EVANS -v- HALLIDAY [2021] WASC 85 (1 April 2021)

1. Both the appellant and the complainant are tenants in the Astor Arcade on Beaufort Street in Mount Lawley (Arcade). There are gates into the Arcade from Beaufort Street which are closed and locked each evening. Previously, when a restaurant was a tenant of the Arcade, the gates would not be closed until about 11.00 pm. However, after the restaurant vacated the premises, the landlord of the Arcade and the appellant came to an arrangement whereby the appellant would close and lock the gates to the Arcade at 5:30 pm each week night and the landlord would attend to it on the weekend.
2. At approximately 5:30 pm on 14 December 2018, the appellant went to close and lock the gates to the Arcade. An employee from another of the tenancies within the Arcade asked the appellant not to close the gates so that she could leave the Arcade through these gates, to which he agreed. Shortly after this, a dispute arose between the appellant and the complainant about the time at which the gates were being closed.
3. The appellant rang the landlord and, after having a conversation with him, tried to make the complainant speak to the landlord on the appellant's phone. In doing so, the appellant entered the complainant's shop by pushing the door open with his arm, with his phone in hand.
4. The issue for determination at trial was whether, after the appellant entered the complainant's shop, his head came into contact with the complainant's left cheek.

1. On 31 January 2019, the appellant was charged with the unlawful assault of Ms Jarvis‑Branco. He entered a plea of not guilty on 14 February 2019.
2. Between 6 August 2019 and 12 May 2020, the matter was adjourned on a number of occasions prior to the allocation of a trial date. On 12 May 2020, the matter was adjourned to a directions hearing on 3 June 2020 to determine the admissibility of the expert report of Dr Short before the matter was listed for trial.
3. At a hearing on 3 June 2020 before Magistrate Young, the appellant objected to the tender of the CCTV footage and sought a ruling on the admissibility of the expert report of Dr Short. For reasons which I discuss in more detail below, the learned magistrate ruled that the report of Dr Short was not admissible and listed the matter for trial on 7 September 2020.
4. On 7 September 2020, the trial proceeded before Magistrate Bayly, who after hearing the evidence and submissions of the parties, reserved his decision until 21 September 2020. On 21 September 2020, his Honour delivered oral reasons for his decision convicting the appellant of the charge of unlawful assault.

1. Dr Short was retained by the appellant and provided an expert report entitled 'Report on an Alleged Headbutt - Kinematic Analysis' dated 18 April 2019 (Short Report).[4]
2. Dr Short's findings are based on the material he was provided (namely, the CCTV footage),[5] the literature identified in the Short Report and data collected.[6]
3. Dr Short commences his report by summarising the literature on the hazards of headbutts. This summary proceeds on the basis that a headbutt is delivered centrally to the face[7] and that the person intends to hit the victim's face with their forehead.[8]
4. Dr Short then undertakes an analysis of the CCTV footage.[9] The Short Report states that the analysis has been done 'by visual deduction based on the laws of physics applied to the biomechanics of human movement'.[10]
5. His report produces snapshots from the CCTV footage which he has cropped and zoomed in on 'to better show the events occurring'.[11] After each snapshot, Dr Short describes what is occurring in the snapshot.
6. Specifically, the Short Report sets out commentary on each of the frames from the CCTV footage in the following terms:

(a) at frame 261, the [appellant] has extended his arm 'towards the [complainant] (in a civil manner)' who also has her arm extended. Dr Short states that at this point it is possible that the appellant's phone is transferred to the complainant;[12]

(b) by frame 268, the appellant realises that the complainant is closing the door and reaches for the door edge (in frame 269);[13]

(c) at frame 273, the appellant grips the door handle and 'a tug of war' begins;[14]

(d) at frame 276, the appellant is pulling forcefully on the door and the complainant 'loses the door battle';[15]

(e) at frame 277, the appellant is lunging into the store violently, with his watch hand/forearm up. The complainant is regaining her balance from the door being pulled open by the appellant;[16]

