Criminal law - Appeal against conviction - Assault occasioning bodily harm - Sufficiency of evidence - Inconsistencies in the evidence - Browne v Dunn - Loss of evidence - Whether verdict unsafe and unsound - Turns on its own facts

Criminal Appeals Act 2004 (WA), s 8

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Anderson v Davis [2009] WASC 38

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Garrett v Nicholson [1999] WASCA 32

Harvey v Matthews [1999] WASCA 58

Hontestroom v SS Sagaporack [1927] AC 37

Hunt v The State of Western Australia [2008] WASCA 210

Ibrahim v Herring [2010] WASC 190

Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23

Lloyd v Faraone [1989] WAR 154

Longman v The Queen [1989] HCA 63; (1989) 168 CLR 77

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Maddalena v CSR Ltd [2004] WASCA 231

Mancini v Director of Public Prosecutions [1942] AC 1

Peck v The State of Western Australia [2005] WASCA 20

Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572

Police v Pakrou [2008] SASC 364

Police v Sherlock [2009] SASC 64

R v Golightly (1997) 17 WAR 401

R v Park [2003] NSWCCA 203

Rasoolifard v Nichol [2001] WASCA 180

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

Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 212

Skinner v Broadbent [2006] WASCA 2

The State of Western Australia v Montani [2006] WASC 190

1 COMMISSIONER SLEIGHT: The appeal in this matter is against a conviction of the appellant in the Joondalup Magistrates Court before his Honour Magistrate G Smith on a charge that the appellant, on 7 October 2008, in the Woodvale Tavern, unlawfully assaulted Robert David Burns and thereby did him bodily harm. As a result of the conviction, the appellant was fined $2,000.

2 The appellant seeks leave to appeal against his conviction. There is no appeal against the sentence imposed. The application for leave and the appeal were heard by me at the same time.

3 The trial of the charge against the appellant involved a clear conflict of versions of what occurred in an incident at the Woodvale Tavern on 7 October 2008. The prosecution case was that Mr Burns, whilst leaving the bar area of the Woodvale Tavern, was struck from behind by the appellant without warning in the vicinity of a doorway to a foyer area. The appellant's version was the Mr Burns challenged the appellant to go outside with him. The appellant then followed Mr Burns and after they had passed into the foyer area, the appellant was grabbed by Mr Burns and slammed against a door. The appellant alleges that Mr Burns again approached him and the appellant, in self-defence, struck Mr Burns to the face. There was also a dispute as to whether the appellant kicked Mr Burns whilst he was on the ground. However, the kicking was not a part of the alleged unlawful assault.

4 The appeal is pursuant to s 8 of the Criminal Appeals Act 2004 (WA). Section 8 of the Act provides that an appeal may be made on the following grounds:

(a) that the court of summary jurisdiction made an error of law or fact, or both law and fact;

...

that there has been a miscarriage of justice.

5 Leave can only be granted on a ground of appeal if the court is satisfied that a ground has a reasonable prospect of succeeding: Criminal Appeals Act, s 9. This means that the ground should have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

6 The appellant has filed a seven-page substituted grounds of appeal which are unhelpfully verbose and repetitive. The grounds of appeal can be summarised as being based upon the submission the verdict was unsafe and unsound and against the weight of the evidence. It is thereby contended there has been a miscarriage of justice. This basal ground of appeal can be subdivided into a number of separate grounds.

7 Ground 1 is that the magistrate erred both in law and fact by finding that he accepted the complainant's version of the incident and rejecting the appellant's version.

8 Particulars of ground 1 can be condensed down to the following:

(a) The magistrate failed to take into account inconsistencies in the prosecutions evidence which supported the defence's version of what occurred.

(b) The magistrate failed to take into account exculpatory statements made by the appellant immediately after the assault.

(c) The magistrate misapplied the principle in Browne v Dunn (1893) 6 R 67 HL.

(d) The magistrate failed to take into account the unfairness to the accused of the unavailability of CCTV footage of the incident.

9 Ground 2 is that the magistrate failed to consider the hypotheses that the prosecution witnesses called in addition to the complainant were not independent and made assumptions of what occurred from seeing the appellant standing over the complainant who was injured on the floor.

10 Ground 3 is that the magistrate failed to provide adequate, sound or justifiable reasons why he preferred the prosecution version and rejected the appellant's version.

11 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487 the majority (Mason CJ, Deane, Dawson and Toohey JJ) stated the approach an appeal court should take to an appeal on the ground that the verdict was unsafe and unsound.

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (493). (emphasis added)

12 The principle applies to an appeal on a decision of the magistrate in a summary court: Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nichol [2001] WASCA 180 [25]; Anderson v Davis [2009] WASC 38.

13 The plurality, in its decision, went on to say as follows:

It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494).

14 If a magistrate's findings depend to any substantial degree on the credibility of witnesses, the findings must stand unless it can be shown the magistrate has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established or which was glaringly improbable_:_ Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [66] (McHugh J); Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479; Maddalena v CSR Ltd [2004] WASCA 231 [154]. Accordingly, a heavy onus is placed on an appellant. It is not sufficient simply to establish there are inconsistencies in the evidence with the verdict.

15 An appellate court must be mindful of the limitations that exist on hearing an appeal which include the disadvantage of not seeing and hearing the witnesses and not having the 'feeling' for the case that the magistrate at first instance has a result of hearing all the evidence: Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 [43] (Callinan and Heydon JJ); Hontestroom v SS Sagaporack [1927] AC 37, 47.

