File No : MI 9071 of 2011, MI 9072 of 2011, MI 9073 of 2011

Criminal law and procedure - appeal against convictions in Magistrates Court - adequacy of reasons - conflicts of evidence - whether Magistrate properly addressed defence of provocation

Criminal law and procedure - appeal against sentence in Magistrates Court - whether sentence, or sentence plus costs, was manifestly excessive - relevant factors

Criminal Appeals Act 2004 (WA), s 14

Criminal Code (WA), s 23A, s 23B, s 31, s 74A, s 222, s 231, s 233, s 245, s 246, s 248, s 313

Criminal Investigation Act 2006 (WA), s 7, s 16, s 27, s 127, s 128

Magistrates Court Act 2004 (WA), s 31

1 These are my reasons for decision on an application for leave to appeal and an appeal against a magistrate's convictions and sentence for common assault. There were convictions of three offences of that kind. They arose out of dealings between the appellant, who was a senior constable on duty at the time, and a person who was attending a 'Spring in the Valley' event near Perth.

2 I first provide the background to the application for leave to appeal and appeal.

3 I then describe the application for leave to appeal and appeal, the orders previously made on it and the grounds for the application, together with certain matters related to the hearing of the application before me on 19 April 2013.

4 I then review briefly the law concerning the grant of leave to appeal.

5 I then consider each of the grounds of appeal, beginning in each case with a review of the applicable law.

6 The final section of my reasons is concerned with my conclusions and call for orders.

8 The matters in this section of my reasons are not, it appears, in contest. They are largely taken from the reasons for decision of the magistrate and the written submissions for the appellant.

9 On 11 October 2009 the annual 'Spring in the Valley' festival (the festival) occurred in the Swan Valley near Perth.

10 The appellant was a senior constable in the Western Australian Police.

11 On 11 October 2009 the appellant was on duty at the festival and situated outside the premises at the festival of the Feral Brewing Company (the Feral Brewing premises).

12 Penelope Jane Challice was a 21yearold female. On the day of the festival she was doing a bus trip around some wineries in the Swan Valley with friends. She went to the Feral Brewing premises between about 1.30 pm and 2.00 pm on 11 October 2009.

13 A short time after she arrived at the Feral Brewing premises Ms Challice was physically carried out of them by security staff of the Feral Brewing Company. This followed an altercation between Ms Challice and security staff of the Feral Brewing Company.

14 Immediately outside the Feral Brewing premises, security staff released Ms Challice. She was then confronted by two police officers. One was a Constable O'Rourke. The other was a Constable Culliford. Those two police officers physically pushed Ms Challice further away from the Feral Brewing premises. She was pushed to a point near a police van (the police van). Constables O'Rourke and Culliford then moved away from that point, leaving Ms Challice there.

15 At about this time, the appellant approached Ms Challice. He grabbed her wrist.

16 The appellant was continuing to hold Ms Challice by the wrist when another police officer, a Constable Curtis, arrived on the scene and attempted to obtain details from Ms Challice, comprising at least her name and address.

17 The appellant then walked Ms Challice to rear of the police van. He took her to the other side of the police van, being the side furthest from where Constable Curtis had attempted to obtain the details for Ms Challice.

18 At that side of the police van the appellant took hold of both of Ms Challice's arms. The appellant held Ms Challice against the police van. He spoke to her.

19 At this point Ms Challice's head hit the appellant's nose. As a result of that contact the appellant released his hold on Ms Challice. The appellant's face was bleeding.

20 The appellant then reached out and put his hand to the neck or throat of Ms Challice. At or about the same time other police officers were forcing Ms Challice to the ground.

21 By each of three prosecution notices, MI 9071 to MI 9073 of 2011, all dated 15 August 2011, the appellant was charged that, on 11 October 2009, at Baskerville, he unlawfully assaulted Ms Challice, contrary to Criminal Code (WA) (Code) s 313(1)(b). That provision is the offence of common assault.

22 The matter of what conduct of the appellant in particular was the subject of which charge assumed some significance at the hearing before me on 19 April 2013. I will return to this matter. For now, it is sufficient to indicate that in his decision the magistrate appears to have treated one charge as related to the appellant taking hold of Ms Challice's wrist (the first assault); one charge as related to the appellant taking Ms Challice to the police van where he turned her around and pinned her arms against it (the second assault); and the third charge as related to the appellant grabbing Ms Challice's neck (the third assault).

23 On 26 and 27 July 2012 there was a trial before Magistrate Malone (the magistrate) in the Perth Magistrates Court. At the end of the second day, after the close of the defence case, the magistrate called for written closing submissions from the parties.

24 In the event written closing submissions for the prosecution dated 31 July 2012 (the prosecution's closing submissions) and written closing submissions for the defence dated 3 August 2012 (the defence's closing submissions) were provided to the court. There were no oral closings.

25 Subsequently, for reasons given by reasons for decision dated 10 August 2012 (the magistrate's reasons for decision), the magistrate found each of the charges proved beyond a reasonable doubt and that a conviction on each was appropriate.

26 On 16 August 2012 the magistrate gave reasons (the magistrate's sentencing remarks) for the following sentencing dispositions

27 He sentenced the appellant to a global fine of $2,000. He awarded costs of $5,000, inclusive of disbursements. He also made a spent conviction order.

29 By appeal notice dated 13 September 2012, the appellant applied for leave to appeal against the three convictions of common assault, and for leave to appeal against the sentence.

30 The grounds of appeal as set out in the appeal notice were amended by leave at the hearing before me without objection by the respondent. The amendments in my view do not affect in any significant way the substance of the grounds set out in the appeal notice.

31 The amended grounds of appeal are the following:

1. The learned magistrate failed to give adequate reasons.
2. The learned magistrate erred in law and in fact in finding that when the appellant took hold of Challice by one wrist that constituted an assault.
3. Alternatively, the learned magistrate erred in law and in fact in failing to find that:

(i) the appellant was arresting Challice when he took hold of Challice by one wrist, and

(ii) used such force as was reasonably necessary to effect that arrest.

1. The learned magistrate erred in law and in fact in failing to find that:

(i) Challice resisted the appellant's hold on her wrist;

(ii) the appellant used such force when the appellant took hold of both of Challice's wrists as was reasonably necessary to overcome Challice's resistance to the exercise of his powers of arrest pursuant to section 16 of the Criminal Investigation Act 2006, the learned magistrate having found that Challice was under arrest.

1. The learned magistrate erred in fact and in law in finding that there was no justification for the appellant grabbing Challice's neck or throat.
2. The learned magistrate erred in fact and in law in finding that the appellant was not provoked when his hand touched Challice's throat in that the learned magistrate did not properly reject the defence of provocation by:

(i) failing to give any or any adequate reasons for rejecting the defence;

(ii) after finding that Challice had struck the appellant with her head, making no finding that Challice was acting in selfdefence so as to defeat a defence of provocation.

1. The learned magistrate erred in law by imposing a sentence that was manifestly excessive.

32 By orders of Hall J made on 2 November 2012 the application for leave to appeal and the appeal were ordered to be heard at the same time.

33 Written submissions for the appellant, dated 16 April 2013 and filed 17 April 2013 (the appellant's written submissions) were provided for the hearing before me on 19 April 2013.

34 In addition, written submissions for the respondent, dated and filed 18 April 2013 (the respondent's written submissions), were so provided.

35 Further, at the hearing before me on 19 April 2013, at my request counsel for the appellant produced a document schedule of evidence in support of grounds of appeal. This document proved to be most useful at the hearing and subsequently.

36 The hearing before me on 19 April 2013 occupied the entirety of the sitting day.

37 I turn now to the law applicable to granting leave to appeal in a case such as this one. I will deal with the applicable law for each of the grounds of appeal when I reach that ground.

38 I have recently reviewed these principles in connection with an appeal of the same kind as this one, being one under Criminal Appeals Act 2004 (WA) pt 2 div 2. There appears to be no contest as to these principles.

39 See Sami v Duggan [2011] WASC 304 [36] [38], where I said this:

Criminal Appeals Act Pt 2 Div 2 deals with appeals to a single judge of the court from decisions in the Magistrates Court. In that Division, s 7(1), s 8(1) and s 9(1) and (2) are the material provisions for the purposes of this appeal, and they read as follows (emphasis supplied):

(1) A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.

(1) An appeal may be made under this Division on one or more of these grounds -

(i) made an error of law or fact, or of both law and fact;

(iii) imposed a sentence that was inadequate or excessive;

(1) The leave of the Supreme Court is required for each ground of appeal in an appeal under this Division.

(2) After an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.'

As to leave to appeal, the applicable principles are sufficiently stated for my purposes in the well-known authority, Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] [56] (Steytler P, Wheeler and Roberts-Smith JJA):

'Leave to appeal must not be granted unless the single Judge (or three-member Court) is brought to that degree of satisfaction, bearing in mind that the purpose of the legislative provisions is to weed out unmeritorious appeals. Yet at the same time the fundamental principle must be recognised that criminal appellants ought not to be shut out from challenging judicial decisions determining their rights or affecting their liberty, except by clear legislative intent and then only to the extent the legislation necessarily compels. The efficiency of courts and finality of litigation are not to be achieved by denying justice.

The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper.'

... However, any grant of leave only indicates that, in the words of Samuels [56], 'it would not be irrational, fanciful or absurd to envisage [the appeal] succeeding ... in effect, that it has a real prospect of success'. A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.

40 I consider that, by reason of the orders for this appeal, I should only apply this law after I have reviewed the grounds of appeal as I do below.

42 There appears to be no contest as to the law applicable to this ground.

43 I consider that that law is, for the most part, sufficiently stated in the following authority, concerning an appeal from a judgment of a magistrate exercising civil jurisdiction. The statement in my view sufficiently covers matters that might be seen to be distinctive to a judgment of the magistrate, as here, exercising criminal jurisdiction.

44 The statement is in Manonai v Burns [2011] WASCA 165 [51] [56], [61] (Hall J, Pullin & Murphy JJA agreeing), referring inter alia to Magistrates Court Act 2004 (WA) s 31 as well as Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, as follows:

Section 31 of the Magistrates Court Act ... provides that:

(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.

This provision applies both to civil and criminal proceedings; see definition of 'case' in Magistrates Court Act 2004 s 3.

Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred: Pettitt v Dunkley [1971] 1 NSWLR 376, 382 390; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 256 259, 268, 274, 277 278; Lloyd v Faraone [1989] WAR 154, 162 - 164; Stojkovski v Fitzgerald [1989] WAR 328, 334 - 335, 340; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 236 - 238 (Pidgeon J), (248 249) (Owen J); Betts v Hardcastle [2001] WASCA 35; (2001) 23 WAR 559, 569; Bennett v Carruthers [2010] WASCA 131.

