses while the appellant stayed in the vehicle. He noticed that she appeared to take 'a few swigs' from what looked like a wine bottle. She remained locked in the car until the police arrived.

39 In crossexamination, Mr Bartlett was asked whether he could recall Mr Michalaros punching the appellant several times to the back of the head. He said that he did not see anything of that type.

40 Constable Byers said that he was on duty at the Perth Police Station on the evening of 18 February 2012. At 11.55 am he was directed to an address at Mounts Bay Road. On arrival he saw a car stopped in the middle lane of the three lane road. He approached the vehicle and saw the appellant in the driver's seat. He conducted a breath test 'which was fine'.

41 Constable Byers said that he then moved the vehicle off to the side of the road as the appellant seemed a little upset. He said he asked the appellant if she was okay and she said that she was having a little trouble breathing. She said that she did not want an ambulance called. When asked what happened she said that she had had an argument with her boyfriend and that he had hit her to the back of the head and that she had then hit him. She said that Mr Michalaros had then hit her again to the side of the head. At this time another police office was speaking to Mr Michalaros and other witnesses.

42 Constable Byers said that he believed a 'domestic issue' may have occurred and he decided to issue the appellant with a 24 hour police order. A copy of the order was produced and tendered in evidence. There was no objection to the tender and the appellant stated she had received a copy of it. One of the conditions of the order was that the appellant was not to communicate or attempt to communicate by whatever means with Mr Michalaros for a 24 hour period commencing at 12.20 am on 19 February 2012. Constable Byers said that a copy of the order was served on the appellant and signed by her.

43 Constable Byers was asked whether he saw any injuries on the appellant. He said that he could see no visible injuries to her at all.

44 In crossexamination the appellant asked Constable Byers why the order had been served on her. He said that on discussion with the other police officer in attendance it was believed that the appellant was the aggressor in this matter. He was asked whether it was required that the order be served on both parties. He said that there was an option for both parties to sign the police order but in this case it was only practicable for the appellant to sign it.

45 Acting Sergeant Bailey, who was a Senior Constable at the time of the incident, was in company with Constable Byers. He spoke to Mr Michalaros at the scene. He said that Mr Michalaros was standing on the footpath with some bags. Mr Michalaros had scratch marks to his head which were bleeding.

46 In crossexamination, Acting Sergeant Bailey was asked why the police had decided to issue the appellant with a police order. He said that based on the evidence that was gained at the time it was believed that she was the person responsible for the injuries caused to Mr Michalaros. He said that members of the public that he spoke to had told him that the appellant had been seen assaulting Mr Michalaros and the injuries that he saw were consistent with that information.

47 The appellant gave evidence in her defence. She said that she and Mr Michalaros had been arguing 'on and off all day and a few days prior'. She said that Mr Michalaros had a history of violence towards her including convictions and violence restraining orders. Based on that history, and that he was impeding her driving and upsetting her, she had said to him that when they got to Perth she would drop him off and he could go home.

48 The appellant said that she was fearful of an assault later in the evening and so when they got to Perth she pulled up on the road. She said that her intention was to remove his luggage and for him to go home. She said that she was then prevented from leaving because 'he stole my car keys and he forcibly - that's how he sustained those scratches, by forcibly removing my keys from the ignition and overpowering me'. She said that he repeatedly kept trying to place his luggage back into the car and so she called the police for assistance to recover her keys so that she could drive home safely.

49 She denied having anything alcoholic to drink and said that this was falsely said about her by Mr Michalaros in order to encourage others to prevent her from leaving.

50 The appellant said that she had scratched Mr Michalaros whilst she was trying to defend herself and her property as he was forcibly removing the keys to her vehicle. She said that he had also punched her and hit her to the back of the head. She said that he had also punched her to the back of the head when she went to remove his luggage from the car.

51 As to the text messages, she said that the print out only referred to her name and did not include a record of her telephone number.

52 In crossexamination the appellant was asked whether she had struck Mr Michalaros to the face prior to stopping the car. The following exchange occurred:

Yes, we haven't got to the pull over bit. We've got about that your argument becomes heated near Mounts Bay Road and then we've heard evidence from Mr Michalaros that you struck him in the face. Why did you do that?---I didn't strike him in the face.

So now you say you didn't strike him in the face?---No, he sustained those scratches when he was forcibly removing my car key. That's when he sustained those scratches; not from a punch in the face.

