D -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 48 (11 March 2024)

(a) There was a miscarriage of justice caused by the conduct of the trial by [Mr D's] counsel.

(b) The learned Magistrate made an error of fact in finding [Mr D's] evidence was that [Mr G] began to shake with rage when told of [Ms G's] absence.

1. These grounds will be numbered 7 and 8 respectively. Ground 8 is allied to ground 2, as the subject matter of ground 8 informed the learned magistrate's decision to reject Mr D's evidence.
2. The State's position is that grounds 1 to 7 are not made out. In relation to ground 8, the State says that even if there was such an error, it was not material to the learned magistrate's reasons for rejecting Mr D's evidence and also does not occasion a substantial miscarriage of justice.
3. It is convenient to first address the legislative regime under which the appeal is brought. I will then address in the following order: the specific principles applicable to the grounds of appeal, a summary of the evidence adduced at trial, a summary of the learned magistrate's reasons and finally, the disposition of the appeal.

1. The appeal is brought pursuant to s 7(1) of the CA Act, Mr D being a person aggrieved by the decision of the learned magistrate to convict him. An appeal may be made on grounds that include:
   1. the learned magistrate made an error of law or fact or of both law and fact: s 8(1)(a)(i); and
   2. there has been a miscarriage of justice: s 8(1)(b).
2. Leave of this court is required for each ground of appeal. Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding: s 9.
3. Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of Mr D, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[3]
4. In relation to errors the subject of s 8(1)(a)(i), in Griffen v Birch,[4] Mitchell J (sitting in the General Division) observed that:

There was some debate about whether the question of materiality arose in determining whether the magistrate made an error of law within the meaning of s 8(1)(a)(i) of the Criminal Appeals Act or whether it arises when considering whether the court considers no substantial miscarriage of justice to have occurred within the meaning of s 14(2) of that Act.

1. It was unnecessary for his Honour to resolve that debate. On this appeal, it is unnecessary for me to enter into that debate. If the errors asserted by Mr D on this appeal were immaterial, then no substantial miscarriage of justice occurred. On the other hand, in this case, if the asserted errors were material, then, the question of whether there is no substantial miscarriage of justice can be considered.
2. In WS v Gardin,[5] Mitchell J considered the application of s 14(2) in circumstances where the learned magistrate had made a material error of fact.
3. His Honour referred to the negative proposition set out by the High Court in Weiss:[6]

It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.

1. In respect of the application of that negative proposition, the joint judgment of the High Court in Weiss observed that:[7]

That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. (citations omitted)

1. In Gardin¸ Mitchell J came to the view that the negative proposition identified in Weiss is not of universal application to all cases in which s 14(2) may be applied.[8] In relation to the application of s 14(2), his Honour stated:[9]

In my view, where the reasons of a summary court indicate that the court has made an error of fact, but that the error was inconsequential or immaterial to the decision to convict, then this court can conclude that no substantial miscarriage of justice has occurred by reason of the error. That will be so whether or not this court is able to be satisfied, beyond reasonable doubt, of the accused's guilt from a review of the trial record. If the only errors established are factual errors of this kind, then this court will appropriately dismiss the appeal under s 14(2) of the CA Act.

However, where the primary court's reasons show the error of fact to be material to the decision to convict then there will ordinarily have been a substantial miscarriage of justice unless this court is satisfied on a review of the trial record [that] conviction was inevitable on the evidence adduced at trial.

This conclusion gives weight to the requirement that a summary court give reasons for its decision, and the reasons will ordinarily indicate whether an error of fact is inconsequential. If an error of fact may have significantly influenced a finding of guilt, depriving an accused of an opportunity of acquittal, then it may be fairly concluded that the trial process has miscarried. In such a case it will be no answer to say that the appellate court believes the accused to be guilty and it was merely open to the trial court to adopt a different view. In such a case it would also be open to the trial court, which is in the best position to determine questions of fact on evidence it has seen and heard, to take a different view from the appellate court.

1. In assessing whether there was no substantial miscarriage of justice occasioned by the error of fact in this case, I have considered both the approach as suggested in Gardin and the negative proposition in Weiss.
2. I turn now to the legal principles applicable to the grounds of appeal. It is useful to start with the principles applicable to the learned magistrate's reasons and the analysis of them.

The legal principles applicable to the grounds of appeal

1. Pursuant to s 31(1) of the Magistrates Court Act 2004 (WA), her Honour's reasons need only identify the facts that her Honour has accepted, and the law that her Honour has applied, in coming to her decision and give the reasons for doing so.
2. Further, as Pritchard J (as her Honour then was) observed in Gartner v Brennan:[10]

Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced). (footnotes omitted)

1. However, as I recently noted in Greenway v Lavers:[11]

... these observations do not convey that the learned magistrate's reasons can be interpreted so as to include material matters that were overlooked, nor that they can be interpreted in a way which is substantially inconsistent with what [the learned magistrate] said.

1. In relation to grounds 1 and 6, the applicable principles in relation to whether a verdict is unreasonable or cannot be supported by the evidence have recently been summarised by the Court of Appeal in Larussa v The State of Western Australia.[12] While that case concerned a trial by jury, these same principles apply by analogy to a trial before a magistrate.[13]
2. In Larussa, the Court in a joint judgment stated:[14]

(1) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.

(2) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(3) The question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.

(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.

(5) The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.

(6) A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.

(7) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.

(8) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of [s 30(3)(a) the CA Act] is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.

1. In relation to ground 3, the principles applicable to what is commonly known as a Liberato[15] direction were considered by the High Court relatively recently in De Silva v The Queen.[16] In the joint judgment of the majority, their Honours addressed what is sought to be achieved by a Liberato direction:[17]

The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way. (footnotes omitted)

1. As can be seen, the primary purpose of the direction is to provide clarity and reinforcement to a jury to ensure they do not misapprehend their task. In De Silva, the majority judgment also set out the preferred framing of a Liberato direction as follows:[18]

... it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? (footnotes omitted)

1. Further to these matters, the joint judgment of the High Court in Douglass v The Queen observed that:[19]

... the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt.

1. The appeal in Douglass concerned a trial by judge alone. The appellant in that case gave sworn evidence denying that he committed the offence. The trial judge convicted the appellant. In doing so, the trial judge did not record any finding regarding the appellant's evidence. An appeal to the South Australian Court of Criminal Appeal was dismissed. The appellant's primary challenge on appeal was as to the sufficiency of the trial judge's reasons. In respect of that challenge, the Court of Criminal Appeal found that:[20]

Having considered the evidence as a whole, and being satisfied of the truth and reliability of [CD's] evidence, the Judge necessarily rejected the denials by [the appellant].

1. The High Court considered this was an error, stating:[21]

To dismiss the appellant's complaint respecting the sufficiency of the reasons on the footing that the judge's acceptance of CD's evidence necessarily carried with it rejection of his evidence was to overlook that the judge's acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true. (emphasis added, footnote omitted)

1. In support of the emphasised sentence, the High Court cited the judgment of Brennan J in Liberato, in which his Honour set out the initial formulation of what is now known as the Liberato direction, albeit that his Honour was in the minority.[22]
2. In applying these principles to this case, a requisite step in reasoning to Mr D's guilt was that her Honour was satisfied Mr D's evidence as to what happened in the interaction with Mr G was 'not reasonably possibly true'.

1. The principles in relation to whether there is a miscarriage of justice by reason of counsel's conduct were explained in the joint judgment of the Court of Appeal in Huggins, their Honours stating:[23]

An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. 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. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant.

In Nudd v The Queen, the court concluded that notwithstanding that counsel's conduct of the trial was incompetent to a serious degree and that some of that conduct could not be rationally justified, there was no miscarriage of justice. That illustrates the challenging character of a ground of appeal that asserts a miscarriage of justice arising through counsel's conduct of the trial.

Because the ground of appeal is that there was a miscarriage of justice, the focus of inquiry must be upon the consequences of the alleged incompetence, and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the incompetence alleged. So, generally at least, the question will not turn on the adjectival characterisation of competence, such as being 'flagrant' or, with some exceptions, to the reasons for an incompetent act or omission. The focus is on what happened or did not happen, not on why any error occurred. (footnotes omitted).

1. Accordingly, the focus of the inquiry is directed to the consequences of counsel's conduct and the extent to which it caused or contributed to a miscarriage of justice.

1. In relation to the additional evidence sought to be relied on by Mr D, pursuant to s 40(1)(e) of the Act, an appeal court has the power to admit additional evidence. Section 40(1)(e) applies to all appeals. As Buss P observed in Clarke v The State of Western Australia,[24] the common law principles concerning new and fresh evidence are relevant to the exercise of the discretion under s 40(1)(e). Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.[25] As Buss P explained in Clarke, ordinarily, the relevant common law principles in respect of fresh evidence set a lower threshold for an appellant to establish a miscarriage of justice, compared to the relevant principles in respect of new evidence.[26] While Clarke concerned an appeal from a conviction after trial by jury, in my view the observations made regarding fresh and new evidence also have application to an appeal against a conviction after a trial by magistrate. Adopting that approach, in respect of an appeal against a conviction by a magistrate, ordinarily an appellate court will not allow the appeal on the basis of fresh evidence unless there is a significant possibility that on the basis of all of the admissible evidence, that is the fresh evidence and the evidence given at trial, the appellant would have been acquitted.[27]
2. It is not necessary for me to consider whether the additional evidence sought to be adduced by Mr D is new evidence or fresh evidence, as even applying the principles applicable to fresh evidence, the evidence itself does not lead to the conclusion that there was a miscarriage of justice.
3. I turn now to the trial, the evidence at trial and her Honour's findings.

1. As I have set out, the trial took place over two sitting days, being 20 April 2022 and 30 June 2022. The evidence for the prosecution was adduced on 20 April 2022. The evidence for Mr D was adduced on 30 June 2022. The closing addresses were given on 30 June 2022. It is usually less than ideal that evidence is given over separate days that are so far apart. It certainly makes the learned magistrate's task more difficult and time consuming, as her Honour must revisit evidence given months apart in order to come to a decision.
2. The witnesses called for the prosecution were: Mr G, L, Sergeant Clegg (who at the time of the alleged incident was the Sergeant at the local Mukinbudin Police Station) and Acting Sergeant Baker, who conducted an interview with Mr D. The witnesses called for Mr D were Mr N (Mr G's nephew) and Ms G. Mr D also gave evidence.
3. The only people with direct knowledge of the alleged incident were Mr D, Mr G and L.
4. Given the broad ranging nature of Mr D's grounds of appeal, it is necessary to traverse the evidence in some detail.

1. Mr G gave evidence by video link to the courtroom. In examination in chief Mr G said that he lived in Mukinbudin with his son L. He explained he was going through a divorce with his ex‑wife Ms G.
2. He said on Friday 5 March 2021 he was working in the backyard of his home and his son was in the house getting ready to go to school. His son came out the back door and Mr D was walking behind him.
3. It is important that I set out precisely Mr G's evidence as to what then happened which is: [28]

[Mr D] then said that he was there to make me an offer for settlement for the divorce of $1 million and I said to him that it's in the hands of the lawyers. [Mr D] then started getting very agitated, started pacing up and down the back verandah. He then said he knew a guy that had done jail time for slitting a guy's throat. We were going to get the same. I immediately ordered him off the property and he slowly walked down towards the side gate and he turned - stopped and turned around and he said, 'I'll be back, you fucking cunt'. Then my son was crying. He immediately run into the house. He locked all the doors in the house.

1. Mr G said that his son L did not go to school that day and he did not attend school all the next week either, because he was dead scared Mr D was coming back to the property.[29]
2. Mr G said that this was not the first time Mr D had threatened 'us'.[30]
3. Mr G said that he went down to the local police station on the Friday and the officer advised him to seek a restraining order. He said the following Monday was a public holiday and on the Tuesday he came across to a town called Merredin to get a family violence restraining order against Mr D. The restraining order was granted on the Wednesday and ultimately on the Friday morning he went back to the same police station and the police officer there took a statement from him.[31]
4. Mr G said that he had known Mr D probably three years maybe four years and that he used to be a contractor to 'our business'.[32]
5. Mr G explained that Mr D had sent him a text message a few days prior to the incident saying that he was coming to Mukinbudin and he wanted to talk to Mr G.[33] He was then asked again what words Mr D had said to him. Mr G answered:[34]

Well, after he made the - said that the - pay them a million dollars to finish it, and I said to him that, no, go through the lawyers - it's going through the lawyers, that's when he started getting agitated and walking up and down, waving his arms on the verandah, and he said he knew a guy that had done jail time for threatening - or by threatening - slitting a guy's throat and I would get the same, both [L] and I.

