MSB -v- ASHTON [2025] WASCA 183 (10 December 2025)

1. The appellant was charged by a prosecution notice dated 31 July 2022 that on 5 June 2022, he, without a lawful excuse, trespassed onto the complainant's property in the suburb of Lathlain, contrary to s 70A(2) of the Code.
2. On 12 July 2023, the appellant was convicted after trial in the Perth Magistrates Court by Magistrate C Crawford of the charge, and was fined $750, suspended for three months. Magistrate Crawford made a spent conviction order and the appellant was ordered to pay costs.
3. Section 70A of the Code is, relevantly, as follows:

(a) to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place;

(2) A person who, without lawful excuse, trespasses on a place commits an offence.

Penalty for this subsection: imprisonment for 12 months and a fine of $12 000.

...

(3) In a prosecution for an offence under subsection (2) or (2A), the accused has the onus of proving that the accused had a lawful excuse.

1. The trial lasted less than a day. The appellant was represented by counsel at the trial. The evidence and closing addresses were completed before 12.00 pm. Magistrate Crawford delivered oral reasons for judgment at about 3.00 pm. The evidence and the cases put to the court by the parties are summarised below.
2. It was common ground that the appellant and the complainant lived in neighbouring houses in a street in the suburb of Lathlain. There was no issue at the trial that the complainant and his wife were occupiers of their house. The two blocks on which the appellant and the complainant resided were separated by a Colorbond dividing fence. At the time of the offending, building works were being carried out at the rear of the complainant's property, although no works were being undertaken on the day of offending. On 5 June 2022, the appellant was constructing a privacy screen on his side of the dividing fence. The privacy screen was not attached to the dividing fence.
3. The prosecution alleged that, at about 4.20 pm, the appellant lifted a ladder over the dividing fence from his side, and placed it in the complainant's yard. The appellant then used another ladder to climb up his side of the fence, and then onto and down the ladder he had placed on the complainant's side. After stepping down onto the complainant's property, the appellant walked along the side of the complainant's house. The complainant testified to the effect that he saw the appellant doing this via a CCTV system that had been installed in his house. An excerpt of the footage was played at the trial without objection. What it showed is set out at [34] below. The complainant came out of his house to see the appellant still on the complainant's side of the fence, but climbing up the ladder towards his own side of the fence. It is the appellant's act of climbing down the ladder and walking on the complainant's property which was said to constitute the trespass the subject of the charge. The complainant called police.
4. At about 9.50 pm on 5 June 2022, two police officers attended the appellant's home and knocked on the front door. The appellant answered. The conversation that followed occurred at the entrance to the appellant's house and was recorded by a body‑worn camera (BWC) worn by Senior Constable Brendan Kelly. The BWC footage was played at the trial. During this conversation, the prosecution alleged the appellant told a lie about whether he had been on the complainant's property.
5. At the commencement of the trial, the appellant admitted, through his counsel, that he had entered onto the complainant's property, but asserted that he had a lawful excuse for doing so. Defence counsel submitted that the appellant's lawful excuse derived from the operation of s 15(7)(b) and s 21 of the Dividing Fences Act 1961 (WA), which, it was said, gave the appellant 'powers to enter the adjoining property [without the occupier's consent] ... whilst ... repairing the fence ...'.[2]