16 There are some cases where the magistrate may not refer to the demeanour of the witnesses, suggesting that it did not play a part in the magistrate's decision (Maddalena v CSR [157]), but failure to mention demeanour does not necessarily exclude this as a factor. It is often difficult to describe how demeanour affects an assessment of credibility. Sometimes the impact can be subtle. For this reason the advantages of the trial magistrate when making assessments of credibility must always be kept in mind by an appellate court: Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 179.

17 The prosecution called Mr Burns (the complainant), a Mr Duffy (who was a patron in the Woodvale Tavern on the night of the incident) and four members of the staff of the tavern (Mr Bartlett, Mr Sell, Ms Yates and Mr Jackson). Also tendered into evidence were a number of medical reports and photographs of the interior of the tavern. The appellant elected to give evidence on his own behalf but called no other witnesses.

18 An accurate summary of the evidence can be uplifted from the magistrate's reasons for decision as set out below. I have added headings to improve the readability of the summary.

The first prosecution witness was Robert Burns, the complainant. He said that he had only called into the tavern for a brief period of time and that he had only consumed a part of one glass of beer. He said that a conversation that he had with a person called Peter Duffy and also the barman about a person called Vincent led to a remark from the accused about being a bully, following which the complainant, Mr Burns, said that he decided to leave to defuse the situation.

He said that he returned briefly to collect something which he had left behind and that when he did so - in other words, when he came back - he said to the accused, 'Don't ever speak to me again' and then he, the complainant, walked towards the door. He said that he heard something behind him. He turned and he said that he received a flying fist to the left side of his face and nose which knocked him unconscious temporarily and also knocked him to the ground where he said he was then kicked repeatedly to the ribs about five times, although he said the kicks that he received were not particularly forceful kicks. He said that later X-rays revealed that he had a fracture to the area of his nose or cheekbone.

When Mr Burns was cross-examined he denied that he had been upset or angry; he denied that he had stormed out; he denied that he had slammed his glass down on the bar before he left. He said that he found the accused's manner towards him at the bar to be aggressive and threatening and he denied pointing his finger into the accused's face. He denied touching the accused's nose; he denied challenging the accused to come outside with him.

He said that he was struck as he was going through the inner door and he denied that he grabbed hold of the accused. He denied slamming the accused against the door and he denied moving towards the accused as if to hit him and he denied pushing the accused and he denied that the accused hit his head on the door frame. He maintained during cross-examination that effectively he had been king-hit from behind as he was leaving and he denied that he was the aggressor in the situation.

Although certain things, which I have already mentioned, were put to the complainant in cross-examination it was not put to him that at the bar he had pushed the accused to the shoulder or that at the bar he had called the accused a wanker or that he had otherwise used abusive language towards the accused.

The next witness was Michael Bartlett. He is a bartender and also a student. He confirmed that the complainant left, came back briefly to collect something, spoke to the accused and then walked out. He said that at that stage the accused got up and went after the complainant in a way which appeared to him to be sufficiently aggressive to cause him - namely, to cause him, the witness, to leave his position at the bar and to follow behind them.

He said that when he arrived at the particular location that we are concerned with, the complainant was in a foetal position on the ground and that another employee called Chris had the accused against the wall. Mr Bartlett said that when the complainant returned briefly to collect something he could not hear what it was that the complainant said to the accused, but he did say that he did not detect any aggression on the part of the complainant and he denied that the complainant had been shouting. He said the complainant was just walking out. In cross-examination he confirmed that he had seen the complainant go through the doors and he had seen the accused putting his hands up to push the doors.

The next witness was Peter Duffy. He was previously friendly with both the complainant and the accused and he was involved in the conversation at the bar that night. According to his evidence, the accused had said, 'It's easy to be a bully' and that the complainant had then left. The witness Mr Duffy said that he called out to the complainant, who then came back to collect what it was that he had left behind, and that at that stage, namely, when the complainant had come back, the complainant said to the accused, 'Don't ever talk to me again' and then went to the door.

Mr Duffy said that the complainant had looked the accused in the eye and he did not know whether the complainant had pointed at the accused or not. The witness Mr Duffy then went on to say that the accused got up, followed the complainant and that he, Mr Duffy, had seen the accused swing a punch at the complainant and at that stage the doors closed. He confirmed that the complainant had only consumed a part of his drink and he said that the complainant had not spoken to the accused before the accused had said, 'It's easy to be a bully'.

He said that the accused left in a hurry to go after the complainant and he said that when the accused struck at the complainant he, namely, Mr Duffy, could hear it. He said that the accused used his right arm in 'a round-arm' punch and he said that he saw that punch. He said that when he arrived at the particular location the complainant was on the ground in the foetal position, the accused was standing over him and that the barman called Mike was in between them. When he was cross-examined Mr Duffy confirmed that he could see and did see he accused punch the complainant and that punch, which he said he saw, connected. He said that afterwards the complainant had blood on his face and was also complaining of a sore back.

The next witness was Christopher Sell. He was a bartender. He said he was outside cleaning tables when he heard a bang. He said that he saw the complainant on the ground in the foetal position and he said that the accused was standing over the complainant and was kicking the complainant to the head and the body. He described the kicks as 'brutal'.