1. Mr G said that Mr D referred to the guy being from a particular company. He also said he does not recall Mr D naming the person. Mr G said he had never met that person.[35]
2. Mr G said at the time Mr D said these words Mr G was sitting beside L in the corner of the verandah and Mr D was walking up and down the back verandah. [36]
3. Mr G was asked what he then did. He said he stood up beside L and that is when he ordered Mr D off the property and Mr D had to walk close by them to get to the side gate to leave. He said Mr D slowly just walked off down the side of the house when he stopped and turned around and said, 'I'll be back, you fucking cunt'.[37]
4. Mr G was then extensively cross‑examined. Mr G was cross‑examined about asserted inconsistencies between his evidence and his police statement in relation to the topic of how long he had known Mr D through work. The effect of what was in his statement was he had known Mr D for five years at the time he gave the statement in 2021, whereas more than a year later when he gave his evidence, he said he had known him for three maybe four years.[38]
5. Mr G was cross‑examined at length about matters pertaining to the company he owned jointly with Ms G, in particular his involvement as the general manager of it and the reasons why he was fired from the company. He accepted that he was general manager of the company from 2013 to 2019 and that in August 2019 he was fired.[39] He said he started the company with Ms G.[40]
6. A number of allegations were put to Mr G about his conduct, which he denied. It was also put to Mr G that during the conversation on 5 March 2021, Mr D told him that he knew about things that Mr G had being doing illegally in the company, to which Mr G responded '[h]e didn't tell me on 5 March 2021 at all'.[41] It was also put to Mr G that he started shaking with anger when told of these matters, to which he answered 'No. That's not correct'.[42]
7. It was put to Mr G that he knew Mr D and Ms G were now in a romantic relationship, to which he answered yes.[43] In this respect, both Mr D and Ms G gave evidence that they were not in a romantic relationship.
8. Mr D's counsel sought to cross‑examine Mr G in relation to an offence, to which Mr G had pleaded guilty, of threatening to distribute videos and images of Ms G to her biggest client.[44]
9. On a number of occasions the video link to where Mr G was giving evidence was muted to allow for argument to address objections by the prosecuting sergeant.
10. Her Honour became quite frustrated and cross with Mr D's counsel. Her Honour said, '[t]he extent to which you are taking this is bigger than Ben-Hur. We might as well be in the Federal Court, not that they do criminal'.[45] Further, her Honour also said: 'And I am cross so if that's coming across, yes, you've got it right because now I am having to do the evidence in a piecemeal fashion'.[46] Her Honour also described the cross‑examination as 'Days Of Our Lives'.[47]
11. Ultimately, after an extensive exchange between the learned magistrate and Mr D's counsel, the cross‑examination proceeded. Mr G was cross‑examined on the prior conviction and on further matters unrelated to the specific incident itself, for the apparent purpose of undermining his credibility. It is not necessary for the purposes of these reasons to traverse all of those matters.[48] The cross‑examination of Mr G elicited that he had upon advice pleaded guilty to an offence that involved threatening to send intimate photos of Ms G to another person, however Mr G maintained that he had no intentions whatsoever of showing anybody anything.[49]
12. It was also put to Mr G that he had been charged with other offences of a dishonesty nature. Initially he said that was not correct and when pressed said he could not recall.[50]
13. Mr G accepted that prior to 5 March 2021 he and Mr D were in contact by text message and phone call every now and again.[51] It was put to Mr G that during the discussion the subject of the offence, Mr G was trying to get Mr D to convince Ms G to sign over the company to Mr G. Mr G responded by saying that was not the truth and what they were discussing was Mr D put to him a million dollars to settle.[52]
14. It was also put to Mr G that during the conversation Mr G had said he would speak to a major client of the company to get their contract with the company cancelled. He said that was never talked about.[53] Mr G was cross‑examined quite extensively on the basis that he was angry and jealous that Mr D was in a relationship with Ms G.[54] However as I have already explained, both Mr D's evidence and Ms G's evidence was they were not in a relationship.
15. Mr G was extensively cross‑examined about communications that he had with the company's significant client. He said that he thinks that he made them aware that Mr D had threatened to have our throats slit.[55]
16. A number of further allegations were put to Mr G in cross‑examination, in particular that he had told the client to make sure all contractors had police clearance, because he knew that Mr D would not be able to get the required police clearance. Mr G denied this. He also denied telling the client that Mr D was trying to steal Mr G's business.[56]
17. Mr G accepted that he was bound by a 5‑year conduct agreement order in relation to Ms G.[57] A number of other assertions were put to Mr G regarding threatening or coercive conduct towards Ms G, which Mr G denied.[58]
18. At this stage the prosecuting sergeant objected and her Honour was clearly exasperated, saying 'my eyes are glazing over'.[59]
19. Mr G accepted he was significantly bigger in stature than Mr D.[60] Mr G accepted he had regularly been texting with Mr D prior to the incident and also said that it is not the first time Mr D has threatened him and L.[61]
20. Mr G said Mr D had previously threatened him by text. It was put to him the text did not exist, to which he said it did.[62] He said that he had never threatened Mr D.[63] The specifics of such a threat were put to Mr G, which he described as absolutely false.[64]
21. He said that Mr D had been to his house twice prior to 5 March 2021.[65] He said he thinks it was the Wednesday (being 3 March 2021) and the time before that he thinks was the Saturday. Mr G accepted that he and Mr D exchanged a number of text messages regarding the Family Court proceedings.[66] Mr G was not sure whether L was there on the previous occasions that Mr D was at the house.[67]
22. Mr G denied that he told Mr D that he wanted him to come back on the morning of 5 March 2021 and to bring Ms G with him.[68]
23. Mr G denied being angry that Ms G did not come with Mr D on 5 March 2021, Mr G also saying he was 'not angry at all, nor bitter'.[69]
24. Mr D's counsel put four text messages to Mr G which it was suggested he sent to Mr D. Mr G could not recall having done so.[70] The messages were marked for identification and ultimately became exhibits 1.1 to 1.4.[71]
25. Mr G was cross‑examined about trying to influence his son against Ms G, which he denied, in effect saying that L knows everything about their dispute, seeing it on the computer and on Mr G's phone.[72]
26. Over a number of questions it was put to Mr G that he had told L to say that Mr D had threatened them, which Mr G denied, saying L was there, he witnessed every bit of it.[73] It was also put to Mr G that it would help him get more money if L did so. Mr G denied this.[74]
27. It was put to Mr G that Mr D did not say the words said to constitute the threat, and Mr G said 'Absolutely he did'.[75]
28. Mr G was asked a number of questions about where he and L were situated on the verandah, with Mr G explaining that L was approximately 1.5 m away and L was watching, listening to everything.[76]
29. Mr G said that after Mr D said the threatening words, Mr G stood up beside L, ordered Mr D off the property, and as he was leaving, Mr D stopped and turned around and said 'I will (indistinct) back, you fucking cunt'. L then got up, went into the house, locked the house and he was crying.[77]
30. Mr G was then cross‑examined about his neighbours. Mr G said he did not know which room in their house was the bedroom and also he did not know if the neighbours were home at the time. He said he did not see them come out that morning and that over a 12‑month period he may see them twice.[78] Mr G also said that the distance between his house and the neighbours' house is about 4 m.[79]
31. Mr G was then cross‑examined to the effect that when he had applied for a restraining order against Mr D, he had only said that Mr D threatened to slit his throat, which he denied. It was then put to him that he had made up this new allegation that Mr D threatened to slit L's throat.[80] Mr G said there are 'no new allegations' and also said 'he threatened both of us'.[81]
32. It was also put to him that in his affidavit in support of the restraining order application, he had said that he had not reported the matter to the police. He said he could not recall whether or not that was in the affidavit.[82]
33. It was also put to him that when he first attended court on 10 March 2021 in respect of the restraining order application he made no mention of any threat being made to him. His answer was to the effect that the magistrate had all the affidavits before her.[83]
34. It was also put to him that nowhere in the transcript of the hearing did he say that Mr D had threatened to slit his throat, to which Mr G said 'it's all in the affidavits'.[84] It was also put to Mr G that nowhere in the transcript did he say that Mr D had threatened to slit L's throat.[85] Mr G again said 'it's all in the affidavits'.[86] It was then put to Mr G that the reason there are no allegations about L is because he had just made that up recently, which Mr G denied.[87]
35. When Mr D's counsel sought to continue with this line of questioning, the learned magistrate intervened. Her Honour explained that the way the restraining order hearings are conducted is the presiding magistrate reads the affidavits in support. Her Honour then said:[88]

So the magistrate read the affidavit. The material about your client is in the affidavit. So it's a bit unfair to say he didn't make the allegations. He did. They're in the affidavit.

1. As a consequence of her Honour saying this, Mr D's counsel moved on to a new topic. Before doing so, Mr D's counsel did not put to Mr G the terms of the affidavit itself. It appears that Mr D's counsel accepted that the allegations made by Mr G as to what Mr D said were in the affidavit. Unfortunately, as I will come to explain in relation to ground 7, that assumption was partly incorrect.
2. Mr D's counsel then proceeded to cross‑examine Mr G on when he reported the matter to police. It was put to him that he did not actually report it to police until 12 March 2021. The significance of this line of cross‑examination was that if Mr G was as fearful as he suggested in his evidence, and if the threat had also been made to his son L, then the defence suggestion was he would have reported it immediately. Mr G's affidavit in support of the restraining order sworn 9 March 2021 stated that Mr G had not reported the matter to police. The terms of the affidavit itself were not put to Mr G in cross‑examination.
3. Mr G said he did report it to the police on 5 March 2021, saying he first spoke to his lawyers and then went down to the local police station in Mukinbudin to get advice. He said the officer made it very clear to him to get a restraining order put in place and come back and see him once he had that. Mr G said he came back on 12 March 2021, which is when 'we had done the statement'.[89]
4. Mr G accepted that on 9 and 10 March 2021 he was in Merredin, parked directly outside the courthouse which is next to the police station. He said he did not report the incident to the police then because he had already spoken to the officer in charge in Mukinbudin.[90]
5. There was then an attempt in cross‑examination to portray a close association between Mr G and the officer in charge of the Mukinbudin police station. The learned magistrate did not allow this questioning to continue.[91]
6. There was then an attempt in cross‑examination to suggest that Mr G had coached his son as to what to say.[92] It was put to Mr G that he had discussed with his son L how he could set up Mr D to get him back. Mr G denied this.[93]
7. It was then put to Mr G that he had asked the 16‑year‑old son of another person to make a statement to police saying his father had threatened Mr G. Mr G denied this.[94] The suggested rationale for this behaviour was that Mr G wanted to get the family farm from the 16‑year‑old's father, Mr G saying that would be the last thing that he would want.[95]
8. The learned magistrate at this point in time intervened and pointed out that the evidence did not enable the learned magistrate to make the findings which the cross‑examination was seeking. The learned magistrate then said:[96]

... if you haven't done every single piece of homework - I'm not going to be able to be satisfied necessarily of things and inferences that you want me to draw. You have to be so well prepared, and I don't think you are. I don't think you've prepared to the degree necessary to be going down all these lines.

