Criminal law - Appeal against conviction - Good character - Corroboration - Issues of credibility - Sufficiency of magistrate's reasons

Criminal Appeals Act 2004 (WA), s 14(2)

Magistrates Court Act 2004 (WA), s 31

1 This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Bunbury on 18 January 2008. The accused (the appellant) appeals against the decision of the magistrate to convict him of one count of aggravated common assault.

2 The appellant was granted leave to appeal his conviction and sentence on six grounds. At the hearing of the appeal I gave the appellant leave to amend those grounds of appeal. At the same time, the appellant abandoned the appeal against sentence. The amended grounds of appeal are:

1. The learned Magistrate made an error in law in failing to give weight to the considerable good character evidence presented on behalf of the Appellant;
2. The learned Magistrate failed to take into account the good character of the Appellant when assessing the credibility of the Appellant as a witness;
3. The learned Magistrate erred in law in finding that the evidence of [the mother] corroborated the evidence of [K];
4. The learned Magistrate erred in law in giving no weight to the Family Law issues occurring at the time of the trial and failing to assess the credibility of the prosecution witnesses in the light of those issues;
5. The learned Magistrate failed to provide adequate reasons for his decision to accept the evidence of the prosecution witnesses rather than the evidence of the accused;
6. The learned Magistrate erred in fact in finding that the independent witness [the teacher] conceded there was a mark on the head of the victim without acknowledging the explanation for the mark offered by the witness.

3 The prosecution notice alleged that between 1 October 2006 and 28 February 2007 at Bunbury the appellant unlawfully assaulted a child (E) under circumstances of aggravation, namely the appellant was in a family and domestic relationship with E contrary to the Criminal Code (WA) s 313(1)(a).

4 The appellant, who was represented by counsel, entered a plea of not guilty and his trial took place, before the magistrate, on 17 July and 20 August 2007. It was a joint trial with another charge of aggravated assault on the same complainant said to have been committed at a different time.

5 On 18 January 2008 the magistrate delivered his reasons, convicted the appellant of the charge under appeal and acquitted the appellant of the other charge.

6 It is not in dispute that the appellant is E's natural father. E was born in 2002. At the relevant time the appellant was living with E, the appellant's then partner and E's mother, (the mother), their younger son and the mother's three daughters. It was alleged that when the offence occurred the family lived at an address in Bunbury. Shortly before the mother complained to the police about the appellant's behaviour towards E she and the appellant had separated.

7 The prosecution's first witness was the mother's eldest daughter, (K). Her evidence-in-chief comprised a recorded interview with police on 24 April 2007, supplemented by some oral testimony. She was then cross-examined. K was 16 when she was interviewed by police and had just turned 17 when she gave her oral testimony.

8 K gave evidence that after her 16th birthday and a few weeks before Christmas 2006, in the middle of the afternoon, she had been sitting on the lounge in the house watching television. She also thought it was before her mother's birthday. The appellant and E were also home. Her mother was at work. She could not recall if anyone else was at home. Whilst she was sitting in the lounge, E came into the room. He was crying and running away from the appellant. The appellant followed him into the room. When E was about 1 m from K's bedroom door, which led immediately off the lounge room, the appellant hit him across the left side of his head with a sideways motion of his open hand. At the time, the appellant and E were facing each other and the appellant had his back to K. Thus the position of his body prevented K from seeing the whole incident. However, she testified that she saw the movement of the appellant's hand across the head of E. The force of the blow caused E to lose his footing and he flew a distance in the air before hitting his head on a single couch in the room and then landing on the floor.

9 The appellant left the room and E got up and went to K. He was crying and K immediately noticed a bruise and swelling on what she initially said was the right side of his forehead, just below his temple. This was where E's head had hit the chair; rather than where the appellant's hand had connected with E's head.

10 K said that when her mother arrived home, she told her what had occurred and her mother and the appellant then had an argument. K could not hear what was said as she was in her bedroom.

11 In cross-examination, K said that the incident occurred on a Monday because that was her day off work. She first saw E when he ran between her and the television towards her bedroom door. She saw the appellant enter the room with a 'really angry look on his face'. She also saw what she thought was fear on E's face, as he ran past her. She then saw his back until he turned to face the appellant, near her closed bedroom door, because he could not open the door. She testified that the appellant and E were then about a foot away from each other. E was to the left side of the appellant. She said that she was unable to see the contact between the appellant's hand and E. After contact appeared to have been made, she saw E rise about 10 cm off the ground. She then heard a thud and believed that he hit the couch but was not sure whether he hit the wooden cup holder on the arm of the chair. However, she was sure that he had hit his head on some part of the arm of the chair.