In Riley ... Steytler P said:

'While it is true that overly elaborate reasons are not required from a trial judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, per Meagher JA, and Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at 282 - 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248 [73] - [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66, per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 - 163, per Malcolm CJ, and Mount Lawley, above, at 282 - 283 [32].'

Making findings of fact where there is conflicting evidence is an important component of the giving of reasons. If the conflict is on a matter of significance it will usually be a necessary part of the reasoning process to consider whether the evidence of one party can be preferred over that of the other. In Beale v Government Insurance Office of NSW ..., 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 West Indies [1983] 1 WLR 585; [1983] 1 All ER 824 (443).'

The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.

...

Whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration. The court will look at the reasons as a whole and if necessary in the context of the evidence to determine if they give the sense of what was intended in a way that achieves the required function and purpose: SNF (Australia) Pty Limited v Jones [2008] WASCA 121 [32].

45 The appellant's submissions in support of ground 1 were that the inadequacy was in three respects.

46 First, there were no clear findings of fact on crucial issues. Those issues went to whether or not the appellant had intended to commit the first assault; and whether or not there was sufficient evidence in particular respects for the purposes of certain defences to each of the three assaults. As will be seen, however, the issue whether or not there was sufficient evidence in those respects is also raised by the appellant in relation to subsequent grounds and in my view is more easily dealt with there. This leaves the issue of intention.

47 Second, there were no or inadequate reasons provided by the magistrate why he considered some witnesses to not be credible, with him stating only that he did not agree they were credible. Three witnesses, including the appellant himself, are named in the appellant's written submissions. However, inadequacy of reasons in the present respect was only pressed for two of them, although I will need to return to the matter of the credibility of the third. Also, as will be seen, the matter of the credibility of the evidence of the other two is raised by the appellant in relation to subsequent grounds and the matter of the credibility of the third in my view is more easily dealt with there.

48 Third, there was a failure to consider, or provide reasons for his conclusions concerning, some of the applicable defences. As will be seen, however, those conclusions are also dealt with by the appellant in subsequent grounds and in my view are more readily dealt with there. This is with three exceptions. Those exceptions were the defences of unwilled act (Code s 23A); accident (s 23B); and lawful authority (s 31).

49 Before turning to the matters I consider should be dealt with in relation to the present ground in this section of my reasons, I should briefly review the magistrate's reasons for decision .

50 The magistrate's reasons for decision extend to 25 pages of text.

51 After briefly introducing the matter, including providing a brief factual context (magistrate's reasons for decision (2)), there is a statement of the elements of the offence of assault in Code s 313 (2 3). This is followed by a listing of the 'potential defences' from the written closing submissions (3 4).

52 There is then a description of the facts in more detail and of those matters which were and were not 'contentious' (magistrate's reasons for decision (5 6)).

53 This is followed by an assessment, under the heading 'Credibility' (magistrate's reasons for decision (6 12)), of the 'honesty and accuracy of each of the witnesses'. The assessment is prefaced by the following (6 7), which I set out at length as it provides useful context for much of the rest of my reasons:

In my judgment credibility does not play a pivotal role in this matter. However it is not completely without significance and set out following is my assessment of the honesty and accuracy of each of the witnesses.

There will be criticism of some of the witnesses but my motivation in doing so is limited to stating my views for the purpose of review and not to denigrate the witness.

Credibility generally

The alleged events happened just short of three years ago. Both Mr Leigh [counsel for the prosecution] (paragraph 10 [of the prosecution's closing submissions]) and Mr McKenna [counsel for the defence] (paragraph 12 [of the defence's closing submissions]) refer to difficulties with memories.

The initial focus of Police investigation was an assault charge against Ms Challice and so any statements concentrated on associated issues. This was referred to by Mr McKenna (paragraphs 13 and 14).

The charges against the accused were laid in August 2011.

In the meantime there was a trial involving Ms Challice.

There was video footage of relevant events which was viewed by various witnesses.

This produced the question of the video's influence on the witness. The video showed, within its limits, what actually happened on the day. There were occasions when a witness had to admit that their recollection didn't accord with what they saw on the video. The only logical conclusion from this must be that their memory was faulty.

In my judgment the position distilled to whether the witness had an independent memory of matters or not. If they didn't then the video may be of some assistance.

There were also issues of controversy that surrounded these matters for the obvious reason that the initial alleged victim became an alleged perpetrator.

Added to that was the fact that the accused was a police officer of many years service, apparently respected and liked and a number of witnesses were police officers themselves.

These general considerations pointed to issues of memory, emotion and loyalty potentially influencing witnesses.

54 I note that the video referred to was exhibit P1, and was in two forms. One was 'short footage', of about 31 seconds duration, and showed Ms Challice being removed from the Feral Brewing premises in the festival and ending up near a police vehicle. The other form was 'long footage', of about 6 minutes 45 seconds in duration, of which about the first 3 minutes 50 seconds was footage which at a number of points included Ms Challice, the appellant or both after that point in time near the police vehicle.

55 Then followed assessments of the credibility of each of the witnesses. I list the witnesses, with descriptions that I supply that are not in my view in contest:

• Ms Challice (magistrate's reasons for decision (7 8));
• Rebecca Leigh Andrew (magistrate's reasons for decision (8 9)): Ms Andrew was a friend of Ms Challice who was with her at the festival;
• Andrew Warwick Curtis, police officer (magistrate's reasons for decision (9)): Detective Curtis was one of the police officers at the festival who had an interaction with Ms Challice;
• Christopher James, police officer (magistrate's reasons for decision (10)): Constable James was another of the police officers at the festival; he took the video referred to;
• Daniel William Herbert O'Rourke, police officer (magistrate's reasons for decision (10)): Constable O'Rourke was a police officer at the festival who interacted with Ms Challice immediately after she was ejected from the Feral Brewing premises, by directing her with the assistance of another police officer to move backwards to another officer;
• Serena Joy Culliford, police officer (magistrate's reasons for decision (10)): Constable Culliford was another police officer at the festival who interacted with Ms Challice immediately after she was ejected from the Feral Brewing premises, by assisting Constable O'Rourke;
• Sead Baltic (magistrate's reasons for decision (10)): Mr Baltic was a bus driver who had driven a bus to the festival;
• Christopher James Robin Davenport (magistrate's reasons for decision (11)): Mr Davenport was a boyfriend of Ms Andrew and had accompanied her to the festival;
• Manfrid Singh (magistrate's reasons for decision (11)): Mr Singh was a crowd controller working at the Feral Brewing premises who assisted in removing Ms Challice from those premises; and
• the appellant (magistrate's reasons for decision (11 12)).

56 It was not in contest that the evidence of Ms Andrew, Mr Baltic, Mr Davenport and Mr Singh was not of significance to this appeal. However, as I will note, the evidence of the first and third in one respect is, on my analysis, of significance, as I will explain.

57 Further, counsel for the appellant put to me that the terms of the assessment of the credibility of Mr Davenport, as being a person with respect to whom a submission by the defence that he was a very credible and reliable witness was one with which the magistrate disagreed (magistrate's reasons for decision (11)), without elaboration, were illustrative of what was said to be a very general approach to the writing of reasons by the magistrate.

58 I accept that that assessment is expressed in terms of a conclusion without reasons for it. However, I do not take anything of significance from that expression, given that the magistrate appears (with one exception I reach) to have regarded the evidence of Mr Davenport as of only marginal significance to his decision. It will become apparent that there is a rather less conclusory assessment by the magistrate of the credibility of at least one witness, the appellant.

59 Returning to the magistrate's reasons for decision , following the section 'credibility' the magistrate, under the heading 'the legal position' (magistrate's reasons for decision (12 16)), addresses 'the ejection [of Ms Challice] from the [Feral Brewing premises]' (12 13); her 'interaction with [Constable O'Rourke] and Constable Culliford' (13); 'the legalities of [Constable O'Rourke's and Constable Culliford's] action' (14); the 'interaction with [Detective Curtis] (14)'; and 'the legalities of Detective Curtis's action' (15).

60 Following the section the legal position, the magistrate, under the heading 'findings as to [Ms Challice's] interaction with the accused' (magistrate's reasons for decision (16 20)), addresses matters of that kind.

61 Following that section, the magistrate, under the heading 'the submissions of Mr Leigh and Mr McKenna' (magistrate's reasons for decision (20 23)), addresses some but as he indicates not all of those respective submissions.

62 Following that section, the magistrate, under the heading 'the legalities of the accused's actions' (magistrate's reasons for decision (23 25)), sets out his views as to the criminal responsibility of the accused for each of the three assaults.

63 The concluding section of the magistrate's reasons for decision (conclusion (25)) is the statement of his 'judgment' that the prosecution had 'proved each of the charges beyond a reasonable doubt and negatived any defences and it is appropriate to convict [the accused] of each of the charges'.

64 It was not put to me that the magistrate had failed to supply any reasons for decision. Any such submission could not be maintained in the face of the magistrate's reasons for decision. However, as Manonai v Burns indicates, reasons may be inadequate for their failure to address particular matters, either adequately or at all.

65 One particular matter which the appellant raised under the present ground, and which as I have indicated should be dealt with here, is the matter of the intention which on the appellant's submission is an element of an assault.

66 The magistrate in the magistrate's reasons for decision does not deal in express terms at any point with the matter of such an intention.

67 Although counsel for the respondent contended otherwise, I am satisfied that Hall v Fonceca [1983] WAR 309 is authority for the proposition for both the civil and the criminal law that 'an intention on the part of the assailant either to use force or to create apprehension in the victim is an element in an assault' ((314) Smith & Kennedy JJ). Hall v Fonceca was concerned with civil liability for a threat to use force. However, the dictum is not restricted to threats. Further, their Honours indicated the position is the same under the definition of 'assault' in Code s 222, which instantiates the common law in this respect (313). I note that this is also the view expressed in Murphy v Spencer [2013] WASC 256 [50] [53] (Corboy J), delivered after argument in this appeal. At the same time I note that the matter appears not to have been strongly argued between the parties there: see [51].

68 However, I have not been able to determine that the matter of intention was an issue that arose in this case, let alone was one that required the magistrate to address it.

69 It was not put to me that the matter of intention was raised with the magistrate in the prosecution's closing submissions, in the defence's closing submissions or indeed otherwise at the trial. While this alone would not be enough to dispose of the matter, I take account of that circumstance in light of the only evidence apparent to me on the matter, on a review of the evidence at the trial. That was the evidence in the video exhibit P1, of the appellant and of Detective Curtis.

70 I have viewed the video exhibit P1 in the short footage and the long footage, and the latter appears to me to be correctly described by the appellant in his testimony I now reach.