1. Mr G was also cross‑examined about whether on the day of the incident, his partner Svetlana had spoken to L on the phone. It was suggested to Mr G that he had given evidence at the hearing of the restraining order application on 30 August 2021 that on the day of the incident Svetlana had consoled L for three hours. Mr G said he could not recall whether it was three hours, two hours, and further that he 'can remember saying three hours, but it could have been less'.[97]
2. He was then questioned on a letter from Svetlana that was tendered in the restraining order proceedings. The proposition was put to him that that letter made no reference to her speaking to L on 5 March 2021.[98] Mr G said he cannot recall what was in the letter.[99] It was put to him that he had made up that L had spoken to Svetlana on 5 March 2021 which he denied.[100]
3. He was then cross‑examined about whether or not Mr D had a two‑way radio on him during the incident on 5 March 2021. Mr G said Mr D had nothing and also said that he did not see a two‑way radio.[101]
4. He was asked whether he knew that a Mr Jones was listening to the conversation on the two‑way radio and he answered that he knew nothing about Mr Jones.[102]
5. He was then cross‑examined about his evidence that L was so upset he could not go to school for the entire week and it was put to him that that was not true.[103] He was asked whether L was at school on 11 March 2021 and he said as far as he could recall he had the Friday off and was at home all the next week with Monday being a public holiday.[104] He was then cross‑examined about whether L had gone to a swimming carnival on 11 March 2021[105] and then he was shown a photo of L at a swimming carnival. He accepted the photo looked like L but as for the photograph being taken on 11 March 2021, he said he did not know.[106] The photograph was marked for identification.
6. He was then cross‑examined about whether or not he had threatened a man called Mr Clifford. Specifically, whether he had told him to do illegal things otherwise Mr G would fire him. Mr G denied this.[107] He was also asked whether he said in front of Mr Clifford that 'I'm going to destroy [Ms G] and the business' and he denied this.[108] It was also put to him that he destroyed company records to frame Ms G and take the business, which he also denied.[109]
7. Overall, the cross‑examination comprised a sustained attack on Mr G's credibility.
8. In re‑examination he was asked if his evidence was that he had been offered $1 million as a settlement. His answer was:[110]

Yes. A good friend offered me $1 million to settle it, and I will still take it today if they put it in writing.

1. He was also asked again about his affidavit in support of the restraining order application. Specifically, he was asked whether all of the information regarding the threats that Mr D made were contained in his affidavit that was put before the court and he said 'Yes. That's correct'.[111]
2. Finally, he was asked whether in making the threat Mr D also said the words 'you are going to get the same' and he said that is correct.[112]

1. The next witness was L. L's evidence in chief consisted of a child witness interview that was undertaken on 25 March 2021. The video of the recording was played to the court.
2. Near the start of the child witness interview, L was asked what he had come to talk to the interviewer about. He answered:[113]

A. Um, a guy called [Mr D] came round to our house. Um, he came around cos mum and dad are in a divorce. Uh, [Mr D] is mum's partner.

Q. Mm hm.

A. Um, he came round to - to say some offers to dad and then he threatened dad and I and - with our life and then he, um, left.

1. He then expanded on this, saying:[114]

A. Yeah. So I woke up in the morning. I got some breakfast, ate some breakfast, and started preparing for school.

Q. Mm.

A. Uh, dad was working in the backyard. Um, at around 7 am I heard a knock at the door. I went to the door and opened it, answered it, and [Mr D] was there. He asked me if I - if he could go speak to my dad. I said, 'Yes.' And I brang him out the back of the house where we all sat in chairs under the verandah.

Q. Mm.

A. Um, then [Mr D] said to dad, um, 'We will offer you $1 million to walk away,' um, 'divorce finalised and fuck off,' and then dad declined the offer and then [Mr D] said, 'And you give us $2 million and you walk away with all companies. You give' - of which dad had to pay $1 million in debt and $1 million to mum, [Ms G], and then he, um - dad told [Mr D] to get it written up through the lawyers and [Mr D] immediately got up from his chair and started pacing up and down the pavement. He looked very angry and agitated. He said to dad and myself that he knows a guy that has slit one - someone's throat before and he did gaol time for it and, 'He's just waiting for the word from me to do this,' um - 'to deal with you two as well.' And then he said, 'You - you two are going to be dead cunts.'

Q. Oh.

A. And then dad immediately told him to get off the property and so [Mr D] turned around and started walking down the side of the house to the gate and he got about halfway, he turned around and he said to dad and myself, 'I will be back, cunts,' and then turned back around and walked out the gate and drove off. I immediately went inside and locked all of the doors. I, um, started crying. I did not go to school that Friday because I was very scared and still am.

1. He was taken back to these answers later in the interview and described how the first offer was 'dad taking $1 million and walking away'.[115]
2. In respect of the second offer, he said his father told Mr D to get it written up through the lawyers.[116]
3. L said that obviously Mr D did not like that idea. He was asked to tell the interviewer everything that happened after that. He said:[117]

A. Um, after that he said to dad that - oh, dad and myself, sorry - that he knew the guy that slit someone's throat and he did gaol time for it. Um, he said the guy works at [...], of which I'm not sure where that is. Um, he is - [Mr D] said that the guy's just waiting from the word from [Mr D] to deal with dad and myself. Um, at that - and then [Mr D] said that dad and myself are going to be dead cunts.

Q. Yeah.

A. And then dad immediately told [Mr D] to get off the property. [Mr D] walked - started walking away to the gate [down the side of][118] the house. He got about halfway. He turned around and he said, 'I will be back, cunts. 'And then he walked out the gate ‑ ‑ ‑

1. L said no one else was there and that he doubted whether the neighbours would have heard it.[119]
2. L said he was 14 years of age at the time.
3. L said that three months before the incident, Mr D sent his father a text message which was 'something along the lines of "I will find the address of your house tonight and I will see you soon", something like that and meant it in a threatening way'.[120]
4. When L was asked for further clarification on this later in the interview, he said that his dad showed him the text message and he knew it was from Mr D because his name was at the top of the screen.[121]

1. L said he remembered that on one of the days when Mr D came over before the incident, L was there and it was in the evening.[122] He said that he asked Mr D some questions about the family business and Mr D explained to him certain matters regarding the business.[123] It was put to L that he did not like Mr D because of what he was doing in relation to the family business to which L in effect agreed and also said because of what Mr D said to them.[124]
2. It was also put to L that he knew Mr D and his mother were in a relationship to which L said yes.[125] L also said that he was aware of information regarding the business dispute from looking at information on a computer that he shares with his dad and also on his dad's phone.[126]
3. L was taken to certain messages that he had sent to Mr D in which he had called him a number of varying derogatory names.[127] In one of the messages which comprise exhibit 6 he states:

...

This little boy with the help from a few others set up just nicely and with your actions and your mouth you played right into our hands. ...

it had been the best executed plan. So just remember you old prick you think you are very smart but let me remind you there is always someone else a little bit smarter than you.

1. The top of the message sets out that it was sent on 1 January 2021.
2. L was cross‑examined on that message. He accepted that the reference in the message to 'you played right into our hands' was referring to setting a trap for Mr D.[128] However, L then qualified this, saying, 'I didn't set up a trap to catch [Mr D]' rather he said it because Mr D was writing all these things about him so L 'sort of said something back'.[129]
3. It was put to him that he and his father had a plan to trap Mr D and he said no.[130]
4. He was cross‑examined about what he said in the child witness interview regarding Mr D's movements that morning and it was put to him his answers were inconsistent. He disagreed and explained his answers in the interview.[131] He was asked whether he said in the interview that Mr D had said a guy from a particular building company was going to come and slit his throat and he said yes.[132] He was then asked whether his father told him to say that and he said no.[133] He was asked whether his father told him to say Mr D was agitated and he said no.[134] He was also asked whether his father had told him to say that Mr D was pacing up and down the pavement and he said no.[135]
5. L said that he spoke to his father about the incident. He was asked whether they discussed what happened and said 'Not really. No, not at all, actually'.[136] He also said he spoke to his dad's girlfriend, who gave him a call and tried to calm him down.[137]
6. He said that the distance from the wall of his house to the neighbour's house would be maybe 4 m.[138]
7. He was asked whether he hears the neighbours when they are at home and he said no they are elderly. He did not really hear them too often.[139]
8. He was asked whether he attended a swimming carnival on 11 March 2021. He said no there was no swimming carnival that day, the carnival was on 4 March 2021, being the day before Mr D came to the house.[140] He was cross‑examined about whether he went to school the next week following the incident and he said no he did not think he went to school that whole week.[141]
9. He was cross‑examined about an e‑mail he sent his mother on 27 February 2022.[142] It was ultimately put to him that he is angry at his mother to which he said yes. It was put to him that he is even angrier at Mr D and he said yes.[143]
10. It was put to him that the messages he had sent to Mr D do not sound like a person who is scared of him and L answered that the messages were sent before the incident.[144]
11. It was put to him that he never got out of the chair and his answer was:[145]

Dad came and stood next to me as [Mr D] is walking out. As soon as [Mr D] left, I got up, went inside, locked all the doors, and I was crying. I was scared.

1. It was put to him that Mr D did not threaten him at all and he answered he did and he remembered it.[146] He was asked if Mr D threatened both of them or just his dad and he said both of them.[147] A version of events was put to him which was to the effect that his father got really angry at Mr D which he denied.[148] It was put to him that Mr D said to his father 'I know what you've been up to. I know that you've stolen money' and things like that and L said that Mr D did not say that.[149] It was put to him that Mr D discussed the charges against his father involving his mother and he said 'No. I don't believe that was discussed on that time that he visited'.[150]
2. There was then the following exchange with Mr D's counsel which I will set out in full because it goes to the offers made on the day:[151]

So you said that [Mr D] made your dad an offer to settle for a million dollars; is that right?‑‑‑Yes. I think it was Dad pay a million dollars for the company, and I think it was another million dollars for debt - something along those lines.

1. He was asked whether he was there when his dad said to put it through the lawyers and he said yes.[152] And then it was put to him that his dad did not have a lawyer, to which he responded yes he did.[153]
2. He was also asked whether he spoke to his father during breaks in his child witness interview about what he was talking about and he said no and further that he got told not to.[154]
3. In re‑examination he was asked about whether the text messages he was taken to occurred before the alleged incident and he answered 'Yes. I haven't text [Mr D] since 4 March'.[155]

1. Sergeant Clegg was on duty at the Mukinbudin Police Station on the day of the incident. He said he was working on Friday 5 March 2021 and at around 10.00 am Mr G attended the police station.[156]
2. He said Mr G attended because he wanted to know his options over a particular incident that had occurred previously that morning.[157] Specifically, he said that he had been threatened in front of his son who was 14 years old at the time.[158] He said he explained to Mr G the option of violence restraining orders and of a criminal investigation or both, that Mr G was very concerned about his son and said he wanted to consult his son before he made a decision as to what he was going to do.[159]
3. He also said that the following week on the Friday Mr G attended the police station and made a formal statement and the police commenced the investigation at that stage, arranging for a specialist child interview to be conducted with L.[160]
4. In cross‑examination Sergeant Clegg could not remember whether he actually took any notes on that particular day. Further, he accepted the first entry in the running sheet was 12 March 2021.[161]
5. He was questioned about how he could be certain that Mr G came in and reported the matter on 5 March 2021.[162] He said he was halfway through a burglary enquiry up at the local primary school and the interaction with Mr G came while he was attending to matters to do with that.[163] Sergeant Clegg accepted that Mr G told him that Mr D was in Mukinbudin at the time. Sergeant Clegg said he did not make any attempt to speak to Mr D.[164] Sergeant Clegg said that when Mr G reported the incident he did not mention that Mr D had threatened L.[165]