(f) at frame 278, the appellant lunges into the store at the woman with his right arm up while the complainant maintains her stance;[17]

(g) between frames 280 and 281, there is potential contact between the heads of the appellant and the complainant. As the appellant's head goes forward, the complainant's head goes suddenly the same way - as in a headbutt. However, the complainant's right lower leg is also moving back which is a conscious movement. Dr Short expresses the opinion that this conscious movement 'corrupts' the hypothesis of head contact (headbutt) as the complainant's head movement may be a conscious movement also;[18]

(h) at frame 282, the appellant has a wide stance. He lowers his head by rotating forwards from his hips. The complainant has rotated almost to a side-on position to the appellant and is already moving backwards at this point. Dr Short cannot be certain if contact between the appellant's head and the complainant's head occurred or not.[19]

1. Dr Short's report then analyses the body movements associated with the execution of a headbutt by a professional Burmese boxer[20] and an amateur Tae Kwon Do participant in a black belt test[21] and compares these with the appellant's movements. He goes on to state that the poor resolution on the CCTV footage 'makes it impossible to be certain as to the severity of a blow or if any head to head contact did occur'.[22]
2. Dr Short concludes that although the appellant opened the door and entered the premises 'seemingly violently, from the CCTV footage alone,' he cannot confirm that head on head contact occurred. He concluded that if contact did occur, it was not directed properly for a 'headbutt' to occur because, the appellant struck the complainant with the side of his head to the side of her head.[23]

1. After hearing the submissions from both parties, Magistrate Young delivered his reasons for ruling that the Short Report was not admissible at trial. While his Honour accepted that Dr Short was an expert in biomechanics, which is a body of knowledge, his Honour considered that the report contained 'very little' scientific or biomechanical opinion.[24] Rather, the report went through the CCTV footage closely and expressed the opinion that it was not possible to conclude whether there was contact between the heads of the appellant and the complainant.
2. Magistrate Young stated:[25]

In this case it's my view that the court is as able as Dr Short to view the video and to use that in conjunction with the evidence of the witnesses to make a finding of fact as to whether or not the headbutt occurred and/or was deliberate.

It is of course the case that the prosecution case is not just based solely on the playing of the CCTV. It's in conjunction with the evidence of the complainant and other witnesses. Now, expert evidence also requires that the report have a proper foundation. So in this case I find the report is essentially a commentary on what is evident on the video in any event. To the extent, if at all, that the report casts doubt on whether a headbutt occurred, I find there is no proper foundation for that view.

1. The prosecution called two witnesses at trial: the complainant and Ms Gina McDonald.
2. The complainant's evidence in chief was that at approximately 5.30 pm on 14 December 2018, she went to another shop in the Arcade and bought a candle for her work.[26] As she was returning to her shop, she heard Ms McDonald ask the appellant not to close the gates. She called out to the appellant not to close the gates as the landlord was going to come and do it.[27] After this initial discussion, she headed back into her shop.
3. The appellant said he would call the landlord, Mr Bruno Zimmerman, to sort this out. The complainant went to the doorway of her shop to listen to the conversation between the appellant and Mr Zimmerman. The appellant tried to give the complainant his phone at the door of her shop so she could speak to the landlord. The complainant said that she would call the landlord on her phone and attempted to close the door to her shop. The appellant pulled the door open and lunged towards her. She ducked and the appellant headbutted her on the left side of her face.[28] The complainant screamed and Ms McDonald came running into the shop from next door and closed the door.
4. The complainant said she was shocked and was crying. She called the police, who attended her shop. While they were there, she showed the police the CCTV footage that had been taken from the camera within her shop.[29]
5. The CCTV footage and seven photographs were tendered through the complainant. The photographs (which were admitted into evidence over the objection of counsel for the appellant) were copies of photographs taken by the complainant on her phone. The photographs were of the complainant's face and were taken between 5.50 pm on 14 December 2018 and 9.58 am on 16 December 2018.
6. Prior to being received into evidence, the photographs were compared by the court to the original digital photographs on the complainant's mobile phone.[30] The phone was provided to counsel for the appellant so he could verify the photographs were the same as those on the phone.[31]
7. The complainant's evidence was that she took the photographs of her face 'because it was all red where it had been hit'[32] and that the photographs showed there was bruising below her eye and broken capillaries on her cheek.[33]
8. The complainant was cross‑examined at length by counsel for the appellant. She denied closing the door on the appellant,[34] that he had dropped his phone in her shop[35] or that she ever had his phone.[36] Her evidence was that the appellant left her store immediately after the headbutt.
9. During cross-examination, the complainant was asked about the photographs. Her evidence was:[37]

