Hodder v Ball

Criminal Appeals Act 2004 (WA), s 9, s 16, s 18

Criminal Procedure Act 2004 (WA), s 144(4)

Hodder v Ball [2012] WASC 350

Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 55

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

R v Nguyen [2010] HCA 38; (2010) 242 CLR 491

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

2 BUSS JA: On 7 May 2012, the appellant was convicted, after a trial in the Magistrates Court before Magistrate Heaney on that day, on one charge in a prosecution notice. The charge alleged that on Sunday 18 September 2011, at Subiaco, the appellant breached a violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997 (WA).

4 The appellant appealed to the Supreme Court against his conviction and sentence. Hall J heard and dismissed the appeals. See Hodder v Ball [2012] WASC 350.

5 The appellant has applied for leave to appeal against Hall J's decision in relation to his conviction.

6 At all material times, the appellant and an elderly lady, Maria Ruffell, lived in different units on the same floor of a block of Homeswest units in Subiaco.

7 After a dispute between them, Mrs Ruffell obtained a violence restraining order against the appellant.

8 On 4 August 2011, the police served the violence restraining order on the appellant.

9 It was a term of the violence restraining order that the appellant was not to go within 20 m of Mrs Ruffell or within 20 m of the external boundaries of her unit.

10 There were lifts at either end of the floor on which the appellant's unit and Mrs Ruffell's unit were located. It was necessary for the appellant, in order to comply with the violence restraining order, to use the lifts at the end of the floor closer to his unit.

11 The prosecution alleged that on 18 September 2011, during the subsistence of the violence restraining order, the appellant breached the order by standing next to the door to Mrs Ruffell's unit.

12 At trial, the prosecution called Mrs Ruffell, Pamela Hardy, First Class Constable Karen Kersemakers, Senior Constable Alan Ball and Constable Frazer Munroe as witnesses.

13 Mrs Ruffell gave evidence that on 18 September 2011 at about 10.20 am she was in her unit. A friend, Mrs Hardy, was with her. As Mrs Hardy opened the front door of Mrs Ruffell's unit to leave, Mrs Ruffell saw the appellant standing outside with his arms folded. According to Mrs Ruffell, Mrs Hardy said, 'You are not supposed to be here. What are you doing?' (ts 4). Mrs Ruffell said the appellant made a gesture with his hand. He said something, which she did not hear, as he walked away.

14 Mrs Hardy gave evidence that on 18 September 2011 she was visiting Mrs Ruffell in Mrs Ruffell's unit. As Mrs Hardy opened the front door of the unit to leave, she saw the appellant. Mrs Hardy said to him, 'You are not supposed to be here, it's against the restraining order' (ts 12). According to Mrs Hardy, the appellant walked away, uttering expletives, towards his unit. Mrs Hardy said that soon afterwards she called the police. She noted, by reference to her watch, that the incident occurred at about 10.20 am.

15 First Class Constable Kersemakers gave evidence that on 4 August 2011 at 3.30 pm she served the violence restraining order on the appellant.

16 Senior Constable Ball gave evidence that on 26 September 2011 he went to the Homeswest units with Constable Munroe to carry out inquiries into the alleged breach of the violence restraining order. He spoke to the appellant. Senior Constable Ball said the appellant told him that he had walked past the front door of Mrs Ruffell's unit on 18 September 2011 because it was raining on that day and he had been out to buy a newspaper.

17 Senior Constable Ball said that the Homeswest units comprised about five floors with about 15 units on each floor. Each floor was about 100 m in length. A stairwell and lifts were located at each end of each floor. The appellant's unit was at one end of the floor, next to the lifts. Mrs Ruffell's unit was in about the middle of the floor.

18 Constable Munroe gave evidence that when he and Senior Constable Ball arrested the appellant on 26 September 2011, the appellant said, 'I just walked past. How else was I supposed to get home?' (ts 31 - 32). The appellant went on to say that it was raining outside on the day in question and he had to walk past Mrs Ruffell's unit.