1. The final witness called for the prosecution was Acting Sergeant Baker. He conducted an interview with Mr D on 7 May 2021 which was played as part of the prosecution case and became exhibit 5.[166]
2. The interview occurred at Mr D's place of work. Two police officers conducted the interview. Mr D was asked what he did at his place of work and he answered that he ran the whole place. Mr D raised early on in the interview matters regarding Mr G's prior behaviour, also saying Mr G did not want that behaviour exposed and that was what brought about Mr G's allegation that Mr D had made the threat.
3. Mr D said that Mr G was determined to take over the whole place again. Mr D said he had said to Mr G many times that if he ever did take over the company again that Mr D would expose his actions. He said Mr G responded 'it will never go to court because you will be dead', saying this many times.
4. The police officers started to put Mr G's allegations to Mr D, saying that Mr G said Mr D had come to his home. At this point in the interview, Mr D picked up what appeared to be two two‑way radios and said at the time he had one on him and the other was being held by four people who listened to everything. He said that not one threat was made by him to Mr G.
5. The police officers said that Mr G in his statement set out that Mr D had come around to make an offer in respect of the divorce, Mr D interjected and said he offered him $1 million to which the police officer said that is what Mr G said. It was then put to Mr D that Mr G also said that Mr D said about paying $2 million to which Mr G said 'put it in writing and put it to the lawyers'. Mr G said that Mr D then got angry and said 'there is a guy from [a particular company] who is waiting for me to give him the word to come and deal with you'. In the statement Mr G said the company was a company which both he and Mr D had worked for. At this point, Mr D said something to the effect of he might turn up in a minute that same guy so you can talk to him.
6. The police officer then said that Mr G alleged Mr D said 'This guy has gone - has done some jail time for slitting a guy's throat, you're going to get the same, you fucking cunt'. Mr D said he went around there and he had also gone around there the day before. Mr D said that when he went around on the Thursday, Mr G had said he wanted Ms G to come around on the Friday so they could all sit around the table and hammer out a deal. Mr D said Ms G was not prepared to go.
7. Mr D said he went to Mr G's place on the Friday morning. He described what happened as follows. Mr D told Mr G that Ms G was not prepared to come over. Mr G got very angry. Mr D then said he raised the offer to $1 million paid out next week and said otherwise he would in effect raise significant matters concerning Mr G's conduct when he ran the company. Mr G then lost the plot. Mr D demonstrated visually that Mr G was shaking.
8. Mr D was asked whether he said the things that Mr G alleged and he said 'definitely not, 100 per cent, why would I?' The police officers asked Mr D for the names of the people who he said were on the other end of the two‑way radios. Mr D responded by saying that the matter was going to court because he was taking Mr G to court for intimidation. Mr D reiterated that he wanted the matter to go to court. Mr D said he would speak to those people who he said were on the other end of the two‑way radios and ask if they were prepared to talk to the police officers.
9. When the police officers read out parts of Mr G's statement to Mr D, the statement was visible on the footage. The statement was made 12 March 2021. From at least the visible part of the statement, it did not mention that the threat was made to L as well. The statement only suggested that Mr D's threat was directed to Mr G, the statement being in the following terms:

There is a guy from [a particular company] who is waiting for me to give him the word to come and deal with you.

This guy has done jail time for slitting a guy's throat, you are going to get the same, you fucking cunt.

1. Acting Sergeant Baker was cross‑examined about whether or not he had received an e‑mail suggesting that a Mr Wayne Jones had overheard the alleged conversation. He accepted that he did receive an e‑mail, however he forwarded it through to the Joondalup Prosecuting Office and he does not know whether there were any enquiries taken in respect of it. In particular, he does not remember anyone being tasked to obtain a statement from Mr Jones.[167] He was asked if he knew anything about Mr D attending the Wanneroo Police Station two weeks after the incident and doing a formal record of interview. His answer was no and that he had checked the IR [Investigation Report] and there was nothing on the IR to suggest anything was conducted with Mr D.[168]

1. Mr D was asked why he went to Mr G's house on 5 March 2021. He explained that he went there on 4 March 2021 in order to make an offer of settlement between him and Ms G. He said on that day they had long discussions about many things. He made Mr G an offer and he declined it, which Mr D described as fair enough.[169]
2. He estimated he was there for about two and a half hours. He said he spoke to L at the time because Mr G said L wanted to ask him some questions. L then asked some questions about the company. Mr D described the conversation as not being friendly and that L was angry with him.[170]
3. He said that the conversation between him and Mr G ended with Mr G asking Mr D to bring Ms G back the next day so the three of them could sit around and try and hammer out a settlement.[171]
4. Mr D explained that the figure that he had put that day was $860,000 which Mr G would not accept. He said he knew that Ms G would not go to Mr G's house because of the VRO that was in place so he did not even ask her as to whether she would come along. He said what happened was he went back the next day and upped the offer to $1 million.[172] He did not tell Mr G that he was not bringing Ms G the next day.[173] He was then taken to the specific events of 5 March 2021.
5. In respect of his arrival, Mr D said the following:[174]

The morning of 5 March I knocked on the door at about - around about 7 o'clock and [L] answered the door. And I said, 'Can I speak to your dad?' He - they already knew I was coming, so it was pretty, you know, straightforward. [L] led me out the back and the first thing [Mr G] said is, 'Where is [Ms G]?' And I said, 'She won't come, [Mr G].' I said, 'She won't break this VRO.' Because the day before he had offered me all sorts of deals for [Ms G] to - to come. And he said, 'I will get the sergeant here to sign a piece of paper to say she can come to my house and I will get witnesses to be here so there's no violence,' you know, all sort - sorts of stupid things that I knew [Ms G] was never going to agree to.

1. Mr D also explained that he had a two‑way radio in his pocket on both days because he was fearful of being trapped and he said the people on the other side of the radio were 'the boys at the post office'.[175]
2. Mr D was then asked to take his counsel through the conversation he had on 5 March 2021. It is important that I set out his answer in full, which is as follows:[176]

[Mr G] says, 'Where is [Ms G]?' And I say, '[Ms G] is not coming, [Mr G].' He is obviously very angry at that point because he can manipulate [Ms G]. You know, [Ms G] is scared of [Mr G]. There's no question about that. And he - and he knew without her being there, there was no manipulation to be had. So I said, '[Ms G] is not coming, [Mr G]. She won't break that VRO.' And I said, 'What I can do and what I will do is I will lift that offer to $1 million even, paid out as fast as I can raise the cash.' Because I - [Ms G] - the - the offer the day before had been made at 860,000, but it was paid out over four years. I was going to up that offer to one million paid out. Like, it takes you a while to raise a million, so that would have taken me probably two weeks, maybe a month to have - have the million dollars. He then just said, you know, 'This is frigging bullshit. I'm not doing it. It's ridiculous'. And I said, 'Listen, [Mr G]', because, like I say, I had known [Mr G] for a long time and he has got a son and he's looking after a son. There are things I respect about the man. I said, 'Listen, [Mr G], there is major investigations going on into your activities as manager of Hi Tech Maintenance,' and I outlined those investigations. And his response was exactly, '[Ms G's] name is all over the bank transfers.' And - and I - and I said, '[Mr G], I was married 23 years. My wife never slept at the police station once. She never had the neighbours come over to see if she's still alive after an argument. I can tell you that every court in the world is going to see that [Ms G] would do - would transfer money to the Devil himself if you said to.' And - and he just completely lost it. I was actually scared of him because he - he - he lost it. He - he just said, you know, 'Fuck off out of my house. Get out of this fucking house, you fuck.' You know, completely. So angry, I've never seen a - he was sitting there like this, like - - -

For the transcript, your Honour, the witness has raised his fist and is shaking? ‑‑‑ Yes, he was shaking with anger, so I left. And - and that was it, finished. The negotiations are finished, gone.

1. Mr D said he never threatened Mr G. He said he had no motive to do so. He said he and Ms G were not in a relationship. The case against him that he would go up there, offer Mr G $1 million dollars and then in the next sentence threaten to kill him does not make sense to him.[177] Mr D then expanded somewhat on the allegations that he said he had put to Mr G during the conversation about the business.[178]
2. Mr D then expanded on the conversation with Mr G further in examination in chief as follows:[179]

So on 5 March you've said you' re not sure where [L] was. Did you see [L]? ‑‑‑ He was definitely there, but, like, it all got out of control. You know, like, I was shaking my head in disbelief, to be honest. I really was. I thought, you know, I - one - one - one minute I'm offering $1 million to be paid out within a fortnight and thinking how can I raise $1 million. I've got to - I've got to clean our bank - because that was money that I had to put in. [Ms G] didn't have the money. And I knew I could probably get the money off [Ms G's] parents, but I can't give away $1 million of their money, so I've got to know that my backup is to use my own money and then the company will pay me back. So I'm thinking about that at the same time I'm making the offer. And then [Mr G] just completely lost it. And I said, 'Well, you pay [Ms G] $2 million and - and you can have the company. ' To which he said, 'Get it drawn up.' And then I had to backpedal a little bit because I had spoken out of turn and I said, 'Well, I have to get [Ms G's] approval for that.' And - and - - -

And so where was this interaction taking place? ‑‑‑ Same backyard, same as the day before.

HER HONOUR: Sorry, you just said you had to backpedal a bit and said you would have to get [Ms G] to sign off on it? ‑‑‑ Well - well, what - see, I said to [Mr G] - because like I said, the company was valued at $2 million. We had a valuation. The total value of the company was two million. I had offered [Mr G] one million in cash, but there was still $1 million debt, so [Ms G's] share - until the company paid - kept cashflow coming in, was virtually zero. At that - at the point of the contract, if she had to sell then, she got nothing. All she had was $1 million worth of debt. So I said to [Mr G], 'You pay [Ms G] the $2 million. [Ms G] will pay the $1 million off the debt,' because all the debt was in her name. He had no debt at all in his name and she gets $1 million and walks away. And [Mr G] said to me, 'Get it drawn up.' And I said, 'Well, hang on, [Mr G]. I will have to talk to [Ms G] before I get it drawn up.'

1. He was taken through his relationship with Mr G prior to the incident. He explained how he came to be involved with the company operated by Ms G and his concerns regarding its viability. He said prior to 4 March 2021 he had been in contact with Mr G regularly by text message and also they would talk on the phone.[180] He was asked whether the phone calls were friendly in nature and he said 'No. You couldn't say friendly'.[181] He said that in every phone call Mr G's response was the same, being 'This will never go to court [Mr D], ever. Are you listening?' He would say 'You will be dead and - and I will be in jail. Are you listening, [Mr D]?'[182] Mr D said that Mr G had said this 'like, 50 times, who knows'. And he did not take any notice of it because Mr G 'is a big blowout'.[183] He explained that Mr G would say these words after Mr D had said the words 'This will end up in court, [Mr G]. If we don't make some sort of a settlement, it will end up in court'.[184]
2. Mr D was then examined about his interactions with L prior to the incident. The text messages that L had sent him became exhibit 6.
3. Mr D explained that with the company, the biggest requirement for him is he has got to have a clean police record.[185]
4. A number of text messages between Mr D and Mr G were put into evidence which became exhibits 1.1 to 1.4. In one of the text messages, Mr G was asking that the charges in relation to him threatening to distribute intimate images of Ms G be dropped and then 'we will talk'.[186]
5. Mr D explained that he was in Mukinbudin to do a big renovation job at the post office. However, he said he was in Mukinbudin essentially to see Mr G because he felt that they were close to being able to reach a settlement.[187]
6. He was asked whether he ever threatened Mr G and he said never. He was asked if he ever threatened L and he said:[188]

I would never threaten [L]. I can imagine myself, and I would be 1000 per cent honest. I can imagine myself threatening somebody in anger and especially [Mr G] and he can - he can make you very anger - angry. But I will not accept that I ever threatened a 15 year old boy. No way in the world.

1. Mr D said that he thought his interview with police was approximately two or maybe three weeks after he had been to Mukinbudin. He was asked whether he did any other interviews with police. He said, 'I did one at the Wanneroo Police Station, in their interview room ... That was conducted about another two or three weeks after the first one'.[189]
2. Mr D was extensively cross‑examined about the radios that he said were being used.[190] It was put to him that it is fair to say that he was angry at Mr G and he said 'no, not at all'.[191] Mr D said he was frustrated with Mr G but not angry with him.[192]
3. He was cross‑examined about what he told Mr G regarding the investigations that he (Mr D) had undertaken. The relevant excerpt is as follows:[193]

And on that day, you've described that he - he lost the plot when you spelled out to him what you had spelled, having done your 18 months of investigation? ‑‑‑ I - I spelled out to him what would happen if this - if he - if he decides to take this to court, instead of an amicable settlement. What would happen. Not me.