Now, these photographs that you took of your face, plainly they've got makeup on, haven't they? --- In some. When I go to work, yes, I've got makeup on. And when I'm crying, I have my makeup on.

So you've got makeup on in those photos. And you only show one side of your face, don't you? --- The side that got hit. Yes.

Because you suffer from a condition like rosacea or something of that effect. Don't you? --- No, I don't.

You get a little bit of redness on your cheeks? --- No, I don't. You never have redness on your cheeks? --- Ever. Never.

Never ever? I put it to you, ma'am, that you are not telling the truth there, because I can actually see it now. That you've - - -? --- I - - - - - - got makeup on your face now - - - ?--- Yes.

And there is a little bit of rosacea on your cheeks? --- There is not. I have never been diagnosed with that, so - - -

I'm not saying you've been diagnosed, ma'am? --- Well, then, how can you tell me that I've got it?

It's like a little bit of redness on the cheeks. That happens quite normally for some people? --- Sure.

1. The other witness called by the prosecution was Ms Gina McDonald, who was employed at another shop in the Arcade at the time of the incident. She gave evidence that at about 5.30 pm on the night in question, she noticed the appellant closing the gates to the Arcade and asked him to leave the gates open so she could leave.[38] After this, she saw the appellant and the complainant arguing in the Arcade about 1.5 metres from her shop. When she was inside her shop, she heard the complainant scream.[39] Ms McDonald ran out of her shop and saw the appellant and the complainant in the doorway of the complainant's shop. The complainant said to her, 'He just headbutted me.'[40] Ms McDonald got between them and told the appellant to go away before following the complainant into her shop and locking the doors. The complainant was crying and shaking. Ms McDonald's evidence was that she saw a visible mark on the left side of the complainant's face.[41]
2. Ms McDonald said that the complainant made a number of phone calls, including (at Ms McDonald's suggestion) to the police, and took photographs of her own face on her (the complainant's) phone.[42] After approximately 1.5 hours, the police arrived and took a statement from the complainant.
3. Ms McDonald saw the complainant the next day and saw that she had a bruise on her face.[43]
4. In cross‑examination, Ms McDonald said that when she came out of the shop, she saw the appellant standing over the complainant. Her evidence was that the landlord, Mr Zimmermann, arrived 10 to 15 minutes after the incident.[44]
5. The police did not obtain a statement from Ms McDonald until June 2019. In that statement, Ms McDonald stated that she saw the complainant the next day and that she saw that the complainant had a bruise on her face below the left eye socket. She maintained, under cross‑examination, that this was accurate.[45]

