1 SCOTT J: The appellant was convicted following trial of one count of assault occasioning bodily harm.

2 The complaint alleged that on 3 November 1998 at Mandurah, the appellant unlawfully assaulted David McKain ("McKain") and thereby did him bodily harm. Although the appellant was represented at trial, he was not represented on this appeal.

3 At the start of the trial there was some debate between the prosecutor and counsel for the accused as to whether there should have been one or two complaints. The reason, was a suggestion that there were two separate incidents involved in the conduct with which the appellant was charged.

4 At the end of the day, the learned Magistrate did not make any ruling as to whether there was one or two offences involved but simply directed that the matter proceed. As it turns out, in my opinion, his Worship was correct in so proceeding in that the chapter of events, which will be described later in these reasons, constituted one continuing course of conduct rather than two separate incidents.

5 The evidence establishes that on the day of the alleged assault (which was Melbourne Cup day 1998), the complainant, McKain, had been at the Silver Sands Hotel since about midday. The appellant's position was that of crowd controller, more commonly known as a "bouncer". The incident involving the appellant occurred at around about 7.00 pm. A man, (referred to as "Paul") apparently in the company of McKain, had fallen over in the vicinity of the pool table. It is common ground that the appellant went to the area where Paul had fallen and McKain also went to the same area. It was there that a confrontation developed between McKain and the appellant.

6 On his Worship's finding, the appellant went behind McKain, put his arm around McKain's neck, in what his Worship described as "a well trained hold" and dragged McKain backwards out of the tavern. Once outside the tavern, it was said by McKain that the appellant held him up against a wall using his hand against his throat and threatened him.

7 On his Worship's findings of fact, it is clear that he accepted both McKain and the witnesses called for the prosecution as credible witnesses. Indeed, his Worship said, "the evidence of McKain is very credible". His Worship referred to the fact that the appellant had taken hold of McKain in what he referred to as a "sleeper hold", a term that the learned Magistrate had never previously heard. The effect of the hold and the exertion of pressure are that the person subject to it becomes unconscious within seconds. His Worship also found that the reason why McKain passed out was because of the appellant's use of the "sleeper hold". His Worship found that McKain had fallen to the ground.

8 Having made those findings of fact, his Worship considered the appellant's experience and concluded that the appellant was trained in the use of such a hold. His Worship concluded that the appellant had in fact placed a "sleeper hold" on McKain and that in using the force that he did, the amount of force was excessive. His Worship referred to the appellant being entitled to use reasonable force, such as may have been necessary to remove a patron from the tavern, but concluded that the appellant had used excessive force in all of the circumstances of the case.

9 Whilst his Worship did not expressly refer to it, s 260 of the Criminal Code provides:

"In any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful."

That provision is to be found in Part V Ch XXVI of the Criminal Code dealing with offences against the person.

10 His Worship reviewed all of the facts of the matter and concluded:

"The defendant - even if he had grounds to take him out, he had no grounds at all to use that sort of force. ... He had a very tight hold around his neck and he was dragged out backwards. ... It even doesn't matter from what went on inside. He would still be guilty of using excessive force."

11 His Worship went on to consider the question of intoxication and concluded that McKain was not drunk, although he concluded that other witnesses may have been. His Worship also considered that McKain had not been aggressive towards the appellant and only spoke to him because of the incident involving his friend "Paul". His Worship came to the conclusion that "it's fairly obvious that the defendant assumed that he (McKain) pushed him over".

12 In the end, his Worship fined the appellant $1,000 and ordered him to pay costs of $151 and medical expenses in the sum of $354.50.

13 The appellant appeals from the decision of the Magistrate on the grounds that:

"1 The learned Magistrate erred in law in failing to require the prosecution to properly particularise the charge against the applicant.

2 The learned Magistrate erred in law in finding there was a case to answer in circumstances where the charge was bad for duplicity.

3 The learned Magistrate erred in law in convicting the applicant in circumstances where the charge was bad for duplicity.

4 The learned Magistrate erred in fact and law in rejecting the evidence of defence witnesses when there was no evidential basis for doing so."

14 In relation to the first ground of appeal, I have already dealt with that issue earlier in these reasons. Counsel for the appellant at trial sought to have the prosecution particularise the charges on the basis that there were two separate incidents. The prosecution, however, maintained that it was all one continuous incident and, in my view, the evidence justified that conclusion. There was, in my opinion, only one incident and one continuous assault, which occurred both inside and outside the licensed premises. That is sufficient to deal with the first three grounds of appeal.

15 As to the fourth ground of appeal, there were a number of witnesses called both for the prosecution and for the defence at trial, and as the reasons of his Worship reveal, essentially his Worship accepted the prosecution witnesses in preference to those called on behalf of the appellant. His Worship was entitled to reach that conclusion, not only because of the demeanour of the defence witnesses, but also because of his conclusions on the amount of alcohol consumed and the nature of the evidence given by the witnesses themselves as to what they saw and heard of the incident.

16 In the course of arguing the appeal, the appellant provided a further statement of evidence, comprising 60 paragraphs which contain a great deal of material that was not placed before the Magistrate for consideration. There is no ground of appeal which seeks to adduce fresh evidence, nor is there any ground of appeal which seeks to set aside the Magistrate's verdict on the grounds of fresh evidence. Much of that material is therefore irrelevant to the grounds of appeal presently under consideration.

17 Whilst I have some sympathy for the appellant's position in that it may be that had the additional evidence contained in his statement been before the learned Magistrate for consideration, it is possible that a different verdict may have been reached. That was not the case, and it is not open to this Court to take into account evidence which has not been tested by cross-examination in the court below.

18 I am not persuaded that any of the grounds of appeal are made out. The appeal will be dismissed.