1. Mr D was then cross‑examined on the terms of the offers that were put and the history of the increase in the offer amount. It was put to him there were inconsistencies between his evidence and what he said in his interview with police. He did not accept this and ultimately the interview was not replayed for the purposes of assessing whether the prosecutor's characterisation of the interview was correct or not.
2. Mr D said in relation to the offer of $1 million dollars that he would have to come up with $700,000 of it and by that he meant to find it either through his own money, Ms G's parents' money or a bank's money.[194] This line of cross‑examination was directed to undermining Mr D's evidence that he was, in effect, a disinterested party in the outcome of the settlement of the dispute between Mr G and Ms G.
3. It was put to Mr D that the reason he made the threat was because he was so infuriated by what Mr G was saying regarding Ms G. The relevant question and answer is as follows:[195]

Well I put it to you, [Mr D], that you were so infuriated by what was being said that that's why you made that threat against [Mr G]? ‑‑‑ Well you - you're 1000 per cent wrong. Why would - why would I? He - I've already got, like I say, a stack of files this big that aren't hearsay. They're actual written evidence. I - I don't need to threaten him. I've already threatened him. That's the threat. That's the threat in [Mr G's] mind. That's the threat, that paperwork. Because that stops him ever working for Programmed again. That stops his dream because - - -

1. Mr D was then again cross‑examined about his evidence regarding having a two‑way radio with him. Further, Mr D accepted that he seemed to be quite upset when it was suggested to him that he had threatened L.[196]
2. Mr D was then cross‑examined again about the offers that he put to Mr G on the day. The following exchange took place:[197]

Because you were about to give him a million dollars? ‑‑‑ No.

That's what he panicked about? ‑‑‑ No, he panicked - he didn't want - he doesn't want to settle this. He never - he would have taken that million dollars. He said in court the other day; I will take that offer now. He was in court.

And he said on the day he would take the offer, put it in writing? ‑‑‑ No, he didn't. He did not put it in writing. Bring me one piece of evidence - - -

And you realised you had gone too far, so you had to backpedal? ‑‑‑ No, I said you pay us two million. The one million has gone out the window. I said, you pay [Ms G] two million. That means she pays a million dollars off the debt. She has got no debt, she has got a million dollars in her hand, which is exactly what [Mr G] was going to get.

You overstepped the mark, didn't you? You went and made an offer that you weren't actually capable of making. Is that your evidence? ‑‑‑ Because she hadn't - she hadn't given me position - permission to make that offer.

And [Mr G] said, I will take it? ‑‑‑ I was giving - I was giving her company away without her permission. I couldn't do that.

No. But [Mr G] said, yes, I will take it? ‑‑‑ No, he didn't. He said get it drawn up.

1. In re‑examination, Mr D was asked on 5 March 2021 what was the offer that he made. He said '$1 million, paid out as soon as I could raise the - raise the capital'.[198] Mr D was then asked to clarify what he was talking about when he said 'raise the capital'. He said that they were going to be somewhere approaching $700,000 short and he had spoken to Ms G's dad that he would put in some and Mr D also thought he could put in some and they could make it happen. He also said that 'the reason I couldn't agree to the $2 million offer from [Mr G] was because I was effectively giving [Ms G's] company away without her permission, because she would have had to sign the company over to [Mr G] and I didn't have permission to do that'.[199] He also said 'when [Mr G] made the offer of two million; he pays the two million, then I said I can't do it because I have to put - run it past [Ms G] first. I can't get it drawn up. I have to run it past [Ms G] first'.[200]

1. Mr N was called as a witness to give evidence about matters unrelated to the specific incident the subject of the charge and his evidence does not affect the outcome of the appeal.

1. Ms G gave evidence regarding the company and her involvement in it and the cessation of Mr G's role with the company. She described that Mr G was terminated on 2 August 2019 from his role with the company.[201] Ms G agreed that at the time of the incident she was in Mukinbudin for the purposes of both working at the trading post and also negotiating a settlement.[202] She said she was aware that Mr D attended Mr G's home on 4 March 2021 and that had been arranged with agreement from both parties' lawyers.[203] She said that 'we had formulated a settlement offer for [Mr D] to present and I couldn't be there because of the interim VRO'.[204] She said that Mr D went back on 5 March 2021 unbeknownst to her.[205] Ms G was then examined on her relationship with L, saying she does not have a relationship with him.[206]
2. She described the layout of Mr G's home. She said that if you were standing in the outdoor entertaining area the neighbours' house would be somewhere between 3 m and 5 m away at the most. She also said that on the neighbours' side of the wall she believed was their bedroom.[207] She also said that when she had been using the entertaining area she could hear the neighbours in their bedroom.[208] In terms of her relationship with Mr D she said he is her workshop manager,[209] also saying they have a close friendship.[210]

1. As I have set out at [65] and [73], during the cross‑examination of Mr G, her Honour became frustrated and cross with Mr D's counsel and made a number of remarks displaying this. The pressures and demands on judicial officers are such that at times, hopefully rarely, judicial officers will become frustrated with how a case is being presented. However, in my view, it is important that judicial officers do not allow any such frustration to rise to the surface in a significant way. A significant display of frustration has the potential to cause participants in the legal system, especially those unfamiliar with it, to perceive that the result is dictated by the judicial officer's approach to their lawyer, and not by the merits of the case. On this appeal, I get the impression that Mr D's dissatisfaction is driven, in part, from his concerns about the interactions between his counsel and the learned magistrate.

1. At the outset of her Honour's reasons, her Honour set out that the prosecution bears the onus of proof and the standard of proof is beyond reasonable doubt. In respect of Mr D's evidence, her Honour said that:[211]

... even if I disbelieve his account of what happened, I must not move straight to conviction. Rather, I must put his account to one side, return to the prosecution case and determine whether or not the prosecution evidence has proven every element of the charge beyond reasonable doubt.

1. Her Honour identified that there was no doubt that at about 7.00 am on 5 March 2021 Mr D visited Mr G at his home. Further, there was no doubt that Mr G's 14‑year‑old son, L, was there at the time. Her Honour correctly identified that what was in issue is precisely what Mr D said.
2. Her Honour set out Mr G's evidence of what had occurred,[212] reading out in full Mr G's evidence where he was asked to clarify the words Mr D had said to him.[213]
3. Her Honour then referred to L's evidence, setting out in full L's evidence in the child witness interview of what happened in the interaction with Mr D.[214]
4. Her Honour said she was satisfied on the basis of the evidence of Mr G and Sergeant Clegg that on 5 March 2021, Mr G reported the incident to Sergeant Clegg and that Sergeant Clegg told Mr G about the option of a restraining order and/or a criminal investigation.[215]
5. Her Honour referred to the cross‑examination of Mr G that during the hearing of the restraining order application, he had not referred to the threat made by Mr D. Her Honour said she was satisfied that Mr G had written the fact of the threat in his affidavit.[216] It would seem that this view was based on her Honour's understanding of the usual practice at such hearings, as Mr G's affidavit did not form part of the evidence at the trial, nor was it marked for identification.
6. In terms of the evidence of what was said regarding the financial offers, her Honour said that L's evidence aligns with not only Mr G but also with Mr D.[217]
7. Her Honour found that all three people who were present all said the same thing as to the offers, and therefore accepted what was said in that regard.[218] As I explain at [206] to [210] below, Mr G, L and Mr D did not say the same thing regarding the offers.
8. Her Honour then said from there the witnesses diverge, Mr G and L attribute a threat to Mr D, whereas Mr D says he said nothing of the sort. Her Honour found that in her view '[L's] evidence on this is reliable'.[219]
9. Her Honour then analysed the competing versions of events that she understood to have been given by the witnesses. At the point in the reasons that her Honour did so, she had not set out in any detail Mr D's version of events.
10. Her Honour found that on 5 March 2021, Mr D was the party who had every reason to become agitated and she accepted that he did become agitated.[220]
11. Of particular importance to the disposition of this appeal is the following passage from her Honour's reasons:[221]

So on 5 March 2021, the accused went back to deal with the person who had threatened his ex‑wife with the nude photos and who the accused firmly believed was an entirely unscrupulous businessman and a bully.

Whether or not any investigations bear out those accusations, the fact is that is what the accused firmly believed. On 5 March 2021, on his own evidence, the accused ended up making an offer of $2,000,000. The complainant on his - sorry, the - yes - the complainant, on his evidence and on the accused's evidence, asked the accused to have that offer drawn up. The accused realised he had to backpedal as he had just made an offer that he had not cleared with [Ms G]. This was in the context of progressively higher and higher offers having been made to the complainant since 2019.

What happened next, of course, is crucial. The accused says that the complainant began to shake with rage when told of [Ms G's] absence. I do not accept this. I accept the complainant's evidence that he did not ask that [Ms G] be there. There was no need for him to shake with rage. On the contrary, the accused had every reason to become shaky and disconcerted. The complainant had not accepted the lower offer. The accused responded by making a reckless offer he had no business making.

In support of the complainant's evidence, there is the evidence of [L], which as I've already indicated, I find to be credible and not the result of coercion or collusion. On the accused's own evidence, he could understand how [Mr G] - not just anyone, but [Mr G], specifically - could drive a person to become angry and make a threat. Of course, he says, that nothing of this sort happened. But I'm satisfied on all the evidence that it did. The accused said in evidence:

'Why would I go up there, offer him a million dollars and then the next sentence threaten to kill him? There's no point. It doesn't make sense to me.'

It seems to me, though, that the reason would be this because the complainant did not capitulate. He didn't accept what was being suggested, at least not without it being drawn up. The accused had gone all the way to Mukinbudin and made an offer. [Mr G] didn't accept it. He asked that things go through lawyers. The accused was frustrated and he said the words attributed to him. [Mr G] was not threatening or agitated. He didn't need to be. On 5 March 2021, the accused was on the back foot. He needed and wanted the complainant to agree to something but he wouldn't, at least not easily. And that was a recipe for extreme frustration and anger.

1. As can be seen from this passage, her Honour set out that once Mr G asked Mr D to have the final offer drawn up, Mr D's evidence was that Mr G began to shake with rage when told of Ms G's absence. Further, the learned magistrate did not accept this evidence because she accepted Mr G's evidence that he did not ask that Ms G be there, therefore concluding that 'There was no need for [Mr G] to shake with rage'. As I will come to explain in relation to grounds 2 and 7, her Honour's reasons did not accurately record Mr D's evidence.
2. Both prior to and after the passage set out at [192], her Honour went through in some detail the criticisms by defence counsel of L's evidence and concluded they did not affect the credibility of his evidence.
3. Further, particular aspects of the learned magistrate's reasoning regarding Mr D's evidence are as follows.
4. Her Honour rejected Mr D's contention that Mr G wanted Ms G at the meeting on 5 March 2021 because she was easily manipulated. In this respect, the learned magistrate said that Ms G 'did not come across as someone who would be easily manipulated'.[222] The learned magistrate also found Mr D's evidence that he took a two‑way radio to protect his interests to be 'implausible' and 'without substance'.[223] Further, her Honour considered that if Mr D was seriously concerned about his safety or walking into a trap he would not have gone to the house.[224]
5. Her Honour referred to what Mr D said during the police interview, namely that he told Mr G he would expose everything Mr G had done in the company. Her Honour said that '[b]y his own admission to the police, he was forceful in that conversation and was threatening at that point to expose all of [Mr G's] shady dealings'.[225] Her Honour described this as not being the behaviour of a person who was supposedly weaker and more afraid of Mr G, which her Honour described was clearly suggested in the defence case.[226]
6. Her Honour described Mr D's presentation in the interview as that of someone who had demonstrated a forceful determination to expose all of Mr G's supposed wrongdoing and did not come across as someone who was the tiniest bit intimidated by Mr G.[227]
7. Her Honour referred to Mr D's explanation that Mr G did not want his behaviour exposed and therefore made up a story. Her Honour found that explanation made no sense.[228]
8. In relation to Mr D's evidence that the persons on the two‑way radio had told him their wives did not want them to get involved, her Honour found those conversations did not take place.[229]
9. Her Honour also found that the police officers did not conduct a second interview with Mr D, as he had said in evidence and as had been put in cross‑examination to Acting Sergeant Baker.
10. Ultimately, her Honour concluded that Mr D's evidence was lacking credibility and found that Mr D responded with emotion and anger and said the words attributed to him.[230] Her Honour then analysed whether the words spoken constituted a threat to harm within the meaning of s 338B of the Criminal Code, found that they did and convicted Mr D of the charge.

