CROTTY -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 233 (17 June 2025)

1. On 18 December 2024, Forrester J made an order that this appeal was urgent and must be heard as quickly as possible. Despite this, the hearing of this appeal was adjourned twice. First, on Mr Crotty's application and then again on the application of both parties. The appeal was not heard until 21 May 2025.
2. The hearing of the appeal was originally listed before me for hearing on 4 March 2025. That day, Mr Crotty applied for an adjournment because he wished to adduce fresh evidence which he was yet to arrange and wished to engage a lawyer. Counsel for the Director indicated that the Director would not oppose an adjournment.
3. At the time I indicated to Mr Crotty that I was reluctant to adjourn the hearing of the appeal given the order for an urgent appeal and that if it was to be adjourned, it might be adjourned until April or May. Mr Crotty still pressed for the adjournment. He said that the appeal was not motivated by the term of imprisonment that he was serving but rather by 'principle'.
4. Ultimately, with considerable reluctance, I agreed to adjourn the hearing of the appeal. At the time I told Mr Crotty that if he was going to engage a lawyer he should do so as soon as possible and any materials should be filed well in advance of the hearing, so that the hearing of the appeal could proceed without further delay. I also indicated that he should not expect a further adjournment. The appeal was re-listed for hearing before me at 10:00 am on 28 April 2025.
5. At 8:49 am on 28 April 2025, my chambers received an email from a barrister, Mr Tim Stephenson, who indicated that he had agreed the week before to assist Mr Crotty amicus curiae. The email attached an affidavit from Mr Crotty regarding the representation provided to him by Mr Camp at the trial on 2 August 2024. The email also outlined new proposed grounds of appeal that Mr Crotty now sought to pursue.
6. At the hearing of the appeal later that morning, the Director sought an adjournment so that Mr Camp (who the Director was proposing to call to give evidence on the appeal) might have an opportunity to consider Mr Crotty's new affidavit and the Director could consider the new proposed grounds of appeal. Mr Crotty also sought an adjournment to a date upon which Mr Stephenson could appear for him. Again, with considerable reluctance, I adjourned the hearing of the appeal to 21 May 2025 (a date on which Mr Stephenson was available).
7. It is regrettable that it has not been possible to deliver judgment in this matter more expeditiously.

Why leave to appeal is required and when it is granted

1. Under the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act), a decision of the Magistrate's Court to convict an accused of a charge may be appealed to the Supreme Court on the grounds that the court made an error of law or fact or both, or on the basis that there has been a miscarriage of justice.[1]
2. Leave to appeal is required for each ground.[2] An application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act.
3. Leave to appeal must not be granted on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding,[3] meaning that the ground is required to have a rational and logical prospect of succeeding.[4] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[5]
4. A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[6] Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[7]

The time for Mr Crotty to commence an appeal should be extended

1. Mr Crotty required an extension of time to commence this appeal.
2. Section 10(3) of the Criminal Appeals Act provides that an appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.
3. The period of 28 days after the decision to refuse to vacate the trial expired on 22 August 2024. The period of 28 days after the trial expired on 30 August 2024. Mr Crotty did not commence his appeal until 25 September 2024.
4. An extension of time to appeal will be granted if it is in the interests of justice to do so.[8]
5. When Mr Crotty filed his notice of appeal, he also filed an affidavit requesting an extension of time in which to commence his appeal. In that affidavit he said that he was in custody awaiting certified copies of the transcripts, the original statement from the complainant, the transcript from the hearing on 25 July 2024, he had been seeking a grant of legal aid and it had taken weeks to get a justice of the peace to sign the affidavit.
6. The Director did not oppose an extension of time within which to appeal. I made an order extending the time within which Mr Crotty could commence an appeal on 4 March 2025. When I did so, I indicated that I would state my reasons for doing so when I delivered my reasons for decision in the appeal.
7. I extended time because I was satisfied that it was in the interests of justice to do so. Mr Crotty's delay was not extensive, I am satisfied that the explanation that he has given in his affidavit provides a sufficient justification to extend time in this case and the matters that he has raised were sufficient to establish that he should be given leave to appeal.

The proceedings in the Magistrates Court The refusal of the application to vacate the trial on 25 July 2024

1. On 25 July 2024, a hearing was held before Magistrate Andretich in the Magistrates Court at Bunbury at which an application was made to vacate Mr Crotty's trial which was then listed for 2 August 2024. Mr J Gentili appeared for the prosecution. Mr Camp appeared for Mr Crotty.[9]
2. Prior to the hearing, the Magistrates Court had been sent an email indicating that the prosecution and defence had agreed to vacate the trial because Mr Camp was going to be away until 2 August 2024.[10]
3. When the matter was called on before the Magistrate, her Honour indicated to counsel that it was for the court to decide whether the trial should be vacated and counsel would need to explain why such an order should be made.[11]
4. Mr Camp indicated that he would be overseas until 2 August 2024.[12]
5. The Magistrate enquired when the trial had been listed and Mr Camp indicated that he did not know as he became involved after it was listed. He said that he had only discovered that there was an urgent need for him to be overseas last week.[13]
6. The Magistrate said that she did not think there was any reason why Mr Crotty could not engage alternate representation and she asked whether Mr Crotty had a grant of legal aid. Mr Camp said that he did.[14]
7. The Magistrate indicated that she was not inclined to vacate the trial and refused the application.[15]

1. The same counsel who had appeared before Magistrate Andretich on 25 July 2024, appeared at the trial on 2 August 2024. Mr Gentili appeared for the prosecution. Mr Camp appeared for Mr Crotty.[16]
2. At the commencement of the hearing the Magistrate asked Mr Camp whether the trial was still proceeding. He said that it was. He did not make any application to adjourn the trial, or indicate that he was unable to proceed for any reason.[17]
3. Mr Gentili opened the prosecution case briefly. He indicated that the prosecution case was that between 5.00 pm and 7.00 pm on Tuesday 26 March 2024, Mr Crotty assaulted the complainant at a unit in Withers and that assault was a breach of a family violence restraining order (FVRO) and protective bail conditions (to abide by the FVRO ).[18]
4. The Magistrate asked Mr Camp whether he wished to open. He indicated that he did not wish to open other than to say that Mr Crotty denied assaulting the complainant and put forward a different account of what happened.[19]

1. Mr Gentili called the complainant to give evidence.
2. The complainant gave evidence that Mr Crotty was her ex‑partner and the father of her youngest child.[20]
3. The complainant was asked about the nature of her relationship with Mr Crotty. No objection was taken to this question. She said that they had had a violent horrible relationship for many years. She said that there had been so much violence, that he ruptured her eardrum, fractured her eye socket, threw a plate in her face and subjected her to mental and physical abuse.[21]
4. The complainant said that at about lunch time on 26 March 2024, Mr Crotty came to her house. She said that at the time she was expecting a visit from the Department of Child Protection (DCP) and she was concerned about Mr Crotty's presence because part of her safety plan was not to have contact with him. She said that she told Mr Crotty to leave because she was expecting DCP and that she would see him later. She said that he left after about 20 minutes.[22]
5. The complainant said that after DCP visited, she went to Mr Crotty's home, to see if he could help her because she was stressed out. She said that he had told her that he had Valium when he visited her and she was hoping that he would give her some.[23]
6. The complainant said that she had her daughter with her but she was asleep.[24]
7. The complainant said Mr Crotty and her had a few drinks and Mr Crotty said that he wanted to speak about their daughter and her future. She said that she asked him to buy some food and nappies on his payday and they could talk about their daughter. She said that she said 'Why did you spend all your money on meth instead of your daughter?' and in response he punched her in the face quite severely.[25]
8. The complainant said that Mr Crotty became angry and said that she put him in jail and did not care about him.[26]
9. The complainant said that Mr Crotty pushed her into a corner and started punching her hard in the head in the same spot.[27]
10. The complainant said that she was very scared because she did not want her daughter to wake up. She said that she did not scream out.[28]
11. The complainant said that Mr Crotty then started to put his fingers in her eyes and gouged her eyes which made her scream out. She said that Mr Crotty then stopped. She said she then ran to her daughter, collected her and left.[29]
12. The complainant said that she thought that DCP would take her child away from her when they saw her, so she got drunk in town until the police came to take her daughter away. She said that she was on bail for armed robbery and she slapped a police officer when they took her daughter, so her bail was revoked.[30]
13. The prosecutor tendered a letter that the complainant wrote to Tony Strang, a bailiff, asking him to help her charge Mr Crotty for what had happened.[31]
14. The prosecutor also tendered pictures of the complainant that showed her injuries.[32]
15. After the examination-in-chief was completed, there was an adjournment during which Mr Camp spoke to Mr Crotty before he started cross-examining her.[33]
16. Mr Camp put to the complainant that all of what she did on the day was designed to get Mr Crotty into trouble and that she was drunk.[34]
17. He also cross-examined her about the fact that she had not said in her letter to Mr Strang what the assault was and did not mention being punched or poked in the eye. She responded that she did not think it was necessary to provide the details at that stage as the prison told her to contact the police. She said that the letter was to get in contact with the police.[35]
18. Mr Camp asked the complainant whether the complainant had woken her child and her child had been woken by a loud banging motion.[36]
19. Mr Camp cross-examined the complainant about her cutting herself. He also put to her that she was accustomed to violence as she had broken into a bikie clubhouse.[37]
20. In re-examination, the complainant was again asked about the injuries that Mr Crotty had inflicted on her during their relationship.[38]

1. After the prosecution case closed, the Magistrate indicated to Mr Camp that it was her practice to stand the matter down to permit defence counsel to take instructions about whether the accused wished to give evidence. Mr Camp indicated that it was not necessary for the matter to be stood down and that Mr Crotty elected to give evidence.[39]
2. Mr Crotty gave evidence about receiving a telephone call from a friend who said that DCP and the police were looking for the complainant following an incident at the Burlington Hotel.[40]
3. Mr Crotty said that the complainant had told him one to two months before 26 March 2024, that she was building a claim for compensation against him and needed a conviction to assist that case.[41]
4. Mr Crotty said that the complainant's evidence that he went to her house on the morning of 26 March 2024 was a 'complete lie'.[42]
5. Mr Crotty said that the complainant arrived at his house drunk and asked for help. He said he let her into the house because he thought that DCP and the police were looking for her.[43]
6. Mr Crotty said that the complainant put their daughter to bed and he said he would help the complainant in the morning, when the complainant hit something and woke their daughter up. He said that she continued doing this and described her terrorizing her daughter.[44] Later, he described the complainant as shaking their daughter.[45] He said that the complainant was trying to get him to hit her.[46]
7. Mr Crotty said that he went to ring the police and the complainant started smacking herself in the head. He said that the complainant then went to the neighbours and asked for drugs and then came back.[47] He also referred to the complainant cutting herself.[48]
8. Mr Crotty said that he believed that the complainant was trying to use him to get off her charges. He said that he wanted to ring the police but was scared that she would make up false allegations against him.[49]
9. Mr Camp asked Mr Crotty whether the complainant had made complaints about him for violence. Mr Crotty said that the complainant had robbed a drug dealer and used a bottle to threaten someone at an ATM and then used domestic violence as a 'scapegoat' and said she was under duress.[50]
10. Mr Camp asked Mr Crotty about whether he had ever struck the complainant and caused her to lose her hearing.[51]
11. At this point the Magistrate intervened and say that Mr Camp was putting credit in issue. Mr Camp said that he understood that.[52]
12. Mr Crotty said that they had used violence against each other but not at the times described by the complainant. He said that he had issues with substance abuse but he had never had a violent relationship and had no history of violence against females.[53]
13. Mr Crotty said that the complainant ran 'amok' including breaking into a bikie clubhouse and used domestic violence as a reason to get off charges. [54]
14. Mr Crotty said that he had breached orders but said that this was because the complainant rang him in prison with a false name.[55]
15. Mr Crotty was cross-examined about the number of times he had breached violence restraining orders and he said that this had happened six times. He was also cross-examined about his criminal record, including being charged with stealing and fraud.[56]
16. Mr Crotty was asked about how the complainant got two black eyes and he said that this was because she had smacked herself in the face.[57]
17. Mr Crotty was cross-examined about the fact that given the complainant was a convicted prisoner, she had not used domestic violence to escape punishment. Mr Crotty said that the complainant got 18 months which was a lenient sentence for armed robbery.[58]

