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[2014] WASCA 60
Court of Appeal (WA)
2014-03-21
Mazza JA, Hall J, Lure P, Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CRAMPHORN -v- BAILEY [2014] WASCA 60
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Assault - Breach of police order - Whether trial fair - New and fresh evidence - Restraining order - Protection of witnesses from cross-examination by alleged perpetrator of violence - Failure to inform self-represented litigant of entitlement to make an opening address - Turns on own facts
Criminal Appeals Act 2004 (WA), s 9, s 18
Criminal Procedure Act 2004 (WA), sch 1 cl 8(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32
Amiss v The State of Western Australia [2006] WASCA 171
Cramphorn v Bailey [2012] WASC 462
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
DPJB v The State of Western Australia [2010] WASCA 12
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
2 BUSS JA: I agree with Mazza JA, for the reasons he gives, that leave to appeal should be refused and the appeal dismissed. I merely add that I have listened to the audio disc of parts of the evidence including the evidence recorded on transcript pages 12 and 13. I have no doubt that the comment 'The history is irrelevant' on transcript page 12 was made by the complainant and not by the magistrate.
3 MAZZA JA: On 2 July 2012, the appellant was convicted after trial in the Magistrates Court of unlawfully assaulting and doing bodily harm to her then de facto partner, Manuel Michailaros (the complainant) in a circumstance of aggravation contrary to s 317(1)(a) of the Criminal Code (WA), and breaching a police order contrary to s 61(2a) of the Restraining Orders Act 1997 (WA). These offences were alleged to have occurred on 18 and 19 February 2012. The appellant was fined for each offence and given a spent conviction order.
4 The appellant appealed to the Supreme Court against her convictions on 16 grounds. Hall J granted leave to appeal on ground 1, but refused leave to appeal on the other grounds. The appeal was dismissed: Cramphorn v Bailey [2012] WASC 462. The appellant now seeks leave to appeal to this court against Hall J's decision pursuant to pt 2 div 3 of the Criminal Appeals Act 2004 (WA). Section 9, read with s 18 of that Act, provides that:
(a) leave to appeal is required in respect of each ground of appeal;
(b) leave to appeal can only be granted if the court is satisfied that the ground has a reasonable prospect of succeeding; and
(c) unless leave to appeal is granted in respect of one or more grounds, the appeal is taken to be dismissed.
5 At every stage in the proceedings, including in this court, the appellant has represented herself.
The appellant's proposed grounds of appeal do not assert any error by Hall J. When read with the appellant's submissions, she alleges that various miscarriages of justice have occurred. In particular, she asserts in substance that:
(a) the trial in the Magistrates Court was unfair in a number of respects;
(b) the learned magistrate erred in convicting her on the basis of the complainant's evidence; and
(c) the verdict should be set aside because of new or fresh evidence.
7 The prosecution case was that late on the evening of 18 February 2012, the appellant and the complainant were in a vehicle travelling on Mounts Bay Road, Perth. It was alleged that while the car was moving, the appellant punched the complainant in the mouth. The appellant, who was driving at the time, then stopped the vehicle in the middle of the road. There, a further altercation took place between them in which the appellant was alleged to have clawed the complainant's face. The police were called to the scene. In the early hours of 19 February 2012, the police issued the appellant with a 24-hour police order. Later that afternoon, it was alleged that the appellant breached the police order by sending the complainant two abusive text messages.
8 The defence case was that the appellant did not punch the complainant in the mouth before she stopped the car, although she said that she was, at the time, waving her hands about and '[she] maybe knocked his glasses off'. According to the appellant, after she stopped the car she acted to prevent the complainant assaulting her and removing her car keys. The appellant admitted being served with the 24-hour police order. However, she denied sending any text messages to the complainant on 19 February 2012.
9 Although the appellant and the complainant were not the only witnesses to give evidence at the trial, the learned magistrate's assessment of their credibility was crucial to the outcome of the case. In substance, the learned magistrate was satisfied beyond reasonable doubt that the appellant deliberately struck the complainant in the face before the vehicle stopped in the middle of Mounts Bay Road. He expressly rejected the appellant's evidence to the contrary. The learned magistrate was also satisfied beyond reasonable doubt that the appellant sent the text messages on 19 February 2012 in breach of the 24-hour police order. The learned magistrate rejected the appellant's testimony that she had not done so.
The proceedings in the Magistrates Court in detail
10 In her appeal to Hall J and to this court, the appellant has asserted that the proceedings in the Magistrates Court were unfair and that her conviction involved a miscarriage of justice. Accordingly, it is necessary to describe in some detail the way the proceedings were conducted and the evidence that was adduced at trial.
11 After the appellant entered her pleas of not guilty, the police prosecutor gave a very short opening address as follows:
Good morning, your Honour. The prosecution will allege that an incident occurred at around about 11 pm on 18 February in 2012. We will say that the accused and the victim in the matter were in a Jeep that was proceeding on Mounts Bay Road. We will say that the vehicle stopped in the middle of the road and, at this point, an altercation occurred involving the two parties.