1. Before turning to the specific grounds of appeal, it is important in this appeal to first outline the findings which her Honour needed to make in order to return a verdict of guilty.
2. Given that Mr D gave evidence in which he denied saying the words alleged to constitute the threat, in order to reason to a verdict of guilty, it was necessary for the learned magistrate to:
   1. reject Mr D's evidence as to what he said happened in the interaction with Mr G and then put that evidence to one side; and
   2. on the basis of the remainder of the evidence, in particular the evidence of Mr G and L, be satisfied beyond reasonable doubt that Mr D said the words constituting the alleged threat.
3. Thus, the rejection of Mr D's evidence as to his interaction with Mr G was a fundamental step in reasoning to a verdict of guilty. Furthermore, if her Honour considered what Mr D said regarding the incident might be true, then her Honour was required to acquit Mr D. Put another way, to use the language from Douglass which I have set out at [36], her Honour could not convict Mr D unless satisfied that his evidence as to the interaction with Mr G was 'not reasonably possibly true'.
4. Her Honour found that all three people who were present all say the same thing as to the offers. However, that was not correct.
5. Mr G's evidence was to the effect that Mr D only made one offer. He initially described this as being 'an offer for settlement for the divorce of $1 million', to which he responded 'it's in the hands of the lawyers'. He later described the offer as 'pay them a million dollars to finish it', to which he responded 'no, go through the lawyers - it's going through the lawyers'. While the language used as to the offers is different as to who is paying, Mr G did not suggest that two offers were made; rather he gave inconsistent evidence as to the terms of the offer. Mr G's evidence in cross‑examination (see [68] above) also suggests Mr D only made one offer. Further, in Mr G's evidence, he did not say he declined the offer; his response was to the effect it has to go through the lawyers. Mr G's evidence was that after he responded to the offer, Mr D then started getting very agitated and said the words constituting the threat. In re‑examination, Mr G said '[a] good friend offered me $1 million to settle it', which presumably was a sarcastic reference to Mr D.
6. L's evidence was that Mr D made two offers. The first offer was to the effect of paying Mr G $1 million to walk away, which Mr G declined. Mr D then made a second offer to the effect that Mr G pay $2 million and walks away with all companies. Mr G's response was to the effect that he told Mr D to get it written up through the lawyers. Mr D then looked very angry and agitated and said the words constituting the threat.
7. Mr D's evidence initially was that when he first got there, Mr G asked where Ms G was, he told Mr G she was not coming and that Mr G was obviously very angry at that point because he can manipulate Ms G. In terms of the offers made, Mr D's evidence was that he said 'I will lift that offer to $1 million even, paid out as fast as I can raise the cash'. Mr G responded 'This is frigging bullshit. I'm not doing it. It's ridiculous'. Mr D then outlined the investigations into Mr G's activities with the company and further matters regarding Mr G's treatment of Ms G. Mr G then completely lost it and was shaking with anger. Mr D later expanded on this saying that after Mr G completely lost it, Mr D said 'Well, you pay [Ms G] $2 million and - and you can have the company'. Mr G responded 'Get it drawn up'. Mr D then explained that he had to then 'backpedal a little bit because I had spoken out of turn' and said to Mr G, 'Well, I have to get [Ms G's] approval for that'. Mr D expanded on this second offer, saying that he said 'You pay [Ms G] the $2 million. [Ms G] will pay the $1 million off the debt'. Mr G said 'Get it drawn up' and Mr D said 'Well, hang on, [Mr G] I will have to talk to [Ms G] before I get it drawn up'.
8. The evidence of L and Mr D was broadly consistent as to the sequencing and terms of the offers. That is, Mr D made two offers. The first was to the effect that Mr G be paid the sum of $1 million, which Mr G declined. The second was that Mr G pay Ms G the sum of $2 million in exchange for the company, to which Mr G responded to the effect get it written up by the lawyers. Mr G's evidence was that there was only one offer, which he variously described as 'an offer for settlement for the divorce of $1 million', 'pay them a million dollars to finish it' and '[a] good friend offered me $1 million to settle it'. His response, broadly speaking, was that he told Mr D to get it written up through the lawyers.
9. What Mr D said in evidence differed to what he said in the interview. In the interview, he said he offered $1 million and conveyed that if that was not accepted, he would in effect raise significant matters concerning Mr G's conduct when he ran the company. Mr D said Mr G then shook with rage and visibly demonstrated this in the interview. Mr D made no mention of the second offer of $2 million, although he also did not dispute that he had made such an offer when the police officer read out that part from Mr G's statement.
10. It is convenient to now turn to grounds 2 and 8.

1. In considering these grounds, it is useful to first summarise Mr D's evidence of what occurred in chronological order. It comprises five sequential steps, that took place in the following order:
   1. Mr G was very angry when he found out that Ms G would not be attending.
   2. Mr D then made the offer to pay Mr G $1 million, which Mr G rejected.
   3. Mr D then raised matters regarding Mr G's behaviour while managing the company and pertaining to Ms G.
   4. Mr G completely lost it and was shaking with rage.
   5. Mr D then made the second offer that Mr G pay $2 million, to which Mr G said in effect get it drawn up.
2. What Mr D said in the interview also has steps 1 to 4 at [213], save that Mr G had not rejected the first offer when Mr D proceeded to step 3. It is difficult to discern from the interview whether Mr D accepted that he had made the second offer the subject of step 5 at [213].
3. A critical aspect of the learned magistrate's reasoning to guilt is that which is set out at [192] above. Her Honour said that on Mr D's own evidence, he ended up making an offer of $2 million.
4. Her Honour then says that what happened next is crucial. I will set out the passage in full:

What happened next, of course, is crucial. The accused says that the complainant began to shake with rage when told of [Ms G's] absence. I do not accept this. I accept the complainant's evidence that he did not ask that [Ms G] be there. There was no need for him to shake with rage. On the contrary, the accused had every reason to become shaky and disconcerted. The complainant had not accepted the lower offer. The accused responded by making a reckless offer he had no business making.

1. In this part of the reasons, her Honour was dealing with the competing versions of evidence regarding whether the threat was made and correctly characterised that aspect as crucial. However, her Honour's reasons convey that Mr D's evidence as to what happened next was that Mr G began to shake with rage when told of Ms G's absence. Her Honour rejected this evidence, saying that she accepted Mr G's evidence that he did not ask for Ms G to be there. Her Honour also said there was no reason for Mr G to shake with rage and that Mr D had every reason to become shaky and disconcerted as he had made a reckless offer that he had no business making. This reasoning engages with an analysis of who was angry, and who had reason to be angry, following the making of the second offer.
2. With respect, her Honour's reasons do not accurately accord with Mr D's evidence.
3. As I have outlined at [213], Mr D's evidence was to the effect that Ms G's absence made Mr G angry before any offers were made. Further, Mr D's evidence was that at the time he made the second offer, Mr G was shaking with rage because of the matters which Mr D had highlighted regarding Mr G's behaviour. He highlighted these matters after Mr G declined the first offer. Mr D's evidence is not that Mr G was shaking with rage after the second offer was made, nor is it that Mr G was shaking with rage when told of Ms G's absence. Rather, at the risk of repetition, Mr D's evidence was that Mr G was shaking with rage immediately prior to the second offer being made, that rage being caused by the matters which Mr D had raised about Mr G's prior behaviour.
4. By the point in time that her Honour dealt with these matters in the reasons, her Honour had earlier described in some detail the evidence of Mr G and that of L. Her Honour had not done likewise in respect of Mr D's evidence. That being so, the passage set out at [192] cannot be read by reference to earlier parts of the reasons describing Mr D's evidence. Also, Mr D gave evidence on 30 June 2022 and her Honour delivered the reasons on 9 August 2022. It cannot therefore be said that Mr D's evidence was so fresh in her Honour's mind that the reference in the reasons must be understood to be an error of expression.
5. Her Honour's reasons therefore mischaracterise Mr D's evidence in a significant way concerning a matter that her Honour correctly described as crucial. Also, the particular reason given for not accepting Mr D's evidence does not actually engage with Mr D's evidence itself. This also appears to infect other parts of her Honour's reasons. Her Honour found there was no need for Mr G to shake with rage and that Mr G was not threatening or agitated, her Honour saying he did not need to be. However, the matters which Mr D says he raised regarding Mr G's behaviour did have the capacity to cause Mr G to be agitated, irrespective of whether they were of substance.
6. The Director points out that her Honour's finding is somewhat incongruous, as Mr G must have known by this point in the conversation that Ms G was not attending. The Director submits that her Honour gave another reason for not accepting Mr D's evidence, namely that he had every reason to become shaky and disconcerted, having made a reckless offer that he had no business making. However, the mischaracterisation of Mr D's evidence remains. Furthermore, the additional finding to which the Director points is directly linked to her Honour's finding that there was no need for Mr G to shake with rage. It is difficult, if not impossible, to disentangle these findings.
7. Further to these matters, as I have explained at [197] above, later on in the reasons, her Honour refers to what Mr D said during the police interview regarding Mr G's behaviour and her Honour concluded that '[b]y his own admission to the police, he was forceful in that conversation and was threatening at that point to expose all of [Mr G's] shady dealings'. Her Honour described this as not being the behaviour of a person who was supposedly weaker and more afraid of Mr G, which her Honour described was clearly suggested in the defence case. A particular difficulty that arises with this passage is that it appears to accept, from what Mr D said in the interview, that Mr D did raise matters concerning Mr G's behaviour in the critical discussion. However, if that is so, it directly contradicts Mr G's and L's evidence (see [61] and [133] above) and supports Mr D's evidence of what happened.
8. For these reasons overall, in my view the mischaracterisation of Mr D's evidence constitutes a material error of fact, if materiality is required. Accordingly, to this extent grounds 2 and 8 are made out and I grant leave to appeal in respect of them.
9. An additional matter raised in respect of these grounds is her Honour's reasoning that Mr D needed and wanted Mr G to agree to something and that Mr G would not do so, at least not easily, and this was a recipe for extreme frustration and anger on Mr D's part. There was no suggestion on the evidence that Mr D had any financial interest in the company such as to result in a need in that sense. However, when regard is had to Mr D going out to the property twice in two days, putting offers without Ms G's approval and his ongoing role in the company being very much dependent on Ms G retaining control, it was open to the learned magistrate to infer that Mr D had an interest in the outcome, which would be sufficient to sustain the finding.

1. On the evidence before the learned magistrate, it was open to her Honour to be satisfied beyond reasonable doubt that Mr D was guilty of the offence. In this respect, Mr G's evidence and L's evidence provided a proper basis upon which it was open to her Honour to find Mr D guilty. Accordingly, these grounds do not advance the matter any further than grounds 2 and 8.
2. Accordingly, grounds 1 and 6 should be dismissed.

1. The learned magistrate's reasons do not precisely accord with the formulation of the typical Liberato direction that I have set out at [33] above. This is because her Honour did not say that if she did not accept Mr D's evidence but considered that it might be true, then her Honour must acquit. Instead, her Honour set out that if she disbelieved Mr D's account of what happened, she must put that to one side and 'return to the prosecution case and determine whether or not the prosecution evidence has proven every element of the charge beyond reasonable doubt'.
2. It was not strictly necessary in this case for her Honour to have directed herself in accordance with the Liberato direction set out at [33]. A Liberato direction seeks to ensure that a jury does not misapprehend their task. Further, as the majority judgment observed i[231]e Silva,231 the Liberato direction seeks to clarify and reinforce directions on the onus and standard of proof. In this case, what her Honour said regarding Mr D's evidence has to be looked at in conjunction with what her Honour also said as to the onus being on the prosecution and the standard of proof being beyond reasonable doubt.
3. Accordingly, I do not think there is any error because her Honour did not say that if she considered Mr D's evidence might be true, then her Honour must acquit. Where an accused gives evidence denying the commission of the charged offence, it would ordinarily be helpful to adopt the formulation set out at [33] as a useful reminder of the applicable principles. However in a case such as this it was not necessary for her Honour to have done so.
4. Her Honour did also say that if she disbelieved Mr D's account, she must put that to one side and determine whether or not 'the prosecution evidence' has proven every element of the charge beyond reasonable doubt. That formulation is not correct. If her Honour disbelieved Mr D's account, her Honour was required to determine whether the prosecution, on the basis of all of the evidence that is accepted, proved Mr D's guilt beyond reasonable doubt. It was not just on the basis of the prosecution evidence.
5. However, I do not see this as giving rise to an error. Her Honour's reasons must be read in their entirety. Her Honour made it clear that her assessment as to whether the prosecution had proved the charge beyond reasonable doubt was made on her understanding of the entirety of the evidence. As I have explained in relation to grounds 2 and 8, her Honour's understanding of the evidence was not correct. However, that does not mean that ground 3 itself is made out, which is directed to the principles which her Honour applied.
6. Accordingly, ground 3 is not made out. I will grant leave in respect of it, given the matters I have explained at [231].