12 The resulting injury was a lump on E's forehead. Contrary to her evidence in the recorded interview, K said that it was on E's left forehead and was about the size of a 20 cent piece. K described the area as E's left temple. The magistrate said that K was indicating the area above the eyebrow. K testified that it was red and purple.

13 K said that the following day she had to go to work and she thought E was at school. When she was asked to confirm that E was at school the next day, she said that she was not sure. She said she could not remember seeing him.

14 In re-examination K explained that she knew that E had hit the couch because of the thud which she heard. This noise was not in her view consistent with him having hit just the floor.

15 K denied discussing the incident with her mother leading up to her giving evidence about it.

16 The respondent's next witness was Trevor John Douglas, a detective senior constable attached to the Child Protection Squad of the Western Australian Police Service. He was called for the purpose of cross-examination. In cross-examination he said that the mother initially told him that K had witnessed assaults by the appellant on E and wanted to speak to the police about them. However, the mother did not give him details of those assaults; that information came directly from K. Detective Douglas gave evidence that the mother was not given a copy of K's recorded interview with the police but she was told that K had disclosed information about some assaults.

17 The respondent's third witness was another of E's half sisters. Her evidence did not relate to this charge and thus there is no need for me to summarise it.

18 The respondent's last witness was the mother. The mother gave evidence that the family lived in the house from September 2006 to February 2007. She said that whilst they were living in the house she came home from work one day and noticed a bump on the left side of E's forehead. She said she asked the appellant how he had got it and he said that E had fallen against the couch. She said that she had a good look at what she described as the 'egg' on E's head. She said that E appeared fine apart from the bump.

19 In cross-examination the mother acknowledged making a statement to the police on 16 May 2007. She was directed to the paragraphs in the statement which referred to bruising. She acknowledged that there was nothing in the statement about a bump on E's forehead. She said that was because the statement was about other matters. She said that she may have 'missed' this matter because of her 'state of mind' at the time she made the statement due to other matters related to her children.

20 The mother denied discussing the charges with her daughters. She testified the appellant did not look after the children whilst she was at work; rather he 'was in attendance of the house with the children'. She acknowledged not particularly liking the appellant at the time she gave evidence.

21 The mother said that she left the house with the children in the early hours of 26 February 2007 after a domestic altercation with the appellant. She acknowledged that she did not want the appellant to have contact with their two sons after that date but denied that the 'charges were brought' for that reason.

22 The appellant gave evidence that at the relevant time he was not in the paid workforce but was performing home duties. He said that E was in the kindergarten class at primary school. He attended four half days a week.

23 He said that by a mutual agreement with the mother, they both ceased spanking the children as a form of parental discipline in 2006. He denied smacking E at any time in 2006.

24 He denied that it would have been possible for E to have been standing where K said he was standing at the time the incident took place and for K to have been able to see E. He said that he would have been blocking K's view of E.

25 A photograph of the lounge suite was tendered through the appellant. It showed that each chair had large padded arm rests which finished in square pieces of wood which provided a flat surface on which to place cups or the like. These cup holders were attached to the top of vertical supports at the front of the arms of each chair. The vertical supports were covered in material but they do not appear to have the same level of padding as the arm rests, as the squared off edge of the chair frame is visible.

26 The appellant denied ever having hit E in the head. He said that he had never seen a bump on E's head 'from anything' and he had never discussed a bump on E's head with the mother. He testified that after the incident on 26 February 2007 when he was arrested by the police, he went home and found that the mother and the children, his money, his keys to his ute and other household items were gone. The first time he heard about this allegation was in March 2007.

27 The next witness (the neighbour) gave evidence that she was a qualified and experienced child care worker. She also had some training or had received information concerning identifying children at risk of child abuse. The neighbour had lived next door to the family in 2004 and she also saw the family socially after they moved. She said she observed the appellant as he supervised E's play with her child. She said that the appellant had 'a great relationship' with E. She said that she observed him disciplining E by telling him not to do something and that E would respond appropriately.