1. In closing the prosecutor referred to the complainant's evidence regarding the violent nature of her relationship with Mr Crotty. The prosecutor submitted that there was a significant history of family violence and this was relevant under s 39A of the Evidence Act 1906 (WA). He referred the Magistrate to s 39E and s 39F of the Evidence Act.[59]
2. The prosecutor submitted that the complainant's evidence was truthful and should be accepted by the Magistrate. He submitted that the complainant had not used family violence to escape charges and that was evident from the fact that she was imprisoned.[60]
3. The prosecutor referred to the pictures that showed the complainant with black eyes and the letter that she wrote. He argued that the complainant's story had remained consistent. He contended that Mr Crotty's claim that the complainant had fabricated her story to advance a compensation claim made no sense, as Mr Crotty had already committed offences in the past.[61]
4. The prosecutor argued that it was not credible that the complainant would have been 'terrorizing' her child but yet Mr Crotty would not call the police or try to find the child to take her to the hospital.[62]

1. In closing Mr Camp referred to the letter the complainant had written and submitted that it might have mentioned an assault, but he argued that it did not mention the complainant being poked in the eye or punched in the head.[63]
2. Mr Camp submitted that there were two versions of events. He argued that Mr Crotty was not shaken during cross-examination and it would be difficult for the Magistrate to be satisfied beyond reasonable doubt that he should not be believed.[64]
3. Mr Camp referred to Mr Crotty's evidence that he did not wish to call the police because he did not wish to draw attention to his breach of the FVRO. He submitted that Mr Crotty was adamant that he did not assault the complainant.[65]
4. Mr Camp submitted that Mr Crotty had explained his prior offending and any prior dishonesty did not warrant him being disbelieved.[66]

1. The Magistrate commenced by noting that Mr Crotty admitted in the course of cross-examination that he had breached the FVRO and the protective bail conditions. She said that in light of those admissions it was not necessary for her to consider the evidence in detail in relation to those counts and she would enter a judgment of conviction in relation to those counts.[67]
2. The Magistrate briefly summarised the prosecution evidence.[68]
3. When the Magistrate turned to consider Mr Crotty's evidence, she reminded herself that he did not need to call evidence or give evidence and that he was presumed innocent until he was proved guilty beyond a reasonable doubt. She said that the burden of proving Mr Crotty's guilt rested entirely on the prosecution which must prove all elements of the offence beyond reasonable doubt. She said that Mr Crotty was not required to prove anything.[69]
4. When the Magistrate reminded herself that the prosecution bore the onus of negating any defence available but noted that none were raised in this case. She also reminded herself that what counsel said in submissions was not evidence, that she should not speculate and she was not bound to accept the entirety of the evidence of a witness.[70]
5. The Magistrate then referred to Mr Crotty's evidence that the complainant had assaulted herself and made up the allegations to get a more lenient sentence, to get him into trouble and to get compensation. The Magistrate said that this had not been put to the complainant and the rules in Brown v Dunn had not been complied with, so the allegations carried less weight.[71]
6. The Magistrate said that Mr Crotty initially spoke of being drunk when the complainant arrived at his home but later claimed that he had not drunk anything.[72]
7. The Magistrate also noted that the accused had admitted breaching restraining orders before and this was contrary to his evidence where he had claimed that it was the complainant who had contact him.[73]
8. The Magistrate referred to Mr Crotty admitting to having a criminal record of convictions for stealing and fraud which she described as dishonesty convictions. She said that Mr Crotty claimed he had never sold drugs, but when reminded there was a conviction in 2022, he agreed he had.[74]
9. The Magistrate referred to the fact that in cross-examination Mr Crotty admitted that he breached the FVRO and protective bail conditions. She said that while the complainant might have gone to Mr Crotty's house, it was his responsibility to abide by the restraining order.[75]
10. The Magistrate said that she rejected Mr Crotty's evidence and found him not to be a credible witness. She acknowledged, however, that this was not enough to convict him and she would need to consider the prosecution evidence.[76]
11. The Magistrate said there had been recent amendments to the Evidence Act addressing the manner in which victims of domestic and family violence may behave that she was required to take into account. She said that it was not uncommon for a person subjected to family violence to stay with an abusive partner and to not report violence, or seek assistance.[77]
12. The Magistrate said that she accepted the complainant's evidence that she had been subject to family violence throughout her relationship with Mr Crotty. She said that she gave evidence in a forthright manner, was not dissuaded from her evidence in cross-examination and her contemporaneous letter was not inconsistent with her evidence.[78]
13. The Magistrate referred to the photographs and said that the injuries were consistent with the allegations made by the complainant. She said that the assertion that the complainant had assaulted herself was implausible. She said that she found the complainant to be a credible witness and was satisfied beyond reasonable doubt that Mr Crotty had committed the offence.[79]
14. The Magistrate then proceeded to sentence Mr Crotty.[80]
15. The Magistrate imposed a term of imprisonment of 9 months for the unlawful assault (which she indicated that she had reduced for totality), a sentence of 6 months for the breach of the FVRO to be served cumulatively and a sentence of 5 months for the breach of the protective bail condition to be served concurrently.[81]

1. Section 40(1)(e) of the Criminal Appeals Act provides that for the purposes of dealing with an appeal, an appeal court may admit other evidence. The Court must otherwise decide an appeal on the evidence that was before the lower court. Section 39 of the Criminal Appeals Act provides that subject to an appeal court's power under s 40 to admit new evidence, the appeal court must decide the appeal on the evidence and material that was before the lower court.
2. Both parties made applications to adduce further evidence at the hearing of the appeal.
3. Mr Crotty sought leave to rely upon an affidavit sworn on 23 April 2025 (Crotty Affidavit).
4. The Director sought to rely upon three affidavits filed by Mr Camp on:

(a) 19 December 2024 (First Camp Affidavit);

(b) 6 February 2025 (Second Camp Affidavit); and

(c) 14 May 2025 (Third Camp Affidavit).

1. The Director also sought to rely upon an affidavit of Mr Josef Shaun Cooper, an Acting Sergeant in the Western Australian Police Force dated 21 May 2025 (Cooper Affidavit). Acting Sergeant Cooper was the police officer who investigated the complainant's complaints. As he was a Senior Constable at the relevant time, I will refer to him as Senior Constable Cooper.
2. I was satisfied that it was in the interests of justice to admit the further evidence the parties to the appeal sought to adduce. Each of the affidavits was tendered and admitted as exhibits. Mr Crotty, Mr Camp and Senior Constable Cooper attended Court to give evidence and were cross-examined.
3. I found Senior Constable Cooper to be a helpful witness who did his best to assist the Court. There were aspects of the evidence given by both Mr Crotty and Mr Camp that made me cautious about accepting their evidence uncritically.

1. The evidence that Mr Crotty gave at the hearing of the appeal was inconsistent in material respects with what he had said in affidavits and other materials that he had filed in the Supreme Court.
2. In documents that Mr Crotty had filed with the Court in November 2024 he said that he never spoke to Mr Camp, but when he gave evidence, he accepted that he had in fact spoken to Mr Camp. Mr Crotty sought to explain this inconsistency by saying that what he had meant in the documents that he had filed was that he had not spoken with Mr Camp about the assault.[82]
3. When Mr Crotty gave evidence at the hearing of the appeal, he said that he told Mr Camp that the neighbours had heard everything that had happened in his flat and that they were going to provide evidence to assist him.[83] In his affidavit, however, Mr Crotty said that he did not have enough time to speak to Mr Camp about calling the neighbours to give evidence on his behalf.[84]
4. When Mr Crotty was asked about this discrepancy, he denied that he had changed his evidence to make Mr Camp look bad but he accepted that his affidavit was inaccurate.[85]
5. When Mr Crotty gave evidence about Mr Camp telling him to lie, he said that he told Mr Camp that he had been drinking, rather than just nodding to indicate that he had, as he said in his affidavit. He said that what he had said in his affidavit was not 'completely accurate'. He asked rhetorically 'does it matter?' if what he had said in his affidavit was not accurate.[86]
6. At best, these discrepancies suggest that Mr Crotty appeared unconcerned about the accuracy of what he said in the affidavits and other materials that he filed with the Court. At worst, they suggest that Mr Crotty's evidence was unreliable.
7. There were two other aspects of Mr Crotty's evidence which (when combined with these discrepancies) caused me to be concerned that his evidence was unreliable.
8. First, it was evident that Mr Crotty had a tendency to exaggerate. Under cross-examination Mr Crotty accepted that an estimate that he gave in his affidavit that he spoke to Mr Camp for 5 - 10 minutes was an 'exaggeration'.[87]
9. Secondly, on Mr Crotty's own evidence he was prepared to lie under oath to advance his case. Mr Crotty said that he lied to the Magistrate about drinking because Mr Camp told him to.[88] He also said that he thought about not telling the Magistrate the truth about what the complainant had done because the Magistrate would not believe him.[89]
10. My concern that Mr Crotty's evidence might be unreliable has caused me to approach his evidence with caution.