1. The appellant did not accept that contact had occurred between the appellant and the complainant. In addition, the appellant raised four matters by way of defence. First, the appellant was seeking to reclaim his phone which was inside the complainant's store and that he had an honest claim of rights defence under s 22 of the Criminal Code Act Compilation Act 1913 WA (Code). Second, that if there was contact between the appellant and the complainant, it was an accident (s 23B of the Code). Third, any actions of the appellant were a result of provocation (s 246, Code). Finally, the appellant was seeking to reclaim his phone which was inside the complainant's premises and that he had a defence under s 253 of the Code.[46]
2. Three witnesses gave evidence on behalf of the appellant: himself, Mr Zimmerman and Dr Paul Quinn.
3. Dr Quinn is a plastic surgeon who treated the appellant in 2007, following a serious assault which caused multiple facial fractures.[47] The appellant's face was reconstructed with titanium screws, plates and wires.[48] In cross‑examination, Dr Quinn stated that he had not seen the appellant since 2007. His evidence was that after 11 years if a person wanted to play a sport such as soccer, which required headbutting the ball and use of the head, 'it should be okay'.[49]
4. The appellant elected to give evidence. His evidence was that at about 5.30 pm on 14 December 2018, as instructed by the owner of the Arcade, he was getting ready to lock the gates of the Arcade.[50] Ms McDonald asked him not to lock the gates as she was running late. After a short time, he walked down the Arcade and the complainant yelled at him about shutting the gates too early.[51]
5. The appellant then rang Mr Zimmermann on speakerphone to clarify the matter. He spoke to Mr Zimmermann and told him he was having trouble with the complainant. Mr Zimmermann asked him to put her on the phone.
6. At that point, the complainant went into her shop, so he put his arm through the doorway and tried to pass his phone to the complainant. The complainant slammed the door on his arm and he dropped the phone on the floor of the complainant's shop. He opened the door to retrieve his phone, which was either in the complainant's hand or on the floor, grabbed his phone and walked out.[52] The complainant followed him out of her shop, Ms McDonald came out of her shop and told him that he had better leave.[53] The appellant's evidence was that when he saw the complainant during the following week, he did not see any black eyes or anything like that.[54]
7. Under cross‑examination, the appellant said that Mr Zimmerman had asked him to close the gates to the Arcade, the complainant had been complaining about the timing of closing of the gates for a period of time,[55] and that the complainant was very argumentative. His evidence was that when he rang the owner, he put his phone on speaker so the complainant could hear the conversation.[56]
8. The appellant accepted that the complainant had said that she would speak to Mr Zimmerman on her own phone and maintained that she slammed the shop door on his arm, that his phone fell to the floor and the complainant picked it up.[57] After viewing the CCTV footage on several occasions, the appellant agreed that his phone did not fall to the floor and the complainant did not pick it up. However, the appellant maintained that the complainant had his phone in her hand which is why he went into the shop to retrieve it.[58]
9. The final witness called by the defence was Bruno Zimmermann, the owner of the Arcade. His evidence was that until 2018, there was a café at the end of the Arcade who took responsibility for closing the gates to the Arcade. However, when the café closed, he had to come at 5.30 pm each day to close the gates.
10. At some point, the appellant offered to close the gates so that he did not have to attend every day. After this offer was made, he told all of the tenants in the Arcade that the appellant would be closing the gates at 5.30 pm. At about 5.30 pm on 14 December 2018, the appellant rang him and told him that the complainant did not want him to close the gates. He was put on speakerphone and heard the complainant screaming. He asked to speak to the complainant and then heard the appellant say 'my arm' and 'Give me my phone back. Give me my phone back.'[59]
11. Mr Zimmerman immediately drove to the Arcade and spoke to the complainant. The complainant told him that she had been headbutted by the appellant.[60] He did not see any mark or bruising on her face at that time or later.[61] Under cross‑examination, Mr Zimmerman maintained the evidence he had given in chief.

Reasons of the learned magistrate to convict appellant

1. On 21 September 2020, the learned magistrate delivered oral reasons for his decision. His Honour summarised the evidence given by each of the witnesses and then turned to the matters in issue. His Honour stated that:[62]

The first issue is whether I'm satisfied beyond reasonable doubt that the accused's head came into contact with the complainant's left cheek, because unless there was an application of force then the charge must fail. The complainant gave evidence that, following an argument about the gates, the accused tried to make her speak to Mr Zimmermann on the phone.