I'm not talking about the scratches; I'm talking about him being struck in the face. He gave clear evidence in the witness box that you punched him in the face and his glasses came off and went under the floor of the vehicle?---No, I was waving my hands about and maybe knocked his glasses off then, but I didn't strike him in the face, or punch him in the face. I don't think it's possible to punch someone in the face whilst you're driving.

Do you recall his glasses coming off?---Yes.

How did that happen?---Well, they knocked off when I, I put my hand out. I put my hand out when we were coming to pull over.

Why did you do that?--Because he was like that whilst I was driving.

When you say 'like that', what do you mean by that?---Well, verbally abusing me, degrading me, interrogating - - -

It was mutual, wasn't it?---Well, I was defending myself, yes.

From what?---From him.

What was he doing?---He was waving his hands about and being abusive and threatening and hostile whilst I was driving.

All right. So now he was waving his hands about and being and hostile whilst you were driving. And then what did he do after he lost his glasses?---Then I, then I pulled up in Perth and told him to get out of the car (ts 34 - 35).

53 The appellant accepted that she did stop sharply in the middle of the road and that she threw his suitcases onto the road. She said that she did this because Mr Michalaros refused to get out of the car and refused to take his luggage. She said that she was scared and sustained several punches to the back of the head whilst she was removing the suitcases. She said that she was also punched in the head when she was sitting in the driver's seat.

54 The appellant said that Mr Michalaros removed the keys from the car by overpowering her. She said that he opened the door of the car and forcibly removed the keys while she was trying to stop him. She said that that was how he had sustained the scratches. She said that as he was pulling the keys out she grabbed him to try and take the key off him. She said his shirt got torn at the same time. When asked how it was possible for him to have been scratched on both the head and chest she said that she grabbed him a couple of times and had also grabbed him when he was trying to put his cases in the car.

55 The appellant said that Mr Michalaros was physically stronger than her and that this was how he was able to overpower her and take the keys. She said that the car was hers and that he had no right to remove the keys and prevent her from leaving and going home safely. She said that she did not assault him but rather was defending herself in an extremely distressing situation.

56 As to the police order, the appellant agreed that she had received the order and believed it was explained to her. She could not remember signing it but accepted that she had. She agreed that she understood the police order. However, she denied sending the text messages and said that she lost her telephone that night and did not find it again until about five days later. When it was put to her that the messages contained information that would be known only to her and Mr Michalaros, the appellant said that such information would also be known to her daughter. She said that her daughter and her daughter's boyfriend had borrowed her car that night. The implication appeared to be that the appellant's daughter could have sent the text messages.

57 The magistrate noted that there was a conflict in the evidence of Mr Michalaros and the appellant. He said that he preferred the evidence of Mr Michalaros. In particular, he accepted the evidence of Mr Michalaros that he was struck in the face by the appellant whilst the car was being driven. The magistrate accepted that this caused Mr Michalaros' spectacles to be knocked off.

58 The magistrate said that the appellant then slammed on her brakes, got out of the car and started throwing Mr Michalaros' suitcases onto the roadway. He said that Mr Michalaros attempted to retrieve his suitcases and place them back in the car and that during this time he had been clawed to the face and had his shirt ripped by the appellant.

59 The magistrate said that Mr Michalaros then 'tried to get the keys of the motor vehicle because he did not want her [the appellant] driving because he had formed the view that she was intoxicated. That seems strange in the face of the fact that he had been driving with her since Rockingham'. It would seem that, at least in this regard, the magistrate doubted the veracity of Mr Michalaros' evidence.

60 The magistrate noted that Mr Carlisle and Mr Bartlett had no interest in the matter and he accepted them as honest, credible and reliable witnesses. He referred to both witnesses having referred to seeing the appellant strike Mr Michalaros as he was attempting to enter the vehicle.

61 As to the appellant's evidence, the magistrate said he rejected her evidence that she stopped the car because she was fearful that an assault may occur later given the history between the parties. He said that any intention of stopping in order to remove Mr Michalaros' luggage was inconsistent with pulling up in the middle of a busy roadway. The magistrate said that this was 'an impetuous act which could be described as irrational and was consistent with the description given by Mr Michalaros in his evidence'.

62 In making findings of fact, the magistrate said:

In making my findings of fact and considering the defences which are open to the accused, I make these findings: that the accused person and Mr Michalaros were in a domestic and family relationship; that on 19 February 2012, as Mr Michalaros stated, they were driving from Rockingham to Perth and an argument ensued; that Ms Cramphorn did strike him with the backhand to his head and mouth that dislodges his spectacles, which were later found in the front passenger seat.