28 The neighbour said that when the family moved house she did not see them 'so much'. She said that she would see them at the shops and 'things like that'.

29 The neighbour said that she had 'no concerns at all' about the appellant's character.

30 In cross-examination she said that she had seen bruises on E's legs from falling over and had seen a bruise and scratch on his face, but no lump.

31 The next witness (the friend's mother) gave evidence that she was the mother of a child in E's class in 2006. She said that she saw E, his younger brother and the appellant at school. Towards the end of the year, 'every now and then', she and the appellant met for tea at the house. E and her son were at school at these times. On about three occasions the appellant took E to her home for a play.

32 She said that she observed that the appellant was very attentive towards his children and spoke to them in a gentle and caring manner. E and the appellant appeared to be 'quite devoted to each other'.

33 The friend's mother never had occasion to see the appellant discipline E. She did not hear or see the appellant raise his voice to or smack the children.

34 In cross-examination the friend's mother said she had never seen E misbehaving so that there was never any occasion for the appellant to discipline him in her presence. She testified that she had been to the appellant's home on three or four occasions.

35 The next witness (the teacher) gave evidence that she was E's teacher in 2006. She has a bachelor of education, specialising in early childhood education. She knew the appellant because he dropped off and picked up E each day. He also attended parent functions. The teacher also visited the family's previous home on one occasion. She thought that the appellant was 'chatty', 'conversational' and 'just kind of pleasant'.

36 The teacher testified that the appellant and E had a 'calm' and 'affectionate' relationship. She never saw anything in their interaction which caused her concern.

37 The teacher did not notice any lump on E's face and she said that she would have done so because that was her job.

38 Through the teacher, the defence tendered a bundle of photographs taken by the teacher of the appellant throughout 2006. The teacher did not know when each photograph had been taken.

39 Unfortunately, the cross-examination of the teacher was not recorded. In place of the recording the magistrate supplied his handwritten notes and a typed copy of them.

40 The notes record that the prosecutor showed the teacher more than one photo from the bundle and apparently asked her about marks on E shown in them. She gave evidence that the marks could have been a mark, bruise, paint or anything. She acknowledged that at least one photograph showed a mark on E's face but she could not say what it was. She did not recall seeing bruises on E.

41 She confirmed that E's schooling was broken into the same terms as that of other primary school children.

42 The teacher testified that E was a normal kid. The magistrate's notes record that she testified that she did not see the appellant that often with E; just during pick up and drop off. She had never been to the family home.

43 The appellant's final two witnesses did not relate to this charge.

44 At the conclusion of the evidence, the magistrate directed the parties to file written submissions and adjourned the matter to October for his decision. For reasons of which I have not been advised, the magistrate did not deliver his reasons until 18 January 2008.

45 In respect to this charge, the magistrate commenced his reasons by summarising K's evidence. His honour found that K's oral testimony was consistent with what she had told the police in April 2007. His honour then summarised the evidence of the remaining witnesses including that of the appellant and the other relevant defence witnesses.

46 He described K's evidence as 'forthright, frank, consistent, highly credible'. He referred to her consistency and her willingness to admit that she had not seen something occur. He also referred to her evidence that she had told her mother of the incident and that her mother had seen a lump on E's head which was not inconsistent with K's description.

47 The magistrate referred to the appellant's denial of the offence without further comment. He then said that the evidence of the neighbour, the friend's mother and the teacher (the character witnesses) was not all that helpful as the incident may have occurred when those witnesses had no contact with E. He noted that those witnesses had given evidence of the appellant's otherwise good behaviour when he was in the company of adults but that K had given evidence that at the house 'that was not the case'.

48 During oral submissions on the appeal, the appellant's counsel said that she had interpreted this as a reference to K's evidence of the offence itself. However, K had also given more general evidence to the effect that the appellant was 'violent' towards E without specifying where this violence occurred. The magistrate may have inferred that this other violence occurred in the family home.

49 Later, his Honour found that although he accepted the honesty and truthfulness of the character of witnesses, he did not accept that their evidence was of use in respect to determining what occurred within the home.

50 His Honour found that K's evidence was consistent with the mother's evidence. He found that the mother's evidence corroborated K's evidence about 'an event' which resulted in E being struck by the appellant in anger and in him hitting his head on a wooden cup holder.