19 The appellant, who represented himself, cross-examined each of the prosecution witnesses.

20 At trial, the appellant gave sworn evidence in his defence. He also called Sue Stringer as a witness.

21 Mr Hodder gave evidence that on 18 September 2011 he left home at 9.00 am with his friend, Ms Stringer. She also lived at the Homeswest units. On the morning in question, Ms Stringer and the appellant travelled by motor vehicle to Belmont. They 'had a look around the shops' in Belmont, and had an early lunch at a takeaway food store (KFC or McDonalds) (ts 41). After lunch, Ms Stringer drove him to the football at Lathlain Park. She dropped him there at between 11.00 am and 11.30 am.

22 So, the appellant's evidence was that at about 10.20 am on 18 September 2011, when the offending behaviour allegedly occurred at the Homeswest units in Subiaco, he was with Ms Stringer, and they were not in the Subiaco area.

23 The appellant denied having walked past Mrs Ruffell's unit and denied having made any relevant admissions to the police.

24 Ms Stringer gave evidence that she could not recall being with the appellant on a particular day. She said in response to questions from the magistrate:

What can you tell us about this matter?---Because he told me he got arrested on that day.

What day?---I'm not sure what day, okay, but I know it was Saturday or Sunday, something like that. Because during the football game I always take Mr Hodder to the match.

Yes?---Yeah.

So what football game are we talking about? What day are we talking about?---I am not sure, 17 or 18, because you know the football game is sometimes Saturday, sometimes Sunday and I - - - -

17 or 18 of what?---September (ts 44 - 45).

25 The magistrate then asked Ms Stringer what happened on that day:

What happened on that day?---On that day I have to take him to - because he cannot drive, he has no licence so every time he ask me to take him to the football match. I remember that day I took him to the football match in Lathlain, left home around 9 or 9.30, something like that and then we stop at the KFC in Belmont Forum.

Yes?---And after that - after he had lunch I drop him off at the football grounds and I went - after I drop him I went.

So you say - what time did you leave home?---Around 9 or 9.30 because he need - he want something to eat so that why we took off earlier. But the game not played until maybe one or 12 o'clock or something like that.

All right, anything else you can tell us?---Nothing else. So after I drop him off I remember I went to casino. But usually I have to pick him up but that day I couldn't pick him up because I was there too late. So he caught a train back home (ts 45).

26 The appellant and Ms Stringer were cross-examined by the prosecutor.

27 After hearing the evidence and closing submissions, the magistrate delivered judgment.

28 He directed himself that before he could find the charge proven he had to be satisfied beyond reasonable doubt of each and every element of the offence.

29 He referred to and summarised the evidence of each of the witnesses.

Having heard ... all the evidence in this matter, I am satisfied beyond reasonable doubt that in fact [the appellant] was at those units at 9.30 am (sic). I heard the evidence of the two ladies, Mrs Raffell [sic] and Mrs Hardy, who were adamant about what they had seen. They were adamant that it was [the appellant] who was there and as a result of seeing him there they said they rang the police. And they did ring the police because the police came around and took their statement.

I am satisfied that Mrs Raffell [sic] and Mrs Hardy would not have conspired together on this morning and decide to get [the appellant] into trouble by fabricating the account that they gave. And having seen the two ladies in the witness box, as I said I am satisfied that the account they gave is the correct account.

I am unable to believe the account given by [the appellant] or the account given by Ms Stringer in relation to the fact that he had gone from the units there by 9.30. So the charge is proven (ts 54).

The appellant's grounds of appeal before Hall J in relation to his conviction

31 The appellant alleged in his appeal against conviction before Hall J in essence that the trial in the Magistrates Court was unfair and that the magistrate did not provide adequate reasons.

Hall J's reasons for dismissing the appellant's appeal against conviction: the alleged unfairness

32 Before Hall J, the appellant alleged that the trial in the Magistrates Court was unfair in three respects.

33 First, the magistrate required him to give evidence before he called his witness, Ms Stringer. Secondly, 'Ms Stringer's evidence was commenced by the magistrate asking her questions and that after the magistrate had asked questions, the witness was then cross-examined by the prosecuting sergeant and that only after that was [the appellant] given an opportunity to ask questions in re-examination' [26]. Thirdly, '[the appellant] could have brought other witnesses to court who had seen him at the football and that these witnesses may have assisted his case' [34].