It is suggested by Ms Cramphorn in her evidence that she may have knocked his glasses off whilst waving her hands around. This flies in the face of her earlier assertion that she did not strike him in the face in a backhand manner. I do not accept that she was waving her arms around to protect herself, and it follows from that I do not accept that the defence of self defence is open in respect of that particular assault. I do not believe that assault happened the way of accident and I find beyond reasonable doubt that strike occurred deliberately and was not authorised, justified, or excused by law.

The assaults in relation to Mr Michalaros endeavouring to put his property back into the motor vehicle and the assaults which are said to have occurred in relation to him endeavouring to remove car keys from the ignition of Ms Cramphorn's motor vehicle fall into a separate category, in my view. The Criminal Code relevantly provides in section 251 as follows:

When a person is in peaceable position of any moveable property under a claim of right, it is lawful for him or any person acting by his authority to use such force as is reasonably necessary in order to defence his possession of the property, even against a person who is entitled by law to possession of the property, provided that he does not do bodily harm to such other person.

In this case, the accused person says she was seeking to defend her property, namely, her motor vehicle and her car, from Mr Michalaros.

In doing so, she says that she used reasonable force because he was aggressive and, in terms of stature, is considerably bigger than her. That defence having been raised on the evidence - and I should, at this point, say that Mr Michalaros accepts, certainly in relation to the keys, that he was endeavouring to take them off the accused person - that defence has not been negatived to the requisite standard and I would, therefore, not propose to proceed to sentence the accused on the basis that those assaults are proved (ts 49).

In relation to the assault charge, I propose to proceed to sentence in relation to the striking which took place in the motor vehicle prior to it being stopped by Ms Cramphorn in the middle of Bayview Terrace on the night in question (ts 50).

64 In regard to the appellant's evidence that she had not sent the text messages, the magistrate said:

I reject the accused's assertion that she lost her phone. I am satisfied beyond reasonable doubt that these calls were made by the accused person to Mr Michalaros. They contain information which could only have been known, it seems to me, to the parties. In particular, Mr Michalaros gave evidenceinchief that, when discussing the infidelities in the relationship, the accused had discussed her ex-boyfriend, Steve, and what Steve might do to him in the event that he was brought into the argument (ts 48).

65 The magistrate said that he rejected that text messages referring to the appellant's friend and to her former partner were sent by the appellant's daughter's boyfriend or any other person. Rather, he found that such messages were sent by the appellant.

66 The appellant has complained that the trial before the magistrate was not fair because she was unfamiliar with the trial process and intimidated by the presence of Mr Michalaros. In particular, she claims that she was unable to crossexamine Mr Michalaros effectively, unable to give a good account of herself in her own evidence and prevented from leading evidence in regards to the past history of violence between her and Mr Michalaros.

67 There is no explanation of why the appellant was unrepresented in the Magistrates Court and it is not unusual for accused persons to represent themselves in that jurisdiction.

68 It is a fundamental obligation of a judicial officer to ensure a fair trial according to law and to conduct the trial in accordance with due process, fairly and impartially: O'Connell v The State of Western Australia [2012] WASCA 96 [103] (Mazza JA); Michael v The State of Western Australia [2007] WASCA 100 [69] (Steytler P). Where a person is unrepresented there will be a heavier burden on a judicial officer to ensure that the person understands the process and has a fair opportunity to participate in it and to present their defence.

69 At the commencement of the trial the magistrate explained to the appellant how the trial would be conducted, that the prosecution bore the onus of proof and that she would have an opportunity to crossexamine the prosecution witnesses. It was explained to her that she was under an obligation to put her own version of events to witnesses if it was at odds with that given by them. The obligation to put the defence case was fairly and simply explained and was in accordance with s 30 of the Magistrates Court Act 2004 (WA). The appellant said that she understood her obligation in that regard.

70 The magistrate then said that at the end of the prosecution case the appellant would have an opportunity to give or adduce evidence in her defence. In this regard he said:

HIS HONOUR: ... at the end of that, whether you wish to adduce any evidence and whether you wish to give evidence yourself. You are under no obligation, obviously, to do so. It is a matter entirely for you, but I will give you that opportunity and then, if you choose to give evidence, you will give evidence-in-chief and the State will be given the opportunity to cross-examine you about that evidence and you can be re-examined in the sense that you will clarify any matters which arise.

CRAMPHORN, MS: Because the - Manuel, the person that laid the charges, he - I have got a violence restraining order on him.

HIS HONOUR: Yes.

CRAMPHORN, MS: So I don't know. I feel a bit intimidated with him in here.

HIS HONOUR: Right.

CRAMPHORN, MS: But he will be in here?