We will say that the accused has scratched and struck the victim several times. We will say that the police that subsequently attended issued the accused with a move-on notice and we will say that [it] was a 24-hour notice. We will further say that the accused breached that order by sending numerous text messages to the accused [sic], which were of a threatening nature. We intend to probably call five witnesses (ts 2).
12 The appellant was not invited to open her case, either then or prior to giving evidence.
13 After the prosecutor's opening address, the learned magistrate addressed the appellant. In doing so, he explained the way in which the trial would proceed. He also told the appellant that it was important in cross-examination to put her version of events to any witness she cross-examined. She said that she understood her obligation in this regard (ts 3).
14 The appellant then informed the learned magistrate that she had a violence restraining order 'on him' and that she felt 'a bit intimidated with him in here' (ts 3 - 4). The appellant asked the learned magistrate if the complainant would be in the courtroom. The learned magistrate replied as follows:
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.
15 The prosecution then called the complainant as its first witness. He testified that on the evening of 18 February 2012, he and the appellant travelled together in a Jeep Cherokee, driven by the appellant, from the Rockingham area to Perth. Their intention was to stay the night in a hotel and, in the morning, take a day trip to Rottnest. The complainant said that during the journey he and the appellant became involved in an argument in which he was accused of being unfaithful to the appellant. According to the complainant, the argument became more heated as the journey went on. The complainant said that the appellant compared him, in essentially derogatory terms, to her previous partner whom he named 'Steve'. His evidence was that the argument reached the point where, on Mounts Bay Road in Perth, near the intersection with Spring Street, the appellant punched him to the mouth, causing his spectacles to be knocked off his face. He said that the appellant then stopped the vehicle in the middle of the road, got out of the car and started throwing his suitcases onto the roadway. The complainant testified that he tried to retrieve his suitcases and put them back in the car, but as he did this the appellant clawed at his face and ripped off his shirt.
16 The complainant testified that he tried to take the keys from the car because he believed that the appellant was drunk. He said that the appellant 'continued to claw at me and scratch at me'. He testified that he took his bags to the side of the road and waited for the police to arrive.
17 The complainant said that, at 4.20 pm and 4.30 pm the following day, 19 February 2012, he received text messages on his mobile phone from the appellant. The text messages were read out in court and tendered in evidence. Two of the text messages were in these terms:
Might call in and see Steve later as well. Goodbye cunt. Filthy, lying, cheating cunt. I've been accused of repeatedly fucking him, so I might as well fuck him. You think I have so I fucking will repeatedly. That's a promise as well. Cunt, you messed with the wrong fucking person. Believe me you're fucking dead (ts 10) (exhibit P1.1).
I went to yours last night cunt. You wasn't home. You're fucking dead. Mark my words. You ain't seen nothing yet. You're a dead man. What I said the other night is what will happen. Mark my words. Nothing will stop me. On my deathbed, you will still be killed. I'm going out on the town with Georgia tonight. I don't care about you. You are dead to me. Georgie will set up a blind date for me with one of my friends. Might call in and see Steve later on, also (ts 11) (exhibit P1.2).
18 At the completion of the complainant's examination-in-chief, the learned magistrate reminded the appellant of what he had said earlier, particularly, that if she had a different version of events, it was 'incumbent' upon her to put that version to the complainant.
19 The appellant said that she wanted 'to make a few comments' but 'preferably' without the complainant being present. What follows is transcribed in this way:
HIS HONOUR: The opportunity is, now, for you to ask [the complainant] 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.
[THE APPELLANT]: Well, my version of events does differ, yes. He's got a history of violence against - - -?---The history is irrelevant.
HIS HONOUR: [Appellant] - [complainant], you can just sit there. If you have got a different version of events, [appellant], you should put that version of events to [the complainant]. You can do that by saying, 'Is it not the case that this is, in fact, 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?
[THE APPELLANT]: Yes. I'd rather say something at the end, actually.
HIS HONOUR: If you do not put your versions to him, [appellant], that may affect the finding that I made at the end of the trial. If you have a different version, I urge you to put that to him now.
[THE APPELLANT]: Okay (ts 12 - 13). (emphasis added)
20 It is unclear from the transcript who spoke the italicised comment, '[t]he history is irrelevant'. The appellant has claimed in this court that it was, in fact, made by the learned magistrate. I have listened to a recording of the exchange. The comment appears to me to have been made by the complainant. The learned magistrate's next comment, which was addressed to both the appellant and the complainant apparently confirms this.
21 At times, the appellant's cross-examination of the complainant descended into argument. On such occasions, the learned magistrate intervened appropriately (ts 13, 14, 15 and 16).