34 As to the appellant's first complaint, Hall J referred to s 144(4) of the Criminal Procedure Act 2004 (WA), which provides:

If the accused intends to give evidence as a witness, he or she must give evidence before any other witness is called by the accused, unless the court permits otherwise for a good reason.

35 His Honour rejected the first complaint. He said:

The only reason [the appellant] gave as to why he should not give evidence first was that he may not need to after Ms Stringer had given evidence. I infer from this that [the appellant] hoped that Ms Stringer's evidence would be sufficiently clear and conclusive that there would be no need for him to give evidence. That, however, does not appear to me to be a good enough reason for the magistrate to have allowed a variation from the usual procedure. That procedure exists for good reason. One of these is to prevent an accused person having the advantage of hearing their own witnesses give evidence before committing to their own account on oath. This minimises the risk of an accused person seeking to adjust their account to conform with that of the other defence witnesses or to meet deficiencies in the evidence of those other witnesses.

[The appellant] also complained that what he understood the magistrate was doing was requiring him to give evidence in circumstances where he may not have wished to do so. It is, however, apparent from the exchange that the magistrate was saying only that if [the appellant] wished to give evidence, he had to do so first, not that he was obliged give evidence in his defence. No other interpretation is reasonably open on an examination of that exchange [24] - [25].

36 As to the appellant's second complaint, the transcript in relation to the magistrate's questioning of Ms Stringer reads:

HIS HONOUR: And who is the witness you wish to call?

HODDER, MR: Sue Stringer.

STRINGER, SUE sworn:

HIS HONOUR: Could state your name, address, occupation and age please?---I a chef and my age is - 1969 - 43.

And your address?---221B/93 Thomas Street, Subiaco.

All right, well you know why you are here today, to give evidence on behalf of Mr Hodder?---Yeah.

What can you tell us about this matter?---Because he told me he got arrested on that day.

What day?---I'm not sure what day, okay, but I know it was Saturday or Sunday, something like that. Because during the football game I always take Mr Hodder to the match.

Yes?---Yeah.

So what football game are we talking about? What day are we talking about?---I am not sure, 17 or 18, because you know the football game is sometimes Saturday, sometimes Sunday and I - - -

17 or 18 of what?---September.

Yes, all right. What happened on that day?---On that day I have to take him to - because he cannot drive, he has no licence so every time he ask me to take him to the football match. I remember that day I took him to the football match in Lathlain, left home around 9 or 9.30, something like that and then we stop at the KFC in Belmont Forum.

Yes?---And after that - after he had lunch I drop him off at the football grounds and I went - after I drop him I went.

So you say - what time did you leave home?---Around 9 or 9.30 because he need - he want something to eat so that why we took off earlier. But the game not played until maybe one or 12 o'clock or something like that.

All right, anything else you can tell us?---Nothing else. So after I drop him off I remember I went to casino. But usually I have to pick him up but that day I couldn't pick him up because I was there too late. So he caught a train back home. I know he rang me many times but I didn't answer the phone.

So you say you went to the casino?---Yeah, after I drop him off.

You say, 'He rang me up'?---Yeah, I know he rang many times because he usually want me to pick him up after the game finished but that day. I didn't. So he got home himself.

How do you know he got home himself?---Because I supposed to pick him up but I didn't.

No sorry, how do you know he got home himself?---Yeah, he got home himself because I didn't - - -

Yes, how do you know he got home himself?---After that I spoke to him because he was upset with me because I didn't pick him up and he told me he caught train or something.

Okay. Right, anything else you want to say?---No, nothing - that's all.

Any questions, sergeant? (ts 44 - 45).

38 After Ms Stringer's cross-examination, the transcript reads:

HIS HONOUR: Now if you want to ask any questions of the lady, re-examination. But you can't ask leading questions. If you ask leading questions that will be it.

HODDER, MR: What do you mean?