HIS HONOUR: He will be. I am assuming he is going to be called by the state and, yes, he will be in here. Being in here, he will not be breaching the terms of his order because he has been compelled to come here, I assume, under a summons and he is participating in this prosecution as a witness for the state. He will be sitting there. If, at any stage, I think he is acting in an inappropriate manner, you can rest assured that I will address him in relation to that, but I think you will find that he will sit there, give his evidence, and you will not have any cause for concern (ts 3 - 4).

71 As can be seen from this passage, the appellant raised a concern regarding feeling intimidated at the presence of Mr Michalaros. She raised that concern again later, prior to crossexamining Mr Michalaros. When asked whether she wished to ask Mr Michalaros questions, she said that she would like to make some comments but preferably without him being present. The following exchange with the magistrate occurred:

HIS HONOUR: Thank you. Ms Cramphorn, it is now your opportunity to ask Mr Michalaros any questions that you want to ask. I will remind you of what I said earlier. If you have a different version of events which you propose to put to me as part of your case, it is incumbent upon you to put those versions to Mr Michalaros for his comments.

CRAMPHORN, MS: Well, I would like to make a few comments, but preferably without him - - -

HIS HONOUR: The opportunity is, now, for you to ask Mr Michalaros any questions that you want to ask. If you want to make comments about his evidence, you will have that opportunity later in the proceedings, but this is the opportunity for you to ask him any questions that you want to ask and to put to him your version of events, if your version of events differs from that which he has stated to the court.

CRAMPHORN, MS: Well, my version of events does differ, yes. He's got a history of violence against - - -?---The history is irrelevant.

HIS HONOUR: Ms Cramphorn - Mr Michalaros, you can just sit there. If you have got a different version of events, Ms Cramphorn, you should put that version of events to Mr Michalaros. You can do that by saying, 'Is it not the case that this is, in fact, what happened,' or 'I put it to you that this is what happened.' You should put your version of events to him so that he can comment on that version of events. Do you understand that?

CRAMPHORN, MS: Yes. I'd rather say something at the end, actually.

HIS HONOUR: If you do not put your versions to him, Ms Cramphorn, that may affect the finding that I make at the end of the trial. If you have a different version, I urge you to put that to him now (ts 12 - 13).

72 The appellant did in fact crossexamine Mr Michalaros. As might be expected, the crossexamination was not an entirely easy one. Both the appellant and Mr Michalaros interrupted each other. The magistrate had to direct them both to be more orderly in the asking and answering of questions.

73 The appellant asserts that she was prevented by the magistrate from asking questions regarding the prior history of domestic violence. She says that such questions were relevant to her state of mind on the night. She says that in the passage referred to above the response 'the history is irrelevant' was made by the magistrate. That does not appear to be correct. That statement is not attributed to the magistrate and the comments that he makes immediately following it suggest that that was an interruption made by Mr Michalaros.

74 In any event, the appellant did put questions to Mr Michalaros about previous charges and violence restraining orders. She was not prevented from doing so and there is no suggestion in the transcript that the magistrate considered such questions to be irrelevant.

75 Towards the end of the crossexamination the appellant put to Mr Michalaros that there had been a history of violence and abuse from him. Mr Michalaros responded by saying that such violence had been mutual. There were further questions in this regard before the magistrate suggested that the appellant concentrate on what happened on the night of 18 February 2012. The appellant then said that she believed that the history of domestic violence had relevance to her state of mind on the night. The following exchange occurred:

CRAMPHORN, MS: Well, I think the history - - -

HIS HONOUR: No, I would like you just to focus on what happened on the night.

CRAMPHORN, MS: The history of the domestic violence situation has relevance on me being - - -

HIS HONOUR: Okay

CRAMPHORN, MS: - - - quite upset and fearful on that night.

HIS HONOUR: Put that proposition to - - -?---So the incident two, two weeks prior, what was that about? What was the incident - - -

This is not your opportunity to - - -?---Okay, sorry.

- - - ask questions?---All right.

CRAMPHORN, MS: Well, I don't think, your Honour, honestly, it's not worth me saying anything else because he is just - - -

HIS HONOUR: This is your opportunity, Ms Cramphorn. It is not for me to say what may or may not be relevant. It is a matter for you.

CRAMPHORN, MS: No, I don't think there's any further questions.

HIS HONOUR: Okay. You can have a seat, thank you. Is there any reexamination.

PROSECUTOR: No, thank you, sir.

HIS HONOUR: Thank you. Mr Michalaros, thanks for coming. You are excused. You can stay and sit at the back of the court, if you wish, otherwise, you do not need to attend?---Yes, I'll do that.