1. Ground 4 asserts that the learned magistrate erred in the application of the law by not applying the correct test and applying an incorrect interpretation of the statutory provisions. As the Director points out in counsel's written submissions, the ground does not identify how her Honour erred. This is not a matter that was pressed by Mr D at the hearing of the appeal. In any event, the manner in which her Honour assessed whether the words spoken constituted a threat to harm accords with established principles: see Green v The Queen[232] and also Jeffery v The State of Western Australia.[233]
2. Ground 4 is not made out.

1. It is convenient to consider ground 5 together with ground 7. This is because the predominant matters which Mr D raised in relation to the credibility of the prosecution witnesses arose out of matters which Mr D suggested ought to have been put to them in cross‑examination by his counsel.
2. The first area raised by Mr D concerned Mr G's evidence in support of his application for a violence restraining order against Mr D and Ms G.
3. The application for a violence restraining order proceeded in the following way. Mr G swore an affidavit dated 9 March 2021 in support of the application, which became MFI 1 on the appeal. Given its relevance to the appeal, I will allow the affidavit as evidence on the appeal and it will become exhibit 1.
4. The application for a violence restraining order came on for a hearing before Magistrate De Maio on 10 March 2021 with only Mr G present. Her Honour granted interim orders. There was then a final hearing on 30 and 31 August 2021 before Magistrate Randazzo, when Mr G, Mr D and Ms G represented themselves. The Director accepts that Mr D's counsel had the transcript of the hearings on 30 and 31 August 2021. As I understand it, the Director accepts that Mr G's affidavit and the transcript of the hearing on 10 March 2021 were available to Mr D's counsel and were matters about which she would have been aware.
5. Mr G's affidavit sets out that the threat made by Mr D was directed to Mr G only, the affidavit using the words 'have this man do the same to me'. It also goes on to say that Mr G told Mr D that he would not accept any offers without the businesses being valued and the agreement being documented by Mr G's lawyers.
6. During the hearing on 30 August 2021, Mr G however said that the threat made by Mr D had been directed to both Mr G and L,[234] which is what he also said in his evidence at the criminal trial.
7. It seems to me that there were legitimate lines of cross‑examination open to Mr D's counsel on the basis that two aspects of Mr G's account of the incident set out in his affidavit reflected prior inconsistent statements made by him. The first aspect is that the affidavit does not refer to a threat being made to L. That is, on its face, a significant inconsistency. As Mr D points out, if the words he said extended to include a threat against L, you would expect this to be at the forefront of Mr G's concerns. The second aspect is that the affidavit refers to Mr G saying that he would not accept any offer without the businesses being valued. This is of less significance.
8. As I have already explained, the cross‑examination of Mr G comprised a sustained attack on his credibility. Mr D's counsel cross‑examined Mr G that nowhere in the transcript of the hearing on 10 March 2021 did Mr G say that Mr D had threatened to slit L's throat, to which Mr G responded 'it's all in the affidavits'.[235] Her Honour then intervened by pointing out the allegations were in Mr G's affidavit, which in the ordinary course would form part of his evidence at such a hearing. Mr D's counsel moved on from this line of questioning.
9. It would have been preferable for Mr D's counsel to provide Mr G with a copy of the affidavit, have him accept it was his affidavit and then cross‑examine him on the basis that it made no reference to a threat to L and therefore was significantly inconsistent with Mr G's evidence given in the criminal trial. It is difficult to discern a rational forensic reason as to why this was not done.
10. The Director submitted that there was no miscarriage of justice predominantly because the learned magistrate accepted and relied on L's evidence. While that might initially sound attractive, her Honour had to decide the charge against Mr D on all of the evidence. Accordingly, matters which might diminish the credibility of Mr G's evidence on the key issue may well be a factor that affects whether her Honour was satisfied beyond reasonable doubt the words were spoken.
11. However, as the Director also points outs, it is speculative to attempt to discern what Mr G's answer may have been if cross‑examined on this topic. Allied to this topic is that there may be possible explanations that might not have affected Mr G's credibility. Accordingly, while I certainly think it was preferable that Mr D's counsel cross‑examine Mr G in the manner I have explained, I do not think that gives rise to a miscarriage of justice. Furthermore, Sergeant Clegg's evidence was that when Mr G attended at the police station, Mr G did not say that Mr D had threatened L as well as Mr G - see [139] and [142] above. Accordingly, the inconsistency was there before her Honour on the evidence to consider, albeit in that more limited manner.
12. Before leaving this topic, as I explain at [151], I observed while watching the footage of Mr D's interview with the police officers that Mr G's statement signed on 12 March 2021 was quite specific that the threat was made to Mr G only. In my view, it was preferable that the statement was put to Mr G as a prior inconsistent statement. It does trouble me that the statement constitutes the third occasion in the period shortly after the incident when Mr G did not refer to a threat being made to L, Mr G's conversation with Sergeant Clegg being on 5 March 2021 and Mr G's affidavit being sworn 9 March 2021. However, the inconsistency arising from the statement was not expressly raised in argument and only became apparent to me from watching the interview footage. That being so and given my view that grounds 2 and 8 are made out, I have not taken into account the inconsistency arising from the statement in determining this appeal.
13. Another matter which Mr D refers to arising from Mr G's affidavit is that it says the matter had not been reported to police. It may have been preferable to put this in cross‑examination as a prior inconsistent statement given Mr G's evidence was that he reported the matter to police on 5 March 2021, so before he swore the affidavit. However, to attempt to discern how Mr G may have answered is speculative and there are possible explanations that do not affect his credibility, for example relating to what Mr G understood the phrase 'reported to police' to mean.
14. Mr D also points out that during the restraining order hearing Magistrate Randazzo asked Mr G if he reported the incident to police, to which Mr G answered 'Police wasn't at the station at the time'.[236] Mr G also said that his solicitor advised him to get a restraining order and makes no mention in his evidence of having had a discussion with Sergeant Clegg regarding this.[237]
15. It would have been preferable for Mr D's counsel to put to Mr G that his evidence at the restraining order hearing contradicted his evidence in the criminal trial regarding this topic. However, such cross‑examination was not critical to an assessment of Mr G's credibility. Furthermore, Sergeant Clegg gave evidence that Mr G reported the incident on 5 March 2021, which the learned magistrate accepted. Accordingly, for these reasons, Mr D's complaint regarding the topic of when Mr G reported the incident to police does not give rise to a miscarriage of justice.
16. Finally in relation to this topic, MFI 2 is an e‑mail exchange between Ms G and Senior Constable Herrington of Mukinbudin Police Station regarding the violence restraining order application brought by Mr G. This will become exhibit 2 on the appeal as it has some, albeit limited, relevance. The e‑mail says that police have had no involvement in this particular matter. The e‑mail is directed to whether the application for the violence restraining order was brought by the police; the e‑mail is not directed to whether Mr G spoke to police on 5 March 2021. All the e‑mail conveys is that the application for the restraining order was not brought by the police.
17. Mr D's next complaint is directed to Mr G's evidence as to whether or not the neighbours had heard the incident. Mr G was cross‑examined on this topic. Mr G said that he did not know if the neighbours were home.[238] Mr D's complaint is that his counsel should have also cross‑examined Mr G on what he said on this topic during the restraining order hearing on 31 August 2021. During that hearing, Mr G cross‑examined Mr D and put the following proposition: 'I put it to you, the next‑door neighbours heard every word of it'.[239] The putting of the question in this way might arguably be seen as Mr G asserting that was the case and therefore could be a prior inconsistent statement. However, it is speculation to attempt to resolve why Mr G asked the question by putting a positive proposition, as opposed to merely asking whether the neighbours had heard what was said. Also, there is no suggestion on any other evidence that the neighbours were in fact there, or if they were, that they heard anything. This complaint does not give rise to a miscarriage of justice, either by reason of the topic not being raised in cross‑examination, or by reason of Mr D's counsel not calling the neighbours as witnesses.
18. In relation to Mr D's complaint regarding Mr G's evidence that the Monday following the incident was a public holiday, the Director accepts that it was not. However, that topic is not directly related to the incident and could well be a mistaken recollection of timing, as opposed to something that affects credibility.
19. Mr D also complained that his counsel did not make an opening statement at the start of the trial, but rather made one at the start of the defence case. That is an entirely orthodox approach to take and does not give rise to any miscarriage of justice.
20. Further, Mr D had in his written submissions at point 18 asserted that his counsel did not put into evidence text messages between him and Mr G that Mr D says proved Mr G was fully aware of Mr D's visit to his house. Further, Mr D says the text messages also showed Mr G's impatience with the settlement progress. A number of text messages between Mr D and Mr G became exhibits 1.1 to 1.4 in the trial. Mr D did not produce any further text messages in support of the assertion at point 18 of his submissions.[240] Accordingly, this complaint does not advance Mr D's position.
21. I will grant leave to appeal in respect of grounds 5 and 7, however those grounds are not made out.