71 The appellant testified that he initially grabbed a wrist of Ms Challice's and did not release it: see 27 July 2012, examinationinchief, ts 56 ('grabbed her by the wrist' and said to her, when he did so, 'the boys haven't finished dealing with you yet', adding 'or something very similar to those words, if not those exact words, and walked her back to the van'); crossexamination, ts 71 ('holding her wrist'); cross examination, ts 75 ('grabbed her by the wrist'); crossexamination, ts 76 ('[i]f she had been compliant ... I would have just let her go'); crossexamination, ts 82 (when the appellant is seen for the first time in the long footage of the video exhibit P1, the appellant agrees he is to be seen holding Ms Challice's wrist); crossexamination, ts 89 (agreeing he felt embarrassed at having to keep holding her); reexamination, ts 95 (when the video did not show him holding her wrist she was 'continually pulling her arm away', he 'would tighten the grip', then 'she would relax', then 'she would try again'); and reexamination, ts 96 (Constable Curtis 'must have been at the fight at the time that I first grabbed Challice'). This in my view is direct evidence not qualified in any relevant way of an intention to apply force to the extent of a grab and hold.

72 There is also the evidence of Detective Curtis who testified that he saw the removal of Ms Challice from the Feral Brewing premises, followed by an interaction between Constable O'Rourke and Constable Culliford, on the one hand, and Ms Challice on the other, and her being pushed back, after which Detective Curtis dealt with another patron including making him secure inside a police van. Detective Curtis testified he then saw Ms Challice standing near the appellant and 'she started to take a step or two, and [the appellant] has taken hold of her wrist and said, "I don't think they're done with you yet"' (26 July 2012, examinationinchief, ts 74). He later added, when asked what the appellant had done 'physically', that 'I can't remember which hand he used, but he just took hold of one of her wrists. I can't exactly remember which hand to which wrist' (ts 74). When he was asked what Ms Challice did in response, he testified 'she pulled down a little bit, for a short while, and then it looked like she stopped pulling on his wrist, or on his hand, sorry' (ts 75).

73 As I will indicate below there is equally cogent evidence in relation to the second and third assaults.

74 True it is that the magistrate in the magistrate's reasons for decision (21) in commenting on the prosecution's closing submissions [1] in which the definition of assault in Code s 222 is reproduced, says this:

Mr Leigh relied on the 'applying force' part of the definition of assault in section 222 of the Code. In my view the actions of [the appellant] are more appropriately described as 'touches' but nothing turns on the distinction. It is still clear that in each case the actions were assaults.

75 Code s 222 giving the meaning of assault includes the word 'touches'. However, it seems to me that the magistrate was using the term to refer to the application of less than considerable force. This in my view is indicated by his reference to nothing turning on the distinction. I further note that the putting of a hand on a person's shoulder with the intention of detaining him for further conversation has been described as a 'touching': see Ludlow v Burgess (1971) 75 Cr App 227 as referred to in Woodley v Boyd [2001] NSWCA 35 [38] (Heydon JA, Davies & Foster AJJA).

76 I turn then to the defences of unwilled act (Code s 23A); accident (s 23B); and lawful authority (s 31).

77 Those provisions are included in the magistrate's listing of the 'potential defences' from the written closing submissions (magistrate's reasons for decision (4)). The appellant put to me that there was no explanation offered in the magistrate's reasons for decision (see (24 25)) for the rejection of those defences. Those defences are there rejected in relation to the third assault.

78 I note that the defences in Code s 23A and s 23B were, on the defence's closing submissions, only raised as to the third assault, and indeed it was not made apparent to me what evidence there was of facts pointing to their application; while the defence in Code s 31 was raised with respect to all three assaults (see [9]).

79 As to the defences in Code s 23A and s 23B, I disagree that no adequate explanation was offered in the magistrate's reasons. I note for this purpose the passages below, from magistrate's reasons for decision (25) read with (20):

It [the grabbing of the neck of Ms Challice] was not an unwilled act. There is no medical or scientific evidence that could explain why all the rest of the evidence points to the deliberate and coordinated act of [the appellant]. The very brief window of loss of will is not credible with [the appellant] showing good humour shortly after.

The assault was not an accident.

...

Having had his nose hit by Ms Challice's head the accused released her. She was then taken hold of by four officers and taken to the ground. The response was overwhelming. It is noteworthy that Constable Culliford moved to help but quickly realised that there was no need.

The accused purports to have no memory of what he did but has had to accept that his hands went to the throat and wrist of Ms Challice.

80 I note that the acceptance referred to appears to be that in the appellant's cross-examination when he was shown a portion of the video exhibit P1 (see 27 July 2012, ts 92 93).

81 I accept that this was not a detailed or indeed luminous statement of reasons. However, it seems to me that it adequately discloses the intellectual processes which resulted in the decision in the relevant respects within Manonai v Burns [54].

82 However, there is a further point in respect of Code s 23A and s 23B, and it is that of their application to the conduct of Ms Challice immediately preceding the third assault. I return to it in connection with my consideration of ground 6.

83 As to Code s 31, it was not made apparent to me what application there was for this provision in light of the findings of the magistrate as to the three assaults as follows (magistrate's reasons for decision (24 25)):

[As to the first assault] [a]lthough his actions could be seen to be consistent with an arrest [the appellant] was not, at that point, arresting Ms Challice.

There was no reasonable basis for [the appellant] to think that Ms Challice presented a threat to him or to anybody else. He was not authorised or justified in taking hold of her wrist.

...

[As to the second assault, the appellant's] physical escorting of Ms Challice to a police van was on the flawed basis that he believed Ms Challice had refused to give any personal details. There was no reasonable basis for this belief.

Having discovered the intended van had an occupant [the appellant] was not performing a function of his office when he turned Ms Challice around, pinned her arms against the police van and criticised her.

There was no legal basis for his actions.

...

[As to the third assault] [t]he other police officers were acting to prevent a repetition of violence by Ms Challice the grabbing of the neck of Ms Challice when the other officers had appropriately grabbed her arms and legs was not reasonably necessary.

84 I again accept that this was not a detailed or indeed luminous statement of reasons. However, it seems to me that it adequately discloses the intellectual processes which resulted in the decision in the relevant respects within Manonai v Burns [54].

Ground 2: error in finding assault when one wrist taken hold of

86 This was a ground relating to the first assault only.

87 As I understood the appellant's submissions here the magistrate erred in failing to address the issue of the application in relation to the first assault of the principle associated with Donnelly v Jackman (1970) 54 Cr App Rep 229 (Parker LCJ, Talbot & Ashworth JJ). That principle, if it applied, would have meant there was no assault within the meaning of Code s 222.

88 The application of that principle had been contended for in the defence's closing submissions (14 15). The magistrate makes no reference to those pages in the magistrate's reasons for decision.

89 Donnelly v Jackman concerned a conviction for assault of a police officer in the execution of his duty, and whether the police officer was acting in the execution of his duty at the relevant time. He had tapped the shoulder of a person, for the purpose of attracting his attention so as to ask him some question, and then, when it became apparent the person would not stop to speak with him, touched the person on the shoulder with the intention of stopping him. The person then assaulted the police officer. In dismissing the appeal, Talbot J (Parker CJ & Ashworth J agreeing) said this, which has been taken in later authorities as the principle associated with this case (232):

When one considers the problem: was this officer acting in the course of his duty, in my view, one ought to bear in mind that it is not every trivial interference with a citizen's liberty that amounts to a course of conduct sufficient to take the officer out of the course of his duties.

90 Talbot J determined that the facts which had been found in the decision appealed from did not justify the view that the officer was not acting in the execution of his duty 'when he went up to the appellant and wanted to speak to him' (232).

91 This principle has been referred to with approval in a number of cases, although none on the application of assault within Code s 222. See Pounder v Police [1971] NZLR 1080, 1085 (Richmond J) (trespass by entering a private car and removing a person who had been placed under arrest was a technical trespass within the Donnelly v Jackman principle); Taka v Police [1996] 2 NZLR 449, 452 (Hammond J) (departure from the terms of an implied licence did not constitute trespass on the Donnelly v Jackman principle); and Woodley v Boyd [38] (a touching with goal to attract the suspect's attention not unlawful: although it may be an interference with the suspect's liberty it is a trivial one; Donnelly v Jackman referred to with approval).

92 It may be that, in the same way that an intention to apply force or create an apprehension of its application from the common law of assault is also part of assault within Code s 222, above, the principle associated with Donnelly v Jackman is also part of the meaning of assault within that provision of the Code. At the same time I note that unlike the matter of intention the present matter is not identified as an aspect of the common law of assault.

93 However, I do not consider I am required to go any further into these matters. That is because I do not consider any question arose in this case of the application of that principle.

94 I have already noted that on the only relevant evidence in relation to the first assault the appellant grabbed or took hold of Ms Challice and retained his grip on her. I note for that purpose that the appellant did not give any evidence that he merely touched or briefly held on to Ms Challice to gain her attention. I note in that regard two further authorities, one referred to in Donnelly v Jackman as distinguishable from that case, and one referred to in Woodley v Boyd as a case of unlawful conduct. The latter authority was referred to in the defence's closing submissions (14).

95 Kenlin v Gardiner [1967] 2 QB 510 was distinguished in Donnelly v Jackman as involving 'vastly different' facts. As described in the latter case, those facts were that police became alarmed at boys who were calling at houses and 'seized them by the arm'.

96 Ludlow v Burgess was, as I have previously indicated, referred to in Woodley v Boyd and involved a police officer who put his hand on a person's shoulder not with the intention of arresting him but of detaining him for further conversation and to complete inquiries: Donnelly v Jackman was distinguished as not involving a detention of a person against his will ((227 228) Parker LCJ, Melford Stevenson & Cooke JJ agreeing).

97 I note in this case that the magistrate appears to have concluded that the matter of justification was one not requiring him to look further than the 'reason given for the initial grabbing of the wrist of Ms Challice' (magistrate's reasons for decision (22)). On the evidence of the appellant as to his initial contact with Ms Challice and his evidence below as to his reasons for that contact, this appears to be the appropriate approach. I further consider that the evidence established that the initial contact had a purpose of detention which the subsequent holding confirmed and which made it unnecessary to consider whether or not the subsequent holding was itself an assault.

98 On those authorities, and the relevant evidence I have referred to, the principle associated with Donnelly v Jackman did not apply in this case.

Ground 3: alternatively, error in failing to find appellant was arresting Ms Challice and failing to find appellant used reasonably necessary force in so doing

101 This was a ground relating to the first assault only.

102 It will be seen that an affirmative conclusion on the first part of ground 3, that the magistrate erred in failing to find the appellant was arresting Ms Challice when he took hold of her by one wrist, is necessary to the application of the second part, that the magistrate erred by failing to find the appellant used reasonably necessary force in doing so.

103 In relation to arrest, the defence's closing submissions (12) refers to Criminal Investigation Act 2006 (WA) s 128 and s 27 and Code s 31, s 231 and s 233, while the prosecution's closing submissions [85] [96] deals with Criminal Investigation Act s 128. All of those provisions, except Code s 233, are included in the magistrate's listing of the 'potential defences' from the written closing submissions (magistrate's reasons for decision (4)).