1. While Mr Camp struck me as a more forthright witness than Mr Crotty, I still had some concerns about the reliability of his evidence.
2. Each of the affidavits that Mr Camp filed were very brief and did not discuss his interactions with Mr Crotty in any detail. Despite this, there were inconsistencies between the affidavits and the evidence that Mr Camp gave at the hearing of the appeal.
3. In the First Camp Affidavit, Mr Camp said that he spoke to Mr Crotty several times while Mr Crotty was in custody 'whenever he rang him prior to trial'.[90]
4. In the Third Camp Affidavit (made after the Crotty Affidavit had been filed) Mr Camp made no reference to speaking to Mr Crotty when Mr Crotty rang him. Rather, he stated as follows:
   1. I appeared by audio on 17 June 2024 and he was granted bail and he appeared next on 24 June 2024.
   2. I next spoke to the appellant prior to or after the adjournment application was denied on 25 July 2024.
   3. As I have previously deposed, I spoke to the appellant about the allegations, went through the SoMF and photographs against him at the courthouse on the day of trial on 2 August 2024, for about 45 minutes before the trial commenced.
5. At the hearing of the appeal, Mr Camp's evidence was that he only spoke to Mr Crotty twice before the trial.[91] His evidence was that the conversation about the adjournment that he referred to in paragraph 5 of the Third Camp Affidavit took place on the morning of the trial.[92]
6. There were also aspects of Mr Camp's evidence that appeared to be argumentative or evasive.
7. When it was raised with Mr Camp that paragraph 5 of the Third Camp Affidavit suggested that there had been a conversation around 25 July 2024, Mr Camp sought to dispute this. He said that par 5 simply said that the conversation took place 'after' 25 July and 2 August is 'after' 25 July.[93]
8. The impression created by the fact that par 5 of the Third Camp Affidavit referred to a conversation that occurred around the time of the adjournment application was that that conversation involved either Mr Camp obtaining Mr Crotty's instructions to apply for that adjournment, or report to him about the result of the application. It became apparent during cross-examination, however, that Mr Camp did not seek Mr Crotty's instructions to apply for an adjournment.
9. When it was put to Mr Camp that he did not obtain Mr Crotty's instructions to seek the adjournment on 25 July 2024, his initial response was unresponsive. His answer was '[w]ell the application was because I was going away'.[94]
10. In the Second Camp Affidavit, Mr Camp said that his intended travel did not prevent him from reviewing the disclosure.[95]
11. In his affidavit Senior Constable Cooper said that he posted the disclosure to Mr Camp on 28 June 2024.[96] He said that on the morning of the trial Mr Camp said that he could not find the disclosure anywhere and he asked that it be provided again.[97] He also said that after the trial he received an email from Mr Camp in which Mr Camp said that he had misplaced his original disclosure.[98]
12. Mr Camp did not mention this in his affidavit. When he gave evidence at the hearing, it became apparent that Mr Camp did not review the disclosure until the day of the hearing. While it may be the case that Mr Camp's travel did not prevent him from reviewing the disclosure, this seems to be principally because he did not review the disclosure before the first day of trial. This was not explained properly in Mr Camp's affidavit.
13. Ultimately, while I had some concerns about the reliability of some aspects of Mr Camp's evidence, I still generally found him to be a more reliable witness than Mr Crotty.

What Mr Crotty and Mr Camp agreed about, or was uncontroversial

1. Despite my reservations about the evidence given by both Mr Crotty and Mr Camp, I accept that evidence where they agreed, or the evidence appeared otherwise to be uncontroversial. I make the following findings (in [125] to [146] below) on the basis of that evidence.
2. Mr Camp obtained a grant of legal aid on 24 May 2024.[99]
3. After Mr Camp obtained a grant of legal aid Mr Crotty and Mr Camp spoke about applying for bail.[100]
4. They spoke again in early June. Mr Camp had a statement of material facts by then. At that stage Mr Crotty was in prison on remand and did not wish to discuss the details of his case as their conversations would be recorded because he was in custody. Their conversations were brief and only lasted a matter of minutes.[101]
5. Mr Camp understood from those conversations though that Mr Crotty intended to plead not guilty and maintained that the complainant's injuries were self-inflicted.[102]
6. Mr Camp appeared at a bail hearing by telephone on 17 June 2024 and Mr Crotty was granted bail.[103]
7. After Mr Crotty was granted bail, Mr Camp did not speak, or otherwise communicate with Mr Crotty, until the day of the hearing.[104]
8. Mr Camp did not obtain Mr Crotty's instructions or speak to him before applying for an adjournment on 25 July 2024.[105] Mr Camp did not tell Mr Crotty that he had applied for the adjournment until they met on 2 August 2024.[106]
9. After the hearing on 25 July 2024, the prosecutor emailed Mr Camp to ask him which lawyer had assumed the conduct of the case given that the adjournment had been refused. Mr Camp responded that the prosecutor could speak to him about the case. In his email Mr Camp said, amongst other things that: [107]

Given that the victim will be providing evidence, I will attempt to persuade Crotty to plead guilty. If I can do that, we can adjourn the matter for a week for sentencing.

1. Some time prior to 27 June 2024, Senior Constable Cooper sent the prosecution disclosure to a post office box address provided to him by Mr Camp.[108]
2. Mr Camp never received the prosecution disclosure.[109]
3. When Mr Camp arrived at the Bunbury Magistrates Court on 2 August 2024, he asked Senior Constable Cooper for a copy of the prosecution disclosure. Senior Constable Cooper went to the Bunbury Police Station and obtained another copy of the disclosure and provided it to Mr Camp.[110]
4. Mr Crotty and Mr Camp spoke prior to the trial. Mr Camp advised Mr Crotty to plead guilty and Mr Crotty said he did not want to plead guilty because he did not do it.[111]
5. Mr Camp showed Mr Crotty a photograph of the complainant and asked him to explain the injuries shown. This was the first time that Mr Crotty had seen this photograph. Mr Crotty said to Mr Camp that the photograph appeared to be from a date and time different to that the subject of the charges.[112]
6. Mr Crotty said to Mr Camp that he believed that the complainant may have come to his home so she could make an allegation intending to get money for compensation because she had told Mr Crotty a few months previously that she was going to set him up. He also told Mr Camp that she had made a false statement about Mr Crotty assaulting her previously. Mr Camp did not discuss with Mr Crotty that this was just his opinion and he did not need to give evidence about this.[113]
7. Mr Crotty told Mr Camp that the complainant had terrorised their child in the unit who was crying and Mr Crotty thought she was going to hit him. Mr Crotty told Mr Camp that he thought that the complainant did this to provoke him to hit her and that when he did not do so, she started smashing things up. Mr Crotty told Mr Camp that he asked the complainant to stop and threatened to call the police. Again, Mr Camp did not discuss with Mr Crotty that this was just his opinion and he did not need to give evidence about this.[114]
8. Mr Camp told Mr Crotty that he had applied for an adjournment previously and this was refused.[115]
9. Mr Camp did not discuss with Mr Crotty the ramifications of him giving evidence.[116]
10. Mr Camp did not warn Mr Crotty that his opinions about why the complainant might have a motivation to make up a false allegation were irrelevant and that Mr Crotty should not address these in his evidence. Mr Crotty assumed that Mr Camp wanted him to tell the Magistrate this.[117]
11. There was no discussion about the possibility that previous assaults that the complainant claimed had been perpetrated were going to be given in evidence and whether these should be objected to, or what Mr Crotty's explanation would be.[118]
12. There was no discussion about the risk that Mr Crotty might be subjected to having his criminal record disclosed or cross-examined about by police if he gave evidence about these matters.[119]
13. Mr Camp did not take any notes of his conversation with Mr Crotty.[120]
14. Mr Camp did not have any notice that the prosecutor was going to lead evidence of prior family violence between Mr Crotty and the complainant, and it took him by surprise when this was raised. He did not have instructions about these matters.[121]

Additional findings about the matters that were controversial

1. The evidence given by Mr Crotty and Mr Camp conflicted in seven material respects.
2. First, Mr Crotty and Mr Camp disagreed about how long they spoke for.
3. In Mr Crotty's affidavit he said that they spoke for 5 ‑ 10 minutes.[122] When he gave evidence, he said that it could have been 10 - 15 minutes but said it was not as long as 45 minutes.[123]
4. In the Third Camp Affidavit, Mr Camp said that they spoke for 45 minutes.[124] At times when he gave evidence, Mr Camp seemed to accept that they spoke for 30 minutes.[125]
5. I find that Mr Camp and Mr Crotty spoke for 30 minutes. I do not accept Mr Crotty's evidence that they spoke for a shorter amount of time. Mr Crotty accepted that his evidence about how long they spoke was exaggerated.
6. Secondly, although Mr Crotty and Mr Camp both agreed that an adjournment was discussed, they disagreed about precisely what was said about an adjournment.
7. Mr Crotty said that he said to Mr Camp that he wanted more time to prepare his defence and that he wanted an adjournment. He said that Mr Camp responded that he had already tried that and it was not successful.[126] Mr Crotty said that he thought that Mr Camp meant that Mr Camp had asked for an adjournment that morning and had been refused.[127]
8. Mr Camp said that Mr Crotty did not say that he wanted an adjournment,[128] or mention having any witnesses and had not mentioned them previously.[129]
9. I am satisfied that Mr Crotty asked Mr Camp about obtaining an adjournment and I find accordingly.
10. Both Mr Crotty and Mr Camp accepted that an adjournment was discussed. Mr Camp accepted that it was 'quite possible' that he told Mr Crotty that he had already tried to get an adjournment because Mr Crotty had asked him to obtain an adjournment. Mr Camp could not recall precisely how the topic came up.[130] In my view, it seems likely that the topic of an adjournment came up because Mr Crotty raised the topic as he said.
11. Fourthly, they disagreed about whether Mr Crotty told Mr Camp that there were witnesses who would give evidence on his behalf.
12. Mr Camp said that Mr Crotty did not mention having any witnesses and had not mentioned them previously.[131] Mr Camp said that when he went through Mr Crotty's statements with him, he did not say anything about corroborative evidence.[132]
13. As I have mentioned, when Mr Crotty gave evidence, he said that he told Mr Camp that the neighbours had heard everything that had happened in his flat and that they were going to provide evidence.[133] As I have also said, this evidence was inconsistent with what Mr Crotty had said in his affidavit. In his affidavit he said that he did not have time to discuss the witnesses with Mr Camp when they met.[134] Further, in a document that he filed with the Supreme Court earlier, Mr Crotty mentioned another person but made no mention of these neighbours.[135]
14. I prefer Mr Camp's evidence to that of Mr Crotty about whether Mr Crotty told Mr Camp that he had witnesses who would give evidence on his behalf. Mr Crotty's evidence was inconsistent with his own affidavit where he expressly said that this matter was not discussed because they ran out of time.
15. Fifthly, they disagreed about some of the things that were discussed when they met.
16. Mr Crotty said that he did not discuss the contents of the statements that the complainant had given to the police with Mr Camp.[136]
17. In the Second Camp Affidavit, Mr Camp said that he spoke to Mr Crotty about the material facts, statements and photographs.[137] In the Third Camp Affidavit, Mr Camp referred back to the Second Camp Affidavit and said that he spoke to Mr Crotty about the allegations and went through the statement of material facts and photographs.[138]
18. Mr Crotty said that he told Mr Camp that the complainant asked him to go next door and get drugs from his neighbour Ms Priscialla Benelle and when he did not do so, the complainant left the unit to visit Ms Benelle. He said that after a few minutes he heard Ms Benelle screaming 'fuck off or I'll skull-drag you across the road!', following which the complainant returned to the unit and left with their child.[139] He said that Mr Camp told him that he thought that they could win this and Mr Crotty just needed to tell the Magistrate what he had told him.[140]
19. Mr Camp said that there was no mention of Ms Benelle or that the complainant had left the unit or say he just had to tell the court what he had just told him.[141]
20. I prefer Mr Camp's evidence to that of Mr Crotty. As I have indicated, I found Mr Crotty's evidence to be unreliable. It did not strike me as plausible that Mr Camp would have told Mr Crotty that they could win, given the strength of his case and the fact that Mr Camp had already told Mr Crotty to plead guilty. Further, when Mr Camp gave evidence about his discussions with Mr Crotty, he made a number of reasonable concessions about what Mr Crotty told him which I considered added weight to Mr Camp's evidence.
21. Sixthly, they disagreed about whether Mr Camp told Mr Crotty to lie.
22. Mr Crotty said that Mr Camp then asked Mr Crotty whether he had been drinking on the day of the assault and Mr Crotty said that he had been drinking. Mr Crotty said that Mr Camp asked him to lie about that and he nodded.[142]
23. Mr Camp said that he did not tell Mr Crotty to lie or say he just had to tell the court what he had just told him.[143]
24. I prefer Mr Camp's evidence to that of Mr Crotty's about whether Mr Camp told him to lie. It struck me as unlikely that a legal practitioner would so casually tell someone to lie about an apparently peripheral issue. The evidence that Mr Crotty gave at the hearing of the appeal that he had not been drinking, was also inconsistent with the sworn evidence that he gave at the trial.
25. Seventhly, they disagreed about whether Mr Camp fell asleep during the trial.
26. Mr Crotty said that during the trial he noticed that Mr Camp appeared to be sleepy with his eyes half shut and Mr Crotty was not sure he was paying attention.[144]
27. When he gave evidence, Mr Crotty also said that he saw Mr Camp had his eyes shut on a number of occasions.[145] During re-examination Mr Crotty said that he saw Mr Camp jolt himself awake.[146]
28. I do not accept Mr Crotty's evidence that he saw Mr Camp jolt himself awake. He did not mention this in either his affidavit or examination-in-chief. That this was only mentioned for the first time in re‑examination left me with the impression that this was another example of Mr Crotty exaggerating because he thought it would assist his case.
29. The suggestion that Mr Camp might have been asleep drew some support from the evidence given by Senior Constable Cooper who said that at one point Mr Camp had his head down and his eyes closed for about 30 seconds.[147]
30. Mr Camp said that he never showed any sign of sleepiness before, during or after the trial.[148]
31. Ultimately, I am not satisfied that Mr Camp fell asleep, or was sleepy.
32. While I accept Senior Constable Cooper's evidence that he saw Mr Camp shut his eyes, I do not accept that this establishes that Mr Camp fell asleep. People may close their eyes for any number of reasons.
33. While Mr Crotty gave more expansive evidence than Senior Constable Cooper about his observations of Mr Camp, including that he saw Mr Camp jolt himself 'awake', I am sceptical of that evidence. As I have said, I was concerned that this was Mr Crotty exaggerating his evidence.