It is common ground that the accused pushed his arm, with the phone in hand, through the door of the complainant's shop. The complainant says the accused forced open the door of the shop and lunged at her, headbutting her to the left cheek, and when this occurred she screamed. Her evidence that she screamed and as to the reddening of the left cheek is corroborated by Gina McDonald, who I would class as an independent witness.

The photos taken by the complainant on her phone also corroborate the fact that the contact was made. In my view, the photos, particularly when seen on the complainant's phone, show redness and bruising consistent with an application of force. The suggestion by defence that it was rosacea is, in my view, not sustainable. The accused and Mr Zimmermann say they didn't see any injury, and they may not have observed it but, clearly, in my view, it was there. The CCTV footage of the incident must be treated with caution, because depth on CCTV footage can be deceptive. However, what the CCTV footage clearly shows is that the accused lunges his head violently towards the doorway of the complainant's store and the complainant's head then recoils back. The CCTV footage, whilst not absolutely conclusive as to contact, corroborates the complainant's evidence that there was contact. I don't accept the accused's evidence that there was no contact.

The accused called Dr Quinn to say the accused sustained head injuries in 2007 and somehow those injuries would prevent him from headbutting the complainant. That incident was 12 years ago and the doctor said the injuries the accused sustained would have healed after one year. In any event, the injuries he sustained were not in that part of the head which came into contact with the complainant.

The evidence that the accused then applied force to - that the accused's head applied force to the complainant's cheek, in my view, is overwhelming, and I find beyond reasonable doubt that he did headbutt the complainant.

1. His Honour then specifically considered each of the matters raised by way of defence. The learned magistrate found that:

(a) the evidence of the complainant that the appellant's actions were deliberate was corroborated by the CCTV footage. On this basis, his Honour was satisfied beyond reasonable doubt the application of force was not an accident;[63]

(b) the appellant's evidence that he was retrieving his phone as an honest claim of right was not supported by the evidence of the complainant or the CCTV footage. On this basis, his Honour was satisfied to the requisite standard that he was not acting with respect to an honest claim of right of property and, in any event, this would not have entitled him to 'headbutt' the complainant;[64]

(c) finally, the appellant did not give evidence that he had been deprived of the power of self‑control and the defence of provocation did not apply.[65]

Legal Principles governing admissibility of expert evidence

1. As a general rule, a witness can only give evidence as to matters they have observed.[66] There is an exception to this general rule for experts who can give opinion evidence. The expert must be a witness 'of specialised knowledge, derived from study or experience, on a subject for which unqualified persons require that assistance to form a sound judgment.'[67]
2. The role of the expert is to provide an opinion within the demonstrated field of specialist knowledge of the expert, based on facts which can be clearly identified.[68]
3. In Liyanage v The State of Western Australia, the Court of Appeal considered the circumstances in which expert opinion evidence will be admissible which they summarised as follows:[69]

An affirmative answer must be given to at least the following four questions before 'expert' opinion evidence on a scientific subject matter will be admissible:

1. Is the opinion relevant; ie could the evidence rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings?
2. Is a person of ordinary experience unable to form a sound judgment on the subject matter without the assistance of an 'expert' witness with special knowledge or experience in the area?
3. Is the subject matter part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience?
4. Has the witness acquired, by study or experience, sufficient knowledge of the subject to render her opinion of value in resolving the issues before the court?

1. Photographs and CCTV, if relevant to the issues in dispute in a matter, are admissible in evidence. However, as was noted by Tobias AJA, in QBE Insurance (Aust) Ltd v Orcher:[70]

the weight to be attached to them ... is very much dependant (sic) on the quality and clarity of the images they depict as well as the context in which they are taken. In my view they [CCTV footage] can be quite misleading particularly as in the present case where the situation the subject of the footage was very dynamic.