(THE WITNESS WITHDREW)

CRAMPHORN, MS: Your Honour, could I have him removed because he is making me - - -

HIS HONOUR: No, you cannot, Ms Cramphorn.

CRAMPHORN, MS: - - - really - - -

HIS HONOUR: The answer is no. This is a public court. Justice must be seen to be done and he is entitled to sit in the back of the court. I am sure he will sit there quietly. If he does not sit there quietly, then there may be consequences of that, but if he sits there quietly, I am not proposing to remove him from the court.

CRAMPHORN, MS: Thank you (ts 18 - 19)

76 It is apparent from this passage that whilst the magistrate initially questioned the relevance of the past history, he was prepared to allow questioning in that regard. It was the appellant who then decided not to pursue the matter. There is simply no merit in the suggestion that the appellant was prevented from asking questions or adducing evidence about the past history.

77 As regards the claims by the appellant that she was intimidated by Mr Michalaros being present in the court, whether this affected the fairness of the trial can only be tested by examining what occurred. When the concerns were raised the magistrate dealt with them in a fair and appropriate way. There was nothing to suggest that Mr Michalaros' conduct during the course of the trial was such as to require his removal from the courtroom. Clearly there was tension between Mr Michalaros and the appellant but she was able to crossexamine him and put her version of events. She was also not dissuaded from giving evidence and did so in a way that fully set out her account of the events.

78 The transcript records that Mr Michalaros interrupted proceedings twice during the crossexamination of the appellant. On neither occasion is his comment recorded. On the first occasion the magistrate states Mr Michalaros' name and he is recorded as saying, 'Sorry'. On the second occasion, Mr Michalaros says something that is indistinct and the magistrate says that he will not warn him again but that he will be asked to leave the court if he further interrupts. On neither of these occasions is the appellant interrupted in the course of giving an answer. Nor is it apparent that the presence of Mr Michalaros or anything said by him had any effect upon the evidence given by the appellant. In crossexamination she maintained her position and provided further details when called upon to do so.

79 I am unable to accept that the trial was an unfair one or that the presence of Mr Michalaros led to any miscarriage of justice. The magistrate gave appropriate assistance to the appellant and it is not possible to draw any conclusion that she was hindered or prevented from presenting the case that she wished to.

80 On this appeal, the appellant has suggested that she has documentation available which could establish a history of past domestic violence. None of this material has been provided under cover of an affidavit. In any event, there is no basis for suggesting that it is fresh evidence. It would appear to be evidence that could have been available at the trial in the Magistrates Court, but there was no attempt to adduce it at that time. In any event, some questions regarding the history were put by the appellant to Mr Michalaros and she decided not to press the matter further when invited by the magistrate to do so. An appeal is not an opportunity to present a different defence case.

81 There is no merit in these grounds and leave in respect of them must be refused.

Grounds 2, 3, 6, 12, 13, 14 and 15 - Fresh or new evidence

82 In ground 2 the appellant states that Mr Michalaros was wrong to say in evidence that the incident went for 15 minutes because, in her estimation, there was a preceding 45 minutes of verbal abuse that occurred in the car. This is not a proper ground of appeal, it is simply argumentative. In any event, the passage referred to in this ground does not support the appellant's contention. At page 8 of the transcript Mr Michalaros did not say that the incident 'went on' for 15 minutes, rather he said that it was 15 minutes after the incident that the police arrived.

83 Ground 3 is also not a proper ground of appeal. In it the appellant makes suggestions as to what occurred in the car immediately before Mr Michalaros was struck, including suggesting that she was spat on and that threats of violence were made to her. She suggests that she accidently knocked his glasses off as she was trying to wipe saliva from her eyes. This is not consistent with the evidence that the appellant gave at the trial nor was this version put to Mr Michalaros in crossexamination. It is important to note, however, that the appellant does not suggest that contact was not made in the car. Nor does she suggest that such conduct occurred in circumstances of selfdefence. Rather, she says that the contact was accidental. That is a contention that was considered and rejected by the magistrate.

84 Ground 6 disputes the extent of the injuries caused to Mr Michalaros and suggests that they were not visible in the 'presented photos'. In fact there were no photographs tendered at the trial. The nature and extent of the injuries was referred to in the evidence of Mr Michalaros and also by the other prosecution witnesses.