1. The complainant testified that he and his wife lived in the house next door to the appellant. He explained they rented it from his 'in‑laws', and that they had been there for two or three years.
2. The complainant testified that, at around 4.20 pm on 5 June 2022, he heard his dog barking. He checked the CCTV security system and saw the appellant putting a ladder over the fence. He also saw the appellant coming onto the property. The complainant said that he then went outside to find out what was going on, and saw the appellant climbing the ladder over the fence, back onto his own property.[3] The complainant, who knew the appellant, identified him as the person who entered his property. He said that he had no idea why the appellant came over the fence. The complainant said that he had not given the appellant permission to come over the fence and onto his property.
3. When asked to describe the condition of the fence, the complainant said that it was 'a good fence',[4] and that it was 'quite new' because the previous fence had blown over, and that the new fence was 'probably a year and a half old'.[5]
4. The complainant testified that he did not have a good relationship with the appellant.
5. The CCTV footage was played in the course of the complainant's evidence, and was tendered, without objection, as exhibit A.[6]
6. Under cross‑examination, the complainant accepted that the CCTV footage cut off when the appellant entered the backyard. He denied the proposition put to him by defence counsel that the dividing fence was over 10 years old.[7] The complainant acknowledged that the appellant had built a privacy screen on his own side of the fence, which he believed was not stable.[8] The complainant was not asked any questions about the building works being conducted at the rear of his property.
7. Constable Jordan Ashton testified that at 9.50 pm on Sunday, 5 June 2022, he and Senior Constable Kelly attended at the appellant's home. Constable Ashton said that he went to the appellant's home to speak with him in relation to the alleged offence. Before he approached the front door, Constable Ashton activated his BWC. At the front door, he was greeted by the appellant, who was wearing a green jacket, black shorts, and a black cap.
8. Constable Ashton said that he was present when Senior Constable Kelly cautioned the appellant and then explained the meaning of the caution. Senior Constable Kelly then questioned the appellant about the allegation of trespass.
9. The BWC footage was played in court, and then tendered, without objection, as exhibit B.[9]
10. Under cross‑examination, Constable Ashton said that he had not seen any damage to the fence on the complainant's side. He said that he did not go around to the appellant's side of the fence.
11. Senior Constable Kelly was not called to give evidence. After Constable Ashton's testimony, the prosecution closed its case.[10]
12. The appellant elected to give evidence in his defence.
13. The appellant said that he was a 77‑year‑old pensioner who had lived at the address in Lathlain continuously from 1996 to the present day, although he had lived there at various other times since 1954.[11] The appellant said that he has inoperable cataracts and very poor vision.
14. The appellant described that on Sunday, 5 June 2022, he was building a screen along the dividing fence. He said that the screen was for privacy purposes, and was about 3 m off the ground. He described how, as he was building the screen, the top beam fell on top of the dividing fence. The appellant said that, as a result, he believed that one of the fence panels had been shifted out of alignment. He then picked up the beam and attached it to a post with a clamp, however, the clamp fell onto the complainant's property.
15. The appellant said that he put a stepladder on his side of the dividing fence and another stepladder on the complainant's side of the dividing fence. He then used the stepladders to climb up and over his side of the fence and down onto the complainant's property. He said he checked to see if there was damage to the fence, but he did not see any damage. The appellant said he picked up the clamp, and threw it back over the fence. He said he was about halfway up the ladder on the complainant's side of the fence when the complainant came out into the backyard.[12]
16. The appellant said that the complainant approached him from behind and asked him, 'What are you doing here? Get back on your side of the fence. We have cameras here'.[13] The appellant did as he was asked.
17. Under cross‑examination, the appellant said that he went over to the complainant's side of the fence to push a loose fence panel back into place. He accepted that he did not ask permission to enter upon the complainant's property. The appellant said that he thought that it was urgent to fix the fence as he had damaged it, and he was responsible for that damage. When asked why he did not go to the complainant's house and knock on the front door, he said that he assumed no one was home. The appellant then raised, for the first time, that the rear of the complainant's property was a building site. He asserted that he would have needed to get permission from the builder to enter the house 'because he [the builder, and not the complainant] has got sole control of that area'.[14]
18. The appellant was asked by the prosecution about certain statements he made to the attending police officers that were recorded on the BWC. The appellant's responses to these questions, particularly questions as to whether he told police that he denied entering onto the complainant's property, were evasive and argumentative, and contradicted some of the things he said in the interview with police in exhibit B.

1. We have viewed the BWC footage and the CCTV footage. Forrester J described that footage in her reasons. Her descriptions are accurate, and we repeat them.
2. As to the BWC footage, her Honour said:[15]

The footage showed that when the officers attended the appellant's house, it was in darkness. They knocked on the door and then rang the doorbell. It took the appellant some time to answer and, when he did, he was dressing himself.