22 The appellant cross-examined the complainant on the following matters:
23 The appellant suggested to the complainant that the reason that the complainant 'pressed' the present charges was because he wanted to get back at her.
24 The complainant accepted that he had been previously served with a restraining order and that he had breached that order. He said that he 'got a suspended conviction'.
25 The complainant described the history of violence between them as 'mutual'.
26 At one point, when the appellant put to the complainant that he wanted to 'get even' with her, the learned magistrate intervened to suggest 'that we concentrate on what happened on this night'. The appellant responded by saying, 'The history of the domestic violence situation has relevance on me being ... quite upset and fearful on that night' (ts 18). The learned magistrate allowed the cross-examination to proceed, advising the appellant to put the proposition to the complainant. At this point, the appellant told the learned magistrate that 'it's not worth me saying anything else ...' (ts 18). The learned magistrate then said to her, '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' (ts 19).
27 The appellant replied, 'No, I don't think there's any further questions' (ts 19).
28 After the complainant was excused from further attendance at court by the learned magistrate, the appellant asked that he be removed from the courtroom. The learned magistrate refused this request, saying:
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 (ts 19).
29 The prosecution called two men, Sam Carlisle and Jesse Bartlett, to give evidence. Neither knew the appellant and the complainant and neither saw the assault that allegedly occurred while the vehicle was moving. Mr Carlisle testified that he saw the complainant enter the rear door of the Jeep and reach forward in the vicinity of the centre console. He said he saw the appellant strike the complainant twice on the head with a closed fist.
30 Mr Bartlett testified that he saw a suitcase fly out of the left-hand side of the Jeep and, as he got closer, he saw the appellant, who appeared quite distressed. He said that he heard her yell, 'Help, I've been assaulted. Please call the police' (ts 24). Mr Bartlett said that he got out of his vehicle to assess the situation. He said that he saw the complainant with a torn shirt and blood on his forehead. He testified that the appellant 'flailed' her arms around and made contact with the complainant's head and upper body.
31 The next prosecution witnesses were the attending police officers, Constable Shane Byers and Acting Sergeant Richard Bailey.
32 Constable Byers testified that he conducted a breath test on the appellant, 'which was fine' (ts 26). After moving the car to the side of the road, he spoke to the appellant, who told him that she had been engaged in an argument with the complainant and that he had hit her to the back of the head and that she had then hit him. She told Constable Byers that the complainant then hit her again to the side of the head.
33 Constable Byers issued the appellant with a 24-hour police order. The order provided, amongst other things, that the appellant was not to communicate or attempt to communicate by whatever means with the complainant 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. In cross-examination, and in the context of why the appellant had been issued with a 24-hour order, Constable Byers said that he had formed the view that the appellant had been the aggressor after a discussion with Acting Sergeant Bailey.
34 The appellant testified in her defence. In examination-in-chief, she said that she and the complainant 'had been arguing on and off all day'. She said that the complainant had a 'history of violence towards [her] including convictions and violence restraining orders' (ts 32). She said that on the night in question, the complainant had upset her to the point where she told him, 'When we get to Perth, I'm going to drop you off and you can go home'. She said that she was fearful of being assaulted later on that evening and so she pulled up 'on the road', with the intention of removing his luggage so that he could go home. The appellant testified that the complainant refused to go home and that he attempted to forcibly remove her car keys from the ignition. She said that she was 'deprived of [her] liberty' and that she called the police for assistance (ts 33).
35 According to the appellant, when the police arrived the complainant '[tried] to collude and get them to agree with his side of the story'. The appellant said that at one stage when she went to get her luggage out, the complainant punched her to the back of the head.
36 She said that on the night in question she lost her mobile telephone. She denied sending any text messages to the complainant on 19 February 2012.
37 In cross-examination, she denied striking the complainant to the face before she stopped the car on Mounts Bay Road. She agreed that after she stopped the car, she threw 'his property' out of the vehicle and onto the road.
38 She confirmed that she was punched to the back of the head when she was removing the complainant's luggage from the car. She also confirmed there was a struggle between her and the complainant when the complainant tried to grab her car keys. She said that she was defending herself against the complainant and was trying to prevent him from removing the car keys.
39 In cross-examination, the appellant agreed that she had been served with the 24-hour police order. She said that she lost her mobile telephone on the night of the alleged offence and that she found it in the car about five days later. She said that her daughter and her daughter's boyfriend had borrowed the car on the night to get something to eat. She said that the information conveyed in the text messages that were sent the following day would have been known to her daughter (ts 41).
[THE APPELLANT]---Well, I do feel, in this instance, I was the victim in actual fact. I was the one that forcibly had my property removed and trying to defend myself. I don't see how doing what I did was unlawful, trying to protect myself, being fearful, trying to do the right thing and pull over so that I wasn't driving, you know, with that constant harassment and interrogation, being intimidated, so I couldn't drive properly. So I thought, you know, the best thing to do was to pull up and let Manuel go home so that I could go home safely as well and I was prevented from doing that. That was the only reason I called the police because I literally was prevented from going home (ts 41).