1. Mr Crotty's Notice of Appeal identified a single ground of appeal as being that the verdict of guilty is unsafe or unsatisfactory in that the appellant did not receive a fair trial and by virtue thereof there was a miscarriage of justice caused by a combination of:

(a) the incompetence of his trial counsel in:

(i) his failure to properly discuss all of the evidence with Mr Crotty before the trial started;

(ii) his failure to advise on or apply for an adjournment on the morning of the trial based on the need to call a defence witness and to discuss the evidence with the appellant;

(iii) his failure to object to the giving of evidence of uncharged conduct or propensity evidence by the complainant without leave of the Court;

(iv) his failure to object to the giving of evidence of a letter of complaint to Police as some basis for corroborating the complainant's version of events;

(v) either his failure to advise Mr Crotty of the risk of giving 'bad character' evidence of the complainant and then leading that evidence from Mr Crotty, or, alternatively his failure to object to the prosecutor questioning Mr Crotty as to the entirety of his criminal record without leave of the Court when evidence had not been given in the trial which ought to have allowed the prosecutor to do so;

(vi) his failure to put critical questions to the complainant about what had happened in Mr Crotty's home at the time of the incident the subject of the allegations and how the injuries might have been sustained;

(vii) his failure to appear before the Court in a condition that enabled him to pay proper regard to the evidence in that he was either sleepy, or, asleep during parts of the trial, and

(viii) failing to seek or obtain disclosure from Police of the evidence to be led at the trial against Mr Crotty, and further, failing to seek an adjournment of the trial, or, to advise Mr Crotty about seeking an adjournment thereof when the prosecutor began to lead evidence of the complainant's previous relationship and alleged 'family violence' between them (which evidence had not been disclosed by Police until the complainant gave her evidence), nor seeking instructions from Mr Crotty about those matters so that he could properly cross-examine the complainant about her evidence, and, not actually cross-examining the complainant on that evidence;

(b) incorrect rulings of law by the Magistrate in:

(i) allowing the giving of evidence of uncharged conduct or 'propensity evidence' by the complainant without leave;

(ii) allowing the letter of complaint to be adduced and then ruling in her reasons for decision that it was corroborative of the complainant's evidence; and

(iii) allowing the prosecutor to cross-examine on Mr Crotty's criminal record when there was no proper basis for doing so.

The applicable legal principles where incompetence of defence counsel is alleged as a ground of appeal

1. In McMahon v The State of Western Australia,[149] McLure P (with whom Buss JA (as he then was) agreed) summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case, as follows:

The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).

1. In Colley v The State of Western Australia,[150] McLure P referred to her reasons in McMahon and said:

The appellant's claims in this case fall within the 'process' category. That is, the appellant claims he was deprived of a fair trial according to law.

As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel. In particular, not all decisions made by counsel contrary to instructions will bind the accused. The point is made clearly by Gleeson CJ in Nudd v The Queen [2006] HCA 9:

A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions [9]. (emphasis added)

For example if, as the appellant says in this case, he instructed trial counsel not to defend the charge on the basis of self-defence because he (the appellant) did not at any stage hit the deceased, to do so would be outside the scope of any implied power in the retainer to make decisions on behalf of the appellant.

Moreover, it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused's instructions as to what had actually occurred. A 'positive defence' includes cross-examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or her client's instructions as to relevant factual matters.

1. In HCF v R[151] the High Court said the following about what will constitute a miscarriage of justice:

Beech-Jones CJ at CL recently provided a convenient summary concerning those errors or irregularities that will amount to a miscarriage of justice in observing that, if the error or irregularity "is properly characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect' then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial", but otherwise there is no miscarriage unless the error or irregularity is "prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict ... or 'realistically [could] have affected the verdict of guilt'... or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial'".

Mr Camp's alleged failure to obtain disclosure before the trial Why Mr Crotty submitted there had been a miscarriage of justice

1. Mr Crotty contended that there was a miscarriage of justice because Mr Camp failed to:

(a) obtain disclosure from the Police of the evidence to be led at the trial against Mr Crotty;

(b) seek an adjournment of the trial, or, to advise Mr Crotty about seeking an adjournment when the prosecutor began to lead evidence of the complainant's previous relationship and alleged 'family violence' between them (which evidence had not been disclosed by Police until the complainant gave her evidence); and

(c) not seeking instructions from Mr Crotty about those matters so that he could properly cross-examine the complainant about her evidence, and not actually cross-examining the complainant on that evidence.[152]

1. At least initially, Mr Crotty seemed to submit that there had been a complete failure to provide disclosure.[153] That submission was not pressed at the hearing of the appeal, however.[154]
2. Mr Crotty submitted that Mr Camp never asked for or received the Police statement, or Police disclosure and therefore would not have been able to discuss it with Mr Crotty before the trial started.[155] This submission was pressed.[156]
3. It was argued that s 61 of the Criminal Procedure Act 2004 (WA) (the Criminal Procedure Act) required the prosecution to serve the disclosure prior to trial.
4. Mr Crotty submitted that Mr Camp ought to have sought disclosure from the Police as soon as he became aware of the trial. It was argued that there was no forensic advantage in him not doing so.[157]
5. Mr Crotty submitted that Mr Camp should have objected to the prosecutor leading the evidence because no disclosure was given and an application for an adjournment could have been made under the Criminal Procedure Act. It was contended that the statement gave a materially different account of the process whereby the complainant's injury was sustained. It was submitted that Mr Camp should have cross-examined about this but failed to do so.[158]
6. Mr Crotty argued that the non-disclosure deprived Mr Crotty of a fair trial and he referred to the judgment of Kirby J in Mallard v The Queen.[159]

1. The Director accepted that the representation that Mr Camp gave Mr Crotty fell below the standard of adequate practice.[160]
2. The Director acknowledged that if there was a proper evidential basis for doing so, Mr Camp could have cross-examined the complainant about the truth of the allegations. He submitted that cross‑examination about the falsity of the evidence absent material to support the cross-examination might simply have elicited further evidence from the complainant that the allegations were true.[161]
3. The Director accepted that Mr Crotty could have applied for an adjournment and taken the opportunity to call evidence to rebut the evidence of the prior violence. The Director noted that the was no evidence (including on the appeal) that revealed that Mr Crotty had any meaningful rebuttal evidence (other than his own evidence) that he was denied the opportunity of leading. It was noted that Mr Crotty had the opportunity to give his own evidence that he had not been violent to women when he gave evidence.[162]
4. The Director submitted that Mr Crotty had failed to identify something compelling to show that there had been a material irregularity at the trial.[163]

1. I am not satisfied that the prosecution's failure to disclose that they would lead evidence of the history of family violence was a failure to observe the requirements of the criminal process in a fundamental respect.
2. It was open to Mr Camp to object to the evidence (although, as I indicate below, I consider it was admissible) and to seek an adjournment to permit him to seek instructions. It seems likely to me that at least a brief adjournment would have been granted if one had been requested. Given the limited scope of the evidence in question, a brief adjournment would have been sufficient for counsel to obtain the necessary instructions. There is no evidence that reveals that there was any rebuttal evidence (in addition to the oral evidence that Mr Crotty gave) that could have been led if disclosure was given.
3. I am satisfied that Mr Camp's failure to object and seek an adjournment to permit him to obtain instructions was irregular. As Mr Camp did not have any notice that the relevant evidence would be led, he did not already have instructions about that evidence. An adjournment was necessary to allow him to seek instructions. It is not apparent to me how the failure to obtain such instructions concerned any forensic decision upon which competent counsel might have different views. The Director did not submit that it did.
4. The question which then arises is whether Mr Camp's failure to seek an adjournment realistically could have affected the verdict of guilt, had the capacity for practical injustice, or was capable of affecting the result of the trial. In my view, the failure to seek an adjournment and obtain instructions could not, and was not.
5. This is because, as the Director submitted, the evidence on the appeal did not reveal a realistic possibility that if the adjournment had been obtained, Mr Crotty would have been in a position to lead any different evidence to that which was led in trial. Mr Crotty gave evidence disputing the allegations made by the complainant. There is nothing before me which suggests that Mr Crotty would have been able to provide Mr Camp with instructions that would have resulted in a more effective cross-examination of the complainant. I will return to Mr Camp's cross-examination of the complainant below.