104 The appellant directed my attention to all of those provisions. However, it was not altogether apparent whether or not the appellant also relied on a power of arrest beyond those referred to. I consider, at least in the circumstances of this case, that any such power must not be exercised otherwise than in accordance with the relevant provision of the Criminal Investigation Act, s 128 or s 27: see s 7(2).

105 I further consider that Code s 231 and s 233 are not sources of the power to arrest, but only provide for consequences of the exercise of such a power otherwise derived.

106 I set out the material parts of the provisions.

107 Criminal Investigation Act s 128 is in pt 12 div 2, arrest without an arrest warrant (see also s 127). The only part of s 128 which it was accepted was possibly relevant was s 128(3), which permits a police officer or public officer to arrest a person for an offence

that is not a serious offence if the officer reasonably suspects -

(a) that the person has committed, is committing, or is just about to commit, the offence; and

(b) that if the person is not arrested -

(i) it will not be possible, in accordance with law, to obtain and verify the person's name and other personal details;

(ii) the person will continue or repeat the offence;

(iv) the person will endanger another person's safety or property;

(v) the person will interfere with witnesses or otherwise obstruct the course of justice;

(vi) the person will conceal or disturb a thing relevant to the offence; or

108 It was not in contest that the only offence relevant in the present context was that of disorderly behaviour in public (Code s 74A) and that such an offence is 'not a serious offence' within Criminal Investigation Act s 128 (see s 128(1) 'serious offence').

109 Criminal Investigation Act s 27 is not concerned with arrest, but appears in pt 4 miscellaneous official powers and duties and is concerned with orders to a person to move on. However, both parties to the appeal dealt with this power in relation to the present ground and it will be seen that the magistrate dealt with it in the present context also.

110 In material parts Criminal Investigation Act s 27 provides:

1. Suspects and others may be ordered to move on

(1) A police officer may order a person who is in a public place, or in a vehicle used for public transport, to leave it, or a part of it specified by the officer, if the officer reasonably suspects that the person -

(i) that involves the use of violence against a person;

(ii) that will cause a person to use violence against another person; or

(iii) that will cause a person to fear violence will be used by a person against another person;

(ii) cause a person to use violence against another person; or

(iii) cause a person to fear violence will be used by a person against another person;

(d) is hindering, obstructing or preventing any lawful activity that is being, or is about to be, carried out by another person;

(f) has just committed or is committing an offence.

(4) For the purpose of giving an order under this section to a person whose personal details (as that term is defined in the Criminal Investigation (Identifying People) Act 2002 section 16) are unknown to the officer, a police officer may request the person to give the officer any or all of the person's personal details.

111 Those two provisions need also to be read in this case, particularly for the second part of the present ground, with Criminal Investigation Act s 16(1), as follows:

(1) When exercising a power in this Act, a person may use any force against any person or thing that it is reasonably necessary to use in the circumstances -

(b) to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.

1. Force used in executing process or in arrest

(1) It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.

(1) When any person is proceeding lawfully to arrest, with or without warrant, another person, and the person sought to be arrested takes to flight, or appears to be about to take to flight, in order to avoid arrest, it is lawful for the person seeking to make the arrest, and for any person lawfully assisting that person, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested.

113 In my view on their face Code s 231 and s 233 require that there be a power of arrest otherwise arising.

114 It is also my view that Code s 231 and s 233 require there be a power to assist otherwise arising. However, before me it was not in contest that if another police officer had exercised or was exercising that power in Criminal Investigation Act s 128 or s 27 a power of another police officer to assist in such exercise arose.

115 It did not appear to be in contest before me that there was evidence before the magistrate that the appellant had at about the time he grabbed or took hold of Ms Challice's wrist sought to arrest her for disorderly conduct or to detain her for the purpose of issuing a move on notice. There was also evidence that at about the same time Detective Curtis had arrested her for disorderly conduct.

116 The clearest such evidence to which my attention was drawn by the appellant was of the appellant as follows (27 July 2012, crossexamination, ts 75 76):

You said that when you first saw - as I understand your evidence, when you first saw Ms Challice being (indistinct) back, you assumed that she had been placed under arrest. Is that correct? Do I understand that correctly? When you first saw her taken back, you thought she'd been placed under arrest and you were going to hold her until she had a big move on by this issue? - - - It was obvious that she was under arrest. She was taken by both arms and pushed back to a van, yes.

So you now had - and you're dealing with what you think is an arrested person for two minutes, or thereabouts, under your evidence, before Constable Curtis gets involved - or Detective Curtis gets involved? - - - Sorry, I - - -

You said that you were there for about two minutes, before Detective Curtis became involved. Is that correct? - - - Yes.

So you're there for two minutes with a person that you think is an arrested person. Is that correct? - - - Well, I'd grabbed her by the wrist, yes, and walked her back.

So you're saying she's arrested as a result of being pushed back by the other officers, or that she's arrested as a result of you grabbing her wrist? - - - The other officers taking hold of her and pushing backwards, in my view, is an arrest. They have then turned around and gone back to that other disturbance, and in that action they have unarrested her.

And you now re-arrested her? - - - When she has headed back to the disturbance, I have stepped in and - by grabbing her on the wrist and stopping her from where she wanted to go, I have arrested her, yes.

Your justification for the arrest is to prevent her from joining a disturbance? - - - And to shortly after issue a move on notice or charge her with disorderly.

117 I note that earlier in his evidence the appellant had testified as to a disturbance involving the friends of Ms Challice as follows, after being asked about seeing Ms Challice pushed to a police van following her ejection from the Feral Brewing premises (27 July 2012, examinationinchief, ts 55):

Did you see what became of Ms Challice? - - - Yes. I saw two officers put her up against the side of the van and then they immediately turned around and walked towards another big disturbance or fight that was happening at the main gate.

Are you aware of who was involved in that disturbance? - - - It was Ms Challice's friends.

118 The appellant also testified with respect to grabbing or taking hold of Ms Challice and events thereafter as follows (27 July 2012, examinationinchief, ts 58):

Did you advise her that she was under arrest? - - - I can't remember saying to her, 'You're under arrest for this,' but I obviously said to her at some stage she was under arrest, because she was continually shouting that, 'If I'm under arrest, you've got to put handcuffs on me.'

Was it at that stage you told her she was under arrest? - - - I may well have said that, yes.

Are you aware of whether or not anybody else told her she was under arrest? - - - I'm certain that when Constable Curtis was speaking to her as well, he responded to one of her rants that, 'in that case, you're under arrest,' and I can't remember if he said what for.

119 The appellant testified as to his intentions when he grabbed Ms Challice by the wrist in the following terms which, as will be seen, were of great importance in the magistrate's reasons for decision (27 July 2012, examinationinchief, ts 56):

There were three reasons why I grabbed her by the wrist, and the first was to stop her getting involved in that disturbance. The second was that I expected these two constables to come back and issue her with a move on notice, and if they didn't come back and issue her with a move on notice, I certainly was going to.

So why did you want to issue her with a move on notice? - - - Because of her behaviour when she had been brought out. In all my years I can't ever remember seeing a bouncer or a security officer having to carry a person out of a licensed premises. So I assumed that she had either been involved in a major fight, or she had flatly refused to come out.

120 He added that when he took her by the wrist he said to her, 'the boys haven't finished dealing with you yet', as I indicated earlier.

121 Detective Curtis's evidence was rather more qualified as to arrest by him as follows (26 July 2012, crossexamination, ts 83 and reexamination ts 87):

When Senior Constable Johnson took her wrist, did you hear her saying words to the effect of, 'Either handcuff me or arrest me'? - - - Yes.

Did you hear whether or not Senior Constable Johnson then says, 'You're under arrest'? - - - I can't remember whether Senior Constable Johnson said that or whether I said something along those lines.

So someone told her she was under arrest? - - - I said, 'We can place you under arrest for disorderly.'

So what was the disorderly you were placing her under arrest for? - - - That would have been in relation to the language.

So therefore the language had to be swear words? - - - There were - I can't remember what her language was, but that was my thought process at the time.

...

You were asked about Ms Challice saying words to the effect of, 'Handcuff me or arrest me'? - - - She said something along those lines.

Then I'm troubled with that. Did you say that you said that you did place her under arrest for disorderly, or you could place her under arrest for disorderly. What did you say? - - - I can't recall exactly what I said, whether it was one or the other.

All right. Did you place her under arrest? - - - I can't recall.

122 The magistrate said this as to arrest by the appellant (magistrate's reasons for decision (24)):

Although his actions could be seen to be consistent with an arrest Senior Constable Johnson was not, at that point, arresting Ms Challice.

123 It was not apparent from the passage just quoted from the magistrate's reasons for decision how the magistrate arrived at this finding other than by reference to two matters. Under ground 1, the appellant submitted that no reasons were provided for that passage despite the magistrate previously concluding that the appellant's holding of Ms Challice's wrist was a 'completely effective restraining grip' (20).

124 I conclude that the two matters referred to appear to be reasons; however, there are difficulties with both.

125 The first matter, in my view, was the magistrate's consideration of the first reason offered by the appellant why he grabbed her by the wrist. That reason, it will be recalled, was to stop her getting involved in a disturbance involving her friends. The magistrate dealt with that reason in magistrate's reasons for decision (17) as follows:

There are a number of reasons why this explanation can be rejected.

There were a lot of police present. The evidence indicated that any disturbances were quickly and effectively dealt with. In the case of Ms Challice's 'disturbance' four officers, all standing in close proximity, quickly grabbed her arms and legs and forced her to the ground.

Detective Lewis [sic Curtis] had put someone in a security van between watching Ms Challice's eviction and returning to speak to her.

The people creating the disturbance were supposedly friends of Ms Challice and both Ms Andrew and Mr Davenport gave evidence. To suggest they were part of disturbances that Ms Challice would rush to is not believable.

The evidence indicated that the disturbances complained of consisted of Ms Challice and her friends complaining about being evicted from the brewery, approaching the police about the holding of Ms Challice and Ms Challice wanting to recover her handbag.

If there were disturbances not involving Ms Challice's friends any motivation for her to join such a disturbance was not there.

As far as involvement in disturbance, the evidence supports the proposition that her friends approached the 'disturbance' that she represented and talked to her and attempted to film what was happening.

There was a length of time that Ms Challice stood near the police van before being approached by the accused. Any time at all would have given her an opportunity to join disturbances or attempt to reenter the brewery. Ms Challice may have overstated the amount of time in saying she stood next to the police van for between five to ten minutes. Detective Curtis witnessed the push to the van and then the accused grabbing the wrist of [Ms Challice]. In between he attended to a disturbance and he put estimated the intervening time period as a minute or two.