51 The magistrate referred to the appellant's denial of the incident which was 'clearly contradicted' by the evidence of the mother and K. He repeated that K's evidence was 'highly credible'.

52 His Honour found that the domestic disharmony did not affect the veracity of the mother's evidence.

53 His Honour went on to reject the appellant's evidence, 'in the face of' the mother's and K's evidence of the lump on E's head. He continued as follows:

I make the following findings of fact in respect to the [the house] property: that the accused, between 1 October 2006 and 28 February 2006 [sic] in a property at [the house], chased [E] into the TV room of the property to the position nearly [sic] [K's] bedroom door. The accused was angry with [E]. There, [E] could not open the door and he turned toward the accused. The accused then struck [E] across the left side of his face with his right hand with sufficient force to lift [E] off his feet and onto a couch located near the door to [K's] bedroom.

There, [E] struck his head on a wooden cup holder causing a small lump to show above his left eye. I find that as a result, [E] ran to [K] who observed the incident from the comfort of the couch. I find [K] later that day reported the matter to her mother who spoke to the accused about it. The accused told [the mother] that [E] had fallen over and struck his head. I do not accept the accused's evidence as credible or honest in respect to this incident.

54 In respect to this charge the magistrate concluded by giving reasons as to why he rejected the defence of reasonable parental discipline. There is no appeal from these findings. His Honour then found the offence proven.

Grounds of appeal 1 and 2 - The learned magistrate erred in law failing to give weight to the considerable good character evidence presented on behalf of the appellant and failed to take into account the good character of the appellant when assessing the credibility of the appellant as a witness

55 I will deal with grounds 1 and 2 together as they both deal with the issue of the appellant's alleged good character.

56 The evidence on which the appellant relies is that of the character witnesses. In the written submissions made to the magistrate the appellant's counsel asked the magistrate to take into account the appellant's 'good character when considering the question of the [appellant's] guilt' in that it was relevant to the likelihood of the appellant committing the crime as well as to an assessment of him as a witness.

57 The issues that arise in respect to the evidence of the character witnesses is whether it was evidence of good character and if so, was it an error of law for the magistrate not to direct himself in respect to the use to be made of it? Lastly, even if no specific direction was required, did the magistrate fail to give appropriate weight to the evidence?

58 The traditional rule is that a witness called to give evidence of an accused's character can speak only of the accused's general reputation. The law in respect to what constitutes evidence of good character and its relevance to the assessment of the evidence of an accused's evidence and his or her guilt was recently considered by the court of appeal in Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488 [57] - [85]. The leading judgment was given by Buss JA with whom McClure and Pullin JA agreed.

59 A valid comparison can be made between the evidence of 'character' led in this case and some of the evidence led in Donaldson's case. In that case the prosecution alleged that the accused had committed offences against girls to whom he gave swimming coaching. The accused called evidence from the mothers of some of his other trainees to the effect that they had never seen him behave in an unseemly manner with any of the trainees. This type of evidence is of the same general nature as that given by the character witnesses to the effect that in their dealings with the appellant and his or other children they had never seen him behave in an inappropriate manner and, to the contrary, had at all times seen him behave appropriately with E and other children.

60 In Donaldson Buss JA said that the evidence in that case to which I referred 'is within the broad definition of good character evidence adopted by Glendall J in Ravindra, and referred to by Gummow in Melbourne at 27 [71].' R v Ravindra [1997] 3 NZLR 242 is a New Zealand decision in which it was held that in addition to evidence of general reputation, witnesses could give evidence of the good character of the accused, based on their own personal experiences with him or her. That has not been held to be the position in Western Australia. In Donaldson, for example, Buss JA did not make a finding that the evidence to which I referred was evidence of good character. The most that has been acknowledged is that the traditional requirement that evidence of good character be limited to evidence of the general reputation of the accused is one that is often not adhered to in practice.

61 It seems to me that, on an application of the traditional rule, the evidence of the character witnesses was not good character evidence. It was not evidence of the general reputation of the appellant within the community for either general honesty or trustworthiness. Nor, was it evidence of the general reputation of the appellant within the community for good behaviour with children. It was more likely to be evidence of the latter kind, but even then it was confined to each witness' limited experiences of the appellant with a small number of children and their experiences with the appellant were too limited, in my view, to amount to evidence of his general reputation for good behaviour with children.