HIS HONOUR: Well you ask one and I will tell you whether it is - - -

HODDER, MR: I'll just ask a question about (indistinct). Sue, so roughly what time did you leave the Thomas Street flats?---I said I am not sure, 9 or 9.30, okay.

Then what happened, we went - did we go to Belmont?---Yeah.

HIS HONOUR: Well you are not allowed to ask leading questions.

HODDER, MR: All right, so where did we go?---What do you mean, where we go?

HIS HONOUR: Yes, sergeant.

PROSECUTOR: She has already answered that question, she went straight to it.

HODDER, MR: So we went where?---This is same question before they already asked.

When we finished eating what did you do?---I told him.

Yes, but I am asking?---Why if I told him already?

Yeah but just to confirm?---I told him you don't have to ask me this again, I already told him.

HIS HONOUR: Yes, well maybe I shouldn't even have asked you to ask questions because she has already given it. Do you want to say anything before you leave the witness box?---No, that is all I can say and that's all true because I remember - all the time football season he always go. He never miss, or maybe miss one or two times but that day I remember it clearly, that day.

Yes, all right. Okay, have a seat at the back there or you can go if you wish.

(THE WITNESS WITHDREW)

HIS HONOUR: Do you have any other witnesses to call?

HODDER, MR: No, your Honour (ts 47 - 48).

I am prepared to accept that the first series of questions asked of the witness was indeed asked by the magistrate. It would also appear that [the appellant] was not afforded an opportunity to ask questions of the witness before the prosecuting sergeant cross-examined.

The procedure followed was unusual and it is not in accord with the practice that should generally be followed in cases of this type. Sometimes a self-represented person will be assisted by a judicial officers asking questions that focus on the real issues. The way to frame questions and adduce evidence will often be something that self-represented litigants struggle with. However, [the appellant] is a person with some familiarity with court procedures. He had cross-examined the prosecution witnesses (albeit some of his questions were argumentative). There might well have been a need for the magistrate to have assisted, but what occurred was that [the appellant] was not given an opportunity to ask his witness questions before the witness was exposed to cross-examination.

There was no objection from [the appellant] to the procedure adopted by the magistrate. That might not be thought to be very significant in the case of a self-represented person, but, as I have noted, [the appellant] has some experience of courts. It is also noteworthy that he objected to the prosecutor asking repetitive questions. He was not a meekly compliant litigant or one who was likely to be overawed by the setting or the magistrate. He was, furthermore, invited to ask questions in re-examination and used that opportunity to seek clarification of the evidence (without success).

[The appellant] has said that the opportunity to re-examine was not sufficient to undo any unfairness because, had he been given an opportunity to ask questions in chief, he could have focused the witness on the issues which were of concern to him, and the witness may have been more settled before being exposed to cross-examination. This appropriately brings the focus back to whether the procedure followed by the magistrate actually resulted in unfairness in the circumstances of this case.

When asked by me what impact on the trial this had had, [the appellant] suggested that there may have been other questions that he would have asked the witness that were not asked by the magistrate. The questions that he suggested were as to the day, date and time that Ms Stringer collected him and they were together. An examination of the transcript reveals that those questions were in fact put by the magistrate, and put in a non-leading way that allowed the witness to give her own account of the events. There was nothing aggressive or confusing about the magistrate's questions. Importantly, the answers were only to the benefit of [the appellant]. In particular, the magistrate asked questions in regards to whether Ms Stringer had picked [the appellant] up, what day that had occurred, what time that had occurred and what else had happened on that day.

At the conclusion of the evidence [the appellant] made oral closing submissions. He relied strongly on the evidence of Ms Stringer and submitted that she was a credible and reliable witness. There was no suggestion that Ms Stringer's evidence given in response to the magistrate's questions was anything less than [the appellant] had wanted from her. Nor was there anything to suggest that he had been in any way prejudiced by the procedure that had been followed. The only reasonable conclusion that can be drawn is that he had no difficulty or concerns about that procedure at the time.