85 The appellant also states that these scratches occurred whilst she was trying to prevent Mr Michalaros 'forcibly trespassing on my property against my will'. The appellant fails to appreciate that the magistrate did not convict her in respect of this alleged aspect of the assault. As I noted earlier, he found that the possibility that the appellant was acting in defence of her car when she scratched Mr Michalaros had not been negated by the prosecution.

86 Ground 12 submits that fresh evidence is available in regard to a domestic violence incident that occurred on 6 March 2012. That is a date that postdates the incident that was the subject of the present charges. For this reason its relevance must be doubtful. If the suggestion is that it reveals some propensity for violence on the part of Mr Michalaros there are two obvious difficulties. Firstly, there is no evidence advanced on the appeal to support what is stated in this ground. Secondly, as I have noted earlier, there was no attempt to adduce evidence in respect of this incident in the Magistrates Court despite an opportunity to do so.

87 Ground 13 submits that the prosecution should not have proceeded because Mr Michalaros had provided a 'retraction statement' to police on 23 March 2012. In fact the statement in question does not retract the allegations, rather it confirms that an assault took place as alleged, that the person who assaulted him was the appellant but that he requests the matter be withdrawn as he contributed to the incident because he verbally abused the appellant on the day and that they have reconciled and worked out their differences. This is not unusual in cases of this nature. Clearly Mr Michalaros changed his mind again in that regard. In any event, whether the charges proceeded was not something that depended upon his wishes. Furthermore, the statement was not inconsistent with the evidence that was given at the trial. In addition the appellant concedes that she was aware of that statement and had a copy of it by at least 17 April 2012, several months prior to the trial. There was no requirement on the prosecution to tender this statement as evidence and it was clearly possible for the appellant to crossexamine Mr Michalaros about it, had she wished to do so.

88 Ground 14 asserts the occurrence of a further domestic violence incident that occurred on 21 April 2012. As with ground 12, this relates to an incident that occurred after that which was the subject of the charges. I gave the appellant the opportunity to file an affidavit attesting to this incidence and also to the receipt of a number of text messages which, during the course of the appeal hearing, she referred to as having been received from Mr Michalaros in February and March 2012. None of this evidence relates in any direct way to what is said to have occurred on 18 February 2012. In any event, as I have previously stated, this information was available to the appellant at the time of the trial. I am not satisfied that it is fresh or new evidence and leave to adduce it is refused.

89 Ground 15 asserts that following the trial on 2 July 2012 the appellant received harassing and threatening telephone calls and text messages from Mr Michalaros. This allegation is unsupported by evidence on the appeal and, in any event, does not meet the requirements of fresh or new evidence.

90 By this ground the appellant asserts that the magistrate failed to consider that injuries inflicted on Mr Michalaros occurred whilst the appellant was seeking to stop Mr Michalaros from trespassing by placing his luggage in her vehicle without her permission. She said that the magistrate also failed to take into account that she was defending herself and her property when Mr Michalaros took her car keys. She says that no attention was paid to the fact that when police arrived she was not in possession of the car keys and that the police had to obtain those keys from Mr Michalaros in order to move the vehicle.

91 The appellant is simply wrong in this regard. The magistrate did consider whether the injuries to Mr Michalaros could have been caused when the appellant was acting in defence of her property. In fact, he accepted that such a defence had not been negated on the evidence and therefore this aspect of the assault was not proven. The appellant has consistently failed to understand that her conviction for assault only related to the striking that occurred prior to the car stopping. The possibility of selfdefence in respect of that aspect was rejected by the magistrate.

92 The appellant complains that the prosecutor put several misleading and leading questions to her in crossexamination. Leading questions are, of course, perfectly proper in crossexamination. As to misleading questions, the appellant suggests that it was inappropriate for the prosecutor to put to her that she was angry rather than fearful. She suggests that such questions ignore a body of research that 'supports the impact of continually repeated abuse and violence'. She suggests that the magistrate should have disallowed such questions as unduly annoying, harassing or intimidating: s 26 Evidence Act 1906 (WA).

93 There was nothing inappropriate about the prosecutor putting to the appellant that she was angry on the night. Such questions were relevant and had a basis in the prosecution evidence. I have read the whole of the transcript; in my view, the crossexamination was unexceptional. This ground of appeal is without merit.

Grounds 4 and 5 - Errors in regards to the evidence

94 Ground 4 asserts that the appellant was punched by Mr Michalaros after the vehicle stopped but before she got out and that after leaving the vehicle she was pushed backwards by him into the boot of the car. She suggests that this would not have been seen by other witnesses as the lights were dim and there was not much traffic. She says that the magistrate took 'this' into account in his sentencing remarks though there was no evidence to support that 'this' occurred.