Mr Camp's meeting with Mr Crotty before the trial and the advice given Why Mr Crotty submitted there had been a miscarriage of justice

1. Mr Crotty contended that there was a miscarriage of justice because Mr Camp failed to:

(a) properly discuss all of the evidence with him before the trial started;[164] and

(b) advise upon or apply for an adjournment on the morning of the trial based on the need to call at least one defence witness and to discuss the evidence with Mr Crotty.[165]

1. Mr Crotty submitted that Mr Camp failed to properly interview Mr Crotty prior to the trial so that he was aware of all of the allegations and failed to advise upon or apply for an adjournment. It was argued that as a result there were two witnesses who were not called to give evidence for the defence who had been at the unit at the time of the alleged offending. It was contended that this meant that plainly relevant and corroborative evidence was not adduced and there was no rational forensic basis to make this decision.[166]
2. Mr Crotty submitted that Mr Camp's failure to discuss the evidence with Mr Crotty prior to the trial meant that Mr Camp was unaware at the start of the trial of the evidence of 'uncharged conduct' or 'relationship evidence'. It was contended that this meant that Mr Crotty was therefore unable to give any proper instructions to Mr Camp about disputing those claims.[167]

1. The Director relied on Mr Camp's evidence that Mr Crotty never mentioned potential witnesses or corroborative evidence or asked for an adjournment.[168]
2. The Director submitted that an insurmountable difficulty for Mr Crotty was that he had not provided any evidence from the alleged witnesses or filed any corroborative documentary evidence. It was argued that Mr Crotty's evidence that the witnesses existed and about what they would say is hearsay. It was argued that there was no credible basis for the Court to conclude that there had been a miscarriage of justice.[169]

1. I am not satisfied that the matters raised by Mr Crotty can properly be characterised as a failure to observe the requirements of the criminal process in a fundamental respect.
2. There is no dispute that Mr Camp interviewed Mr Crotty and received instructions from him. Mr Crotty's complaint about the length of the interview assumed that the brevity of the interview meant that material matters were not addressed. His submissions identified two material matters.
3. First, Mr Crotty seems to suggest that the inadequacy of the interview meant that Mr Camp did not have instructions about Mr Crotty's history of family violence. As I have already discussed, however, while it is true that Mr Camp did not have those instructions, this was because Mr Camp had no notice that the prosecutor was proposing to lead this evidence.[170] I am not satisfied that Mr Camp lacked instructions because the interview was inadequate, or he had failed to properly obtain instructions.
4. Nor am I satisfied that Mr Camp failed to advise Mr Crotty to seek an adjournment because of the inadequacy of the interview, or his failure to obtain instructions.
5. Mr Crotty's submissions assume that the reason that Mr Camp did not advise him to seek an adjournment was because Mr Camp was unaware that he had two witnesses who could give evidence on his behalf. While I am satisfied that Mr Camp was unaware of any such witnesses, I am not satisfied that this unawareness was because of the length of the meeting, or his failure to properly obtain instructions.
6. On Mr Crotty's own evidence, he had sufficient time to provide Mr Camp with instructions about a number of matters. I do not consider it plausible that Mr Crotty had the time to provide instructions about those matters but insufficient time to instruct Mr Camp about two supportive witnesses.
7. Further, there could be no significant possibility that the failure to advise about an adjournment could have affected the outcome of the trial, unless the witnesses' evidence was supportive as Mr Crotty asserted. No evidence has been provided from the witnesses themselves about what they might say. I am not prepared to accept Mr Crotty's evidence about what they might say, because it is hearsay and I have found Mr Crotty's evidence to be unreliable in material respects.
8. None of this is to suggest that I consider that Mr Camp prepared for the trial with an adequate level of diligence. Mr Camp did not review the prosecution brief at all until the morning of trial. While he might have had some limited instructions from his brief conversations with Mr Crotty, Mr Camp's first proper interview with Mr Crotty was on the morning of the trial. This lasted 30 minutes and Mr Camp may have been reviewing the brief at the same time that he interviewed Mr Crotty. He took no notes.

Whether the Magistrate wrongly permitted the giving of uncharged conduct or propensity evidence Why Mr Crotty submitted there had been a miscarriage of justice

1. Mr Crotty contended that the Magistrate allowed the giving of uncharged conduct or propensity evidence by the complainant without leave.[171]
2. I understand that the particular evidence that Mr Crotty maintained was evidence of uncharged conduct or propensity evidence, was the evidence that the complainant gave of being subjected to family violence by Mr Crotty in the past.
3. Mr Crotty referred to the prosecutor's closing where he said that the evidence was relevant under s 39A of the Evidence Act and invited the Magistrate to consider directing herself in the terms of s 39G of the Evidence Act. It was submitted that it was not clear that evidence of family violence was relevant to a fact in issue as required by s 39A and therefore the evidence should not have been allowed.[172]
4. Mr Crotty referred to the Court of Appeal's decision in CDO v The State of Western Australia[173] and noted that in that case the Court of Appeal commented that the provisions seemed to be a legislative response to the Court of Appeal's decision in Liyanage v The State of Western Australia.[174] It was submitted that Liyanage involved self‑defence and that self-defence was not an issue in Mr Crotty's case.[175]
5. Mr Crotty submitted that family violence was not a fact in issue. It was argued that, for example, it would not have been necessary to prove 'family violence' in proving the assault, breach of protective bail condition or breach of the previous violence restraining order. It was argued that there was no scope for the evidence to be admitted pursuant to s 39A.[176]
6. Mr Crotty referred to the fact that the prosecutor referred to family violence being relevant under s 39A of the Evidence Act but described the reference made by the prosecutor as oblique. He argued that the prosecutor should have explained the probative value of this evidence but failed to do so.[177]
7. Mr Crotty disputed any suggestion that the evidence of family violence could be admissible as relevant 'context' evidence. He argued that the evidence invited propensity reasoning and was only relevant as the basis for an assertion that Mr Crotty was the type of person who might have engaged in similar conduct on other occasions and was more likely to act as charged. He submitted that none of this was considered by the Magistrate because Mr Camp failed to challenge the admissibility of the evidence.[178]
8. Mr Crotty submitted that many of the cases which address relationship evidence apply those provisions to cases involving sexual misconduct. He contended that these authorities should be approached with some caution. Mr Crotty referred to the decision in HTN v The State of Western Australia [No 2][179] where the Court of Appeal observed that to merely describe evidence as providing context is unhelpfully general and vague. He contended that it is necessary to precisely identify for the trier of fact how they may use the evidence and the prosecutor failed to do that.[180]
9. It was submitted that where evidence is admitted for the limited purpose of providing context, there is a risk that the trier of fact may otherwise apply propensity reasoning. It was contended that a direction is required to guard against this risk to avoid a miscarriage of justice. Reference was made to the decision of the Court of Appeal in JEL v The State of Western Australia.[181] It was submitted that this is particularly so when the prosecutor invites the use of propensity reasoning and it was contended that this is what the prosecutor did.[182]
10. Mr Crotty submitted that if the evidence was properly admitted, then the Magistrate failed to properly direct herself about the use that she could make of the evidence. Relying on the Court of Appeal's decision in LNN v The State of Western Australia,[183] it was argued that the Magistrate was obliged to direct herself that she:

(a) must not reason on the basis of uncharged acts that the accused was the kind of person who was likely to have committed the charged offences;

(b) must not take the evidence of the uncharged acts into account in deciding whether the state had proved beyond reasonable doubt that the accused had committed any of the specific offences charged; and

(c) must not use the evidence for a purpose for which it was inadmissible or irrelevant.[184]

1. The Director submitted that s 39A of the Evidence Act was expressly relied upon by the prosecution and the Magistrate. The Director argued that the complainant's evidence of previous instances of violence fell within the definition of family violence and was clearly relevant to a fact in issue. Reference was made to the Court of Appeal's decision in CDO v The State of Western Australia.[185]
2. The Director submitted that the evidence led was admissible pursuant to both s 31A and s 39A of the Evidence Act. He submitted that the evidence of previous violence committed by Mr Crotty was relevant to enable the Magistrate to properly assess the complainant's credibility and in particular to rebut the suggestion that an out-of-the-blue assault was implausible or unlikely.[186]
3. The Director submitted that the previous assaults committed against the complainant's by the appellant plainly fell within the definition of 'relationship evidence' in s 31A(1) of the Evidence Act. He argued that it was evidence which, if accepted, could rationally and logically affect the Magistrate's assessment of the probability of a fact in issue being, whether it was Mr Crotty who assaulted the complainant. It was contended that the probative value of the evidence clearly outweighed any risk of unfair prejudice.[187] Reference was made to the Court of Appeal's decision in Kennedy v The State of Western Australia.[188]
4. Further, the Director submitted that the evidence was also admissible as context evidence that revealed the dynamic and nature of the relationship between the complainant and Mr Crotty. It was argued that the circumstances of the case before the Magistrate were analogous to those in Roach v The Queen.[189]

1. On my reading of the transcript, the prosecutor did not invite the Magistrate to rely upon the evidence of family violence to engage in propensity reasoning. In closing, the prosecutor submitted that the evidence was admissible under s 39A of the Evidence Act. He made the following submissions:[190]

Family violence is relevant in this case, under section 39A of the Evidence Act and, as a consequence of that, the victim advises of previous family violence incidences, some reported, some not reported. I would refer your Honour to section 39F which - about a direction in regard to - sorry, 39G in regard to family violence, the application of it. And also section 39E and F, which talks about procedures and why people report and don't report family violence.

There seems to be quite a significant history of family violence between the accused and the victim. I would be saying that the amount of times that - no, I won't go into that, your Honour. What I will say is that the victim has attended this home, seeking assistance from the accused, as she said. Her evidence was truthful. I don't think she was challenged about her credibility, although we did venture down that path. [The complainant] has not used family violence to get out of charges and that's shown by where she's currently residing.

(emphasis added).

1. It is not entirely clear what the prosecutor decided not to 'go into' but one possibility is that the prosecutor considered submitting that the history of family violence was relationship or propensity evidence probative of the prosecution case. In any event, he made no such submission. Rather, his submissions were limited to submitting that the complainant had not used allegations of family violence to get out of charges (as had been suggested by Mr Crotty).
2. Nor do I consider that the Magistrate engaged in propensity reasoning (without being invited to). The Magistrate referred to the history of family violence in her reasons concerning her assessment of the prosecution case and the complainant's evidence. It is useful to consider precisely what the Magistrate said. She said the following:[191]

Firstly, I want to say something about the evidence that was led by Ms Kuhn, and it was brought into play in cross-examination of Mr Crotty, and that is the evidence of family violence.

There have been recent amendments to the Evidence Act and the State relied on section 39A - sorry, section 39F, G, and - I can't recall the third section, but effectively the provisions which speak to the manner in which victims of domestic violence, or of family violence may very well behave in circumstances when they're met with violence, and it's something that the court has to take into account, and I need to direct myself on.

Of relevance in this case, I do take into account that people may react differently to family violence, and there's no typical, proper or normal response to family violence. It's not uncommon for a person, who has been subjected to family violence, to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner. It's not uncommon for a person, who has been subjected to family violence, not to report family violence to police, or seek assistance to stop family violence.

And decisions made by a person, subjected to family violence, about how to address, respond to, or avoid family violence may be influenced by a variety of factors. It's not uncommon for a decision to leave an abusive partner, or to seek assistance, to increase apprehension about, or the actual risk of harm.

I'm now moving to the evidence given by the complainant. She gave evidence, as I said, that she had been a victim of family violence throughout her relationship with Mr Crotty, the accused. I do find that the evidence she gave - I accept the evidence that she gave. I find that she gave evidence in a forthright manner.