[Senior Constable] Kelly told the appellant they were investigating an allegation of trespass having occurred that day. The appellant was cautioned. When asked if he understood, he said he did. However, he failed to explain the caution back when asked.

The appellant then said (without being asked) that he was fixing his side fence, which he claimed to be entitled to do. He asked if there had been a complaint, and [Senior Constable] Kelly told the appellant that it was alleged he had gone into his neighbour's yard. In response, the appellant said he was never there; that he worked on his side of the fence. He said he had had to lean over, because one of the panels had come loose. He said his feet never touched the ground in his neighbour's yard.

[Senior Constable] Kelly showed the appellant screen shots from the complainant's CCTV and the appellant denied that the person shown in that footage was him. He said it could be anyone. When it was pointed out that person was wearing the same clothes as the appellant, he said it was common clothing. He then asserted that it was not a trespass if the person had a lawful excuse, such as repairing the fence.

The appellant asked if he was going to be arrested, and he was told he was going to get an infringement notice, which he could pay or defend.

When asked if he had any questions, the appellant alleged that the complainant stole his step ladder. The police offered to, and did, retrieve the appellant's ladder from the complainant.

The appellant asked for the complainant to be charged with assault, claiming the complainant had pushed the appellant as he was climbing back over the fence. The appellant was asked when that happened, and he responded, '[w]hen that occurred'. The appellant showed the officers his leg and pointed to injuries which he said occurred in the incident. [Senior Constable] Kelly told the appellant he would have to go to the police station and make a complaint, because it would be inappropriate for them to be taking a complaint from the appellant as well as the complainant.

1. As to the CCTV footage, Forrester J said:[16]

The CCTV footage was played and tendered. It runs for under a minute, and shows a person putting a ladder into the complainant's yard, climbing into the complainant's yard, and walking towards the camera, whereupon the recording ends. The person is not clearly identifiable from the footage.

In cross-examination, the complainant said that the footage did not extend to the point at which the appellant returned back over his fence because he stopped the recording in order to run outside and take a photograph of the appellant.

The complainant said that there had been an incident in which the fence had blown over, and his [father‑in‑law] had had to get it fixed on insurance. However, his father‑in‑law had since died. He did not know exactly when the fence had been replaced and was unable to say whether he had been living there at the time. (footnotes omitted)

1. It is clear from the submissions of defence counsel that it was not in issue that the appellant had, in fact, entered onto the complainant's property, and that he had done so without seeking or obtaining the consent of the complainant. The focus of the defence case was whether the appellant had a lawful excuse for what would otherwise be a trespass onto the complainant's property.
2. Defence counsel submitted that, pursuant to s 15(7) of the Dividing Fences Act, the appellant had the right to 'try and fix up' the fence panel which he believed had been damaged by the beam that had fallen while the appellant was constructing the screen.[17] Defence counsel conceded there was no damage to the fence 'in the end', but submitted that the appellant 'was in his mind repairing what he believed was a damaged fence ... and he went over onto his [the complainant's] side of the fence to have a look at - also pick up his clamp and to check if he needed to repair the other side of the fence'.[18]
3. Defence counsel submitted that the appellant believed that no one was at home, and that he went onto the complainant's property 'to check out whether he [needed] to push in a panel or anything like that'.[19] She submitted that the appellant was entitled to do that under s 21 of the Dividing Fences Act. Defence counsel did not seek to invoke defences under the Code of honest claim of right, pursuant to s 22; or honest and reasonable but mistaken belief of fact, pursuant to s 24.
4. The prosecutor submitted that, based on the evidence of the complainant, the appellant came over the dividing fence and onto the complainant's property without the complainant's consent.
5. The prosecutor submitted that the appellant made no attempt to find out if the complainant was at home to seek permission to enter the premises.
6. The prosecutor submitted that neither s 15(7) nor s 21 of the Dividing Fences Act gave the appellant a lawful excuse to enter onto the complainant's property without permission.
7. At no point in the closing submissions of defence counsel or the prosecutor did the magistrate raise with them whether the appellant told lies to police in the conversation recorded by the BWC, and whether any lies were lies told out of a consciousness of guilt.