126 Under ground 1, the appellant submitted that it was a crucial matter of fact in relation to the first assault, for which there was no clear finding, whether Ms Challice was moving away from the appellant prior to him taking hold of her wrist. I understood this as a reference to matter relevant to whether or not it was plausible to consider Ms Challice was moving to a disturbance and thus there was a basis for dealing with her under Criminal Investigation Act s 27 or s 128. While I accept that this was a crucial matter of fact, in view of the passage just quoted from the magistrate's reasons for decision (17) I do not consider that there was such a failure.

127 Further, under ground 1, the appellant submitted that the magistrate failed to consider Code s 231 and s 233, as well as Criminal Investigation Act s 16 and s 128. In view of my analyses of that passage and of those provisions, I do not consider there was such a failure.

128 However, I consider there is this difficulty with the reasoning in the passage. The reasoning was in part based upon the nature of the disturbance involving Ms Challice's friends. The magistrate appears to rely on the evidence of Ms Andrew and Mr Davenport as to relevant matters.

129 The evidence of both, while not entirely clear on the point, appears to support the characterisation of it the magistrate gives. See for Ms Andrew 26 July 2012 ts 61, 63 (examinationinchief) and ts 67 (crossexamination); and for Mr Davenport 27 July 2012 ts 33 and 35 (examinationinchief).

130 However, earlier in the magistrate's reasons for decision (11) the magistrate indicated, as I have previously described, that he would 'respectfully disagree' with the proposition that Mr Davenport was a 'very credible and reliable witness', while his evidence was 'only marginally relevant'. In respect of Ms Andrew, the magistrate indicated she was a 'credible witness but was of limited assistance'. No reasons are given for these assessments, matters complained of under ground 1 in the appellant's written submissions.

131 As I have already indicated, the appellant gave conflicting evidence as to the nature of the disturbance involving Ms Challice's friends. True it is that the magistrate's assessment of the credibility of the appellant (magistrate's reasons for decision (11 12)) included reference to his 'explanations for his behaviour' as lacking 'credibility' and appearing 'more like rationalisations'. However, I consider this to be a reference, among other things, to the present matter, and so the point becomes circular.

132 There is thus a conflicting set of significant evidence where a trial judge is required to set out his or her findings as to how it is that the one has been accepted over the other (Riley [32] as quoted in Manonai v Burns [54]). In my view of the matters in respect of Ms Andrew and Mr Davenport just described the magistrate has not set out how it was one was accepted over the other consistently with the standard in Beale v Government Insurance Office of New South Wales (443) also as quoted in Manonai v Burns [55], and after account is taken of the circumstances of the case, the matters that arose for the magistrate's consideration, the reasons as a whole and in the context of the evidence (see Manonai v Burns [61]). That same view of those matters also indicates to me that such a conclusion is consistent with the need to take account of the pressures of work and limited time in the Magistrates Court referred to in Manonai v Burns [56].

133 True it is the magistrate's reasons for decision (17) also referred to other matters making it in the magistrate's view implausible that Ms Challice needed to be stopped from getting involved in a disturbance. He referred to the evidence of the friends approaching the 'disturbance' she represented, which, however, appears to raise the same difficulty as the evidence as to the nature of the disturbance above.

134 He also referred to the length of time Ms Challice stood near the police van before being approached by the appellant.

135 However, it is apparent to me that the magistrate did not take the view that any one of those reasons, including the last, was sufficient on its own. Further, it is not apparent to me that any of those reasons, including the last, by its nature was sufficient on its own.

136 I turn now to the second matter, which in my view was the following from the magistrate's reasons for decision (19):

Both officers give confusing evidence about arresting Ms Challice and both appear to have done so in response to being incited to do so by Ms Challice.

137 The magistrate does not explain in what way the officers' evidence was confusing. In any event, it does not appear to me from the passages from the appellant's evidence I have quoted that his evidence is confusing in the present respect. In the absence of an explanation of the way in which the evidence was confusing it seems to me that the magistrate's reasons for decision does not adequately disclose the intellectual processes which resulted in the decision in the relevant respects within Manonai v Burns [54] after taking account of the matters in [61] and [56].

138 The magistrate's reasons for decision (17) on the nature of the disturbance also goes, it seems to me, to whether any arrest of the appellant for disorderly conduct was within Criminal Investigation Act s 128(3)(a) and (b), particularly (b)(ii). On the basis of my account of the conflicting set of evidence as to the disturbance above, it seems to me that there is the same inadequacy of reasons in the present respect.

139 True it is, as the respondent pointed out to me, the magistrate's reasons for decision (17) also refer to the presence of 'a lot of police' from which, it appears, the magistrate draws the inference that 'any disturbances' would be 'quickly and effectively dealt with'.

140 However, the inference is not as readily drawn, it seems to me, if the evidence of the appellant as to the disturbance is not rejected as the magistrate did.

141 So far I have been dealing with ground 3(i). I turn now to ground 3(ii), that the magistrate failed to find that the appellant used such force as was reasonably necessary to effect the arrest. The appellant's written submissions appeared to confirm that this was a reference to Criminal Investigation Act s 16(1)(a) rather than Code s 231(1) or s 233. At the same time all of these provisions share the requirement that the force used was reasonably necessary for the purposes they respectively stipulate. Such a requirement sets an objective test requiring consideration of the act of an accused said to constitute the offence and of whether the act in question was reasonably necessary in all the circumstances in which the accused found himself: Quartermaine v The State of Western Australia [2008] WASCA 22 [48] (Beech AJA, Pullin & Miller JJA agreeing) (on duress under former Code s 31(3)).

142 The magistrate's reasons for decision (17) on the nature of the disturbance, together with the matters of the friends approaching the 'disturbance' Ms Challice represented and the length of time Ms Challice stood near the police van before being approached by the appellant, also go, it seems to me, to whether the appellant used such force.

143 However, on my analysis of those reasons they suffer from the same inadequacy in the present respect as in the previous respects.

144 On these conclusions, the magistrate has failed to provide adequate reasons for his findings in respect of the two matters in ground 3.

145 In that circumstance, it was not in contest that the following, from Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 [29] (Steytler, Templeman & Simmonds JJ) (Mount Lawley v WAPC), referring to Beale v Government Insurance Office of New South Wales, is the applicable principle:

Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice: Beale, at 444. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Beale, at 444.

146 Although Criminal Appeals Act s 14(2) refers to a 'substantial miscarriage of justice' (original emphasis) it was not suggested that this affected the application of that principle in this case.

147 In my view, given the nature of the inadequacy I have identified, which goes to resolving a conflict of evidence requiring an assessment of credibility of witnesses, I am not in as good a position as the primary court to decide the matter having not had the opportunity to hear the evidence and assess the issues of credibility in question.

148 In my view, it follows that the inadequacy is such as to give rise to a miscarriage of justice.

150 It also follows I am not myself able to decide the matter the subject of the ground.

Ground 4: error in failing to find Ms Challice resisted and in failing to find appellant used reasonably necessary force to overcome resistance

152 This was a ground relating to the second assault only.

153 In view of the way in which argument with respect to ground 4 proceeded before me, as well as the appellant's ground 1 in the respects I will reach, I understood ground 4 to extend to a failure to give adequate reasons for findings contrary to those to which ground 4 referred.

154 It was common ground that the only passages in the magistrate's reasons for decision relevant to ground 4 were the following (14 16, 18 20 and 24):

The timing is hard to pinpoint but Detective Curtis heard Ms Challice insisting on being handcuffed if she was being arrested. He said he placed her under arrest for disorderly conduct because of the language she was using. He can't remember what that language was.

Around this time Detective Curtis said to the accused 'I'll give her a move on notice and get her out of here'.

Detective Curtis obtained Ms Challice's name and date of birth and was in the process of obtaining her address.

Ms Challice spoke of getting identification but Detective Curtis did not require that. Ms Challice continued to talk about that when the accused announced that Ms Challice could 'go in the van'.

Throughout this period the accused was holding Ms Challice's wrist and Ms Challice was not attempting to move.

Detective Curtis realised the van intended for Ms Challice already had an occupant and in the aftermath of that realisation Ms Challice was moved to the other side of the van.

The accused then said to [Ms Challice] that she was acting like a child and had her up against police van holding her arms either side of Ms Challice's head in what he stated was, a surrender position.

...

Section 27 of the Criminal Investigation Act 2006 provides that a police officer may order a person who is in a public place, to leave it, if he reasonably suspects that the person has just committed or is committing an offence. Detective Curtis appeared to be embarking on that process.

Detective Curtis's evidence was that he placed Ms Challice under arrest for language that constituted disorderly conduct. He could not remember the alleged language and did not state when this occurred.

It is a reasonable assumption that Detective Curtis used his powers under section 128 of the Criminal Investigation Act 2006 to arrest Ms Challice.

Disorderly conduct is not a serious offence within the meaning of that section so Detective Curtis could only arrest Ms Challice for disorderly conduct if he came with section 128(3)(a) and (b).

In my judgment the legalities of Detective Curtis's actions are not clear.

...

Despite Ms Challice protesting about being held the accused did not call out or have other officers go and get either Constable O'Rourke or Culliford. He just continued to hold her.

It was Detective Curtis who then initiated the issuing of a move on notice.

It is noteworthy that there was no discussion between Detective Curtis and the accused as to who would be issuing a move on notice and for what. It seems that Detective Curtis just took the view that he would issue one because no one else was doing it.

In my judgment it is significant that, despite Detective Curtis's involvement, the accused maintained his hold on to Ms Challice. This is consistent with the accused not giving proper consideration to whether his actions were justified or not.

Both officers give confusing evidence about arresting Ms Challice and both appear to have done so in response to being incited to do so by Ms Challice.

The evidence indicated that Ms Challice was giving her personal details when the accused made the decision to place Ms Challice in the custody of a police van.

It is significant that prior to the evidence of Detective Curtis's notes in his notebook coming to his knowledge the accused was relying on a complete failure by Ms Challice to give any personal details that lead to his decision to place her in the van.

The evidence was that such details were being given and not refused. There was no reasonable basis for the accused not to have seen and heard this process.

The accused explained his actions on the basis of putting Ms Challice in a van so she could calm down so he could issue a move on notice. This illustrates how he was not concentrating on what was happening.

The accused explained that having taken Ms Challice to the van and finding it had someone in it he was then taking Ms Challice out of view of her friends in order to calm her down.

This process involved him taking Ms Challice around the van, turning her and holding her against the van with her arms in the surrender position.

The explanation for this was to get Ms Challice to pay attention to him and comply with giving her details.

Detective Curtis had his notebook out and was taking details and it is apparent that the accused was the one not paying attention to the situation.

In changing the otherwise completely effective restraining grip to the surrender position hold the accused was acting both surprisingly and without any justification.

By leaning in close and criticising Ms Challice the accused again acted without justification.