41 It appears from the transcript that the complainant interrupted proceedings twice during the appellant's cross-examination. At one point, his Honour addressed the complainant, who is immediately recorded as saying, 'Sorry'. It is not apparent what he did to warrant this admonishment (ts 38). On another occasion, towards the end of the cross-examination, the transcript records that the complainant said something indistinct, to which his Honour responded, 'I will not warn you again. I will ask you to leave the court' (ts 40). There was no further interruption.
42 After completing her evidence, the appellant was asked if she wished to call any other witnesses. The relevant exchange is as follows:
HIS HONOUR: [Appellant], is there any other witnesses that you propose to call to give evidence in this matter?
[THE APPELLANT]: No, I mean, the only other people would give evidence of the, sort of, ongoing pattern of violence I've experienced, but I didn't - - -
HIS HONOUR: You do not have any other witnesses here you are proposing to call - - -
[THE APPELLANT]: No (ts 41).
43 The prosecutor made no closing submissions. The appellant's closing submissions were very brief and essentially amounted to criticism of the police response on the night in question (ts 42).
44 Before delivering his extempore reasons, the learned magistrate pointed out to the police prosecutor that there were a number of alleged assaults made by the appellant on the complainant. He inquired from the prosecution as to which allegation it relied upon. The prosecutor referred to cl 8(1) of div 2 of sch 1 of the Criminal Procedure Act 2004 (WA) (CPA) which states that a person may be charged with one offence of assault if it is alleged that he or she committed more than one assault on another during the one incident. The learned magistrate then inquired as to what the prosecution's position was in the event that he found that there were defences available which had not been negatived 'for part of those assaults'. The prosecutor replied that, 'For whichever ones you find defences, sir, then you can't take them into consideration when you are considering sentence' (ts 43).
45 The learned magistrate found that the appellant struck the complainant 'with a backhand to his head and mouth that dislodged his spectacles' (ts 49). He rejected the proposition that she was waving her arms around to protect herself or that any contact occurred by accident. However, with respect to the alleged assaults by the appellant on the complainant while he was endeavouring to put his property back into the Jeep and attempting to remove the car keys from the ignition, the learned magistrate was not satisfied that the prosecution had negatived s 251 of the Criminal Code.
46 In relation the charge of aggravated assault occasioning bodily harm, the learned magistrate summarised the position in this way:
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 [the appellant] in the middle of Bay View Terrace [sic: Mounts Bay Road] on the night in question (ts 50).
47 With respect to the charge of breaching the police order, the learned magistrate rejected the appellant's assertion that she had temporarily lost her phone. The learned magistrate said that he was satisfied beyond reasonable doubt that the text messages were sent by the appellant and he rejected any suggestion that they were sent by someone else.
48 The grounds of appeal considered by Hall J were contained in an affidavit sworn by the appellant dated 8 November 2013. There were, in total, 16 grounds of appeal, some of which overlapped. They alleged that:
49 Hall J dealt with each of these complaints. He found that there was no merit in any of them. His Honour's reasons with respect to the grounds of appeal are set out between paragraphs 66 and 113 of the judgment. As I have already said, the appeal to this court does not seek to challenge Hall J's reasoning. Therefore it is unnecessary to set it out or comment on it in detail. It is sufficient for me to observe that, for the reasons given by his Honour, his conclusions with respect to each proposed ground of appeal before him and his decision to dismiss the appeal were correct.
50 The appellant's notice of appeal dated 21 December 2012 sets out 14 draft grounds of appeal (there are two grounds numbered 12). It is unnecessary to recite them.
51 The appellant's case filed on 28 August 2013 alleges three grounds of appeal, all of which are expressed so generally as to be almost meaningless. As written, they are:
52 I will deal first with the claim that the convictions should be set aside because of 'fresh' evidence contained in proposed ground 2 and, in part, proposed ground 3.
53 The appellant's case (contrary to r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA)) includes an application to adduce evidence in this appeal in the form of an affidavit sworn by the appellant on 29 July 2013. This affidavit contains a number of documents marked exhibit A to exhibit M. It is these documents which the appellant relies upon as 'fresh' evidence in this appeal. The documents are as follows:
The sender of the messages on 7 and 9 July 2012 is a Robert Hyde. The appellant alleges that the complainant sent these messages.
It is unnecessary to set out the text of these messages. It is sufficient to say that the content is abusive, angry and offensive, but their context is unclear. Assuming that the messages were sent by the complainant, some of them appear to be in response to messages sent by the appellant. These messages have not been disclosed. The messages sent to the appellant on 2 July 2012, shortly after the trial, include: 'Im so drunk im hulicinating [sic]. Im seeing things lmao [sic]'; 'Also i lie so much people dont take me seriously anymore not even the law, police or even judges (-)'; and 'Ive lost all, even ounce of credibility .... it's quite saf [sic: sad]'.