1. In Goode v Angland, Leeming JA summarised the use to which photographs and video footage can be put.[71] His Honour stated that:

(a) Photographs and CCTV should not be used to make findings of fact that are not supported by the evidence. That is, they should not be the sole source from which primary facts are inferred unless the fact is apparent on the face of the photograph or footage.[72]

(b) Photographs can be deceptive, particularly in relation to perspective and distance and should not 'trump' the direct evidence of witnesses 'that compelled acceptance'.[73]

(c) Care must be taken in interpreting photographs particularly if there is no evidence as to the position of the camera, when the photographs were taken and if they are indistinct.[74]

(d) Many of the warnings courts have given in relation to photographs are in relation to photographs taken after the events have occurred. Contemporaneous photographs or CCTV footage may provide cogent evidence which enables a court to resolve a disputed question of fact.[75]

1. The warnings that have been given by courts include what is termed the 'sage advice' of Lord Reid that judges and lawyers are not experts in reading or construing photographs and should not adopt their own interpretation of photographic evidence on contested issues.[76]
2. Expert evidence on CCTV footage and photographs is admissible where the expert has some special knowledge which will assist the court in interpreting the CCTV footage[77] or where the fact is not revealed on the face of the photograph or the footage.[78]
3. However, if a witness who has considered the CCTV or photographs seeks to give evidence of what they saw, this evidence will ordinarily not be admissible. If the witness is simply describing what they consider is depicted in the recording, their evidence is not admissible because the finder of fact can consider the recording and make their own decisions on what they are seeing.[79]
4. Finally, expert evidence is not admissible on matters of 'ordinary human experience'.[80]

Ground 1: error of law to exclude Dr Short's report Appellant's submissions

1. At the hearing of the appeal, counsel for the appellant conceded that much of Dr Short's report was commentary on the CCTV footage.[81] However, counsel submitted that the opinion of Dr Short that the complainant's right lower leg movement between the frames in the CCTV footage was a conscious movement which corrupts the hypothesis of head contact should have been admitted into evidence.[82]
2. Counsel for the appellant submitted that if this opinion were admitted into evidence, it may have altered the conclusion of the learned magistrate that the complainant's head recoiled back rather than the complainant's head moving back by way of a conscious movement.[83]

1. Counsel for the respondent denied that there was any error of law in the learned magistrate's ruling that the Short Report was inadmissible. The conclusion of Dr Short was that he was uncertain whether contact had occurred. This would not assist the court in determining beyond a reasonable doubt whether the appellant's head contacted the complainant's head without her consent.
2. Counsel for the respondent submitted that on a proper analysis of the Short Report, Dr Short's conclusions were not based on his application of scientific principles of biomechanics but from his interpretation of stills of the CCTV footage of the incident. In circumstances where Dr Short was simply describing what he saw in the video footage, his evidence was not admissible.
3. In any event, the respondent contended that the comparison of the body movements of the appellant with a martial arts competitor was an improper foundation for the opinion. For this reason the conclusion in the Short Report that if a headbutt occurred its severity was low because the complainant did not fall to the ground, was a logical fallacy that invited speculation.

1. The fact in issue at the trial of this matter was whether the appellant unlawfully assaulted the complainant. Section 222 of the Code provides that a person who applies force of any kind to another person without their consent commits an assault on that person.
2. In this case, the prosecution alleged that the assault occurred when the appellant's head came into contact with the left side of the complainant's head. Evidence as to whether this occurred which could rationally affect the assessment by the learned magistrate is admissible.
3. However, evidence that Dr Short was unable to conclude from his review of the CCTV footage that contact had occurred between the appellant and the complainant would not assist the learned magistrate in determining whether contact occurred. In my view, the learned magistrate did not err in excluding the Short Report on the basis that it was not relevant to any fact in issue in the proceedings.