In these circumstances it is difficult to see what unfairness in fact resulted from the course of events. As I say, the evidence that Ms Stringer gave was exactly the evidence that it would seem [the appellant] wished to obtain from her (vague though it was). The critical point at the end of the day was whether that evidence was believed or raised a reasonable doubt. If not, the issue was whether the evidence of the prosecution witnesses was believed and satisfied the magistrate beyond reasonable doubt that the offence had been committed.

There was some vagueness about Ms Stringer's evidence, but insofar as there needed to be any clarification, [the appellant] had an opportunity to clarify those issues in re-examination. He did ask some questions, but not many. He clearly decided that he had nothing to gain and stopped quite quickly. Given the way in which Ms Stringer answered, which was to the effect that he was only asking her questions that she had been asked before and her answers remained the same, it is understandable why he did not persist. Thus insofar as there was any vagueness about Ms Stringer's evidence it does not appear to be vagueness that could have been corrected had a different procedure been adopted [26] - [34].

40 As to the appellant's third complaint, the appellant asserted at trial that there were many witnesses who could say that he was at the football. As Hall J pointed out, the appellant did not, however, seek to call them at the trial. The reason for not calling them is apparent from this interaction between the magistrate and the appellant:

Well, you just keep saying you can get a hundred witnesses to say you were at the football?---Yeah, they can't say where I was at 10.20, I admit that.

Well that's what we are talking about?---But they would say I was at the football.

No-one disputes you were at the football?---Okay.

That's not relevant. We are interested in what happened at 10.20 am?---Okay (ts 44).

41 Hall J rejected the third complaint. His Honour held that the magistrate was correct in deciding that the critical issue was not whether the appellant had been at the football on 18 September 2011, but where he was at about 10.20 am on that day [35].

Hall J's reasons for dismissing the appellant's appeal against conviction: the alleged inadequacy of the magistrate's reasons

42 Before Hall J, the appellant asserted that the magistrate did not explain why he preferred the evidence of the prosecution witnesses to that of the defence witnesses or why the magistrate was satisfied beyond reasonable doubt, on the basis of the evidence of the prosecution witnesses, that the appellant was guilty of the charge.

43 Hall J held that the magistrate's reasons were adequate:

On an examination of the reasons, it is clear that the magistrate did indeed prefer the evidence of the prosecution witnesses Mrs Ruffell and Mrs Hardy, but he did not say so without explanation. He said that they were adamant as to what they had seen. This is clearly an indication that he found their evidence to be certain in its terms. He said that, as a result of what they saw, they contacted the police. This seems to be a reference to the consistency of their actions. He says that he was satisfied that they had not conspired together on the morning, and I infer from that that he found it relevant that their evidence was to the same effect and that they therefore corroborated each other.

In those circumstances there were reasons given as to why the magistrate accepted the evidence of the prosecution witnesses. If, as is apparent, he accepted their evidence beyond reasonable doubt, it necessarily followed that he must reject that of Ms Stringer and [the appellant]. It is true that he does not give detailed reasons for why he says he is unable to believe the account of the defence witnesses, but he did detail in his reasons the nature of that evidence, and it is clear that there was some vaguenesses about it (particularly as regards timing).

...

In this case the matter resolved to a simple issue. Did the magistrate accept beyond reasonable doubt the evidence of the prosecution witnesses that [the appellant] had been outside Mrs Ruffell's flat at 10.20 am on 18 September 2011? It was clearly a question that went to the issue of credibility. He had the benefit of seeing all of the witnesses involved and he referred to that fact in his reasons. Clearly he had to take into account the defence witnesses and consider whether he either accepted their evidence or, more to the point, whether they caused him to have reasonable doubt [38], [39], [41].

44 Hall J's observation that the crucial point was whether the magistrate '[accepted] beyond reasonable doubt the evidence of the prosecution witnesses' was not the correct formulation of the issue. The crucial point was whether the magistrate was satisfied beyond reasonable doubt that the appellant was outside Mrs Ruffell's flat at about 10.20 am on 18 September 2011. However, nothing turns on this incorrect formulation.