62 However, if I am wrong in that regard, I now turn to consider whether, if it was evidence of good character, the magistrate erred in not directing himself in respect to the use he could or should have made of the evidence.

63 As Buss JA noted in Donaldson [77], in Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 the High Court decided, by a majority, that

the Court should not depart from the rule that a trial judge is not obliged to direct a jury about an accused's good character, but has a discretion whether or not to give a direction after evaluating the probative significance of the evidence in relation to the accused's propensity to commit the crime charged and the accused's credibility.

64 My views in this regard are that first, the magistrate did not err in failing to give himself a direction to the effect that the evidence of the character witnesses might affect, in a positive manner, the weight to give the appellant's evidence. This is because the evidence of the character witnesses had little, if any, probative force in respect to the general credibility of the appellant's evidence. None of the character witnesses claimed to have any knowledge of the appellant's reputation for honesty in the community or to have had relevant experiences with the appellant which would have provided examples of his general honesty or of the trustworthiness of his utterances and assertions. The contact each witness had had with the appellant did not enable any of them to acquire such knowledge or experiences. The evidence of the character witnesses was not able to assist the magistrate in determining whether the appellant ought to be believed on his oath.

65 Secondly, in respect to evaluating the probative force of the evidence in relation to the accused's propensity to commit the crime charged, I respectfully adopt what Buss JA said in Donaldson about a similar category of evidence. His Honour said [84]:

Even if the evidence in question was good character evidence, the trial judge did not make an error of law in failing to direct the jury as to the manner in which they could use the evidence. Similarly, the absence of such a direction did not, in the circumstances of the present case, constitute a miscarriage of justice. The trial judge had a discretion as to whether or not to give a direction. It would have been plain to the jury, without a direction, that the second kind of evidence was relevant to the likelihood of the appellant having committed the offences with which he was charged, or his propensity. ... There is no reason to doubt that the jury would have given the evidence such weight as it deserved in the course of deciding whether the respondent had proved beyond reasonable doubt, in relation to each count, that the appellant was guilty.

66 Although the magistrate did not expressly give himself, what I will call, a good character direction, he did refer to the evidence of the character witnesses, he appeared to bear that evidence in mind when he considered whether he was prepared to draw from the evidence the conclusion of the appellant's guilt and, in that process, he considered that evidence in his assessment of the likelihood of the appellant committing this offence.

67 I am confident in making the last two points because his Honour made certain comments in respect to the evidence of the character witnesses. For example, he said that the evidence of the character witnesses was not all that helpful as the incident may have occurred when those witnesses had no contact with E. He noted that those witnesses had given evidence of the appellant's otherwise good behaviour when he was in the company of adults but that K had given evidence that at the house 'that was not the case'. His Honour found that although he accepted the honesty and truthfulness of the character witnesses, he did not accept that it was of use in respect to determining what occurred within the home.

68 Given that the magistrate was under no obligation to give himself a good character direction and given that, from a reading of his reasons, it is plain that he understood the nature of evidence of the character witnesses and assessed the weight to be given to it, his Honour did not err in failing to give himself a good character direction.

69 I now move to the last issue, which is whether the magistrate failed to give appropriate weight to the evidence of the character witnesses. In summary the magistrate found that the evidence did not carry significant weight because it was evidence of the appellant's behaviour with children, including E, in the presence of other adults, it was evidence of the appellant's behaviour with children, including E, in public and there was evidence from K, who he found to be a credible witness, that his behaviour was otherwise when he was in the privacy of the family home. The weight to be given to the evidence was essentially a matter for the magistrate, as the fact finder. I do not accept that his reasons disclose that he failed to give appropriate weight to the evidence.

70 I also note in respect to the evidence of the neighbour that she had little contact with the appellant during the whole of 2006 and this offence occurred in the second half of 2006. It would not seem to me that her evidence could be given much weight for this reason.

71 In respect to the evidence of the friend's mother, she saw the appellant at home on three or four occasions but E was not at home on these occasions. Further, she never saw the appellant and E or any child in a situation in which the child needed to be disciplined. Thus, her evidence could not shed any light on the appellant's methods of discipline and his propensity to be violent towards a disobedient child.