He said that he could see it clearly from about 10 metres away and he said that the doors - this time we are referring to the outer doors. He said that those doors were open. He said that he went to restrain the accused, who said, 'It's his fault'. He said the accused was angry, was intoxicated. He said that he helped the complainant up and that the complainant had to be cleaned up because he was bleeding.

It was not put to Mr Sell in cross-examination that outer doors were closed and that accordingly he would have been able to see what it was that he claimed he see. It was not put to Mr Sell that it was necessary him to barge through the outside doors before reaching two men.

The next witness was Allanah Yates. She was the duty manager of the tavern. She said that the complainant left, having said, 'I'm going. I can see where this is going'. She said the complainant, Mr Burns, then came back for something; that he then walked away casually and that he was followed quickly by the accused. She said that when she arrived at the location which we are concerned with, the complainant was on the floor and she said that the complainant, Mr Burns, did not respond to her immediately.

That, of course, accords with Mr Burn's evidence that he was temporarily and briefly knocked out. She said, Allanah Yates said, that the staff member, Chris, was holding the accused back. She said that prior to that the accused man had been slurring his words - this is a reference to earlier at the bar - and that he, the accused, was approaching a level of intoxication where, in her view, he would have or should have been refused further drinks. She said that she did not think that the complainant even had one drink that she could see and she thought the complainant, Mr Burns, had only been there for a few minutes.

The final prosecution witness was Richard Jackson. He was the general manager of the tavern. He was not present at the tavern at the time in question. He said that he checked the closed-circuit TV footage but he did not see anything on the footage which would have been of any use to the police.

On the second day of the trial the accused man, Tony Francis Hawker, gave evidence. He said that he arrived there about 6.30 pm and that he was getting ready to leave when the conversation turned to a previous incident involving a person called Vincent. He said that he thought the others were making fun of this person Vincent, so he turned to them and he said, 'You are being bullies. You are disgusting'.

He said that the complainant - that's Mr Burns - took strong exception to this and slammed his drink down and said, 'I am never talking to you again'; that Mr Burns stormed off and was also very angry. The accused said that the complainant then came back, came up to him; in other words, came up to the accused, pushed him on the shoulder, repeated that he was never going to talk to the accused again and then launched into an angry tirade, calling the accused abusive names.

According to the accused, the complainant then asked the accused to come outside and walked towards the exit and the accused, Mr Hawker, said that he followed. He said that once he was through the inner door into the lobby area the complainant, Mr Burns, grabbed him, slammed him into the door so that his back and head hit the doorframe. He tried to manhandle him down to the ground and that in those circumstances, being scared he said, he reacted and swing a punch which connected with Mr Burns' face.

He said Mr Burns fell to the floor immediately and that he, the accused, was angry, stood over Mr Burns and put his foot to Mr Burns' body to roll him over but denied kicking him. He said that the outer front door then crashed open and Chris Sell came in and grabbed hold and he said that Michael Bartlett attended also. He that he consumed or had consumed something like four and a half or five pints of beer. He said that he wasn't completely drunk and he said that he did not, at any time, kick Mr Burns.

In cross-examination the accused man, Mr Hawker, said that when the complainant briefly returned he, the complainant, namely, Mr Burns, was angry and that Mr Burns got into his face, into Mr Hawker's face, and pointed and said, 'I want you to come outside now'. The accused said that Mr Burns then pushed him to the shoulder to get his attention. He said that he wagged his finger at him. He said that after going through the inner doors he was manhandled by Mr Burns and that he swung a fist in self-protection.

He said that the outer doors were closed, in which case Christopher Sell would not have been able to see inside from outside. He said that when Christopher Sell barged through those closed outer doors he, the accused, had his foot on the complainant - had his foot on Mr Burns but did not kick Mr Burns. He said that Mr Burns manhandled him and so he hit Mr Burns in the face and was pushed against the door. He said that he hit Mr Burns to stop him from doing something to him, the accused, and he said that Mr Burns went down immediately he was hit. When he was re-examined Mr Hawker said that he swung a punch at the complainant because he feared that the complainant, Mr Burns, would continue his aggression and Mr Hawker said that it was an instantaneous self defence type of thing.

19 Also tendered into evidence were a number of medical reports and photographs of the interior of the tavern. These will be referred to later in this decision.

There is ample evidence in this particular case - evidence which I must say I accept - that Mr Hawker was very intoxicated. Mr Hawker's version of events as to what happened, in my view, is inherently implausible and it conflicts in multiple ways with the evidence of the various prosecution witnesses which I do accept.

Turning to the prosecution case, I found the complainant, Mr Burns, to be a sober person at the time and to be a truthful, reliable and accurate witness. I found his evidence to be compelling and I accept what he said about what happened. In addition, his evidence was corroborated in many different ways by the evidence of the other prosecution witnesses who I also found to be truthful and accurate and compelling witnesses.

I am satisfied beyond a reasonable doubt that Mr Burns was not the aggressor; that he did not want any trouble; he did not want to fight with the accused; he did not invite the accused to come outside and that he, Mr Burns, was in the process of leaving the tavern at the time. I find that the accused, Mr Hawker, became so angry that he lost control of himself and he followed Mr Burns and struck him.

...

Having found that this version of events is what happened, and I am satisfied beyond a reasonable doubt that that's what did happen, it seems perfectly clear to me in such a situation that the issue of self-defence does not and could not arise. Following somebody from behind and punching them from behind when they are walking away could not possibly be a punch which is delivered in self-defence.