Principles relating to the admission of evidence in an appeal that was not adduced at trial
54 At common law, evidence that was not adduced at trial falls into two broad, well-established categories. One consists of evidence which was available at the trial or which could, with reasonable diligence, have then been discovered. The other consists of evidence which either did not exist at the time of the trial or which could not, with reasonable diligence, have then been discovered. The first category is described as new evidence. The second category is described as fresh evidence: Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [204].
55 The unavailability of fresh evidence gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the finder of fact, acting reasonably, would have acquitted the appellant if the evidence had been adduced at trial: Amiss v The State of Western Australia [2006] WASCA 171 [12].
56 In the case of new evidence, a trial is not unfair and there is no miscarriage of justice simply because evidence which was available to an accused and which could have been discovered with reasonable diligence is not adduced. New evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the accused should not have been convicted: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 - 518 and DPJB v The State of Western Australia [2010] WASCA 12 [66]. It is insufficient for an appellate court to be satisfied that the new evidence reveals no more than a likelihood that the court would have returned a verdict of not guilty: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675.
57 Of course, before an appellate court can accept evidence not adduced at trial, whether it be fresh or new, it must be, in the context of the other evidence adduced at the trial, both relevant and cogent.
58 The distinction between fresh and new evidence is important. Clearly, an appellant faces a high hurdle in overturning a finding of guilt on the basis of new evidence.
59 Section 39(1) of the Criminal Appeals Act provides that an appeal must be decided on the evidence and material that was before the primary court. However, s 39(3) states that subsection (1) does not affect the power of an appeal court under s 40 to admit evidence. Section 40(1)(e) of the Criminal Appeals Act gives this court the power, for the purposes of dealing with an appeal, to 'admit any other evidence'. The effect of these provisions in combination is to give this court the discretion to admit and decide an appeal on evidence and material which was not before the lower court.
60 The discretion to admit evidence not before the lower court is wide and is designed to serve the demands of justice. It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially. However, because Parliament conferred an appellate jurisdiction on this court, it is highly unlikely that it intended to abolish the distinction between original and appellate jurisdictions: De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150].
61 As Steytler P pointed out in Rinaldi v The State of Western Australia [2007] WASCA 53 [84], while the principles concerning new and fresh evidence are not necessarily determinative of the manner in which the statutory discretion will be exercised, those considerations will ordinarily be weighty and it would be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by the application of those principles. Accordingly, it is appropriate to approach the evidence sought to be adduced by the appellant in this appeal from the perspective of whether it is fresh or new evidence.
Analysis of the appellant's affidavit sworn 29 July 2013
62 At the outset it is appropriate to observe that none of the evidence sought to be adduced by the appellant is relevant to the learned magistrate's finding of guilt in respect of a charge of breach of the 24-hour police order.
63 The evidence that the appellant was served with the order by Constable Byers was unchallenged at trial and remains unchallenged. The appellant does not allege that Hall J erred in deciding (as he did) that the 24-hour police order was valid. There was no challenge to the complainant's evidence that he received the text messages on 19 February 2012 within the 24-hour period specified in the order. The only issue was whether the appellant sent the messages.
64 The learned magistrate found, beyond reasonable doubt, that she did. That finding was clearly open on the evidence adduced at the trial. The material in the appellant's affidavit of 29 July 2013 is not capable of impugning this finding. If the contents of this affidavit have any relevance, it is in respect of the appellant's conviction for the offence of aggravated assault occasioning bodily harm.
65 Exhibits B, C, D, E, F, G, H, I, J, K and L (up to 2 July 2012) cannot reasonably be characterised as fresh evidence. All of this material was either in existence at the time of the trial or dealt with information that could reasonably have been discovered by the appellant. This material constitutes new evidence only.
66 None of it, individually or collectively, when viewed in the context of the evidence led at trial, is capable of establishing the appellant's innocence, nor is it capable of enabling this court to conclude that the appellant should not have been convicted.
68 The identity of the persons referred to in exhibit B, as potential witnesses to the events on 18 February 2012, are unknown. It is pure speculation as to what they observed and what evidence they might give. Exhibits C, D, E, G, J and K are, in essence, reports generated by the Police Service or, in the case of exhibit G, Transperth. They do no more than record information given to them by others, mostly the appellant. The contents of the reports are hearsay and largely self-serving. They do not establish the truth of the statements made in them.
69 Exhibit F establishes that a violence restraining order was granted in favour of the appellant on 8 March 2012, but was subsequently cancelled. The documents do not prove that the complainant behaved in the way alleged in the application for the violence restraining order. In any event, the events which comprise the subject of the violence restraining order proceedings occurred after the alleged assault on 18 February 2012 and are irrelevant to the issues in contest in that case.