1. Magistrate Crawford's reasons were delivered orally.[20] After briefly summarising the cases of the prosecution and the defence, the magistrate identified two questions for her to determine. First, whether the prosecution had established that the appellant trespassed on the complainant's property. Secondly, if the appellant did trespass on the complainant's property, whether the appellant had proved, on the balance of probabilities, that he had a lawful excuse to do so under s 70A(3) of the Code.
2. The magistrate said that it was common ground that on 5 June 2022, the appellant climbed over the dividing fence between his property and the complainant's, and that he had not obtained the complainant's permission to do so. Her Honour then referred to the BWC footage. She found that the appellant was cautioned, the caution was explained, and the appellant understood the caution. The magistrate observed that, initially, the appellant denied being on the complainant's property. He said that he had leant over the fence using a stepladder, but 'never touched' the ground on the complainant's side of the fence.
3. The magistrate also noted that the BWC footage showed Senior Constable Kelly showing the appellant what was described as a 'screen grab' from the complainant's CCTV footage of a person on the complainant's property, to which the appellant said, 'That's not me. It could be anyone'. When Senior Constable Kelly noted that the person shown in the screen grab appeared to be wearing the same clothes as the appellant was currently wearing, the appellant responded, 'Doesn't matter', and then, 'Whoever that is doesn't have feet on the ground - on the ground'. When Senior Constable Kelly pointed out that the person in the footage was clearly in the complainant's backyard and away from the stepladder, the appellant said, 'Trespass is not trespass if the person has lawful excuse'. The magistrate noted that, at this point, the appellant said, 'He stole my ladder', apparently a reference to the complainant allegedly stealing the appellant's ladder.
4. The magistrate summarised the appellant's evidence, including the various excuses he gave for being in the complainant's backyard.
5. The magistrate found that the appellant went onto the complainant's property between about 4.19 pm and 4.20 pm on 5 June 2022, and that he did not have the complainant's consent to do so. She said that she had difficulty in accepting that the appellant was a credible or reliable witness. She said that the appellant lied to police when he repeatedly said that he had not been on the complainant's property. The magistrate said that, in the relatively short conversation the appellant had with police, the appellant 'significantly shifted [his] ground'.[21] We assume that this is a reference to the appellant initially saying that he had not gone onto the complainant's property, but later accepting, at least implicitly, that he had.
6. The magistrate did not accept that the appellant went onto the complainant's property believing that the dividing fence had been damaged, with the intention of repairing the damage. She said, 'I simply don't accept that the [appellant] was fixing or intending to fix the fence'.[22] The magistrate found that the appellant had no lawful excuse for being on the complainant's property under s 15(7) or s 21 of the Dividing Fences Act.
7. The magistrate observed that the appellant was defensive and somewhat hostile in his dealings with police. She said that there was 'a good reason for him being defensive', being:[23]

He had been in the property - the [complainant's] property - and he lied to police about whether he had actually been in the property and he well knew that he had been in the property and, I infer, the lie was because he knew it was wrong to do so. (emphasis added)

1. The magistrate found she was satisfied beyond reasonable doubt that the appellant trespassed onto the complainant's property without lawful excuse, and found the appellant guilty as charged.

1. The appellant sought leave to appeal against the decision of Magistrate Crawford under div 2 of pt 2 of the CAA.
2. The appellant applied for leave to adduce additional evidence in the appeal comprising four photographs of the complainant's backyard, said to have been taken in December 2021. The purpose of these photographs was said to be that they showed where the appellant was said to have trespassed was a building site. The appellant also sought to adduce additional evidence said to prove that the dividing fence was constructed in July 2011.
3. The grounds of appeal were, to say the least, unclear. Her Honour grouped the grounds of appeal as follows:[24]

(1) There was a miscarriage of justice because the learned Magistrate should have disqualified herself from presiding over the trial due to her previous involvement in a related matter.