The prosecution has proved beyond a reasonable doubt that Mr Hawker did not punch Mr Burns in self-defence. The punch has already been admitted. I am satisfied that that punch was not authorised, justified or excused by law. Therefore, it follows that such a punch has proved to be unlawful. Therefore, I am satisfied that the charge against Mr Hawker has been proved and he will be convicted (ts 10-11 of 26/11/10).

21 The first basis relied upon by the appellant in support of ground 1 is the magistrate failed to take into account inconsistencies in the prosecutions evidence which supported the defences version of what occurred. The appellant's counsel relied upon a number of inconsistencies in the evidence of the prosecution witnesses in regard to which it is contended the magistrate ignored. It is submitted that if the magistrate had given proper weight to these inconsistencies that he ought to have found there was a reasonable doubt.

22 His Honour made it clear that he did not consider any inconsistencies in the prosecution evidence prevented him from finding that the prosecution case had been proved. His Honour stated:

- - When I have examined the evidence of the prosecution witnesses I haven't been able to detect any inconsistencies between the various evidence of the various witnesses which I consider to be meaningful or important.

None of the prosecution witnesses claims to have seen everything that happened. A version of events given by the complainant, Mr Burns, is corroborated in some important ways by Mr Michael Bartlett, who says that he saw the accused follow Mr Burns in an aggressive manner, corroborated in some respects by Mr Duffy, who said that he saw the accused, Mr Hawker, punch Mr Burns from behind, by Mr Sell, who said that from outside and through the outer doors he saw the accused, Mr Hawker, delivering kicks to Mr Burns, and also by Alannah Yates, who said that the accused man, Mr Hawker was intoxicated. She said that the accused man, Mr Hawker, followed him quickly and said that by the time she arrived at the location the complainant, Mr Burns, was on the floor in a foetal position and Chris Sell was holding Mr Hawker back (ts 7-8 of 26/11/10).

Although not all of the prosecution's witnesses claim to have seen the entire incident, as I have already said I do not detect what I would consider to be any meaningful or concerning inconsistencies between the evidence of each person.

24 In considering the inconsistencies relied upon by the appellant, it must be kept in mind that not all inconsistencies need to be resolved. It is inevitable that when a number of witnesses are describing an event witnessed by them there will be some inconsistencies in what they state they observed and can remember. Further a magistrate is not obliged to make findings about inconsistencies in evidence in respect to peripheral matters which throw no light on the real issues in the case: Jones v Hyde (supra) (McHugh J); Fox v Percy (supra); Ibrahim v Herring [2010] WASC 190 [25].

25 The inconsistencies relied upon by the appellant can be summarised as follows.

(i) Inconsistencies as to the location of the assault

26 The appellant complains that the magistrate failed to consider the evidence given as to the location of the assault and the significance of this as to whether the prosecution had proven its case.

27 The evidence of both the complainant Mr Burns and Mr Duffy was that the complainant was assaulted from behind by the appellant at a doorway leading from the bar area into a foyer. The doors are swinging doors. Mr Burns in his evidence described how as he had placed his hand on the door he heard a noise behind him and as he went to turn right felt a blown to the left of his face (ts 12 of 16/9/10). Mr Duffy described Mr Burns and the appellant arriving at the door at about the same time when the assault took place (ts 62 of 16/9/10).

28 Another prosecution witnesses Mr Bartlett did not see the assault. His evidence as to what he observed was as follows:

He [the complainant] went out through the door and as he went through the interior door the accused got up in a manner that led me to believe that something was even going to be said or whatever, and then - so I then left the bar, coming out through the bar, heading towards the doors, by which time, like I said previous, it had all happened.

29 Mr Bartlett stated in his evidence that he observed the appellant arrive at the door with his arms raised to push the doors (ts 56 of 16/9/10). He saw the appellant moving towards the door but not through them. Under cross-examination he stated that he could not see where the complainant Mr Burns was as the appellant went through the interior doors. He thought Mr Burns was in the foyer area or outside. He did not see the interior doors close behind the appellant because by this stage he had lost sight of the doorway as he moved down the bar area (ts 58 of 16/9/10).

30 In light of the fact that Mr Bartlett lost sight of the incident before the swinging doors had closed and could not say where Mr Burns was at the time, his evidence is not materially inconsistent with the account of Mr Burns and Mr Duffy that the assault occurred as Mr Burns was passing through the doorway.

31 It was contended by counsel for the appellant that the account of Mr Burns and Mr Duffy was also inconsistent with the evidence of Ms Yates. Ms Yates said that she saw the complainant leave and saw the appellant follow him. The next thing that she heard was the door slamming and a glass smashing. She said:

The door had been pushed open, obviously, quite aggressively, because it made a loud enough noise for me to make notice of it (ts 89 of 16/9/2010).

32 In my opinion, her evidence is entirely consistent with the evidence given by Mr Burns and Mr Duffy. It is to be inferred from her evidence that she was not observing the doorway as it was approached by Mr Burns and the appellant. She did not see the assault for this reason.

33 The appellant also contends the loud bang heard by Ms Yates is consistent with the version of the appellant that he was attacked by Mr Burns in the foyer area and thrown up against the wall. Although potentially consistent with the appellant's version, it also consistent with the appellant knocking Mr Burns to the ground as the appellant and Mr Burns passed through swinging doors. Mr Burns' evidence was that he fell through the doors as he was struck.