The appellant's proposed grounds of appeal before this court

45 The appellant relies on four proposed grounds in his appeal against Hall J's decision in relation to his conviction.

1. Defendant refused a fair trial.
2. Proper legal proceedings were not in place during hearing.
3. The decision was unsafe and unsatisfactory.
4. Prosecution witness uncreditable [sic].

47 This appeal is governed by div 3 of pt 2 of the Criminal Appeals Act 2004 (WA). Division 3 comprises s 16 - s 19.

48 By s 16(2), a party to an appeal under div 2 of pt 2 of the Act who is aggrieved by a decision made in the appeal by a single judge that:

may appeal to the Court of Appeal against the decision.

(a) the leave of this court is required for each ground of appeal in an appeal under div 3;

(b) after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding; and

(c) unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.

The merits of proposed grounds 1 and 2 of the appeal

50 It is convenient to consider proposed grounds 1 and 2 of the appeal together.

51 It appears that by these grounds the appellant seeks to re-agitate in this court his contention before Hall J that the trial in the Magistrates Court was unfair in three respects.

52 As to the appellant's first complaint, Hall J was correct, generally for the reasons he gave, in deciding that there was no material error, and no relevant unfairness, in the magistrate's decision to require the appellant to give evidence before he called Ms Stringer as a witness.

53 As to the appellant's second complaint, as Hall J stated, the procedure adopted by the magistrate was unusual. However, I am satisfied that, in the circumstances, there was no relevant unfairness.

54 The magistrate asked Ms Stringer non-leading questions. He merely enquired:

(a) whether she took the appellant to the football;

(c) what time they left the Homeswest units to go to the football; and

55 Ms Stringer told the magistrate that she and the appellant had left the Homeswest units at about 9.00 am or 9.30 am. The appellant did not have a motor vehicle driver's licence and he had asked her to take him to a football match in Lathlain. After leaving the Homeswest units at about 9.00 am or 9.30 am they travelled to Belmont and had lunch at KFC in the Belmont Forum shopping centre. After lunch, she dropped the appellant at the football ground and she then went to the casino.

56 Ms Stringer's evidence in response to the magistrate's questions related to the critical fact in issue at the trial. Her account was consistent with the appellant's case and his evidence. It was, on any view, the evidence which the appellant would have sought to adduce from her.

57 The appellant was given an opportunity to examine Ms Stringer after she was cross-examined by the prosecutor. The appellant obtained confirmation from her as to the time they left the Homeswest units and where they went:

HODDER, MR: ... Sue, so roughly what time did you leave the Thomas Street flats?---I said I am not sure, 9 or 9.30, okay.

Then what happened, we went - did we go to Belmont?---Yeah (ts 47 - 48).

58 As Hall J noted, the appellant relied strongly on Ms Stringer's evidence in his closing submissions. He argued that she was a credible and reliable witness.

59 I have listened to an audio recording of Ms Stringer's evidence. The magistrate was patient and respectful in his interaction with Ms Stringer and the appellant. He was not aggressive or derisory of the appellant's case.

60 As to the appellant's third complaint, Hall J was correct, generally for the reasons he gave, in holding that the magistrate was correct in deciding that the critical issue was not whether the appellant had been at the football on 18 September 2011, but where he was at about 10.20 am on that day.

61 Finally, in relation to the fairness of the trial generally, I note:

(a) the magistrate assisted the appellant, as an unrepresented accused, with procedural aspects of the trial (ts 1 - 2);

(b) the magistrate extended substantial latitude to the appellant in his cross-examination of the prosecution witnesses (ts 10, 19, 33);

(c) the appellant was invited to call witnesses who were in attendance at the football who, on his assertion, could provide an alibi (ts 18, 34, 44);

(d) when the appellant raised disputed issues of fact but did not deal with them adequately in cross-examination, the magistrate assisted by asking appropriate questions for the purpose of clarifying the issue (ts 30);

(e) the appellant was given the opportunity to cross-examine a corroborating witness (Constable Munroe) who, in the prosecutor's view, was not a necessary witness (ts 31); and

(f) the magistrate explained to the appellant what appeared to be the critical issue of fact at the trial, namely, where the appellant was at 10.20 am on 18 September 2011 (ts 44).