70 Very similar considerations apply to the incident the subject of exhibits G, H and I. Exhibit I establishes only that the complainant was subject to a violence restraining order in favour of the appellant at the trial, something that the learned magistrate was well aware of, having regard to what he had been told by the appellant and the evidence given by the complainant.
71 Exhibits J and K concern an allegation of a burglary on 9 February 2012 which was, three days later, effectively withdrawn by the appellant. The incident was irrelevant to the issues to be decided by the learned magistrate.
72 With respect to exhibit L, the text messages allegedly sent by the complainant to the appellant up to 2 July 2012 clearly show anger and hostility on the complainant's part towards the appellant. That anger and hostility was openly displayed at trial. The text messages add nothing to what was already plainly evident.
73 Exhibits A, L (only to the extent of the messages sent after the conclusion of the trial) and M are arguably fresh evidence. However, that evidence, either individually or collectively, viewed in the context of the evidence adduced at trial, does not give rise to a significant possibility that the appellant would have been acquitted if the evidence had been adduced at trial.
74 In respect of exhibit A, it is, on its face, an email addressed to the Magistrates Court. There is nothing to indicate that the appellant was aware of its existence before 2 July 2012. However, as I have already said, assuming that the email, dated 30 April 2012, was written by the complainant, the statements made in it are not materially inconsistent with the testimony he gave at trial.
75 In respect of the text messages sent after the trial which comprise part of exhibit L and which are shown as coming from 'Manchild', their content may reasonably be described as both intemperate and offensive. The appellant focused some attention to a text message allegedly sent by the complainant to her at 10.20 pm on 2 July 2012, to which I have already referred. Assuming they were sent by the complainant, he stated that he is 'so drunk [that he is] hulicinating' and is 'seeing things'. He then stated, 'i lie so much people dont take me seriously anymore not even the law, police or even judges (-)' and 'ive lost all, even ounce [sic] of credibility .... its quite saf ... sad'.
76 Contrary to the appellant's submission, the message is not an admission that the complainant lied in his testimony at trial. It is, in truth, incoherent and consistent with someone who is very intoxicated. It is difficult to understand why he would be lamenting, in the light of the learned magistrate finding him a credible witness, that he has no credibility. Given these matters, it is incapable of giving rise to a reasonable possibility that, had it been before the learned magistrate, the appellant would have been acquitted.
77 Exhibit M, which relates to events which occurred after the trial on 2 July 2012, comprises, in effect, allegations made by the appellant to the police. They do not establish that the complainant committed the alleged offences. Even if they did, they relate to events which occurred after 18 and 19 February 2012 and have no relevance to those events.
78 For these reasons, the appellant's claim that the convictions should be set aside because of the contents of the affidavit sworn by the appellant on 29 July 2013 cannot reasonably be sustained.
79 I will now deal with the other complaints made by the appellant.
80 In her oral submissions to this court, the appellant made a number of points which form the basis of the very general complaints in her first and third grounds of appeal.
81 The appellant submitted that there was a miscarriage of justice because the learned magistrate failed to give the appellant the opportunity to reply to the prosecutor's opening address. This is a point made for the first time in this court.
82 The procedure to be followed by a court of summary jurisdiction in a trial is set out in pts 3 and 5 of the CPA. Essentially, the procedure that is to be followed in a trial in the Magistrates Court is the same as that followed in a criminal trial in the Supreme Court without a jury: CPA s 65(3) and (4). Section 143 of the CPA provides that an accused is entitled to give an opening address which must be given at the accused's option, either immediately after the prosecutor has given, or declined to give an opening address or, if the accused intends to give or adduce evidence, after the close of the prosecutor's case and immediately before the accused gives or adduces evidence.
83 In the present case, the learned magistrate did not inform the appellant that she was entitled to make an opening address. However, on the facts of this case, it could not reasonably be said that the omission to do so was productive of any risk of a miscarriage of justice.
84 It her oral submissions in this court, the appellant suggested that there was a miscarriage of justice because she had not been given the opportunity to respond to the prosecutor's opening address. As I have pointed out, the police prosecutor's opening address was very brief. It constituted little more than a description of the charges. The purpose of an opening address by an accused is to inform the court about the accused's case. The present case was simple both factually and legally. The appellant lost nothing by not being given the opportunity to make an opening statement.
85 The appellant submitted that the trial was unfair because:
(a) she felt intimidated by the presence of the complainant at the trial and by his conduct during it;
(b) the learned magistrate failed to make arrangements for her to be screened from the complainant pursuant to r 10A of the Restraining Orders Regulations 1997 (WA);
(c) pursuant to s 44C of the Restraining Orders Act, she should not have been required to directly cross-examine the complainant; rather, the cross-examination should have been conducted through an intermediary; and
(d) of the 'constant humiliating offensive comments' made by the complainant during the trial.