34 The appellant relies upon an alleged inconsistency between the prosecution's case and the complainant's evidence who said that as a result of the blow he lost consciousness for a period and came to on the ground on a mat in the foyer area. The appellant relies on photographic evidence which it is said shows the mat is well within the foyer area. It is contended the position of Mr Burns well within the foyer area is more consistent with the appellant's version of what occurred. Unfortunately, the photographs do not show up the position of the mat clearly. However, even allowing for the fact that the mat is positioned well within the foyer, the foyer is a small area and, in my opinion, Mr Burns collapsing in the foyer is also consistent with him being hit as he was in the process of walking through the doorway into the foyer.

35 Although, the magistrate did not make a specific finding as to where the assault took place, it is implicit from his findings that it took place at or about the doorway into the foyer and was accordingly seen by Mr Duffy who was in the bar area. The evidence relied upon by the appellant did not prevent the magistrate from reaching the findings he made.

(ii) Inconsistencies with the medical evidence

36 The appellant also relies upon alleged inconsistencies between the description of the assault given by Mr Burns and Mr Duffy and the injuries suffered as established by tendered medical reports and photographs. Also, it is contended that the medical reports contain a description of the assault given by Mr Burns to the doctors which is inconsistent with Mr Burns' evidence.

37 The report of Dr Mark Lawry of 8 October 2008, stated as follows:

History

Was assaulted last night at Woodvale Tavern

He was leaving at 9.30

He was king hit by an individual known to him; who had been causing trouble

He was then hit in the nose with his fist and was kicked four times in the ribs.

Examination

Small graze on nose with swelling

Teeth are sore

No bruising to the ribs.

38 A report of Dr Richard David Allen Newton, who is a colleague of Dr Lawry, stated as follows:

Mr Burns was allegedly assaulted on the 7th of October 2008. He was hit forcefully from behind without warning and fell to the ground. He was kicked around the ribs and hit in the face. Dr Lawry reports that he had small graze on the nose with slight swelling and that his teeth were sore, but that he had no visible bruising to the ribs. A CT scan of the facial bones revealed a small crack fracture of the nose.

And suffered emotional distress, anxiety and depression as a result of the trauma.

39 The magistrate made only a brief reference to these medical reports. Summarising the issues he stated as follows:

The bodily harm, which is also admitted by the defence, is an injury to the nose. I think one of the medical reports said that Mr Burns sustained a small crack fracture.

40 It was submitted on behalf of the appellant that the injuries suffered by Mr Burns were inconsistent with the description of the assault given by Mr Burns and Mr Duffy, particularly as it was alleged that the appellant attacked Mr Burns from behind. However, Mr Burns stated that he had turned his head to the right just prior to the assault and that the blow was to the left-hand side of his face. Although Mr Duffy did not observe Mr Burns turn to the right he described the punch as a round arm punch making contact with the facial area (ts 69 of 16/9/10).

41 The appellant contends that if the complainant was hit from behind as alleged it is improbable that Mr Burns would suffer injury to the left-hand side of his face. The appellant contends the injury to the left-hand side of the face is consistent with the appellant's version that he hit Mr Burns when Mr Burns directly confronted him in the foyer area.

42 In my opinion the evidence of the injuries is consistent with either version and was not inconsistent with the magistrate's findings.

43 The appellant's counsel further relied upon the inconsistency between the evidence of Mr Burns who said he was only hit in the face on one occasion and comments in the medical reports that he was also punched in the face whilst on the ground. Mr Burns was cross-examined concerning this inconsistency and maintained he could recall being hit only once and that Dr Lawry who prepared the original report made a mistake; a mistake that was repeated inadvertently by Dr Newton using Dr Lawry's notes. It is implicit in the magistrate's decision he accepted this explanation on the totality of the evidence.

(iii) Inconsistencies in the evidence relating to the complainant being kicked

44 The magistrate found that the appellant kicked Mr Burns several times. The appellant submits that somehow this indicates the magistrate wrongly approached the case on the basis the alleged assault was both the kicking and the alleged punch. No such error was evident from the magistrate's decision.

45 The appellant also submits the evidence in relation to the kicking was inconsistent. Mr Burns says he was kicked 4 - 5 times in the ribs not very forcefully. Mr Sell described seeing Mr Burns being kicked to the body and head and described the kicks as brutal. None of the other witnesses saw the incident of kicking but this was because they did not observe the full incident. However, Mr Bartlett, Mr Duffy and Ms Yates described the complainant on the ground in the foyer when they arrived. The appellant said in his evidence he used his feet to roll Mr Burns over but denied kicking him. The appellant says that the magistrate should not have made the positive finding the appellant kicked Mr Burns given the inconsistency in the evidence and the medical evidence which did not indicate any injury to the rib or body areas.

46 In my opinion, notwithstanding the inconsistencies the magistrate was entitled to conclude on the evidence that the appellant had kicked Mr Burns several times. He made no finding, and it was unnecessary for him to do so, as to the force of these kicks.

(iv) Inconsistencies as to the appellant's intoxication

47 The magistrate concluded that the appellant was 'very intoxicated' (ts 10 of 26/11/10). The appellant submits this finding is contrary to Mr Duffy's evidence, who described the appellant as being 'at least slightly intoxicated' (ts 62 of 19/9/10). However, Ms Yates, who was the duty manager at the tavern, described the appellant as approaching intoxication to the point she would consider refusing him service (ts 86 of 16/9/10). Mr Sell in his evidence stated that the appellant was 'angry, disgruntled, intoxicated' when Mr Sell grabbed the appellant in the foyer area. Mr Sell said he could smell liquor on the appellant. The appellant himself admitted he had consumed four and a half to five pints of beer. He described himself as affected by alcohol but not 'raving drunk' (ts 9 of 30/9/10).