62 Proposed grounds 1 and 2 of the appeal have no reasonable prospect of success.

The merits of proposed grounds 3 and 4 of the appeal

63 It is convenient to consider proposed grounds 3 and 4 of the appeal together.

64 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said:

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.

65 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 55, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

[W]hether it was open to the [tribunal of fact] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [tribunal of fact] must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the [tribunal of fact] to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the [tribunal of fact] was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the [tribunal of fact] should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)

See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

66 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

67 However, this court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].

68 In the present case, I am satisfied, on the basis of my examination of the trial record, that it was open to the magistrate as the tribunal of fact to accept relevant aspects of the evidence of Mrs Ruffell and Mrs Hardy and to reject relevant aspects of the evidence of the appellant and Ms Stringer.

69 There was a patent conflict between the evidence of Mrs Ruffell and Mrs Hardy on the one hand, and the evidence of the appellant and Ms Stringer on the other, in relation to the critical fact in issue at the trial.

70 The magistrate unequivocally accepted the evidence of Mrs Ruffell and Mrs Hardy. He was satisfied that their account of relevant events was correct.

71 I understand the magistrate's statement in his reasons that:

I am unable to believe the account given by [the appellant] or the account given by Ms Stringer in relation to the fact that he had gone from the units there by 9.30. (ts 54)

constituted in substance a rejection of their evidence, the rejection being couched in gentle language.

72 The state of the trial record was not such as to preclude the magistrate, acting reasonably, from being satisfied beyond reasonable doubt of the appellant's guilt. He had the very significant advantage of seeing and hearing the witnesses give their evidence. The evidence against the appellant included not only the evidence of Mrs Ruffell and Mrs Hardy but, also, the admissions against interest he allegedly made to Senior Constable Ball and Constable Munroe.

73 The evidence at trial does not require the conclusion that the magistrate must necessarily have entertained a doubt about the appellant's guilt. I do not have such a doubt. The magistrate's verdict was not unreasonable. It is supported by evidence that he was entitled to accept.

74 Grounds 3 and 4 have no reasonable prospect of success.

75 In my opinion, to the extent the appellant's submissions to this court deal with matters outside the ambit of the proposed grounds of appeal, they have no merit. None of them, viewed in the context of the trial

record and the magistrate's reasons, raises a reasonably arguable case that the magistrate made a material error of fact or law or that there was otherwise a miscarriage of justice at the trial.

76 The other submissions made by the appellant include the assertions that the police did not contact him about the incident on 18 September 2011 until 26 September 2011, the police did not 'check out [the] alleged whereabouts of defendant before making an arrest' and the police did not follow 'correct procedures in relation to this matter'.

77 No particulars are given of these assertions. Even if all of them are correct, it is not apparent how they could conceivably have occasioned a miscarriage of justice at the trial.

78 The other submissions also include the following assertions. On 3 October 2011, there was a contested hearing in the Magistrates Court before Magistrate Calder in relation to the violence restraining order in question. The order was terminated. At the hearing before Magistrate Calder neither Mrs Ruffell nor the prosecutor mentioned the incident on 18 September 2011. This 'clearly show[ed]' that the incident on 18 September 2011 did not occur. The charge against the appellant, which was heard by Magistrate Heaney on 7 May 2012, 'should have been closed ... when Magistrate Calder made his decision'.

79 None of these assertions advances the appellant's case. The violence restraining order was in force on 18 September 2011. The appellant was bound to observe its terms unless and until it was set aside. The validity of the order as at that date was not affected by Magistrate Calder's decision on 3 October 2011. Also, even if, as the appellant asserts, neither Mrs Ruffell nor the prosecutor mentioned the incident on 18 September 2011 at the hearing before Magistrate Calder, that omission does not establish that the incident did not occur. Magistrate Heaney had to make his decision on the evidence before him, and Hall J had to consider the appellant's grounds of appeal on the basis of the evidence before Magistrate Heaney.

80 I would refuse leave to appeal. The appeal must therefore be dismissed.