'Grow up, you're acting like a kid' may well have been a valid criticism in other circumstances. Its legitimacy is compromised when it is delivered in a raised voice, with a face moved close to the face of the recipient and is delivered by a police officer holding your arms in a surrender position to get you to do what you were already doing.

...

Senior Constable Johnson's physical escorting of Ms Challice to a police van was on the flawed basis that he believed Ms Challice had refused to give any personal details. There was no reasonable basis for this belief.

Having discovered the intended van had an occupant Senior Constable Johnson was not performing a function of his office when he turned Ms Challice around, pinned her arms against the police van and criticised her.

There was no legal basis for his actions.

Ms Challice was already under arrest and securely held.

155 Under ground 1, the appellant submitted that there were crucial matters of fact in relation to the second assault for which there was no clear finding of whether Detective Curtis had properly arrested Ms Challice. However, while I accept that the magistrate's findings in that respect were difficult to understand, and might be considered inadequate by not disclosing the intellectual processes they involved, it does not seem to me the matter was one on which the magistrate was required to provide such disclosure. That is because he appears to proceed on the basis, as indicated above, that 'Ms Challice was already under arrest and securely held' (magistrate's reasons for decision (24)). In the context of the earlier passage, also as indicated above, that it was 'a reasonable assumption that Detective Curtis used his powers under s 128 of the Criminal Investigation Act to arrest Ms Challice', in my view he had determined that for the purposes of his decision he should accept it was Detective Curtis who had lawfully arrested Ms Challice. This determination was undoubtedly favourable to the appellant, on the common ground of both counsel above as to the lawfulness of assistance in an arrest in conformity with Code s 231 or s 233.

156 However, I am of the view that the magistrate did not consider the possibility that the appellant had Ms Challice under arrest and that he was using reasonably necessary force to overcome her resistance to his arrest. The magistrate did not do so, perhaps, because of the analysis I ascribe to him in the section of my reasons to do with ground 3. On my consideration of that analysis, however, the possibility arose.

157 Indeed, under ground 1, I understood the appellant to be submitting just that, where the appellant submitted that the magistrate failed to consider Code s 231 and s 233, as well as Criminal Investigation Act s 16 and s 128, understood as referring to the second assault.

158 Thus, I consider ground 1 in the present respect to be made out.

159 In determining whether the appellant was not using reasonably necessary force to overcome Ms Challice's resistance to his arrest it seems to me that it is of considerable significance whether or not she was resisting his hold on her wrist. In that regard, I note that the magistrate indicates he was of the same view for the purposes of his analysis when he states (magistrate's reasons for decision (15)) '[t]hroughout this period the accused was holding Ms Challice's wrist and Ms Challice was not attempting to move'.

160 In fact, there was a conflict of evidence in this respect.

161 The only evidence which appears to relate to the time of the second assault or thereabouts is the following.

162 Ms Challice testified as follows (26 July 2012, examinationinchief, ts 10):

Were you at any stage physically resisting Senior Constable Johnson while he was holding you? - - - At one point I probably tried to pull my arm back and said - like, when I was saying, 'You can't hold onto me. Let me go,' and then I just gave up and just stood there and spoke to them like - and when I say 'gave up', I just got over trying to pull my arm away and just stood there, you know, like - - -

Did you at [any] stage try and walk away? - - - No.

163 The appellant testified as follows (27 July 2012, examinationinchief, ts 58; crossexamination, ts 95 96):

Throughout your dealings with Ms Challice, did you ever think that you had to up the level of force? - - - No. I - the potential was there for the force to be upped, as in what happened later, but at the time that I was holding Ms Challice by the hand, I thought I had reasonable control of her, and when she tried to pull away I was able to maintain her there without having to handcuff her.

What degree of force were you using holding her wrist? - - - I was holding her wrist firmly. It was more firm when she tried to pull away, and less firm when she stopped trying to pull away. So the firmness varied from - as she tried to pull away, my hand would firm up on her wrist, and as she relaxed and kept her hand there, my hand would relax as well.

...

You were shown approximately three minutes of the video clips and it was probably three or four seconds on the video (indistinct) you're holding Ms Challice's arm? - - - Yes.

What was taking place when the video wasn't on? - - - She was - I say she was continually pulling her arm away but it wasn't, like, continually jerking her arm. She would pull her arm away. I would tighten the grip. She would relax. 10 seconds later she would try again and it was - continually pulling her arm away isn't continually pulling. It's continually acting in that - to get free.

Could you feel anything in her arms? - - - Yes, I could feel her tension in her arms. I was holding her wrist.

164 I note the long footage in exhibit P1 does not appear to show Ms Challice resisting as she moves around the van. However, the vision is repeatedly obscured, as the testimony of the appellant just quoted indicates, and I consider I can take nothing from the video in the present respect.

165 I note that there was also evidence from the appellant (27 July 2012, crossexamination, ts 86 88) as follows:

Can I suggest it would have been a simple matter for you to walk her around the car park because the footage seems to indicate that you were easily walking her around the back of this first van, and I will just get, I think, it's at 2 minutes 50 where it shows this. So at this stage here, I think the second - you're the person who just left the frame - - - ? - - - Yes.

- - - and this is at 2. 41. Can I suggest that what we see in a moment is your hands on Ms Challice's back and shoulder. So there's your hand on her right shoulder - - - ? - - - Yes.

- - - or right (indistinct) and you turn her and take a step - and you very easily move her from that point forward.

We can see you step in there without any real resistance or difficulty. Would you accept that? - - - I'm 95 kilos. She's 50 kilos. Yeah, I accept that.

So again, given the obvious height and weight disparity, it would have been a simple procedure just to move her to a different van. You keep walking her like you're walking her there? - - - No.

Why is that? - - - Because she was still shouting and screaming.

But that shouting and screaming wasn't stopping you from moving her around that - - - ? - - - No, it was only two paces.

May I suggest to you that what the footage shows is that you were moving without any difficulty and that you could have continued to do so? - - - I don't doubt I could continue to move her around. I'm 95 kilos. She's 50 kilos so I - - -

So what I'm suggesting to you is, given that you could, and that you could then have moved around and taken her to another vehicle, it was not necessary to do the next thing that you did, to pin her and shout at her? - - - Many other officers would not have done what I did.

166 However, I consider this goes to a different matter, of how easily or simply, without resistance, the appellant was able to move Ms Challice around the van. It does not go, in view of the other evidence of the appellant, to whether once Ms Challice was stopped there was no question of any resistance once he resumed his hold of her.

167 Whether there was such a question was in my view undoubtedly of significance to whether or not the actions of the appellant in pinning Ms Challice as he did to the police van, whether or not taken in conjunction with the words he used to her, were reasonably necessary to overcome resistance to his arrest.

168 It follows in my view that there was a conflict of evidence on a matter of significance where it was a necessary part of the reasoning process to consider whether the evidence of one party should be preferred over that of the other within Manonai v Burns [55]. The magistrate's reasons for decision failed to provide such reasons. They were thus inadequate in the present respect.

169 As no reasons have been given in circumstances in which they were required, the question arises under Mount Lawley v WAPC [29] whether I am able myself to decide the matter.

170 Given the nature of the matter, which requires assessing which witness to believe, it seems to me that I am not in as good a position as the primary court to decide the matter having not had the opportunity to hear the evidence and assess the issues of which evidence to prefer.

172 It also follows I am not myself able to decide the matters the subject of the ground.

Ground 5: error in finding there was no justification for appellant grabbing Ms Challice's neck or throat

174 Ground 5 as well as ground 6 relate to the third assault.

175 In view of the way in which argument with respect to grounds 5 and 6 proceeded before me, as well as the appellant's ground 1 in the respects I will reach, I understood grounds 5 and 6 to extend to a failure to give adequate reasons for findings contrary to those to which ground 6 referred.

176 Further, as became apparent at the argument of the appeal, these two grounds are to be discussed together because of their substantial (if not entire) common ground. That common ground lay in the fact both related only to the matter of provocation in Code s 245 and s 246.

177 I will deal with ground 5 as part of my consideration of ground 6.

Ground 6: error in finding appellant not provoked in grabbing Ms Challice's neck or throat

179 From the parties' submissions and my consideration of the magistrate's reasons for decision the only passages in them relevant to grounds 5 and 6 are the following (15, 20, 24 25):

The accused then said to [Ms Challice] that she was acting like a child and had her up against police van holding her arms either side of Ms Challice's head in what he stated was, a surrender position.

Ms Challice hit the accused with her head on his nose.

The accused released [Ms Challice] and took a couple of steps back.

Detective Curtis grabbed Ms Challice's left wrist with a view to putting her arms behind her back to handcuff her. Other officers assisted.

...

Having had his nose hit by Ms Challice's head the accused released her. She was then taken hold of by four officers and taken to the ground. The response was overwhelming. It is noteworthy that Constable Culliford moved to help but quickly realised that there was no need.

The accused purports to have no memory of what he did but has had to accept that his hands went to the throat and wrist of Ms Challice.

I do not accept Ms Challice's evidence that she was lifted off the ground by the throat and slammed to the ground.

In my judgment there was no justification for the accused touching Ms Challice at that point.

...

There was no justification for Senior Constable Johnson grabbing Ms Challice's neck.

...

The accused was not provoked into the assault. It was Senior Constable Johnson who without justification pushed Ms Challice onto the police van and criticised her.

180 The defence of provocation in the Code is described in s 245 and s 246, which in material parts read as follows:

The term provocation used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.

...

A lawful act is not provocation to any person for an assault.

...

A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of selfcontrol, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.

Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of selfcontrol and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of selfcontrol, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

181 It may be noted that the only reference to provocation in either the prosecution's closing submissions or the defence's closing submissions was in the former, and with respect to the second assault only: see [144] [154]. However, it will be evident from the passages quoted from the magistrate's reasons for decision that the magistrate considered he needed to address provocation in reference to the third assault. From the evidence I review below it was appropriate for him to do so as, while neither party had raised the matter in the present context, there was evidence of provocation fit for consideration by the tribunal of fact. See Zoccoli v McDarby [1999] WASCA 179 [20] (Miller J, referring to authority).

182 The basis or bases on which the magistrate reached the conclusion that the appellant was not provoked into the third assault are at the least not clear from the passages quoted from the magistrate's reasons for decision.

183 Indeed, under ground 1, the appellant contended there were no reasons given for the conclusion. The evaluation of that contention requires me to consider the circumstances of the case and the matters that arose for the magistrate's consideration, looking at the reasons as a whole and if necessary in the context of the evidence to determine if they give the sense of what was intended in a way that achieves the required function and purpose: Manonai v Burns [61].

184 In the circumstances of this case and on the matters that arose for the magistrate's consideration, there appear to have been at most only three bases for his conclusion that might be said to have been open to him.