(2) There was miscarriage of justice as a result of the admission at the trial of the CCTV footage.

(3) There was a miscarriage of justice as a result of the admission at trial of the BWC footage.

(4) The complainant's property was a building site and accordingly the prosecution failed to prove a trespass.

(5) The learned Magistrate erred in using an alleged lie told by the appellant as consciousness of guilt. The relevant alleged lie is set out in the italicised portion of the quote set out at [48] above (the[25]dwards lie25).

(6) The learned Magistrate erred in failing to consider s 22 of the Code.

(7) The learned Magistrate erred in failing to consider s 24 of the Code.

(8) The verdict was unreasonable and not supported by the evidence.

1. Her Honour also dealt with a number of other bases for challenging the conviction raised by the appellant in the course of the proceedings. These arguments are set out and dealt with at [188] of the primary decision. We will not repeat them. Her Honour correctly found that the matters raised were either irrelevant or without merit.
2. As for the grounds of appeal at [52] above, her Honour found that all of them, save for the allegation that the magistrate erred in using an alleged lie told by the appellant as consciousness of guilt, were not reasonably arguable and refused leave to appeal in respect of all of them. Her Honour's reasons for these conclusions are set out in considerable detail in the primary decision. We agree with those reasons and will not repeat them.
3. As for the ground of appeal which alleged that the learned magistrate erred in using the alleged lie told by the appellant as consciousness of guilt, her Honour found that the magistrate did use the lie he told to police recorded in the BWC footage as an Edwards lie. Her Honour found that although the lie was capable of being used in this way, the magistrate did so without putting the appellant's counsel on notice that the appellant's lie might be used in this way, thus depriving defence counsel of the opportunity to lead evidence from the appellant about his reasons for telling the lie, and to make submissions as to whether the lie should be used in this way. Forrester J concluded that these failures denied the appellant procedural fairness and gave rise to a miscarriage of justice.[26]
4. Her Honour then went on to determine whether, despite the finding that the appellant had suffered a miscarriage of justice, she should nevertheless dismiss the appeal because she was satisfied, under s 14(2) of the CAA, that 'no substantial miscarriage of justice has occurred' (the proviso).
5. Her Honour correctly recognised that there are some errors or miscarriages of justice that constitute a radical departure from the requirements of a fair trial such that the 'proviso' under s 14(2) of the CAA cannot be applied. However, in her Honour's opinion, the error committed by the magistrate was not of this type.
6. Her Honour concluded that the appellant's conviction was inevitable. In arriving at this conclusion, her Honour observed that the appellant had not pointed to, nor sought to lead, any additional evidence on appeal to provide an explanation for the lie, other than out of a consciousness of guilt. In fact, the appellant told Forrester J that he had not lied at all. He claimed he was not given a chance to explain that he had meant to say in his evidence he was not on the complainant's property, but, instead, he was on a building site.
7. Forrester J did not accept this claim.
8. Her Honour concluded that, had the error not occurred, it would still have been appropriate for the respondent to use the lie as evidence of consciousness of guilt because, on the evidence, there was no other innocent explanation for the lie, and conviction inevitably followed.[27]
9. Her Honour accordingly having applied the proviso under s 14(2) of the CAA, dismissed the appeal, and ordered the appellant to pay the respondent's costs of the appeal.