48 On in my opinion, on the totality of the evidence, the magistrate was entitled to reach the conclusion he reached as to the appellant's intoxication.

(iv) Inconsistencies as to the appellant's aggression

49 The appellant complains that the magistrate's finding that the appellant was the aggressor failed to consider the inference that Mr Burns was the aggressor because he returned to the bar to collect some belongings he had left behind and said words to the effect that the appellant was not to speak to him again. The magistrate by his findings clearly rejected such an inference being reasonably available given the other evidence of the appellant's aggression and the efforts of Mr Burns generally to avoid confrontation. Such findings of the magistrate were open on the totality of the evidence.

50 The appellant also complains that the magistrates finding as to the appellant's aggression, in so far as it relied upon the evidence of Mr Bartlett, failed to take into account the evidence of Mr Bartlett that the appellant raised both hands to push open the doors to the foyer. However, such evidence is not inconsistent with Mr Bartlett's evidence that he observed the appellant follow Mr Burns in an aggressive manner. Mr Bartlett said in his evidence his impression of the appellant's aggressive state of mind led Mr Bartlett to leave the bar area and follow the appellant (ts 49 of 16/9/10).

51 One of the matters complained of by the appellant was that the magistrate speculated about why the appellant was angry. This was not speculation but should be more accurately described as an inference drawn by the magistrate on the evidence. It was an inference available to the magistrate which he drew taking into account in part more direct evidence that the appellant was in an aggressive mood.

52 For the above reasons I conclude that the alleged inconsistencies relied upon by the appellant (either individually or collectively) are of minor significance and do not show that the magistrate's verdict was unsafe or unsound. The alleged inconsistencies were generally of an equivocal nature and the magistrate was entitled to conclude they were not important, particular in the context of other evidence supporting the prosecutions case; in particular the corroborating evidence of Mr Duffy and the evidence that Mr Burns was trying to leave the tavern to avoid confrontation.

(b) The magistrate failed to take into account exculpatory statements made by the appellant immediately after the assault

53 The appellant in his evidence said that after he had punched the complainant Mr Burns, he said 'you fucking started it, why did you do this'. Mr Sell's evidence confirmed something similar being said.

54 The appellant submits that this evidence was exculpatory and was given without objection. It is contended that the magistrate failed to take this evidence into account or give it proper weight.

55 The law relating to exculpatory statements was discussed in Peck v The State of Western Australia [2005] WASCA 20 by Roberts-Smith JA (with whom Steytler P and Wheeler JA agreed):

What the applicant said out of Court on some other occasion, whether to police officers or anyone else, claiming her innocence was entirely inadmissible (R v Beck [1990] 1 Qd R 30). Things said out of Court by an accused person are only admissible as to the truth of what they assert if they constitute admissions against interest, (Straker v The Queen (1977) 15 ALR 103) although where the prosecution seeks to rely upon incriminating parts of a statement by an accused which also contains exculpatory material, the law requires as a matter of fairness that the whole statement be tendered (R v Williamson [1972] 2 NSWLR 281, Herbert, Sampson & Wurrawilya v The Queen [1982] FCA 147; (1982) 42 ALR 631 and Small v The Queen (1994) 33 NSWLR 575). However, mere denials out of Court have no probative value. They are therefore irrelevant and inadmissible.

Evidence of this kind infringes the rule against self-corroboration, it infringes the rule against hearsay and, as I have said, it is irrelevant and inadmissible as having no probative value. The prosecution cannot be compelled to adduce out-of-court denials or wholly exculpatory statements of an accused (R v Newsome (1980) 71 Cr App Rep 325, R v Wogandt (1988) 33 A Crim R 31 and Kochnieff v The Queen (1987) 33 A Crim R 1) and nor can an accused either elicit them in cross-examination of prosecution witnesses or give evidence of them. This ground is accordingly based on a wholly incorrect legal premise and cannot possibly succeed [70] - [71].

56 However, one of the exceptions to the hearsay rule is a statement which is admissible under the res gestae doctrine. The doctrine of res gestae allows the admission of the evidence of statements made which accompany and explain actions or events because they are said to be part of the transaction: R v Golightly (1997) 17 WAR 401 [411] (Owen J). There are three critical issues to consider as to whether evidence comes under the doctrine of res gestae.

(b) the statement must be contemporaneous with the event which excited the statement and not a narrative of prior events;

(c) the possibility of concoction must be discounted: see The State of Western Australia v Montani [2006] WASC 190 [120] (Johnson J).

57 For the purposes of the submission before me, I am prepared to accept the statement of the appellant was admissible even though it was exculpatory. It was made at the time of the alleged assault.

58 A number of observations can be made about the evidence. First, that it was equivocal. The undisputed evidence was that the complainant Mr Burns initially got up to leave the bar area but then returned shortly later to collect some belongings he had left behind. When he returned to the bar area, he said to the appellant 'Don't ever speak to me again'. It is this comment on the State's case that led the appellant to take offence and follow Mr Burns to the doorway in an aggressive manner. Accordingly, the statement allegedly made by the appellant is not necessarily exculpatory, and is consistent to the State's case that in the eyes of the appellant he believed Mr Burns started it all by making the comment 'Don't ever speak to me again'.