72 In respect to the evidence of the teacher, she had only one experience of having visited the family home and she acknowledged that she did not often see the appellant with E. She did not give evidence that she had ever seen the appellant in a situation in which he had needed to discipline E.

73 For these reasons, I dismiss grounds of appeal 1 and 2.

Ground of appeal 3 - The learned magistrate erred in law in finding that the evidence of the mother corroborated the evidence of K

74 The third ground of appeal alleges that the magistrate erred in fact and law in finding that the evidence of the mother corroborated the evidence of K.

75 The appellant acknowledges that K's evidence did not, as a matter of law, require corroboration before the magistrate could have acted on it. However, he submits that the evidence of the mother as to the occasion on which she saw the lump on E's head and K's evidence in respect to the charge was inconsistent. Secondly, he submits that even if the mother observed a lump on E it is not clear that it was the same lump about which K gave evidence.

76 The position is that the evidence of the mother and K did not exactly dovetail. However, there was sufficient direct evidence from which the magistrate was entitled to draw the inference that the witnesses were speaking of the same incident.

77 The appellant gave evidence that E never had a bump on his forehead. Thus, he could not suggest, either at trial or on appeal, that E had multiple lumps on his forehead and the mother and K could be testifying about different lumps. Further, K and her mother each gave evidence of one lump they saw on E's left forehead during the time they were at the house. It was not suggested to either of them that E had more than one lump on his left forehead during this time.

78 K said she drew her mother's attention to the lump when she got home from work one day and her mother and the appellant had a bit of an argument about it. She did not hear what was said between them as she went to her bedroom. The mother said she came home from work one day and noticed the lump on E's left forehead and spoke to the appellant about it.

79 There was no direct inconsistency between K and her mother, in these respects. It is entirely possible, as the magistrate found, that the mother noticed the lump when K drew her attention to it. It is also possible that the conversation the mother described having with the appellant was argumentative, as alleged by K. The mother was not asked to give evidence about that issue.

80 Thus, I am of the view that it was open for the magistrate to conclude beyond reasonable doubt that K and the mother were giving evidence about the same lump on E's head. The mother's evidence directly supports K's evidence that E had a lump on his left forehead on an afternoon whilst the family were living in the house and that the appellant and the mother spoke together about it.

81 It is plain, however, that the mother's evidence could not directly support K's evidence that it was the appellant who had hit E causing him to hit his head on the couch and injure his head. Thus, at law, the mother's evidence did not corroborate the evidence of K. This is because corroboration at law is not just evidence which supports another witness' account in some way. Rather, it is independent evidence which tends to connect the accused person in the charged offence: R v Baskerville [1916] 2 KB 658, 667.

82 What then of the magistrate's incorrect characterisation of the mother's evidence as evidence which corroborated K's account? The Criminal Appeals Act 2004 (WA) s 14(2) provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. The respondent submits that this is an appropriate case in which to find that, despite the magistrate's error, there was no miscarriage of justice. This is because the magistrate clearly believed K's evidence and the mother's evidence and the respondent says that the magistrate would have convicted the appellant, in any event. I will return to this submission later in these reasons.

Ground of appeal 4 - The magistrate erred in law in giving no weight to the Family Law issues occurring at the time of the trial and failing to assess the credibility of the prosecution witnesses in light of those issues

83 The fourth ground of appeal alleges that the magistrate erred in law in giving no weight to the Family Law issues occurring at the time of the trial and in failing to assess the credibility of the prosecution witnesses in light of those issues.

84 There was evidence before the magistrate that the appellant and the mother had separated in early 2007 in acrimonious circumstances, that the mother had not wanted the appellant to have contact with E and his brother after that date, that she had obtained a violence restraining order against the accused to protect her children and that there were still Family Court proceedings on foot at the time of the trial. The appellant relied on this evidence as providing a motive for the mother to manufacture her evidence. K was not cross-examined as to what her motive would be for making up her evidence.

85 Both K and the mother denied having discussed the incident in detail with each other and of having manufactured their evidence.

86 The appellant submits that the magistrate palpably misused his advantage in hearing and observing the witnesses by rejecting the evidence of the animosity of the mother to the accused as in any way affecting her credibility as a witness.

87 To my mind this submission is the same as saying that the circumstances outlined above had to result in the magistrate concluding that the mother was an unreliable witness or a witness whose evidence he could not rely on. That is, that an ex partner of an accused who has a motive to give false evidence must be found by the trier of fact to be an unreliable witness. I do not accept this to be the case in law or fact.