1. Despite the appellant's numerous grounds of appeal, the primary question for this court is whether Forrester J, having found that the magistrate erred in failing to accord procedural fairness to the appellant in respect of the Edwards lie, erred in her application of the proviso under s 14(2) of the CAA.
2. The appellant's oral and written submissions largely repeat the submissions made before Forrester J. They do not need repeating here.[28]
3. In the course of his oral submissions to this court, the appellant, in effect, sought a further adjournment of the appeal to enable him to 'obtain legal advice and consider the matter properly'.[29] The court unanimously refused the appellant's application for an adjournment. The application for an adjournment was refused because the appellant had been given ample opportunity to obtain legal advice, and to further delay the hearing would not have been in the interests of justice.
4. On behalf of the respondent, it was submitted that the failure of the magistrate to accord the appellant procedural fairness, by putting the defence on notice that she intended to use the alleged lie as an Edwards lie, was not of such a fundamental nature as to preclude the application of the proviso in this case. Counsel for the respondent noted that the trial before the magistrate was conducted by the prosecution on the basis that the appellant had told the lie, and, indeed, other lies, to police when he was interviewed.
5. Counsel for the respondent emphasised that the case against the appellant was overwhelming, and that the appellant's conviction would have been inevitable even without regard to the Edwards lie.[30]
6. In reply to the respondent's submissions, the appellant, as he did before Forrester J, denied that he told any lies to police.[31] He said that he does not trust police, 'not even with the time of day'.[32] He said that, when police came to his house and spoke with him, he 'was just joking' with them.[33]

Did the learned appeal judge err in her approach to the proviso under s 14(2) of the CAA?

1. As the appellant is not a lawyer and is self‑represented, it is not surprising that he did not make any meaningful submissions as to Forrester J's approach to the proviso under s 14(2), other than to assert, in general terms, that her Honour erred in dismissing the appeal on that basis. We will take the appellant as asserting that any error gave rise to such a substantial miscarriage of justice as to preclude the application of the proviso, and that, in any event, the evidence did not establish his guilt beyond reasonable doubt.

1. The appeal before Forrester J was governed by div 2 of pt 2 of the CAA.
2. Section 8(1) of the CAA relevantly provides that an appeal against conviction under div 2 of pt 2 of the CAA may be made on the grounds that the court of summary jurisdiction made an error of law or fact, or of both law and fact; acted without or in excess or jurisdiction; or that there has been a miscarriage of justice.
3. Under s 14(1) of the CAA, the Supreme Court may do one or more of the following:

(a) dismiss the appeal;

(b) allow the appeal;

(c) set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;

(d) substitute a decision that should have been made by the court of summary jurisdiction;

(e) order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court -

(i) as to how or by whom it is to be constituted;

(ii) as to how it must deal with the case;

1. Section 14(2) of the CAA states:

Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

1. As mentioned, the appeal to this court is governed by div 3 of pt 2 of the CAA.
2. Section 16(2) of the CAA provides that a party to an appeal under div 2 of pt 2 'who is aggrieved by a decision made in the appeal by a single judge of the Supreme Court sitting in its General Division' that:

(a) refuses leave to appeal; or

(b) dismisses or decides an appeal,

1. Section 18 of the CAA states:

Subject to this Division, Division 2 (other than sections 7, 8, 10 and 13), with any necessary changes, applies to and in respect of an appeal under this Division as if -

(a) the appeal were an appeal under Division 2; and

(b) unless the context requires otherwise, references in Division 2 -

(i) to a court of summary jurisdiction were to the Supreme Court sitting in its General Division; and

(ii) to the Supreme Court were to the Court of Appeal.

1. Thus, by s 18 read with s 14(2) of the CAA, this court may, even if it decides a ground of appeal in favour of an appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
2. While the statutory language used in the proviso in s 14(2) and s 30(4) of the CAA, the equivalent provision in pt 3 of the CAA, is essentially identical, in that both provisions permit the relevant appellate court to 'dismiss the appeal if it considers that no substantial miscarriage of justice has occurred', the provisions operate in different statutory contexts. These differences were explained by Mitchell J (as his Honour then was) in WS v Gardin.[34] It is unnecessary to repeat Mitchell J's analysis of the different statutory contexts.[35]
3. Although the statutory contexts in which s 14(2) and s 30(4) of the CAA operates are different, the well‑known principles applicable to the operation of the proviso under s 30(4), as stated by Beech JA in Wark v The State of Western Australia[36] (a case involving a trial by judge alone, where the trial judge had delivered written reasons for decision), are of assistance in deciding whether the proviso under s 14(2) should be applied.[37] Those principles, as described by Beech JA, are as follows:[38]

(1) The appellate court must undertake an independent assessment of the whole of the record of the trial. That examination requires account to be taken of the guilty verdict.