86 There is no doubt that as at 2 July 2013, the appellant was entitled to the protection of the violence restraining order issued against the complainant on 24 April 2012. That order was in these terms:
[The complainant] shall not communicate or attempt to communicate by any means whatsoever including SMS or text messages and any electronic means with the person protected by this order, enter upon any premises where the person protected lives or works or is educated or be within 100 metres of the nearest external boundary of those premises, approach within 20 metres of the person protected, when the person protected is not at their place of work or where they live or where they are educated ... (exhibit I, appellant's affidavit, 29 July 2013).
87 Although a copy of the order was not provided to the learned magistrate by the appellant, she informed him of its existence at the beginning of the trial and it was referred to, at least in a general sense, in evidence.
88 The proceedings before the learned magistrate were not proceedings in respect of the violence restraining order issued on 24 April 2012. This is not to say that the existence of the order was irrelevant to the proceedings. The order had implications for the running of the trial. One such implication was that there was likely to be considerable antipathy between the appellant and the complainant. Another was that there was a risk that the presence of the complainant might intimidate the appellant, particularly as she was unrepresented.
89 The task which confronted the learned magistrate was by no means easy. The appellant was unrepresented. The reasons for this are unknown. These were not proceedings in which the principles laid down by the High Court in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 applied. It was inevitable that the appellant would have to cross-examine the complainant. That cross-examination was likely to be, as indeed it proved, problematic.
90 From the appellant's perspective, it may be accepted that the trial posed difficulties for her, particularly with respect to having to directly cross-examine the complainant.
91 Having regard to the whole of the trial record, I am satisfied that it was conducted fairly to the appellant. The learned magistrate explained the trial process to the appellant. He kept control on both the complainant and the appellant, intervening appropriately when it was required in cross-examination. During the appellant's evidence, the complainant was quickly and appropriately admonished when he interrupted.
92 Contrary to the submissions of the appellant, she was permitted by the magistrate to cross-examine the complainant about the history of their relationship. The appellant claims that the learned magistrate told her that, 'The history is irrelevant', but, as I have already pointed out, that statement was not made by the learned magistrate. It is material to observe that towards the end of the cross-examination of the complainant, the appellant, having been expressly allowed by the learned magistrate to cross-examine on the 'history of the domestic violence', declined to do so (ts 18 - 19).
93 When she gave evidence, the appellant clearly articulated her version of events. At the completion of her evidence, the appellant indicated that she did not intend calling witnesses as to the 'ongoing pattern of violence' (ts 41).
94 The appellant submitted that the presence of the complainant so intimidated her that she was unable to, in effect, properly put to the court her case. This is not borne out by the trial record.
95 There is no substance to the submission that the appellant was entitled to use any of the arrangements provided for in r 10A of the Restraining Order Regulations. That rule, which allows for the use of closed-circuit television and screens in certain circumstances, only applies to 'a matter relating to a restraining order'. The proceedings before the learned magistrate were not proceedings of that nature. Section 3 of the Restraining Orders Act defines a restraining order to mean 'a violence restraining order or a misconduct restraining order'. Contrary to the appellant's submissions, a police order is not a restraining order as defined.
96 Nor is there any substance to the submission that, pursuant to s 44C of the Restraining Orders Act, the appellant was not permitted to cross-examine the complainant directly and that the learned magistrate should have required that the cross-examination be conducted through an intermediary.
97 Section 44C of the Restraining Orders Act provides:
44C**. Cross-examination of certain persons**
(1) If in any proceedings under this Act, a respondent, or a person who is bound by an order -
(a) is not represented; and
(b) wishes to cross-examine a person with whom the examiner is in a family and domestic relationship or an imagined personal relationship,
(c) is not entitled to do so directly; but
(d) may put any question to the person to be examined by stating the question to a judicial officer or a person approved by the court,
and that person is to repeat the question accurately to the person to be examined.
(2) Subsection (1) does not apply -
(i) the person to be examined requests that the order not be made; and
(ii) the court considers it appropriate in all the circumstances for the order not to be made;
or
(b) if the court is of the opinion that it is not just or desirable for such an order to be made.
98 The first question to be answered is whether the proceedings before the learned magistrate were proceedings under the Restraining Orders Act.
99 The expression 'proceedings under this Act' is defined in s 3 to include 'proceedings for an offence under this Act'.
100 As the offence of breaching a 24-hour police order is laid pursuant to s 61(2a) of the Restraining Orders Act, it may be accepted that the trial was a proceeding for the purposes of s 44C.
101 The next question is whether s 44C applied to the appellant. A respondent is defined in s 3 to mean a person against whom a restraining order is sought. This does not apply to the appellant. However, s 44C also applies to 'a person who is bound by an order'. The expression 'person who is bound' is defined in s 3 in these terms to be:
In relation to an order made under this Act means the person named in the order on whose lawful activities and behaviour restraints are imposed by the order.