Subject matter on which the finder of fact requires assistance

1. It is not in dispute that expert evidence can be admissible in respect of CCTV footage and photographs. Expert evidence will be admissible where the expert has special knowledge which will assist the court in interpreting the CCTV footage and has used that special knowledge to analyse the footage. However, where an expert has simply considered the CCTV footage and given evidence of what they have seen, the report will not be admissible. This is because the learned magistrate can consider the recording and make their own decisions as to what the footage depicts.
2. In this case, Dr Short's report is entitled 'Kinematic analysis of body movement in CCTV footage'. An analysis of the body movement of the appellant and the complainant in the CCTV footage which expressed an opinion about whether the appellant's head came into contact with the complainant's head would be relevant and admissible. Such a report would use the special knowledge of the expert to analyse the material.
3. However, the expert report that was sought to be tendered by the appellant at trial was based on Dr Short's observation of stills taken from the CCTV footage and not on his specialist knowledge or qualifications. Specifically, Dr Short's opinion that he could not conclude whether the appellant's head came into contact with the complainant's head was not based on his biomechanical expertise but on his observations of the stills he obtained from the CCTV footage.
4. As was acknowledged by counsel for the appellant at the hearing of the appeal, the only opinion expressed by Dr Short in his report was that the complainant's movement of her leg was a conscious movement and that it was possible that her head movement was also a conscious movement.[84] No basis is given for the expression of this opinion, why one conscious movement may mean that another movement is also a conscious movement or the likelihood of this occurring. Without this information, Dr Short's opinion is not based on facts which can be clearly identified or on a clear reasoning process based on his specialist knowledge.

1. I accept that kinematic analysis is a reliable body of knowledge and experience and is accepted by the scientific community as such.

1. I also accept that if Dr Short's report was based on his biomechanical expertise, he would be qualified to give evidence.

1. For the reasons set out above and the following reasons, I consider that the learned magistrate was correct in refusing to admit the Short Report.
2. First, Dr Short's conclusions in his report do not provide a logical basis for affecting the learned magistrate's assessment of the probability of the existence of the factual issue in dispute in the proceedings (the appellant's head coming into contact with the complainant's head). This is because Dr Short was unable to reach a conclusion as to whether this occurred based on the CCTV footage, which I note is the same conclusion reached by the learned magistrate based on his review of the same CCTV footage.
3. Second, Dr Short's conclusions are based on the same material, namely the CCTV footage, that was available to his Honour and not on his expertise.
4. Third, the determination of whether the appellant's head moved forwards at the same time that the complainant's head moved back and whether their heads were in contact with each other is not assisted by knowing that another person has been unable to conclude based on the CCTV footage whether this occurred.
5. Accordingly, I consider that leave to appeal on this ground should be refused.

Ground 2 - error of fact and law in making findings of fact on photographs without expert evidence Appellant's submissions

1. Counsel for the appellant submitted that the rejection by the learned magistrate that any redness might be the result of the complainant suffering from rosacea or a similar skin condition or from her admitted use of make-up was without foundation.
2. The appellant contended that he had not received original photographs, information as to when the photographs had been taken nor photographs showing both sides of the complainant's face. Counsel for the appellant submitted that this information was required in order to obtain expert evidence regarding the causes or potential causes of redness on the complainant's skin.[85]
3. In the appellant's submission, the learned magistrate used the photographs impermissibly in rejecting the evidence of both the appellant and Mr Zimmerman who said there were no marks on the complainant's face after the incident.[86]

1. Counsel for the respondent denied that there was an error of law in the learned magistrate receiving the photographs and interpreting them himself without the assistance of expert evidence. The photographs were not used as the sole source from which the fact of resulting redness and bruising was inferred. His Honour used them to corroborate the evidence of the witnesses called by the prosecution.
2. Counsel for the respondent submitted that redness and bruising was a reaction of the human body to force and was within the knowledge and experience of ordinary people.[87] For this reason, neither expert medical evidence nor evidence on the interpretation of the photographs was required.[88]
3. In relation to the question as to whether the magistrate was required to consider whether any redness in the photographs was caused by rosacea or a similar skin condition, counsel for the respondent submitted that there was no evidence before the magistrate that the complainant suffers from rosacea or any skin condition.[89] On this basis, the learned magistrate was not required to consider this.