(2) It is a necessary, although not sufficient, condition of the application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused's guilt beyond reasonable doubt. That is because the conviction of a person whose guilt has not been proved beyond reasonable doubt will always be a substantial miscarriage of justice.

(3) Consideration of the application of the proviso requires identification of, and consideration of the nature and effect of, the error(s) made at trial. Some errors will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt.

(4) There are natural limitations on the appellate court's ability to determine, based on the record, whether guilt was proved beyond reasonable doubt, particularly in cases in which the credibility of witnesses is of importance. In such cases, because the appellate court has not seen and heard the witnesses give their evidence, the court may be precluded from concluding that guilt was proved beyond reasonable doubt.

(5) In some cases, the appellate court may rely on the guilty verdict in a manner that enables those limitations to be overcome. However, the appellate court will not be able to rely on the verdict where the verdict may have been affected by the error(s).

(6) In some extreme cases, which are likely to be rare, the appellate court may be able to rely on its own conclusion, based on the record, that oral evidence contrary to the prosecution case is obviously false ...

(7) Some errors are so fundamental or breach the fundamental presuppositions of the trial so as to be beyond the reach of the proviso regardless of whether, in the eyes of the appellate court, the evidence at trial proved guilt beyond reasonable doubt. This is not a case of that kind.

Discussion - her Honour erred in her approach to the proviso

1. In her Honour's reasons for decision, Forrester J found that the error committed by the magistrate was that she failed to give the appellant notice that the lie he told to police on the night of the alleged trespass would be used as evidence of his knowledge of the fact that he was not allowed on the complainant's premises. Her Honour found that this was an error of law.[39]
2. Then, in applying the proviso under s 14(2) of the CAA, her Honour said:[40]

(a) That she was not satisfied that the error was not such as to constitute a radical departure from the requirements of a fair trial.

(b) That, however, she was satisfied that the error was material because the magistrate used the evidence 'to a significant extent in reaching her decision that she was satisfied beyond reasonable doubt that the appellant knew that he was not entitled to be [on] the property'.

(c) That, in these circumstances, she considered that, in order for the provisio to be applied, she must be satisfied, on a review of the evidence, 'that, even allowing for the error, a conviction was inevitable'.

(d) That she adopted, for the purposes of the application of the proviso, her review of the evidence in rejecting the contention that the guilty verdict was unreasonable.

(e) That the appellant had not pointed to, or sought to lead, any additional evidence on appeal to provide an alternate explanation for the lie. In fact, as her Honour pointed out, the appellant maintained in the proceedings before her that he had not lied at all, but submitted that he had not been given a chance to explain that he had meant to say that he was not on the complainant's property but, instead, was on a building site.

1. Then, at [199] of the primary decision, her Honour stated:

I am satisfied that, had the error not occurred, it would still have been appropriate to use the evidence of the lie in this way, and it was inevitable that, in those circumstances, the appellant would be found to have known that he was not permitted to be on the complainant's property. Once that was established, conviction was also inevitable.