102 A police order is made pursuant to the terms of the Restraining Orders Act. While the appellant was no longer bound by the police order at the time of the trial, she was at the time of the alleged offence. I will assume, without deciding, that the appellant comes within the definition of 'a person who is bound by an order'.
103 It is clear that the appellant was not represented in the proceedings before the learned magistrate and that she wished to cross-examine the complainant, a person with whom she was in a family and domestic relationship, as that expression is defined in s 4(1) of the Restraining Orders Act.
104 An analysis of the text of s 44C reveals that the section is for the protection, not of the questioner in cross-examination, but rather the person being cross-examined. This is evident from subsection (2) which provides that the measures in subsection (1) do not apply where the person to be examined requests that an order under subsection (1) not be made.
105 Such an interpretation of s 44C is supported by the extrinsic material: Interpretation Act 1984 (WA), s 19. Section 44C was inserted into the Restraining Orders Act by the Acts Amendment (Family and Domestic Violence) Act 2004 (WA). The then Attorney General, Mr JA McGinty, in his second reading speech to the Legislative Assembly said, in relation to the Bill that contained s 44C, in a clear reference to that subsection:
... witnesses, including the victim, will have protection from being directly cross-examined by the alleged perpetrator of violence against them (Hansard, 2 June 2004, p 3303c - 3306a).
106 As section 44C is for the benefit of the person being cross-examined, it cannot apply to the appellant who, at trial, was the examiner.
107 I am unable to accept that the appellant's trial was unfair because of the 'constant humiliating offensive comments that were made by [the complainant]'. It is unclear what comments the appellant is referring to. It is not evident from the transcript that the complainant made constant and humiliating offensive comments during the trial. If the appellant is referring to some of the answers the complainant gave in cross-examination, the learned magistrate effectively dealt with those. If the complaint relates to the two interruptions during the appellant's evidence, it is not clear from the transcript what exactly the complainant said. In any event, the learned magistrate appropriately admonished the complainant.
108 In the appellant's oral submissions to this court she referred to the complainant sending her 'hundreds of threaten messages [that] ... related to the trial' (appeal ts 18). The only messages allegedly sent by the complainant to the appellant before the appeal hearing are those contained in exhibit L in the appellant's affidavit of 29 July 2013. I have already dealt with those messages. They do not number in the hundreds.
109 In oral submissions the appellant claimed that the 24-hour police order was 'reviewed' on 8 March 2012 (appeal ts 15). I gather that the point the appellant was making was that this review found that the 24-hour police order was unjustified. There is no power in the Restraining Orders Act to 'review' a police order. It is not clear what the appellant meant by this. She did obtain a violence restraining order against the complainant on 8 March 2012, but, as I have already explained, that was in respect of another incident. Without question, the appellant was subject to the 24-hour police order on 19 February 2012. Even if subsequent events proved that it was unjustified, the appellant was bound to comply with it. The appellant's submission concerning the 'review' of the police order is without substance.
110 The appellant, in her oral submissions, submitted that the email allegedly sent by the complainant to the Magistrates Court on 30 April 2012 was 'very offensive and defamatory' (appeal ts 19). I have already dealt with this email in these reasons. Whether the email was 'very offensive and defamatory' was immaterial to the issues to be determined at the trial. If it is being suggested that the learned magistrate took the email into account in his decision, there is nothing to suggest that he saw it.
111 An examination of the magistrate's reasons reveals that he gave careful consideration to the evidence and the findings he should make. His Honour did not fail properly to use, and he did not misuse, his advantage in seeing and hearing the witnesses give their evidence. He did not act upon evidence that was inconsistent with incontrovertible facts. He did not find facts that were glaringly improbable. His Honour was entitled to convict the appellant on the basis he did and in that connection to accept and rely on the complainant's evidence.
112 For the reasons I have given, none of the appellant's proposed grounds of appeal have a reasonable prospect of succeeding. Accordingly, the appeal must be taken to be dismissed. I would make the following orders:
113 On or about 2 February 2014, the appellant sought to file a further affidavit sworn 22 January 2014. The leave of the court was not obtained. Prior to the hearing of the appellant's application for leave to appeal, the appellant had every opportunity to present her case and any new or fresh evidence. In these circumstances, it is not appropriate that this court have regard to the appellant's latest affidavit.
114 In any event, the submissions made in the appellant's affidavit are in large part a repetition of the submissions that the appellant has already made and which have been dealt with in these reasons. Insofar as there are additional submissions made by the appellant, they are without merit. The exhibits to the appellant's latest affidavit include all of the exhibits in the affidavit sworn 29 July 2013. Insofar as there are additional exhibits, they are not reasonably capable of demonstrating a miscarriage of justice.
(2006) 31 WAR 291
(1992) 177 CLR 292
(1979) 142 CLR 659
(1974) 131 CLR 510