1. In order for the magistrate to consider whether rosacea, any other skin complaint or make-up was a cause of the redness present in the photographs, there must be an evidentiary basis for the submission. If these matters are properly raised on the evidence, the burden of proof would then lie with the prosecution to negate it.[90]
2. At the hearing before the learned magistrate, the complainant rejected the suggestion of counsel for the appellant that she suffered from rosacea or that the redness or other markings were due to make-up. No other evidence was led by the appellant to support any suggestion that the complainant suffered from rosacea or any other skin complaint or that the markings in the photographs were consistent with the application of make-up.
3. For this reason, I do not consider that there was any error of law in the learned magistrate rejecting the submission that rosacea or another skin condition was the cause of the redness shown in the photographs. These matters were not raised on the evidence, and accordingly, the prosecution was not obliged to negate these matters.
4. In respect of the other matters raised by the appellant, in my view, it is within ordinary human experience that if force is applied to the human body, this may result in bruising and redness to the area where the force was applied. Expert or opinion evidence would not be admissible unless the significance of the bruising and redness (such as when it occurred or any inferences that are sought to be drawn from the bruising or pattern of bruising) could not be understood without the benefit of that expert evidence.
5. In this case, the learned magistrate confined his use of what was depicted in the photographs to his finding that the photographs corroborate the complainant's evidence that contact had occurred and that the redness and bruising was consistent with an application of force. A trier of fact is entitled to rely on matters that are within their usual knowledge and experience when considering the evidence.
6. I reject the appellant's submission that the learned magistrate impermissibly used the photographs in rejecting the evidence of the appellant and Mr Zimmerman. The photographs were used by the learned magistrate to corroborate the evidence of the complainant and Ms McDonald which is both permissible and appropriate. The learned magistrate did not accept the appellant's evidence where it conflicted with the complainant and discounted Mr Zimmerman's evidence. That is, the photographs were not used to make findings of fact unsupported by evidence. His Honour accepted the evidence of the prosecution's witnesses, which he was entitled to do; the photographs corroborated this evidence.
7. I do not consider there is any merit in the second ground of appeal.

1. For the above reasons, I consider that leave to appeal should be refused on both grounds and the appeal dismissed.

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

[1] Criminal Appeals Act 2004 (WA), s 10(3).

[2] Criminal Appeals Act 2004 (WA), s 9(1).

[3] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[6] It is not apparent from the content of the report what the reference to data collection refers to.

[45] ts (7 September 2020) 52, 54 - 55.

[66] Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524 [44].

[67] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [122].

[68] BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157, (2007) 162 FCR 234 [185].

[69] Liyanage v The State of Western Australia [122].

[70] QBE Insurance (Aust) Ltd v Orcher [2013] NSWCA 478 [23].

[71] Goode v Angland [2017] NSWCA 311; (2017) 96 NSWLR 503.

[72] Goode v Angland [92] citing with approval Blacktown City Council v Hocking [2008] NSWCA 144 [169].

[73] Goode v Angland [93] citing with approval Angel v Hawkesbury City Council [2008] NSWCA 130 [69] ‑ [72].

[74] Goode v Angland [95] citing with approval Townsend v O'Donnell [2016] NSWCA 288; (2016) 78 MVR 283 [52].

[75] Goode v Angland [96] citing with approval Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 [42].

[76] C. Van Der Lely NV v Bamfords Ltd [1963] RPC 61, 71 (Lord Reid).

[77] Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 [56].

[78] Blacktown City Council v Hocking [170] - [171].

[79] R v LM [2004] QCA 192 [86], citing with approval Smith v R [2001] HCA 50; (2001) 206 CLR 650 [11].

[80] RST v The State of Western Australia [2016] WASCA 59 [26].

[86] Appellant's Amended Outline of Submissions [35].

[90] Dye v The State of Western Australia [2005] WASCA 239 [47].