59 Secondly, even if it is accepted that the comment is exculpatory and supports the version of events given by the appellant, it is still a self-serving statement and one that the magistrate in light of other evidence was entitled to reject. It is implicit that the magistrate concluded that either the statement was not made or if it was made it carried little weight. On the evidence, the magistrate was entitled to reach either of these conclusions.

(c) The magistrate misapplied the principle in Browne v Dunn

60 In his reasons, the magistrate stated as follows:

I have already indicated that it was not put to Mr Sell that the outer doors were closed and therefore he could not have seen the accused delivering kicks to the complainant. Certain matters which I have already referred to were put to the complainant, Mr Burns, but it was not put to Mr Burns that when he returned to briefly to the bar that he had pushed the accused to the shoulder, or that he was swearing at the accused and was abusive towards him.

When it comes to the witnesses Michael Bartlett, Peter Duffy and Allanah Yates, it seems to me that none of these witnesses has been properly cross-examined as to matters such as whether Mr Burns did slam his glass down on the bar; whether Mr Burns put his finger in the accused's face; whether Mr Burns challenged the accused to come outside; whether Mr Burns pushed the accused at the bar; whether he swore at the accused or was abusive towards him; whether he stormed out of the bar or whether he was the angry aggressor of the two men.

All of these things which I have just mentioned were things which were said by the accused, Mr Hawker, when he gave his evidence. Mr Duffy said that he saw the accused punch the complainant. It was put to Mr Duffy that he could not have seen that because of where he, Mr Duffy, was located in the bar, but when Mr Duffy maintained that he could see it and he did see it, it was not put to Mr Duffy that the complainant man-handled Mr Hawker, the accused, or went towards the accused before the accused delivered the punch which Mr Duffy said that he could see.

The accused man in his evidence said that both he and Mr Duffy were stunned when Mr Burns stormed out of the bar. That statement by Mr Hawker was inconsistent with the evidence of Mr Duffy, and Mr Duffy was not cross-examined about that either (ts 8-9 of 26/11/10).

61 The appellant submits that the magistrate misapplied the rule in Browne v Dunn and placed undue emphasis on the failure of the appellant's counsel to put matters to the prosecution witnesses when in light of inconsistencies in the evidence, it was not sufficiently material enough to reflect adversely on the appellant's evidence.

62 The rule in Browne v Dunn is a rule of fairness. It applies to proceedings in the Magistrates Court: Garrett v Nicholson [1999] WASCA 32. The rule has two components to it. Firstly, there is a rule of practice and procedure that requires the nature of the case to be put to the opposing witnesses. Secondly, there is a rule relating to the weight or cogency of the evidence. If a witness is not cross-examined in relation to a particular matter, on which he or she has given evidence, then that circumstance will often be a good reason for accepting the evidence of the witness: Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 212, 236.

63 The magistrate indicated he had a concern that prosecution witnesses were not cross-examined about matters that the appellant gave evidence. Therefore such witnesses were not given an opportunity to refute the appellant's version of the events in relation to those matters highlighted by the magistrate. This goes to the element of fairness. It can be taken into account in deciding what weight is attached to the appellant's evidence when this rule of fairness was not complied with.

64 The issue of who was the aggressor in the bar was a matter of some importance and the magistrate was entitled to express concern that a number of key aspects of the appellant's evidence concerning this issue were not put to the prosecution witnesses for their comment or version when their version was that Mr Burns had not been the aggressor.

65 The magistrate, although expressing concern about the failure to cross-examine the prosecution witnesses on these matters, did not indicate that he gave undue emphasis to such matters. He was entitled to take it into account, which he did. In my opinion he did not misapply the rule in Browne v Dunn.

(d) The magistrate failed to take into account the unfairness to the accused of the unavailability of CCTV footage of the incident

66 As stated above in the magistrate's summary of the evidence, Mr Jackson, the general manager of the tavern, gave evidence that he checked the closed circuit TV footage (CCTV footage) but he did not see anything on the footage which could have been of any use to the police. The CCTV footage was no longer available.

67 The magistrate in his decision stated as follows:

In my view, the argument that has been put to me about the closed circuit TV footage is of no consequence in my decision. I have to make my decision based on the evidence which has been put before me.

68 The appellant's counsel submitted that the unavailability of CCTV footage created an unfairness for the accused which should have been taken into account by the magistrate. The appellant relied upon two authorities in support of this proposition: Police v Sherlock [2009] SASC 64, 40 - 43 and Police v Pakrou [2008] SASC 364. Neither of these cases support the appellant's ground of appeal. Both cases involved an application for a stay of proceedings due to the unavailability of CCTV footage. In both cases there was no way of knowing whether the film recorded something relevant. In both cases the court ruled that there were no grounds for a stay of proceedings.

69 It is often the case in a criminal trial that not all the evidence is available. Further, there are many cases where the court does not have available CCTV footage. There may be cases where it would be proper that a magistrate direct himself to treat the prosecution case with caution if the absent evidence was likely to create a forensic disadvantage. The general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Longman v The Queen [1989] HCA 63; (1989) 168 CLR 77 [86]; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314.

70 In this case there was evidence that there was nothing on the CCTV footage which might have assisted the defence. The evidence of Mr Jackson was that he checked the footage the next day and there was nothing recorded of the incident. The reason for this was that the video camera did not point in the area where the incident occurred. After six days the surveillance recording was automatically erased. In the circumstances the magistrate was entitle to proceed and assess the evidence presented to him without taking into account the absence of CCTV footage: Hunt v The State of Western Australia [2008] WASCA 210 [229] (Murray J).