1. As I explained at the commencement of these reasons, over the course of the various hearing dates Mr D filed a number of affidavits, not only of himself but also of other persons.
2. As the Director pointed out, none of the people who swore the affidavits gave evidence that they were present during the conversation said to constitute the threat, or that they overheard what was said in the conversation.
3. In respect of Mr Clifford's affidavit, Mr D sought to rely on it as being directed to Mr G being manipulative of Ms G. Ms G was not in attendance on the day and her perception of Mr G has little if any bearing on whether the alleged events occurred as alleged by the prosecution. Also, as the Director points out, her Honour's finding regarding Ms G's vulnerability to manipulation was based on her presentation in court, her Honour saying Ms G 'did not come across as someone who would be easily manipulated' - see [196] above.
4. Mr D also sought to rely on Mr Clifford's affidavit and Mr Colbran's affidavit as support for his contentions regarding Mr G's activities in the company. This may have been of possible relevance to explain Mr G's sensitivity to such a topic being raised by Mr D during their discussion on 5 March 2021. However, the evidence is very general. Given its generality, it is difficult to see how her Honour could have made findings regarding its subject matter if they had been called.
5. I therefore do not grant Mr D leave to adduce on this appeal the evidence set out in Mr Clifford's affidavit and Mr Colbran's affidavit.
6. In respect of the affidavit of Mr Jones, he says he listened by two‑way radio to the conversation which Mr D had with Mr G on 4 March 2021. He could not be specific about what was said. Given the conversation he says he listened to was on the day prior to the alleged incident and he could not recall the specifics of it, this evidence could not have had any material bearing on her Honour's findings. I therefore do not grant Mr D leave to adduce on this appeal the evidence set out in Mr Jones' affidavit.
7. In respect of Mr D's affidavit sworn 23 October 2023, I grant leave for Mr D to adduce on this appeal the evidence set out at par 7 and attachment J. This establishes that on 24 March 2022, Mr D's counsel received the transcripts of the restraining order hearings on 30 and 31 August 2021. For the following reasons, I do not grant Mr D leave to adduce on this appeal the evidence set out in the balance of the affidavit.
8. In respect of annexures A to F, these are all e‑mails from Ms G to police officers regarding the charge against Mr G for threatening to distribute intimate images of her. They have no bearing on the incident the subject of the charge against Mr D.
9. Annexure G comprises e‑mails between Ms G and her lawyer regarding a possible settlement of her family law dispute with Mr G. The e‑mails are dated 20 October 2020, thus well before 5 March 2021. The e‑mails suggest that Mr D is trying to negotiate a cash and asset settlement. However, at best, all they can demonstrate was Ms G had authorised him to do so. That has no bearing on whether the incident the subject of the charge against Mr D occurred.
10. Annexure H is an e‑mail from Ms G to her lawyers sent 3 March 2021. Mr D refers to the threats set out in the e‑mail which Ms G says Mr G made to her. However, the e‑mail itself is not admissible in the trial of the charge against Mr D; it is a communication from Ms G to her lawyer. The e‑mail is not evidence of what is set out in it.
11. Annexure I comprises part of a letter from Ms G's family lawyer to Mr G's family lawyer. The broad thrust of Mr D's contention is that the material reflects that if the allegations against Mr G pertaining to the business were substantiated, the business would have little value. It may have been possible to put this to Mr G in cross‑examination to support an assertion that he would be affected by the matters which Mr D says he raised in the conversation. However, Mr G was extensively cross‑examined on this topic and I am not satisfied this material took the matter further in a significant way.
12. Annexure K comprises a complaint made by a staff member regarding Mr G on 20 October 2019. It has no bearing on whether the incident the subject of the charge against Mr D occurred.
13. Annexure L is an e‑mail sent apparently from Mr G to Ms G on 21 September 2019. Mr D relies on it to demonstrate that Mr G knew the name of the person who was investigating the assertions of illegal dumping in respect of the company. In his evidence, Mr G initially said that he did not know that person's name, and then said he did not know that person.[241] As the Director points out, that when giving evidence about two and a half years later, Mr G says he does not know this name does not reflect that Mr G's answer was deliberately false.
14. Annexures M and N are communications between Ms G and her family lawyers regarding the same subject matter and were not admissible on the trial of the charge against Mr D, nor could they have been used to cross‑examine Mr G.
15. Annexure O is a letter dated 9 April 2021 from Mr G's family lawyers to Ms G's family lawyers offering to settle the family law dispute. It is sent after the incident on 5 March 2021 and does not set out any details of what Mr G says happened. It has no bearing on whether the incident the subject of the charge against Mr D occurred.
16. Annexure P and parts of Annexure R (pages 43, 45, 46, 47 and 48) are e‑mails which appear to be from Mr D to Mr G over the period from 29 September 2020 to 12 November 2020. They however do not comprise any responses from Mr G, absent which they cannot reflect his position as to the settlement of the family law dispute, to the extent that might be of any relevance. Mr D also points out that they do not reflect any aggression on his part. They are however a number of months prior to 5 March 2021. It may have been open to Mr D's counsel to put into evidence the entirety of the exchanges between Mr D and Mr G regarding settlement of the family law dispute. This might have been relevant to how the discussions were progressing and what if any aggressive behaviour was being displayed and by whom. However, in isolation, the e‑mails that only Mr D sent can have no bearing on whether the incident the subject of the charge against Mr D occurred.
17. Annexure R also includes e‑mail communications between Ms G and her family lawyers (pages 44, 49 and 50). They were not admissible on the trial of the charge against Mr D, nor could they have been used to cross‑examine Mr G.
18. The balance of Annexure R and Annexures Q, S and T are in effect further submissions on Mr D's part or the repetition of submissions previously made.

1. To summarise the position so far:
   1. I grant leave to appeal on grounds 2 and 8 and I am satisfied that those grounds are made out to the extent I have set out at [213] - [224] above.
   2. I grant leave to appeal on grounds 3, 5 and 7, however those grounds of appeal are not made out.
   3. I decline to grant leave to appeal on grounds 1, 4 and 6.
2. Having regard to these conclusions, it is necessary for me to consider whether s 14(2) of the CA Act is engaged, that is whether no substantial miscarriage of justice has occurred.

1. The Director submitted that looking at her Honour's reasons as a whole, the error made by her Honour does not undermine the ultimate conclusion that L's evidence is truthful and reliable and that Mr G's evidence is truthful and reliable to the extent that it is corroborated by L's evidence.[242]
2. The Director also points out that her Honour found Mr D's evidence to be lacking in credibility and made a number of specific findings that were critical of Mr D's credibility. I have summarised the more material aspects of these findings at [196] - [201] above.
3. However, the position remains that her Honour substantively mischaracterised Mr D's evidence as to what happened in conjunction with Mr D making the second offer, which plainly was a matter of significance. Mr D's conviction was therefore based on her Honour's erroneous understanding of Mr D's evidence. As a consequence, her Honour's reasons for not accepting Mr D's evidence do not correlate with the evidence that he gave.
4. Accordingly, her Honour cannot be regarded as having found that Mr D's evidence of the incident was 'not reasonably possibly true', as her Honour misapprehended that evidence in a significant way. In addition, given her Honour stated that aspect of the case was 'crucial', in my view the error has the capacity to have significantly influenced her Honour's finding of guilt. This is compounded by her Honour's erroneous understanding that Mr G, L and Mr D all say the same thing as to the offers.
5. Further, Mr D's evidence that he raised matters regarding Mr G's prior behaviour is not inherently lacking in credibility. It was clear from Mr D's evidence and his interview with police that he held a very negative view of Mr G. Her Honour found that irrespective of whether the investigations bore out the matters of complaint that Mr D raised, Mr D firmly believed that to be the case.[243] Her Honour also appeared to accept later on in her reasons, based on Mr D's interview, that Mr D had raised such matters.
6. Given that Mr D's evidence as to that topic is not inherently lacking in credibility, in my view it is not open to me on a review of the court record and with the limitations that encompasses, to assess whether Mr D's evidence ought to be rejected.
7. Furthermore, there are two significant matters that flow from a potential finding that during the conversation Mr D had raised matters pertaining to Mr G's prior behaviour. First, that provided a plausible reason why Mr G might shake with rage as Mr D said in his evidence. The matters Mr D says he raised had the capacity to be incendiary. Second, the raising of such matters directly contradicted Mr G's and L's evidence, who each denied that Mr D did so - see [61] and [133] above. Mr G also denied shaking with anger.
8. The Director also submitted that in Mr D's interview with the police officers he admitted that in his conversation with Mr G he had made specific mention of a person from a particular company as having slit someone's throat. The admission is said to arise from the exchange in the interview which I have set out at [147] above regarding the person from the company with whom Mr D and Mr G had both worked, in particular the last sentence that is set out at [147].
9. The Director accepts that it was not put to Mr D in cross‑examination that he made such an admission, nor did the learned magistrate find that he had done so.
10. The interview itself was conducted at Mr D's place of work. I consider what Mr D said is more likely to convey that the person with whom he and Mr G had previously worked might be at the workplace soon and the police officers could speak to him.
11. Having regard to these matters, I am not satisfied that Mr D made the admission contended for by the Director.
12. For these reasons, on the formulation of s 14(2) as explained in Gardin, I am not satisfied that there is no substantial miscarriage of justice. In my view, the error of fact made had the capacity to affect her Honour's assessment of the competing evidence regarding the crucial aspect of the interaction between Mr D and Mr G.
13. On my assessment of the negative proposition identified in Weiss, I am not satisfied beyond reasonable doubt of Mr D's guilt. As I explain at [281] - [283], Mr D's evidence that he raised matters regarding Mr G's conduct was not inherently lacking in credibility, had the capacity to be incendiary and, if accepted, materially contradicted the evidence of Mr G and L. Further, as I explain at [282], in my view it is not open to me on a review of the court record to assess whether Mr D's evidence ought to be rejected.
14. Accordingly, s 14(2) is not engaged.
15. It follows that the appeal must be allowed on grounds 2 and 8.
16. In considering what consequential orders should be made, having regard to the evidence at trial, I am unable to conclude that the prosecution of Mr D has no reasonable prospects of success. Further, Mr D was sentenced to a fine. This is therefore not a case where a sentence by way of a term of imprisonment or a community‑based order has been served, which might affect a decision whether to order a new trial.
17. Accordingly, the appropriate consequential orders are to set aside the judgment of conviction and order that there be a new trial before a different magistrate.

1. For these reasons, I order:
   1. I grant leave to appeal on grounds 2, 3, 5, 7 and 8.
   2. I decline to grant leave to appeal on grounds 1, 4 and 6.
   3. The appeal is allowed on grounds 2 and 8.
   4. The judgment of conviction of Mr D entered by the learned magistrate on 9 August 2022 is set aside.
   5. There be a new trial before a different magistrate.

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

[1] Huggins v The State of Western Australia [2018] WASCA 61 [375]; see also s 30(3)(c) of the CA Act.

[3] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] ‑ [45].

[4] Griffen v Birch [2023] WASC 444 [107].

[5] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494.

[10] Gartner v Brennan [2016] WASC 89 [58]; see also Strahan v Brennan [2014] WASC 190 [89] ‑ [90].

[11] Greenway v Lavers [2023] WASC 311 [106].

[12] Larussa v The State of Western Australia [2023] WASCA 62.

[13] The State of Western Australia v Olive [2011] WASCA 25 [40] ‑ [44].

[15] Liberato v The Queen [1985] HCA 66; (1985) 158 CLR 507 (Brennan J).

[16] De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57.

[19] Douglass v The Queen [2012] HCA 34 [12].

[24] Clarke v The State of Western Australia [2018] WASCA 14 [246].

[32] Hearing 20 April 2022, ts 9 - ts 10.

[35] Hearing 20 April 2022, ts 10 - ts 11.

[38] Hearing 20 April 2022, ts 12 - ts 13.

[44] Hearing 20 April 2022, ts 26 - ts 27.

[48] Hearing 20 April 2022, the relevant cross-examination is set out at ts 34 - ts 36.

[49] Hearing 20 April 2022, ts 34 - ts 35.

[58] Hearing 20 April 2022, ts 39 - ts 40.

[62] Hearing 20 April 2022, ts 41 - ts 43.

[67] Hearing 20 April 2022, ts 44 - ts 45.

[70] Hearing 20 April 2022, ts 46 - ts 48.

[72] Hearing 20 April 2022, ts 49 - ts 50.

[73] Hearing 20 April 2022, ts 50 ‑ ts 51.

[82] Hearing 20 April 2022, ts 54 ‑ ts 55.

[83] Hearing 20 April 2022, ts 55. While Mr G used the plural 'affidavits', there was only one affidavit referred to in the appeal.

[91] Hearing 20 April 2022, ts 58 ‑ ts 59.

[92] Hearing 20 April 2022, ts 59 - ts 61.

[94] Hearing 20 April 2022, ts 61 - ts 62.

[115] Child Witness Interview, ts 12 - ts 13.

[118] This aspect is not picked up in the transcript of the Child Witness Interview.

[130] Hearing 20 April 2022, ts 82 - ts 83.

[140] Hearing 20 April 2022, ts 86 - ts 87.

[142] Hearing 20 April 2022, ts 87 ‑ ts 88.

[156] Hearing 20 April 2022, ts 92 - ts 93.

[162] Hearing 20 April 2022, ts 94 ‑ ts 95.

[167] Hearing 20 April 2022, ts 99 - ts 100.

[174] Hearing 30 June 2022, ts 7 - ts 8.

[176] Hearing 30 June 2022, ts 9 - ts 10.

[178] Hearing 30 June 2022, ts 11 - ts 12.

[179] Hearing 30 June 2022, ts 12 - ts 13.

[180] Hearing 30 June 2022, ts 17 - ts 18.

[190] Hearing 30 June 2022, ts 27 - ts 30.

[212] Hearing 9 August 2022, ts 4 - ts 6.

[213] Hearing 9 August 2022, ts 5 - ts 6.

[214] Hearing 9 August 2022, ts 6 - ts 7.

[221] Hearing 9 August 2022, ts 15 ‑ ts 16.

[229] Hearing 9 August 2022, ts 19 - ts 20.

[232] Green v The Queen (Unreported, WASCA, Library No 950592, 8 November 1995).

[233] Jeffery v The State of Western Australia [2009] WASCA 133.

[240] Appeal Hearing 9 November 2023, ts 174.

[242] Appeal Hearing 9 November 2023, ts 205.