1. In the paragraph of the Magistrate's reasons which commences '[o]f relevance to this case' and the following paragraph, the matters that the Magistrate indicated that she took into account, are the matters identified in s 39F(1)(b) of the Evidence Act.
2. Thus, it seems that the Magistrate gave herself the directions that she was invited to give herself by the prosecutor. The prosecutor referred to s 39G. That section provides that in a Court sitting without a jury, the Court's reasoning with respect to any matter in relation to which s 39F makes provision must, to such extent as the Court thinks fit, be consistent with how a jury would be directed.
3. Having given herself those directions, the Magistrate made a finding that the complainant had been a victim of family violence throughout her relationship with Mr Crotty. While the relevance of this finding was not clearly explained, it may have been intended to indicate acceptance of the prosecutor's submission that the complainant's credibility should not be diminished by an acceptance of Mr Crotty's claims that she had previously used family violence to 'get out of charges'.
4. Significantly, having made the finding that the Magistrate did, her Honour did not then proceed to reason that the fact that the complainant had been the victim of family violence established that Mr Crotty had a particular tendency or attitude towards the complainant that was probative of the prosecution case. In other words, her Honour's reasons do not indicate that she engaged in any propensity reasoning.
5. Given that the Magistrate did not engage in any propensity reasoning, even if it might have been preferrable for her to give herself a direction of the type discussed by the Court of Appeal in LNN v The State of Western Australia,[192] it is not apparent to me that her failure to do so resulted in a miscarriage of justice.
6. Further, I do not accept Mr Crotty's submission that the evidence of family violence was irrelevant to a fact in issue such that s 39A could have no application.[193]
7. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue at the trial. Evidence is directly relevant if acceptance of the evidence is, in itself, capable of affecting the fact finder's assessment of the probability of the existence of a fact in issue. Evidence may be indirectly relevant in that it assists in the evaluation of other evidence.[194] In HML v The Queen, Gleeson CJ observed:[195]

Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative.

1. Whether the assault alleged occurred was a fact in issue in the trial. The evidence of previous acts of family violence was indirectly relevant to that issue because it assisted the assessment of the complainant's evidence. In Roach v The Queen[196] French CJ, Hayne, Crennan and Keifel JJ explained the relevancy of such evidence in that case in the following way:

Here the complainant gave direct evidence both of the alleged offence and of the "relationship" evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury could rationally affect, indirectly, the assessment of the probability of the existence of a fact in issue - whether the alleged assault occurred.

1. In my view, the evidence of previous acts of family violence was relevant for the same purpose in this case. That evidence was admissible both at common law and under s 39A of the Evidence Act. As Mazza and Mitchell JJA observed in CDO v The State of Western Australia,[197] it may be that s 39A of the Evidence Act may only have a limited effect in expanding the evidence that would be admissible at common law.

Whether the Magistrate wrongly permitted a prior consistent statement to be adduced Why Mr Crotty submitted there had been a miscarriage of justice

1. Mr Crotty submits that there has been a miscarriage of justice because the Magistrate allowed the letter of complaint to be adduced by the complainant and found that it was corroborative of the complainant's evidence.[198]
2. Mr Crotty submitted that the letter was irrelevant to any matter in issue and was an inadmissible prior consistent statement.[199]

1. The Director accepted that it was doubtful that the letter was admissible but submitted that the admission of the letter did not constitute a material error.[200]
2. The Director submitted that the information concerning the assault in the letter was minimal and it simply stated that the complainant had been assaulted by Mr Crotty on the night before the complainant was arrested. It was argued that the letter had no more corroborating impact than if the complainant had simply said in her evidence, 'I then reported the assault to the police'. It was argued that the risk that the statement might have the impermissible effect of bolstering the witness's evidence by self-corroboration, was negligible in the circumstances of this case.[201]
3. The Director submitted that the Magistrate's reference to the letter related to Mr Camp's cross-examination of the complainant about the absence of details in the letter. It was argued that the Magistrate did not rely on the letter to add weight to the complainant's evidence.[202]

1. When the prosecutor tendered the letter, he did not explain its probative value. The Magistrate asked Mr Camp whether he had any objection to the tender of the letter and he indicated that he did not.[203]
2. When Mr Camp cross-examined the complainant, that cross‑examination included cross-examination about details of the complainant's evidence that were not mentioned in the letter.[204] Mr Camp closed on the basis that the letter was a prior inconsistent statement.[205]
3. In Suresh v The Queen[206] Gaurdon and Gummow JJ observed that where evidence is admitted without objection and relied upon by the defence as a prior inconsistent statement, it is by no means clear that such evidence is inadmissible. They also observed that where a statement is relied upon by the defence as a prior inconsistent statement, the receipt of such evidence cannot be said to have deprived the accused of a chance of acquittal that was fairly open. It seems to me that such reasoning applies in this case.
4. Further and in any event, Mr Crotty's argument was founded on a submission that the Magistrate reasoned that the letter was corroborative of the complainant's evidence. Although the prosecutor closed on the basis that the letter was a prior consistent statement,[207] on my reading of the transcript, the Magistrate did not reason that the letter bolstered the complainant's credibility. Her Honour's reasons were limited to rejecting Mr Camp's argument that the letter was a prior inconsistent statement. She said (referring to the complainant's evidence):[208]

She wasn't dissuaded from her account in cross-examination. The letter she wrote refers to an assault which is not inconsistent, in my view, with the evidence she gave in court today. In her response, she said that she simply was alerting police to the fact there had been an assault, and she intended on providing a more fulsome account in a statement, which it's established that she did. That letter is admissible, in my view, as it was made contemporaneously to the incident.

(emphasis added).

1. Therefore, even if the receipt of the letter did involve some irregularity, I am not persuaded that the receipt of the letter affected the outcome of the trial in the manner that Mr Crotty contended.

Mr Camp's failure to object to evidence of a history of family violence and the letter Why Mr Crotty submitted there had been a miscarriage of justice

1. Mr Crotty contended that there was a miscarriage of justice because Mr Camp failed to object to the giving of evidence of uncharged conduct or propensity evidence by the complainant, and the letter of complaint to Police, [209] without leave of the Court.[210]
2. Mr Crotty submitted that Mr Camp should have objected to evidence being given about uncharged conduct or relationship evidence without leave and in the letter. In relation to the letter, it was argued that it was an inadmissible prior consistent statement. It was contended that the Magistrate relied on both the uncharged conduct or relationship evidence and the letter to reach the conclusion that she did.[211]
3. Mr Crotty submitted that there was no forensic benefit in Mr Camp failing to object to the complainant's evidence about domestic violence. It was argued that the Magistrate should have at least ruled on the admissibility of the evidence. It was contended that the case did not fall within the principle in Suresh.[212]
4. Mr Crotty submitted that the evidence of prior domestic violence was central to the findings on credibility.[213]

1. The Director submitted that where the admission of evidence is at issue, a miscarriage will only be demonstrated where the evidence was wrongly admitted and created a real risk that the outcome of trial was affected. The Director submitted that the evidence in this case was admissible.[214]

1. In RWN v The State of Western Australia,[215] Dalton AJA observed that a failure to object to evidence does not constitute a failure to observe the requirements of the criminal process in a fundamental respect. With respect, I agree.
2. It is necessary to consider whether Mr Camp's failure to object could have affected the verdict of guilt, had the capacity for practical injustice, or was capable of affecting the result of the trial.
3. I have already indicated that it might have been expected that counsel in Mr Camp's position would have objected to the evidence of the history of family violence because of the lack of disclosure and the need to obtain instructions.
4. Even though this evidence was admissible, an objection to its admissibility would have assisted to clarify its probative value, as it would have required the prosecutor to properly explain that probative value. Whether to take such an objection involves a matter of forensic judgment about which competent counsel might differ.
5. I am not satisfied that any failure to object to the evidence plainly affected the result of the trial. Mr Crotty's submissions that the receipt of the evidence affected the result of the trial were premised on an assumption that the Magistrate engaged in propensity reasoning based on the evidence. As I have already indicated, I do not consider that the Magistrate engaged in such reasoning.
6. I also consider that whether or not to object to the admission of the complaint letter involved a matter of forensic judgment about which competent counsel might differ. As I have already said, Mr Camp made the forensic judgment to rely upon the letter as a prior inconsistent statement. Mr Crotty has not persuaded me that Mr Camp's decision was an error of judgment.
7. To have any prospect of defending the charge Mr Camp needed some rational basis to submit to the Magistrate in closing that Mr Crotty's evidence should be preferred over that of the complainant. That the complainant had made a prior inconsistent statement was a rational basis to argue that Mr Crotty's evidence should be preferred. While Mr Camp's argument that the letter was a prior inconsistent statement was weak and rejected by the Magistrate, Mr Crotty's case generally was weak. This is no doubt why Mr Camp advised Mr Crotty to plead guilty but Mr Crotty declined to follow that advice (as he was entitled to do) and elected to plead not guilty.
8. Further, given my view that the Magistrate did not rely upon the letter to bolster the complainant's credibility (as Mr Crotty contended), I am not satisfied that the receipt of the letter plainly affected the result of the trial.

Mr Camp's cross-examination of the complainant Why Mr Crotty submitted there had been a miscarriage of justice

1. Mr Crotty contended that there was a miscarriage of justice because Mr Camp failed to put critical questions to the complainant about what had happened in the appellant's home at the time of the incident the subject of the allegations and how the injuries might have been sustained.[216]
2. Mr Crotty submitted that Mr Camp did not put to the complainant in cross-examination that:

(a) Mr Crotty had not seen her earlier in the day and asked her to come to his house;

(b) that she had woken the baby and tormented the baby during the time she was in the unit;

(c) she had asked for help and been offered it by Mr Crotty;

(d) that she had smashed glass within the appellant's unit when she became angry with him;

(e) that she had told Mr Crotty not to call the police and threatened to make it look like he had smashed up the unit if he did;

(f) had threatened to hurt the baby; and

(g) she had begun hitting herself whilst still in the unit.[217]

1. Mr Crotty submitted that Mr Camp did not Brown v Dunn the complainant about the 'most important and central issues' in the trial.[218]
2. Mr Crotty submitted that the failure of Mr Camp to cross-examine the complainant about a number of aspects of her evidence clearly lead the Magistrate to make adverse credibility findings against Mr Crotty. It was argued that such a failure was fundamental to Mr Camp's role as a lawyer and so could not have been based on sound forensic decisions.[219]

1. The Director referred to the decision of Loh v The State of Western Australia [No 2][220] and submitted that the questions that should be put to a witness in the course of cross-examination are a matter within the remit of defence counsel. It was argued that it is insufficient for Mr Crotty to point out how trial counsel may have more effectively cross-examined the complainant. The Director contended that it is inappropriate for this court to dissect trial counsel's cross‑examination.[221]
2. With regard to the various matters that Mr Crotty said that Mr Camp did not put to the complainant, the Director submitted that:

(a) it was not clear why it was crucial for it to be put to the complainant that she did not see the appellant earlier in the day;[222]

(b) it was put to the complainant that she woke the couple's sleeping child while at Mr Crotty's house;[223]

(c) it did not need to be put to her that she had asked for help from the appellant and been offered it, because she gave evidence to this effect in her evidence in chief;[224]

(d) it was put to the complainant that she had made a loud banging motion while at Mr Crotty's house;[225] and

(e) it was put to the complainant that she had planned everything on the day in question in order to give the impression the appellant had assaulted her, and in order to get the appellant into trouble.[226]

1. The Director accepted that the specific actions that Mr Crotty said that the complainant took to inflict injuries on herself, damage his property and goad him into hitting her were not put to the complainant by Mr Camp, but it was argued that they did not necessarily need to be. It was submitted that the matter of significance that needed to be put to the complainant was that her injuries were self‑inflicted and this was put to her.[227]
2. The Director submitted that Mr Crotty has failed to identify any prejudice flowing from the asserted failure to comply with the rule in Brown v Dunn. It was argued that although the Magistrate commented that counsel had not put two specific motivations for making a false complaint to the complainant (to get a more lenient sentence and/or to get compensation), no adverse comment was made in respect of the fundamental assertion in the defence case - that the complainant injured herself in order to get the appellant into trouble.[228]