185 One was that the appellant was not given provocation for the assault as there was no unlawful act or insult by Ms Challice of the nature described in the first paragraph in Code s 245. One possibility is that there was no act or insult of the nature described (the first possibility). The other possibility was that any such act or insult was not unlawful (the second possibility). Only the second possibility was considered in any detail in argument before me.

186 The second basis was that the appellant was not in fact deprived by the provocation of the power of selfcontrol and did not act upon it on the sudden, before there was time for his passion to cool, within Code s 246, first paragraph. One possibility was that the appellant was not in fact deprived by the provocation of the power of selfcontrol (the third possibility). The other possibility was that although he was in fact so deprived he did not act upon it on the sudden, before there was time for his passion to cool (the fourth possibility). Only the third possibility was considered in any detail in argument before me.

187 The third basis was the force the appellant used was disproportionate to the provocation, within Code s 246 first paragraph (the fifth possibility). The fifth possibility was not considered in argument before me.

188 While in view of the argument before me my concern will be with the second possibility and the third possibility, it will be seen I will need to address all five possibilities.

189 It did not appear to be in contest that the only act or insult of Ms Challice possibly relevant to provocation in relation to the third assault was the contact between her head and that of the appellant. That contact is of course described in brief in the passages from the magistrate's reasons for decision quoted above.

190 It could not be contested, in my view, that, on the evidence before the magistrate, the contact was significant enough to cause the appellant to release his grip on Ms Challice and step back, and his nose to bleed. See the testimony of the appellant, 27 July 2012, examinationinchief, ts 63 (including comment on the video, apparently the long footage from exhibit P1) and crossexamination, ts 93 94. The appellant's evidence was also that he had no memory of what happened after that contact until he was standing in front of a police van being handed either tissues or paper towel which he used to mop up the blood around his nose: 27 July 2012, examinationinchief, ts 63.

191 The only other evidence as to that contact is from Ms Challice, Mr Baltic, Detective Curtis and Constable Culliford. It will be seen there was a conflict on their evidence as to the character of the contact as intentional or unintentional.

192 Ms Challice gave the most detailed testimony. She testified as follows (26 July 2012, examinationinchief, ts 15 16, and crossexamination, ts 47 48):

You say you felt petrified. What did you do in response to that? - - - Well, I struggled with him. I was, 'get off me,' and tried to push him off me.

How long were you struggling for and did anything happen in the course of that struggle? - - - Only a couple of seconds, and he was, like, down over me and when I was struggling our heads must have met because he stumbled back with blood coming out of his nose and I was like, 'Oh my God, I'm so sorry.'

You say, 'Our heads must have met.' Did you feel - - - ? - - - Well - - -

- - - your heads collide? - - - Not really, no. I, you know, didn't have a lump on my head or anything. Like I didn't realise that he'd gotten hurt until I saw his face like.

So you said you saw blood on his face? - - - On his nose, yeah.

I think you said - - - ? - - - Well, because he let - upon, like, the impact, he kind of let me go straightaway and I just stood there and looked at him, and he took a couple of steps backwards.

How far roughly would he have been stepping away from you at this point? - - - Two steps. Like a metre, a metre and a half, or two or something.

So he stepped back. At this point - how long was he standing in that position before he stepped back? - - - Well, he took two steps back and he was like this, and I'm like, 'Oh my goodness, I'm so sorry.'

Just for the transcript you're showing he's checking his hands looking for blood? - - - Yes, he's got - he put his hand to his face and then, like, straightaway officers came running around from the other side of the vehicle.

Do you know how many officers came running around? - - - (indistinct) no, I don't. Multiple.

What did those officers do? - - - Well, one - so four of them came in and grabbed me. One on each arm, one on each leg, and I now know it was Johnson. I didn't at - I didn't know who it was at that point, but he stepped in and grabbed me by the throat and lifted me up and, like, slammed me to the ground.

Now, just in terms of the order of these things that happened, you described just now to the court that the officers grabbed you and then Senior Constable Johnson stepped in and grabbed your throat. Is that the actual order in which it happened? - - - I'm pretty certain. So what's the matter with that?

Well, you've just described it saying the officers stepped forward, they grabbed you, then you said after that the senior constable stepped forward and grabbed your throat. I'm just asking whether that is the chronological order in which it occurred? - - - In - - -

So is that step by step how it happened? - - - In my memory, that's what I see.

Okay? - - - Like that's what I remember.

So you said that you were grabbed and then throat slammed to the ground. That was the word you used? - - - Yeah. ...

...

And he's pushing you back and you accidentally could move forward and hit him - - - ? - - - I was struggling. I looked either side of me, I couldn't see anybody, and I freaked out, and I'm like, 'Get off me,' like - - -

...

I put it to you, you deliberately headbutted him? - - - Well, I - that's ridiculous. That is ridiculous. Do you - sorry, can I ask him a question?

No, you can't ask him - - - ? - - - Do you recall me saying, 'Oh my god, I'm so sorry,' when you stood - like, when you stepped back?

Can't ask a question? - - - It was a complete accident, like, that's not cool. That's not fair.

193 I omit further evidence of Ms Challice as to being grabbed by the throat, lifted up and thrown to the ground (see 26 July 2012, crossexamination, ts 48 52). That is because it is not in contest before me for the purposes of the appeal that very shortly after the head contact in question the appellant grabbed Ms Challice by the neck or throat, although he did not lift Ms Challice up or throw her to the ground.

194 I leave aside the evidence of Mr Baltic (see 27 July 2012, examinationinchief, ts 24 and crossexamination, ts 25) because his evidence is that he saw a deliberate head contact but after Ms Challice was pushed to the ground and handcuffed. It is not in contest that the head contact in question was before that occurred.

195 Detective Curtis testified as to the head contact in question as follows (26 July 2012, examinationinchief, ts 77 79 and crossexamination, ts 86):

You've looked around after looking for a van, you've seen that they're talking. Can you just give us some more detail about what exactly it is that you see? - - - I turned back, Constable Johnson has leaned a bit closer to Ms Challice, and said something along the lines of, 'You're acting like a child,' and at that time she hits him with her head.

...

You mentioned that at this point there was contact with their heads. Can you explain to the court what you saw? - - - I saw a head come forward and a forehead strike Senior Constable Johnson's nose.

What did he do once that happened? - - - He sort of took a couple of steps back.

...

You've seen Ms Challice headbutt Senior Constable Johnson? - - - Yes.

That was (indistinct)? - - - I believe so.

Had Ms Challice had her arms in the way that she says and being forced back, do you believe it would have been possible for a headbutt? - - - Probably not.

His actions, originally prior to being headbutted were to say, 'grow up,' word to that effect, 'you're acting like a child? - - - Something like that, yes.

Did you interpret that at the time as being threatening? - - - No.

196 Constable Culliford testified as follows (27 July 2012, examinationinchief, ts 11 and crossexamination, ts 15):

So you've come around and you've seen her, as in Ms Challice, pinned to the vehicle in the surrender position, they're quite close together. What's the next thing that you remember? - - - I remember seeing her draw her head back and bring it down in contact with Senior Constable Johnson's nose.

You've said that her hands are pinned to the vehicle, how far back does her head go? - - - It wasn't a huge amount, but it was enough for me to register the motion that she had pulled her head back.

Now, how would you describe the action of the head going back. Actually, let me ask a different question. Was Ms Challice struggling at this time? - - - I don't recall her struggling.

...

All right. So you've now just seen this contact happened. What follows on from the contact? Do you see what Senior Constable Johnson does in response to that? - - - No. I remember seeing police officers coming.

...

She definitely drew her head back and headbutted Senior Constable Johnson? - - - Yes, I believe it was deliberate action.

If she's managed to draw her head back, she couldn't possibly be right up against the back of the (indistinct)? - - - I don't believe so.

197 Whether or not the head contact was deliberate, on this body of evidence I consider it impossible to avoid the conclusion that the first possibility must be excluded. The contrary was not put to me, and indeed the respondent's written submissions appear so to concede. I agree with the submission that it was not necessary for the magistrate to make an explicit finding on this matter.

198 The respondent further submitted that the evidence of the appellant showed that he was not deprived of his power of selfcontrol by the conduct of Ms Challice. This submission rested on the fact the appellant had no recollection of the incident after that conduct (see 27 July 2012, examinationinchief, ts 63); the fact no other witness gave evidence it appeared the appellant had lost control or appeared angry at the time he made contact with Ms Challice's neck or throat; his evidence as his control of his faculties I will reach; and the evidence in the video exhibit P1, showing him looking steadily down at Ms Challice as he puts his hand around her throat without moving wildly or without purpose, and tracking Ms Challice up and down as she is lifted and taken to the ground.

199 I leave aside the second and fourth matters of evidence. It is not clear to me from my reading of the trial transcript that any of the other witnesses had any recall of the appearance of the appellant at the relevant time. Further, on my repeated viewings of the video exhibit P1 the vision of the appellant in my view is too brief for reliable conclusions to be formed; and no witness was taken to this aspect of the video for comment.

200 As to the first matter of evidence, the appellant's lack of recollection, I note the following, from Donovan v Mason [2012] WASC 151 [15] [16] (Edelman J):

The appellant then submitted that the learned magistrate erred in finding that there was no evidence of a loss of self-control. Although there was no direct evidence by the appellant that he lost self-control, there was evidence, including Mrs Donovan's act of biting, which might have supported an inference that this was the case. Evidence of loss of selfcontrol can be established by inference: Ellis v Ellis [1999] WASCA 30.

The evidence that Mrs Donovan bit the appellant's hand, causing blood to flow freely, was evidence which might have supported an inference of loss of self-control. The failure of an accused person to give evidence concerning a loss of selfcontrol is not fatal to the defence; indeed it would not usually be given in circumstances where both selfdefence and provocation are raised as defences: Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441, 465 (Steytler J); Lee Chun-Chuen v The Queen [1963] AC 220, 232 (Lord Morris for the Privy Council).

201 In this case, it is clear to me on the evidence of the nature of the contact in question, whether or not it was deliberate, that the inference of loss of selfcontrol was reasonably open, before considering the evidence of the appellant as to his control of his faculties.

202 As to the evidence of the appellant as to his control of his faculties, that evidence was his testimony as follows (27 July 2012, crossexamination, ts 93):

So can I suggest that if it's a case that you had your nose hit and you have stumbled backwards, what this footage indicates is that you have stepped back in again and you have managed to grab Ms Challice's wrist and grab her neck within a very, very short space of time; a matter of seconds as everyone has come around the back. Would you accept that? - - - That my hands are there and, yes - - -

That you have managed to - - - ? - - - and the video shows that.

Yes, and that's within a very, very short space in time from when you have gone backwards, or released your grip and stumbled backwards, and stepped forward again to now again hold Ms Challice by the wrist and (indistinct) and it has only been a matter of seconds? - - - Yes.