95 It is quite unclear what ground 4 is intended to mean. Insofar as it relates to allegations that Mr Michalaros punched the appellant, this was denied by him. The independent witnesses, Mr Carlisle and Mr Bartlett, whose evidence was accepted by the magistrate, also said that they saw no such punches. If the suggestion is that such punches could have occurred prior to the other witnesses stopping, then the difficulty is that this is not consistent with the evidence that the appellant gave at the trial. She only suggested that she had been punched after she got out of the car and was throwing Mr Michalaros' luggage onto the road and after she got back into the car and was attempting to drive away. As to the reference to 'sentencing remarks' I assume this is an error because there is no reference to the matter that is referred to in this ground of appeal in the magistrate's sentencing remarks.

96 Ground 5 asserts that the magistrate failed to take into account that Mr Michalaros did not have a bruise or fat lip as he described. In fact, Mr Michalaros did not say that he had a fat lip. What he said was that after being hit in the face, prior to the car stopping, he thought he had a fat lip but when he looked in the mirror this was not so. The appellant also suggests that the absence of a fat lip supports her contention that she accidently knocked Mr Michalaros' spectacles off without any force. The possibility of accident was specifically referred to by the magistrate and he rejected it.

97 By these grounds the appellant complains that the trial was unfair because the police officers who gave evidence did not produce their notebooks. She argues that had they done so she would have been able to establish that her own version of what occurred was correct. In particular she could have confirmed what it was she told the police and that the police had to obtain the car keys from Mr Michalaros in order to move the car.

98 These grounds are entirely speculative. There is no evidence as to what notes were taken. In any event the police were not witnesses to the relevant events, they only attended after any assault had occurred. The admissibility of any exculpatory out of court statement by the appellant would be of doubtful admissibility. The appellant could easily have asked the police officers how they obtained the car keys. In any event this was only relevant to the defence of moveable property, in respect of which the magistrate did not find against the appellant.

99 The appellant contends that the police order that was served on her by Constable Byers was invalid because a copy was not provided to Mr Michalaros. The evidence of Constable Byers and Mr Michalaros confirms that he was not provided with a copy.

100 The order in this case was made pursuant to pt 2 div 3A of the ROA. A police officer may make a div 3A order if the officer reasonably believes, amongst other things, that a person has committed an act of domestic violence and is likely to commit such an act again: s 30A(1)(a)(i).

101 In making a div 3A order a police officer may impose such restraints on the lawful activities and behaviour of a person as the officer considers appropriate to prevent the person committing an act of domestic violence or behaving in a manner that could reasonably be expected to cause another person to fear that such an act will be committed. The restraints that may be imposed include being on or near premises where a person lives or works and approaching within a specified distance of another person. There is no specific reference in s 30C, which relates to conditions, to restraining a person from communicating with another, but such a condition could fall within the general power in s 30C(1) to impose appropriate restraints.

102 Section 30E of the ROA provides that a police officer who makes an order is to prepare and serve it. At the time it is made or served the police officer is required to explain to the person who is bound by the order and to the person for whose benefit the order is made (a) the purpose, duration, terms and effect of the order; and (b) the consequences that may follow if the person who is bound by the order contravenes the order; and (c) that counselling and support service may be of assistance and where appropriate, the police officer is to refer the person to specific services. A police order is not invalid merely because a police officer does not give the explanation referred to: s 30E(5).

103 A police order under div 3A can be either a 24 hour or a 72 hour order. The order in this case was a 24 hour order. A 72 hour order cannot be made unless consent to the making of the order has been given by the person who is to be protected or by that person's parent or guardian.

104 Section 10 of the ROA provides for the preparation and service of orders. Section 10(4) provides as follows:

If a police officer is to prepare and serve a police order the officer is to prepare the order in the prescribed form and cause -

(a) the person to be bound by the order to be personally served with it; and

(b) a copy of the order to be given to the person for whose benefit the order is to be made; and

(c) the police copy of the order to be delivered to the Commissioner of Police.

105 A person who is bound by a police order and who breaches that order commits an offence under s 61(2a). It is to be noted that an offence is only committed by 'a person who is bound' by an order. This clearly relates only to the person whose lawful activities and behaviour are restricted by the order.

106 In this case, it is clear that there was noncompliance with s 10(4)(b) in that Mr Michalaros was not provided with a copy of the order. The question is whether that noncompliance invalidated the police order. This depends on an interpretation of the provisions of the ROA.