71 The appellant complains in this ground that the magistrate failed to take into account the hypothesis that the prosecution witnesses assumed Mr Burns was the victim and the appellant was the aggressor because they were biased in favour of Mr Burns and saw Mr Burns lying on the ground.

72 A court is not obliged to take into consideration hypotheses of which the evidence does not reasonably raise: Mancini v Director of Public Prosecutions [1942] AC 1, 8. It is not necessary for a tribunal of fact to consider all conceivable constructions of the facts: R v Park [2003] NSWCCA 203 [63] (Shaw J, with whom Ipp and Buddin JJ agreed). What hypotheses are available on the evidence for consideration is a matter to be decided on consideration of all the evidence [65].

73 The hypothesis advanced by the appellant, does not in my opinion reasonably arise on the evidence.

74 The evidence of Mr Burns was that he was self-employed and in the course of his business had some contact with the supervisor of the tavern and the head chef with whom he had business dealings. Mr Duffy's evidence was that he was a friend of Mr Burns but that he had also known the appellant for 10 years and was drinking with the appellant that night. Neither Mr Bartlett nor Ms Yates claimed to have seen the actual blow and insofar as their evidence was concerned, the hypothesis has no significance. In relation to Mr Duffy, his evidence was that he saw the blow. To suggest that he was somehow mistaken as to this because of bias lacks credibility. Either he was telling the truth or was not telling the truth.

75 Ground 3 complains that the magistrate failed to provide adequate, sound or justifiable reasons why he preferred the prosecution's versions and rejected the appellant's version.

76 The common law principles relating to the question of the adequacy of reasons was set out by Malcolm CJ in Lloyd v Faraone [1989] WAR 154, 163. His Honour said that the reasons must be revealed to such an extent as will enable an appellate court to consider and determine whether or not the judgment is erroneous.

77 In Skinner v Broadbent [2006] WASCA 2 Steytler P stated [37] - [38]:

It is important, in this case, to reiterate that, when deciding between competing versions of the facts, it is necessary for a trial judge to explain why one version has been preferred over another. In doing so, the trial judge should refer to relevant evidence and, when one set of evidence is accepted over a conflicting set of significant evidence, set out his or her findings as to how he or she has come to accept the one over the other: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443; Waterways Authority at 1830. It is a judge's duty to consider all of the evidence in a case and, where important or critical evidence is not referred to, an appellate court may infer that it has been overlooked or that the trial judge failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442 and Beale, at 443. As Samuels JA pointed out in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, for a judge to ignore evidence critical to an issue of fact found against a party may promote a sense of grievance and create a litigant who is both disappointed and disturbed, because it tends to deny both the fact and the appearance of justice having been done.

It has also been said that it is incumbent upon a trial judge to provide understandable and logical reasons for making relevant findings of fact: Beale, at 443 - 444; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at 283. In Soulemezis at 281 McHugh JA said that the failure to explain the basis of a crucial finding of fact may involve a breach of the principle that justice must not only be done but must be seen to be done. Of course, an appellate court must take care to ensure that dissatisfaction with a finding of fact does not mislead it into holding that the trial judge has failed to give reasons for that finding: Soulemezis, at 281.

78 Skinner did not concern an appeal against a decision of a magistrate. The extent the authorities referred to above are relevant is tempered by s 31(1)(c) & (d) of the Magistrates Court Act 2004 (WA); Ibrahim v Herring (supra) [24] (Hall J). Section 31(1)(c) & (d) provide that a judgment of the court need not canvass all the evidence given in the case and need not canvass all the factual and legal arguments or issues arising in the case.

79 The magistrate found that Mr Burns was a 'truthful, reliable and accurate witness'. He does not have to give reasons for finding this. This was entirely a matter for judgment. Why a witness makes an impression often cannot be expressed in any greater detail: Garrett v Nicholson (supra) [31]. Although the magistrate specifically did not refer to the demeanour of the witnesses, this does not mean that he did not take demeanour into account.

80 In my opinion the magistrate gave adequate reasons why he accepted the prosecution evidence. In addition to finding that Mr Burns was truthful, reliable and an accurate witness, he found that his evidence was corroborated in many different ways by the evidence of the other prosecution witnesses, whom he also found to be truthful and accurate and compelling.

81 The magistrate made it clear that he took into account contextual matters. He was satisfied beyond reasonable doubt that Mr Burns was not the aggressor, that he did not want any trouble, he did not want to fight with the accused, he did not invite the accused to come outside and that Mr Burns was in the process of leaving the tavern at the time the appellant followed him. The magistrate found on the evidence that the appellant became so angry that he lost control of himself and followed Mr Burns and struck him.

82 All of the findings by the magistrate were open to him on the evidence and he gave reasons for his verdict based upon his findings on the evidence.

83 I give leave to appeal on each ground but conclude that none of the grounds of appeal have been made out. The appellant's counsel submitted that the magistrate failed to use or has palpably misused his advantage by ignoring or failing to place sufficient weight on evidence relied upon by the appellant. For reasons given above I reject this submission. On the whole of the evidence the magistrate was entitled to conclude that the case against the appellant had been proved beyond reasonable doubt. Accordingly, the appeal is dismissed.