Can I suggest to you that that shows that you, at this point, have control of your faculties. You were coordinated, you are dexterous, and you are able to control your own movements. Would you accept that? - - - Apart from the fact I don't remember it, yes. I would accept that, but it appears that my hands are working, yes.

I know that we notice that she was first visible at two minutes 59. Can I suggest it's now 3.01 on the transcript and I think this is the moment where your hand comes away from her throat and we don't see her after this moment. Would you accept that time exactly, that it's about 2.59 to 3.01 that you're holding or it appears near her throat? - - - 3.00 to 3.02, I would say my hand was not gripping her throat but my hand was still in that vicinity, yes.

203 I am of the view that it is not clear that that evidence is sufficient to remove as a reasonably open inference that the appellant had lost his power of selfcontrol at the relevant time. The appellant's evidence is, on one view at least, qualified. Nor is it evident to me that the loss of power of selfcontrol would mean necessarily the loss of the power of coordination or control of a person's movements.

204 Therefore I consider that the third possibility has to be seen as open to the magistrate.

205 On the same evidence I have reviewed the fourth possibility must also be so seen.

206 This leaves the second possibility and the fifth possibility.

207 As to the second possibility, that the act of Ms Challice was a lawful act, it was not in contest before me that on the evidence I have reviewed there were only two ways in which Ms Challice's act could have been lawful. Those two ways were either that the act was unwilled (see Code s 23A(2)) or an accident (see Code s 23B(2)); or that the act was one done in selfdefence (see Code s 248(4)).

208 In respect of the first of those ways, as has been seen, there was a conflict in the evidence between that of Ms Challice and that of Constable Culliford. The magistrate does not address the matter of unwilled act or accident in the present context, and thus does not address that conflict.

209 In respect of the second of those ways, selfdefence, the magistrate does not address the matter in the present context. The headbutt, while it is referred to in the magistrate's reasons for decision as has been seen above, is not described or characterised in any way which bears any resemblance to any part of the legal concept of selfdefence. This in my view represents a failure to address the matter of selfdefence in the present context. See Donovan v Mason [26] [28].

210 In that last respect there was a matter in the evidence of Ms Challice which as the appellant submitted to me called to be addressed. The appellant drew to my attention the evidence, from the video exhibit P1, of Ms Challice apparently smiling very shortly after the incident in question, calling into question, on the appellant's submission, the evidence part of which I have referred to above that Ms Challice was petrified at the time of the incident. I agree with the submission as to the appearance from exhibit P1. This of course was relevant to the element of self-defence in Code s 248(4)(a).

211 The fifth possibility is that the force the appellant used was disproportionate to the provocation.

212 I do not consider that, in view of my consideration of the previous possibilities, I need to review the evidence with respect to this issue, beyond this. I note that the magistrate did not accept the evidence of Ms Challice that the appellant lifted her up by the throat and threw her to the ground (see magistrate's reasons for decision (20), read with 26 July 2012, ts 15). That evidence excluded, it is not apparent to me on the remaining evidence, including that of the actions of the other police officers at the time, that the response of the appellant was 'disproportionate'.

213 It follows in my view that there was in relation to the magistrate's conclusion as to provocation a failure to deliver reasons that exposed the process by which that conclusion was reached: Manonai v Burns [53]. I have arrived at that view having allowed for the realities of pressure of work and limited time in the Magistrate's Court: see [56].

214 As no reasons have been given in circumstances in which they were required, the question arises under Mount Lawley v WAPC [29] whether I am able myself to decide the matter.

215 Given the nature of the matter, which includes assessing which witness to believe, it seems to me that I am not in as good a position as the primary court to decide the matter having not had the opportunity to hear the evidence and assess the issues of which evidence to prefer.

216 It follows that I would uphold grounds 5 and 6.

217 It also follows I am not myself able to decide the matters the subject of the grounds.

Ground 7: error in imposing a sentence that was manifestly excessive

219 In view of my conclusions as to the preceding grounds, it is not strictly necessary for me to address the present ground. However, in view of the arguments put to me, I believe I should address it.

220 There can be no contest as to the applicable law. That law is as follows.

221 As stated in Wilson v The State of Western Australia [2010] WASCA 82 [2] (McLure P & Owen JA):

1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.

222 To succeed in showing manifest excess, the appellant must show that the sentence imposed 'fell outside the range of a sound exercise of sentencing discretion': Furber v The Queen [2008] WASCA 233 [46] (Murray AJA, Buss & Miller JJA agreeing).

223 As to how the matter of manifest excessiveness is to be approached, the matter is frequently described as it was in Chadd v The State of Western Australia [2013] WASCA 99 [23] (Mazza JA, Buss JA agreeing) as follows:

To determine whether a sentence is manifestly excessive, it is necessary to examine it in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentence customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender: Chan v R (1989) 38 A Crim R 337 at 342.

224 The submissions for the appellant directed my attention to each item in the list of matters the subject of the last quotation. I deal with each.

225 As to the maximum sentence of imprisonment for common assault of 18 months and a fine of $18,000, I note, as the respondent observed, that the fine was approximately 3.7% of the maximum sentence. However, this of course must be considered with the other matters, as the appellant submitted.

226 As to the standards of sentence customarily observed with respect to the offence the authorities establish that the range of sentences customarily imposed does not establish the range of sound sentencing discretion but rather, for sentences so imposed in comparable cases, the yardstick or reference point for ensuring broad consistency in sentencing: see Brown v The State of Western Australia [2011] WASCA 111 [6] (McLure P, citing authority).

227 I accept that there is no established range or tariff for offences of common assault because of the almost infinite variety of circumstances in which offences of that kind are likely to be committed: Harrison v Hunter [2012] WASC 166 [26] (Martin CJ); Wungundin v Barndon [2013] WASC 28 [6] (McKechnie J).

228 The appellant was unable to find more than very few assault cases which in the submissions for the appellant could be said to be appropriately comparable. Three cases were identified of penalties imposed in the Magistrates Court: Drage v Pitts [2007] WASC 203 (2 month conditional release order and $500 fine for pushing and blows to the face: no appeal against sentence); Police v Wilson, Midland Magistrates Court, 23 November 2010 ($500 fine for police officer punching a civilian to the face where no injury); and Waters v Page [2011] WASC 31 ($500 fine for police officer pushing a bouncer backwards where no injury: no appeal against sentence). In this case it was common ground that Ms Challice had not suffered any significant injury.

229 The appellant described the three offences as effectively one transaction occurring within a matter of minutes, with the second and third assaults occurring each over a matter of seconds. Further, the appellant's assaults had not involved him punching or pushing Ms Challice.

230 I reach in a moment the matter of the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and so defer comment on the matters in the previous paragraph until then.

231 For now I note that neither Drage v Pitts nor Waters v Page explored the range of factors considered by the magistrates in those cases to be relevant to sentencing, for the reason in large part that neither was an appeal against sentence. I did not have any further detail as to Police v Wilson than those I have provided.

232 This makes the use of those authorities a matter of some difficulty, the more so in view of the following, from Poduti v The State of Western Australia [2011] WASCA 169 [14] (McLure P):

A single case or a small number of cases is of limited assistance in that exercise [of determining the standards of sentencing customarily imposed] and cannot establish the range of sentences customarily imposed: Trompler v Western Australia [2008] WASCA 265 [37].

See also Trompler v The State of Western Australia [2008] WASCA 265 [37] (Wheeler JA).

233 As to the matter of the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, the appellant reminded me of the nature of each of the three assaults, including in the respects above as well as the view of the magistrate that the three assaults were 'more appropriately described as "touches"' (magistrate's reasons for decision (21)) to which I previously referred; and the evidence that the appellant considered he was not doing anything other than trying to maintain the peace. For the respondent I was reminded that the assaults were by a much larger male of a young female, for most of the time in a public place.

234 In sum, particularly on my view of the magistrate's characterisation of the second of the three assaults, the one involving the pinning of Ms Challice to the side of the police van, as 'the most serious of the three incidents' (magistrate's sentencing remarks, 16 August 2012, ts 2), I do not consider that the body of offending in this case, as brief as it was and as connected to one another as the three assaults making up that body were, was of as low a seriousness as that for which the appellant contended.

235 As to the personal circumstances of the appellant, his counsel directed my attention to the appellant's prior good character, the minimal impact the assaults had on Ms Challice, the unblemished service record of the appellant as a senior police officer, the lack of premeditation of the conduct and the difficulties faced by police officers at outdoor events where patrons had spent substantial periods drinking and here where Ms Challice was seriously affected by alcohol, had behaved badly and had already punched a security guard before encountering the appellant. I accept for the purposes of the present ground the last three matters.

236 However, as the respondent noted, in the magistrate's sentencing remarks (see 26 August 2012, ts 2) the first and third matters are specifically referred to (see magistrate's sentencing remarks, 26 August 2012, ts 2). Further, I note from the same part of the magistrate's sentencing remarks that he also refers to matters of the second and fourth kind.

237 The appellant also drew my attention to a further matter, that of the overall or global financial burden on the appellant represented by the fine and costs ordered to be paid. That overall burden was $7,000.

238 For the respondent, the magistrate had addressed that burden saying this (magistrate's sentencing remarks 16 August 2012, ts 3):

I have decided that, whilst I don't accept that no costs, and I do appreciate of course that Mr McKenna was conceding some costs were appropriate anyway, but I don't accept that no professional costs are appropriate, but I do intend to modify the amount of costs that I propose to award to basically reflect that principle that was mentioned by my brother Magistrate Cicchini as being one essentially of proportionality.

I accept the result of that will be an overall financial burden and I need to bear in mind that in setting the fine in terms of the choice that Mr McKenna spoke of. I would intend to impose what I see as being the appropriate fine, but then to modify the costs to take into account proportionality.

239 Support for the magistrate's approach is to be found in Koenig v Fraser [2000] WASCA 262 [11] (Scott J), but taking account also of Thomas v Schwager (Unreported, WASC, Library No 970719, 18 December 1997) 17 (Parker J).

240 I accept that it is not sufficient to show a sentence was not manifestly excessive having regard to particular factors that those factors were expressly referred to by the sentencing officer. Manifest excessiveness goes to implied, not express, error.

241 However, I am not satisfied that, when all of the relevant matters as I have described them are weighed, the appellant has shown that the global fine and overall financial burden the magistrate imposed were outside the range of a sound exercise of sentencing discretion.

243 I turn now to my conclusions and call for orders.

244 On my consideration of them, I would grant leave to appeal on all of the grounds and I would uphold ground 1 in the respects indicated, while I would uphold all of the remaining grounds, except for ground 2 and ground 7.

245 It follows from the reasons for my upholding those grounds that Criminal Appeals Act s 14(2) (the proviso) has no application.

246 Thus, I would allow the appeal against the three convictions.

247 I now call on the parties to make submissions to me as to the other orders it is appropriate for me to make.