88 The magistrate expressly considered the appellant's submissions in this regard and determined that he found the mother to be a credible witness in regard to her seeing a lump on E's forehead and her related evidence. He was entitled so to find.

89 There was no evidence before the magistrate which would have entitled him to find that K had animus towards the appellant or that she had deliberately manufactured her evidence.

90 For these reasons, I dismiss the fourth ground of appeal.

Ground of appeal 5 - The learned magistrate failed to provide adequate reasons for his decision to accept the evidence of the prosecution witnesses rather than the evidence of the appellant

91 The fifth ground of appeal alleges that the magistrate gave inadequate reasons for accepting the evidence of prosecution witnesses rather than that of the appellant.

92 The magistrate's task was not to determine whose evidence he preferred but rather to decide whether he was satisfied beyond reasonable doubt that the offence was committed. He could not make such a finding unless he was satisfied beyond reasonable doubt that K was an accurate and reliable witness. It is clear from his reasons that the magistrate not only came to such a finding but that he gave reasons for doing so.

93 To my mind, the only question is whether he gave adequate reasons for not finding that the appellant's evidence cast a reasonable doubt on K's evidence?

94 The magistrate's duties are stated in the Magistrates Court Act 2004 (WA) s 31:

Judgments, content of:

(1) The Court's reasons for a judgment in a case -

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

95 In Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, the High Court considered the meaning of a phrase in the Criminal Procedure Act (NSW) s 133 requiring a judge presiding over a trial by judge alone to include in his or her judgment '... the findings of fact on which the judge relied'. The court said that not only must the judge state the findings of fact that the judge has made, he or she must also expose the reasoning process justifying the findings and, ultimately, the verdict.

96 In Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 443 Meagher J said:

Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824.

97 In this case, the magistrate set out the conflicting evidence, set out his findings of fact, said in clear terms that he found K and her mother to be credible and reliable witnesses and that he did not accept the accused's evidence to be credible or honest in respect to the incident. In respect to the appellant's evidence and credibility he said:

I do not accept the evidence of the accused in the face of [the mother's] and [K's] evidence of the lump on [E's] head.

I do not accept the accused's evidence as credible or honest in respect to this incident.

98 The magistrate set out his findings as to how he came to accept K's version of events over that of the accused's in part by saying that he found that K's evidence was corroborated by the mother's evidence. As I have found that, at law, the mother's evidence could not corroborate K's evidence, I find that the appellant has made out this ground of appeal.

Ground 6 - The learned magistrate erred in fact in finding that the independent witness the teacher, conceded that there was a mark on the head of the victim without acknowledging the explanation for the mark offered by the witness

99 The sixth ground of appeal relates to the cross-examination of the teacher when she was shown some of the photographs she had taken of E in 2006. The magistrate's notes reveal that she said in respect to at least one of the photographs that there was a mark on E's skin. The notes also reveal that she said that it could have been any number of things including a bruise, paint or anything. The appellant complains that when the magistrate summarised the teacher's evidence he mentioned the mark but did not mention the teacher's possible explanations for the mark.

100 The magistrate was not required to canvas all the evidence given by the witnesses in his reasons. In Beale Meagher JA said:

First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435.

101 This part of the evidence of the teacher was not critical to the proper determination of the charge. The appellant says that it is unclear from his reasons whether the magistrate relied on the evidence about the mark to find the charge proven. I do not accept this submission. It is apparent from his reasons that the magistrate did not rely on the mark seen on E's face in the photograph in either coming to a view as to the credibility of the teacher or in determining whether the offence had occurred. It was thus unnecessary for him to refer to her explanation for the mark.

103 The appellant has made out appeal grounds 3 and 5. I am unable to agree with the respondent that the appeal should be dismissed because there has been no miscarriage of justice. This is because the magistrate's reason for finding the appellant's evidence to be incredible appears to rely, at least in part, on his erroneous finding that the evidence of the mother corroborated K's evidence. Thus, I am unable to conclude that that error did not infect his Honour's decisions to reject entirely the appellant's evidence and to convict the appellant.

104 The appeal is allowed. The decision of the magistrate is set aside and the matter should be remitted to the Magistrate's Court to be retried.