107 An interpretation that promotes the objections of the ROA ought to be preferred to one that does not: Interpretation Act 1984 (WA) s 18. The context of a provision within an Act as a whole is relevant to the interpretation of a provision: Project Blue Sky v The Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381.

108 Modern statutory interpretation requires that the context of an Act should be considered in the first instance and should be used in its widest sense to include such things as the existing state of the law and the mischief which the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).

109 Section 10(4) and s 30E of the ROA were both inserted by the Acts Amendment (Family and Domestic Violence) Act 2004 (WA). The explanatory memorandum does not provide comment on the meaning of s 10(4) but at page 4 in relation to a clause inserting a new s 8 (dealing with restraining orders) the following is stated:

This provision recognises the importance of all parties being fully aware of the meaning and consequences of an order, and aims to encourage respect for the terms of a restraining order. Particularly important is a requirement that the court explain the consequences and terms of the order to both the person protected by the order and the person bound by the order. This requirement is aimed at ensuring that both parties, not just the person bound by the order, understand the seriousness and terms of the order made, and at recognising that both parties have obligations under the order.

110 Despite the reference to both parties having obligations under a restraining order, there does not appear to be any positive obligations on a person for whose benefit a police order is made which are in any respect comparable to those on the 'person who is bound'. It is conceivable that a person for whose benefit an order is made could be guilty of aiding or procuring a breach of an order under s 61B of the ROA. However, the requirement to provide the protected person with a copy of the order appears more likely to be directed to ensuring that the protected person is aware of the terms of the order so that they can report any breach by the person who is bound.

111 Where there is no suggestion that the protected person has not aided or procured a breach but that a breach has occurred, it is difficult to see why the person bound would not be liable for the breach merely because a copy of the order has not been served on the protected person. In many cases the person bound would be unaware whether the police had served a copy of the order on the protected person. It would be contrary to the purposes of the ROA if the validity of an order depended upon service on the protected person. There could be circumstances where the police have grounds to issue a police order but where the protected person cannot be located or it is impractical to serve a copy upon him or her. Given the shortness of time for which such orders remain current and the urgent circumstances in which they must often be made, it would produce consequences that are contrary to the purposes of the ROA if an order only became effective when a copy was served on the protected person. This is a procedural requirement only and not one upon which the validity of an order depends. A similar conclusion in respect of different legislation was reached in Geldert v The State of Western Australia [2012] WASCA 226 [55] (Mc Lure P). See also Australian Crime Commission v Marrapodi [2012] WASCA 103 [39] (McLure P).

112 In this case there was uncontested evidence that the police order had been made and that a copy of it had been provided to the appellant. The terms of the order were clear and, even though he was not given a copy, they were also made known to Mr Michalaros. There is nothing to suggest that the appellant at any point doubted the validity of the order. In fact, her defence at the trial was not that the order was invalid but that she was not responsible for breaching it because she denied sending the text messages. In that regard she was not believed.

113 I do not consider that the failure to provide a copy of the police order to Mr Michalaros had the effect of making that order invalid. Accordingly, whilst leave in respect of this ground should be allowed it cannot succeed.

114 As noted above in respect of ground 14, at the hearing of the appeal I afforded the appellant another opportunity to file an affidavit annexing material that she sought to rely on. The order made at the hearing was that the appellant file an affidavit annexing copies of other text messages she claimed to have received from Mr Michalaros and a record of an incident on a train involving Mr Michalaros in April 2012.

115 The appellant did not file the affidavit by the required date. She did, however, file extensive other material by email on 24 November 2012. That material included an incident report relating to the Transperth incident. Notwithstanding that this document is not properly filed I have taken it into account. In those circumstances, an extension of time to file an affidavit is not necessary and I refused an application in that regard.

116 The other material filed by email on 24 November 012 included further written submissions and extensive additional grounds of appeal. This other material was filed without leave and in circumstances where the appellant has been afforded every reasonable opportunity to present her case. For those reasons I have not had regard to that other material (other than the Transperth report referred to).

117 Leave of the court is required in respect of each ground of appeal: s 9(1) Criminal Appeals Act 2004 (WA) (CAA). Section 9(2) of the CAA provides that the court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. This requires that the ground have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487.

118 The only issue identified by the appellant that is reasonably arguable is that relating to the validity of the police order. That is the subject of ground 1 of the appeal. Leave will be granted in respect of that ground but the ground, for the reasons I have stated above, does not succeed. The remaining grounds have no prospect of succeeding and leave in respect of them is refused.

1. leave to appeal is granted in respect of ground 1;
2. leave to appeal is refused in respect of all other grounds;
3. the appeal is dismissed.