1. Mr Crotty's submissions identified seven matters that it said were needed to be put to the complainant, which it was alleged were not put but were issues of central importance.
2. These matters included that Mr Camp did not put to the complainant that she had woken the baby and tormented the baby during the time she was in the unit. Although Mr Camp accepted in cross-examination that this was not put,[229] he did put to the complainant that she woke the baby with a loud bang.[230]
3. The matters also included that Mr Camp did not put to the complainant that she had asked for help and been offered it by Mr Crotty. This was uncontentious, however, because the complainant said as much in her evidence in chief.[231]
4. The matters that Mr Crotty said were not put by Mr Camp in cross-examination were otherwise not put.
5. The Magistrate's reasons do not reveal that her Honour attached any particular significance to the failure to put the matters relied upon. Her Honours reasons do not mention the failure to put those matters at all.
6. Although the Magistrate's reasons refer to Mr Camp's failure to comply with the rule in Browne v Dunn, that observation related to the fact that although when Mr Crotty gave evidence he said that the complainant had three motives to lie: to get a more lenient sentence, to get him into trouble and to get compensation, only one of those motives was put to the complainant: that she made up the allegations to get Mr Crotty into trouble. The Magistrate said that the rule in Browne v Dunn meant that as it was not put to the complainant that she fabricated her evidence to obtain a more lenient sentence and to get compensation, those allegations did not carry much weight.[232]
7. Mr Crotty's submissions did not rely upon the failure of Mr Camp to put these two additional motivations to the complainant, however. Five observations may be made about the significance of Mr Camp's failure to do so.
8. First, there is no evidence that Mr Crotty ever told Mr Camp that the complainant had made up the allegations to get a more lenient sentence. In such circumstances, it would not have been possible for Mr Camp to anticipate the need to put this to the complainant and there would have been no proper basis for him to do so.
9. Secondly, Mr Camp did put to the complainant she had a motivation to fabricate her evidence, namely 'to get him into trouble'. Thus, even if Mr Camp did not also put to her that she fabricated her evidence to obtain compensation, the case was not presented on the basis that the complainant had no motive to fabricate evidence.
10. Thirdly, the assertion that the complainant fabricated her evidence to get Mr Crotty into trouble was not far removed from the assertion that she had done so to get compensation.
11. Fourthly, there was no greater evidence to establish that the complainant fabricated her evidence to get Mr Crotty into trouble, than there was to establish that she had done so to get compensation. The only evidence to establish both assertions was Mr Crotty's word.
12. Fifthly, the Magistrate only concluded that Mr Crotty's allegations that the complainant was motivated by these additional motives were of little weight. Her Honour did not then proceed to reason that Mr Crotty was a less credible witness because these two additional motivations were not put to the complainant.
13. Given all of these matters, I do not consider that the cross‑examination performed by Mr Camp, even if it involved an error, plainly affected the outcome of the trial.

The admission of the bad character evidence Why Mr Crotty submitted there had been a miscarriage of justice

1. Mr Crotty contended that there was a miscarriage of justice because Mr Camp failed to:

(a) advise Mr Crotty about the risk of giving bad character evidence of the complainant and then leading that evidence from him; or

(b) alternatively, object to the prosecutor questioning Mr Crotty about the entirety of his criminal record without leave of the Court when evidence had not been given in the trial which ought to have allowed the prosecutor to do so.[233]

1. Mr Crotty also argued that there was a miscarriage of justice because the Magistrate allowed the prosecutor to cross-examine Mr Crotty about his criminal record when there was no proper basis for him doing so.[234]
2. Mr Crotty submitted that much of the evidence about Mr Crotty's character was given in answer to propositions put in evidence in chief by the complainant or in questioning by the prosecutor. It was argued that it was not Mr Crotty who actively sought to give character evidence but rather he was forced to give his own account to respond to the evidence given. It was contended that suggesting that a witness was lying when it was based on a proper foundation, for example, that the complainant wanted to build a claim for compensation does not put character in issue.[235]
3. Mr Crotty submitted that Mr Camp did not warn him about the consequences of leading bad character evidence as part of the defence. Mr Crotty referred to the warning that the Magistrate gave to Mr Camp and submitted that he persisted in leading the evidence despite that warning.[236]
4. It was contended that the prosecutor impermissibly cross‑examined Mr Crotty about his prior convictions and Mr Camp did not object.[237]
5. Mr Crotty argued that the paucity of reasons given by the Magistrate meant that it is not known how all of the evidence was dealt with but it was argued that given the findings of lack of credibility based in part on the criminal record, dishonesty offences and prior breaches of family violence restraining orders, the evidence that should have been objected to was central to the Magistrate's findings.[238]
6. Mr Crotty referred to the decision of the Court of Appeal in Sethi v The State of Western Australia[239] and submitted that if a failure to give proper advice about the giving of evidence can lead to a miscarriage of justice, then by the same logic a miscarriage of justice can arise where a lawyer both fails to give advice regarding the risks of leading character evidence and is responsible for leading that evidence from the accused.[240]

1. The Director submitted that given that Mr Crotty wished to plead not guilty, it was inevitable that he would need to give evidence. It was argued that Mr Crotty's evidence that the complainant inflicted serious facial injuries on herself in order to get him into trouble inherently involved impugning the complainant's character so that s 8(1)(e) of the Evidence Act was engaged.[241]
2. The Director submitted that Mr Crotty's account would have been even more incredulous without any contextual or descriptive information about the complainant and her conduct during their relationship. It was argued that the evidence Mr Crotty gave about the complainant's allegedly bad character responded to relationship evidence concerning prior domestic violence, that was properly led at trial.[242]

1. Section 8(1)(e)(ii) of the Evidence Act provides that:

a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless -

...

(ii) he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or a person who died as a result of the offence wherewith he is then charged...

1. In Dawson v R[243] Dixon CJ made the following observation about when the defence is such as to involve imputations on the character of a witness for the prosecution:[244]

...when you stop to consider the significance of the hypothesis demanded by the words "when the nature or conduct of the defence is such as to involve imputations on the character of the witnesses for the prosecution" it becomes plain at once that what is referred to is not a denial of the case for the Crown, not a denial of evidence by which it is supported, but the use of matter which will have a particular or specific tendency to destroy, impair or reflect upon the character of the prosecutor or witnesses called for the prosecution, quite independently of the possibility that such matter, were it true, would in itself provide a defence. The phrase assumes that a denial of the case for the prosecution, although the evidence of the prosecution is necessarily contradicted, does not carry with it an imputation of the kind to which the provision refers. Further the word "involves" refers to what is a part of the defence or, at all events, an element or ingredient in the defence or what arises from the manner in which the defence is conducted. It is not meant to cover inferences, logical implications or consequential deductions which may spell imputations against the character of witnesses. It appears to me that upon reading par. (e) (ii) it is clear enough that it is dealing with something outside the denial of the truth of the Crown case and of the evidence by which it is supported.

(emphasis added)

1. Even where s 8(1)(e)(ii) is engaged, the judicial officer retains a discretion to preclude cross-examination.[245]
2. In Phillips v The Queen[246] Mason, Wilson, Brennan and Dawson J identified the first four of the following considerations as a 'valuable guide', and the fifth as a consideration 'to be weighed in the scales when considering the exercise of the discretion':[247]

(a) the legislation is not intended to make the introduction of an accused's previous convictions other than exceptional;

(b) the prejudicial effect on the defence of questions relating to the accused's criminal record needs to be weighed against such damage as the trial judge might think had been done to the Crown case by the imputations;

(c) on the issue of credibility it might be unfair to the Crown to leave the Crown witnesses under an imputation while preventing the Crown from bringing out the accused's record;

(d) the actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit;

(e) the fact that an accused, in making imputations against the prosecution witnesses, is not doing anything more than presenting his defence, should tend against allowing cross-examination as to previous convictions. But if the accused makes quite gratuitous imputations that are not necessarily involved in the proper conduct of the defence, the court will be more ready to exercise its discretion in favour of the Crown.

1. I do not accept the prosecution's submission that Mr Crotty's evidence that the complainant inflicted serious facial injuries on herself in order to get him into trouble inherently involved impugning the complainant's character so that s 8(1)(e) of the Evidence Act was engaged. While Mr Crotty's evidence might have implied that the complainant was not telling the truth, this was merely a denial of the prosecution case that was insufficient to engage the section.
2. It might be the case, as Mr Crotty argued, that contending that the complainant wanted to build a claim for compensation would also be insufficient to engage the section.[248] It is important to appreciate, however, that the defence case extended well beyond this and involved a broad attack on the complainant's character.
3. During Mr Crotty's examination-in-chief after he gave his account of what happened when the complainant visited his house, Mr Camp asked him whether he had been reported by the complainant to the police for violence. The following exchange occurred:[249]

Were you ever reported to the police, by her, for violence?---Yes. When she done the armed robbery, she went to the local drug dealer's place in Manjimup, Daryl - that's what I say, his name was Daryl, she smashed up the front of his house, his car. Tried to rip out his beard. He smacked her around a bit. Then she's gone and done her little gig with a - holding someone up with a wine bottle at the ATM. And she has tried to use domestic violence there as a scapegoat, saying "I was under duress", I guess, you know, that kind of thing.

1. When Mr Camp asked his next question, the Magistrate intervened and said to Mr Camp that she considered that he was bringing character into question and this meant that the Police can go into 'her criminal record if she's got convictions against her'.[250] It seems to me evident that the Magistrate's reference to 'her' was actually a reference to Mr Crotty.
2. Mr Camp indicated that he understood and continued questioning Mr Crotty. Mr Crotty then said that the complainant and he had been violent towards each other (suggesting that the complainant had been violent).[251]
3. Mr Crotty said that the complainant took meth and drank when she was pregnant.[252]
4. Mr Crotty said that the complainant 'runs amok' and referred to when she had broken into a clubhouse and had her hands broken and her face kicked in. He denied ever being violent towards her.[253]
5. Mr Crotty said that the complainant had rung up the prison using a false name to try to get him charged. He said that she had used violence restraining orders for her own malice.[254]
6. In my view, the evidence given by Mr Crotty had a tendency to destroy, impair or reflect on the character of the complainant. The allegations made, even if true, would not have provided any defence to the charge. The attack on the complainant's character was gratuitous in the sense referred to in Phillips.
7. Given the scope and nature of the attack on the complainant's character, it would have been unfair to the prosecution to leave the complainant under imputations of the scope and nature made by Mr Crotty, without permitting cross-examination on Mr Crotty's prior convictions.
8. I therefore do not consider that there has been a miscarriage of justice because the Magistrate permitted cross‑examination on those convictions. Given this conclusion, even if Mr Camp had objected to the cross-examination, it should have been permitted anyway. I am not satisfied therefore that any failure by Mr Camp to object plainly affected the outcome of the trial.
9. Mr Crotty also alleged that there has been a miscarriage of justice because Mr Camp failed to advise him about the risk of giving bad character evidence and then leading that evidence from him.
10. Unless Mr Camp was aware that Mr Crotty proposed to attack the complainant's character in the manner that he did, it would not have been evident to Mr Camp that advice about the risk of doing so was necessary. Neither Mr Crotty, nor Mr Camp, gave evidence that Mr Crotty told Mr Camp that he proposed to attack the complainant's character when he gave evidence, or provided Mr Camp with instructions about what he proposed to say when he did so. Given this, it is not apparent to me that Mr Camp should have appreciated that such advice was necessary.
11. It is true that Mr Camp was responsible for eliciting evidence from Mr Crotty that was given. It is important to appreciate, however, that much of Mr Crotty's attacks on the complainant's character were volunteered gratuitously. This may be seen, for example in the passage of transcript referred to in paragraph [298] above where the details given by Mr Crotty of the complainant's offending do not appear to be particularly responsive to the question asked.
12. Mr Crotty's submissions seem to assume that if Mr Camp had advised Mr Crotty about the risks of attacking the complainant's character, he would have not done so.
13. Importantly, however, Mr Crotty did not give evidence that if he had been warned of the risk of attacking the complainant's character, he would not have given the evidence that he did.
14. Further, Mr Crotty did not appear to be disinclined from continuing to attack the complainant's character by the Magistrate's warning about character being put in issue and the consequences of that. The sense that emerges from the transcript is that Mr Crotty was relishing the opportunity to attack the complainant's character.
15. Given this, I am not satisfied on the evidence that any failure on Mr Camp's part to advise Mr Crotty affected his decision to give the evidence that he did.
16. In these circumstances, I do not consider that there has been a miscarriage of justice because Mr Camp failed to advise Mr Crotty about the risk of giving bad character evidence of the complainant and then leading that evidence from him.

The allegation that Mr Camp fell asleep Why Mr Crotty submitted there had been a miscarriage of justice

1. Finally, Mr Crotty contended that there was a miscarriage of justice because Mr Camp failed to appear before the Court in a condition that enabled him to pay proper regard to the evidence in that he was either sleepy, or, asleep during parts of the trial.[255]
2. Mr Crotty submitted that one possible explanation for these failures was Mr Camp's inability to concentrate during the course of the trial when he appeared to be sleepy with his eyes half shut, or not paying attention during the trial.[256]

1. The Director relied upon Mr Camp's evidence that he did not fall asleep. It was submitted that there was nothing in the transcript that supported Mr Crotty's assumption.[257]

1. As I have indicated, I am not satisfied that Mr Camp fell asleep, or was sleepy. Further, Mr Crotty's submissions fail to properly address when it is alleged Mr Camp failed to pay attention and precisely how this affected the outcome of the trial. I do not consider that there is any merit to Mr Crotty's submissions.

1. Mr Crotty has a legitimate reason to feel aggrieved about the representation provided to him by Mr Camp. Although that representation was inadequate, that inadequacy does not have the automatic consequence that Mr Crotty's appeal must succeed. Mr Crotty must establish that there has been a miscarriage of justice.
2. For the reasons that I have given, I do not consider that Mr Crotty has been deprived of a fair trial according to law.
3. I do not consider that the Magistrate allowed impermissible cross‑examination, or admitted inadmissible evidence.
4. Further, when all of the circumstances of the case are considered (including the Magistrate's reasons), I do not consider that Mr Camp's representation plainly affected the outcome of the trial.
5. As I do not consider that there had been a miscarriage of justice, I will refuse leave to appeal and dismiss the appeal.

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

[1] Criminal Appeals Act s 6(c), s 7(1) and s 8(1).

[2] Criminal Appeals Act s 9(1).

[3] Criminal Appeals Act s 9(2).

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

[5] Criminal Appeals Act s 9(3).

[6] Sami v Duggan [2011] WASC 304 [38].

[7] Criminal Appeals Act s 14(2).

[8] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Buss JA).

[9] See transcript of hearing on 25 July 2024 (Adjournment Application Transcript).

[10] Adjournment Application Transcript, ts 2.

[11] Adjournment Application Transcript, ts 2.

[12] Adjournment Application Transcript, ts 2.

[13] Adjournment Application Transcript, ts 3.

[14] Adjournment Application Transcript, ts 3.

[15] Adjournment Application Transcript, ts 3.

[16] Transcript of hearing on 2 August 2024 (Trial Transcript).

[31] Trial Transcript, ts 13. Exhibit 3.

[32] Trial Transcript, ts 14 - 16. Exhibits 4 and 5.

[82] Transcript of hearing on 21 May 2025 (Appeal Transcript) ts 78 - 79.

[87] Appeal Transcript, ts 73 and ts 80.

[91] Appeal Transcript ts 64 - 65 and ts 119 - 121.

[100] Third Camp Affidavit, par 3; Crotty Affidavit, par 2.

[101] Appeal Transcript ts 64 - 65 and ts 119 - 121.

[106] Crotty Affidavit par 15 - 16, Appeal Transcript ts 124 - 125.

[110] Cooper Affidavit, pars 10 - 12; Appeal Transcript, ts 142 - 143.

[111] Crotty Affidavit par 6; Third Camp Affidavit par 11; Appeal Transcript, ts 124.

[112] Crotty Affidavit par 7; Second Camp Affidavit par 3; Third Camp Affidavit par 6; Appeal Transcript, ts 130.

[113] Crotty Affidavit, par 8; Appeal Transcript, ts 130.

[114] Crotty Affidavit, par 9; Appeal Transcript, ts 131.

[115] Crotty Affidavit pars 14 - 15; Appeal Transcript, ts 71.

[116] Crotty Affidavit pars 13.d - 13.e; Third Camp Affidavit par 12; Appeal Transcript, ts 140.

[121] Appeal Transcript, ts 135 - ts 138.

[124] Third Camp Affidavit, par 6; Appeal Transcript, ts 139.

[125] See, for example, Appeal Transcript, ts 116.

[130] Appeal Transcript, ts 124 - 125.

[136] Crotty Affidavit, par 13.a.; Appeal Transcript ts 74 - 75.

[141] Third Camp Affidavit, par 9; Appeal Transcript, ts 132.

[143] Third Camp Affidavit, par 9; Appeal Transcript, ts 132.

[148] Third Camp Affidavit, par 13; Appeal Transcript, ts 138 - 139.

[149] McMahon v The State of Western Australia [2010] WASCA 143 [24] - [27] (McMahon). See also WMT v The State of Western Australia [2021] WASCA 104 (WMT) [16].

[150] Colley v The State of Western Australia [2015] WASCA 79 [29] - [33]; WMT [17].

[151] HCF v The Queen [2023] HCA 35; (2023) 415 ALR 190 [2].

[153] Supplementary Submissions in Support of Appeal dated 19 May 2025 (Supplementary Submissions), pars 4 - 6.

[154] Appeal Transcript, ts 146 - 147.

[155] Appeal Transcript, ts 146 - 147.

[157] Supplementary Submissions par 6.

[158] Supplementary Submissions, par 8.

[159] Mallard v The Queen [2005] HCA 68; [2005] 224 CLR 125 [81] - [84], Supplementary Submissions, par 11.

[161] Appeal Transcript, ts 182 - 183.

[164] Further Substituted Notice of Appeal dated 23 May 2025 (Notice of Appeal), 1.a.(i).

[166] Submissions in Support of Appeal dated 9 May 2025 (Appellant's Written Submissions) pars 30 - 32.

[167] Appellant's Written Submissions, par 33.

[168] Director's Supplementary Submissions dated 16 May 2025 (Director's Supplementary Written Submissions), par 29.

[169] Director's Supplementary Written Submissions, par 30.

[170] Appeal Transcript, ts 135 - 138.

[172] Appellant's Written Submissions, par 60.

[173] CDO v The State of Western Australia [2022] WASCA 58 [175] (CDO).

[174] Liyanage v The State of Western Australia [2017] WASCA 112.

[175] Appellant's Written Submissions, pars 61 - 62.

[176] Appellant's Written Submissions, pars 63 - 64.

[177] Appellant's Written Submissions, pars 51 - 52 and 58.

[178] Appellant's Written Submissions, pars 56 - 58.

[179] HTN v The State of Western Australia [No 2] [2022] WASCA 51 (HTN) [81].

[180] Appellant's Written Submissions, pars 53 - 54.

[181] JEL v The State of Western Australia [2022] WASCA 32 [219] - [220].

[182] Appellant's Written Submissions, par 55.

[183] LNN v The State of Western Australia [2021] WASCA 39 [159].

[184] Appellant's Written Submissions, pars 65 - 67.

[185] CDO [176]; Director's Supplementary Written Submissions, pars 55 - 58.

[186] Director's Supplementary Written Submissions, par 43.

[187] Director's Outline of Submissions dated 7 February 2025 (Director's Outline of Submissions), par 44.

[188]Kennedy v The State of Western Australia [2021] WASCA 55; Director's Outline of Submissions, par 44.

[189] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 (Roach) Director's Outline of Submissions, pars 52 - 54.

[192] LNN v The State of Western Australia [2021] WASCA 39 [159].

[193] Appellant's Written Submissions, par 60.

[194] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6], [512] - [513] (HML); Roach [12], [41] - [42]

[199] Appellant's Written Submissions, pars 36.

[200] Director's Supplementary Written Submissions, pars 62 - 64.

[201] Director's Supplementary Written Submissions, par 64.

[202] Director's Supplementary Written Submissions, pars 65 - 66.

[206] Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145 [13] (Suresh).

[211] Appellant's Written Submissions, pars 34 - 37.

[212] Appellant's Written Submissions, par 49.

[213] Appellant's Written Submissions, par 50.

[214] Director's Supplementary Written Submissions, par 32.

[215] RWN v The State of Western Australia [2024] WASCA 131 [28] - [29].

[216] Further Amended Notice of Appeal, 1.a.(vi).

[217] Appellant's Written Submissions, par 20.

[218] Appellant's Written Submissions, par 21.

[219] Appellant's Written Submissions, par 46.

[220] Loh v The State of Western Australia [No 2] [2024] WASCA 166.

[221] Director's Supplementary Written Submissions, par 40.

[222] Director's Supplementary Written Submissions, par 41.a.

[223] Director's Supplementary Written Submissions, par 41.b; Appeal Transcript ts 18.

[224] Director's Supplementary Written Submissions, par 41.c; Appeal Transcript ts 9.

[225] Director's Supplementary Written Submissions, par 41.d; Appeal Transcript ts 18.

[226] Director's Supplementary Written Submissions, par 41.e; Appeal Transcript ts 17 - 18.

[227] Director's Supplementary Written Submissions, par 42.

[228] Director's Supplementary Written Submissions, par 45.

[235] Appellant's Written Submissions, pars 37- 39.

[236] Appellant's Written Submissions, par 41.

[237] Appellant's Written Submissions, pars 26 and 42.

[238] Appellant's Written Submissions, par 44.

[239] Sethi v The State of Western Australia [2020] WASCA 173 [58].

[240] Appellant's Written Submissions, par 45.

[241] Director's Supplementary Written Submissions, pars 34 - 36.

[242] Director's Supplementary Written Submissions, pars 37 - 39.

[243] [1961] HCA 74; (1961) 106 CLR 1.

[245] Cushing v R [1977] WAR 7; Mandzji v The Queen (1983) 11 A Crim R 209; P v The Queen (1993) 61 SASR 75.

[246] (1985) 159 CLR 45.

[247] R v Symonds [2001] 2 Qd R 70 [4].

[248] See, for example: R v Hyatt [2019] QCA 106.

[256] Appellant's Written Submissions, par 47.

[257] CDO [176]; Director's Supplementary Written Submissions, pars 55 - 58.