1. By this statement, her Honour concluded that it would still have been appropriate to use the evidence of the lie as evidence of guilt as if the error of law she had identified had not occurred. Put another way, like the magistrate, her Honour appears to have used the alleged lie as evidence of consciousness of guilt in considering whether the proviso under s 14(2) of the CAA should be applied. In our opinion, this approach was erroneous. As the magistrate had not put the appellant on notice that the lie he told to police on the night of the alleged trespass would be used as evidence of his knowledge of the fact that he was not allowed on the complainant's premises, it would be inappropriate for Forrester J to use the lie as evidence of his guilt for the purposes of applying the proviso. Instead, in considering whether the proviso in s 14(2) should be applied, her Honour should not have relied upon the lie as evidence of guilt.
2. For these reasons, we have been persuaded that the complaint effectively raised in grounds 54, 57 and 60, to the extent that they raise an issue alleging that Forrester J incorrectly applied the proviso in s 14(2) of the CAA, has been made out. Unless this court is persuaded that, under s 18 read with s 14(2) of the CAA, no substantial miscarriage of justice has occurred, the appeal should be allowed.
3. Not all denials of procedural fairness involve a serious breach of the presuppositions of a criminal trial such that the proviso cannot be applied.[41] In our opinion, the magistrate's failure to put the appellant on notice that the alleged lie would be used as evidence of consciousness of guilt and Forrester J's error, and having regard to the lie when assessing the application of the proviso, are not of this nature.
4. In the present case, whether this court can apply the proviso will largely depend upon this court being satisfied that the evidence, properly admitted at the appellant's trial, proved beyond reasonable doubt his guilt.
5. When a prosecution is brought for a contravention of s 70A of the Code, the court must resolve two separate and distinct questions. The first is whether the prosecutor has established, beyond reasonable doubt, that the defendant committed a trespass as defined in subsection (1). The second question is whether the accused has discharged the onus, cast upon him by s 70A(3), of proving that he had a lawful excuse for the trespass.[42]
6. The expression 'without lawful excuse' in s 70A(2) was discussed by Martin CJ (with whom Wheeler JA & Beech AJA agreed) in Wilson as followed:[43]

It follows that in five of the six provisions of the Criminal Code in which the expression 'without lawful excuse' is used, it is clear that the word 'lawful' means 'not forbidden' rather than 'expressly authorised'. There is no reason to think that the legislature intended the expression to bear any different meaning in s 70A. In the sixth provision of the Criminal Code using 'without lawful excuse', the legislature has expressly stipulated that the expression is to be equated with a defence to civil proceedings. No such stipulation has been included within s 70A.

Turning then to the meaning to be given to the word 'excuse' in that expression, as I have observed, the relevant excuse must be an excuse proffered for the trespass. While the nature of an excuse which might be considered sufficient by a court may well depend upon the nature of the trespass committed, it is a mistake in principle to conflate the issues relating to the trespass and the issues relating to the excuse into a single issue.

Although the appellant submitted in his written submissions that 'without lawful excuse' should be construed by analogy with the common law defences to civil trespass, I do not consider the proposition that the only excuses within the scope of this section are those which would provide a defence to a civil claim for trespass to be sustained by the authorities to which I have referred (other than the decision in Wille), nor by the language of the section. If that had been the intention of the legislature, one would expect it to have included within s 70A an express stipulation to that effect, as was done in s 345.

Rather, as the High Court observed in Taikato, by enacting legislation in this form, the legislature has specifically left it to the court to determine, after the occurrence of the relevant facts, the metes and bounds of the conduct proscribed by the statute. The legislature can be taken to have concluded that the uncertainty which such a provision generates is justified by the flexibility which follows from a provision which operates in this way.

It would defeat the implied legislative objective of flexibility to endeavour to prescribe criteria which should be applied by a court to the assessment of the adequacy of an excuse proffered in any particular case (even if that were possible). The outcome in any particular case will depend critically upon the facts and circumstances of that case. Essentially what will be required in each case is a value judgment by the court as to whether the excuse established by the defendant justifies the trespass established by the prosecutor. One of the matters properly taken into account by a court when making that value judgment is the context of the normative assessment, that is, that the determination differentiate that conduct which is criminal from that which is not. However, that will only be one of many factors properly taken into account, and its significance may depend entirely upon the facts and circumstances of the particular case.

1. As mentioned above, at the appellant's trial, defence counsel did not take issue with the fact that the appellant had entered onto the complainant's property, and that he did so without seeking or obtaining the consent of the complainant. The focus of the defence case, and of the trial, was whether the appellant had a lawful excuse for what would otherwise be a trespass onto the complainant's property.
2. The only lawful excuse relied upon by the appellant at trial was that he, pursuant to s 15(7) of the Dividing Fences Act, was trying to fix a fence panel which he believed had been damaged by a fallen beam. Defence counsel also asserted that the appellant had gone onto the complainant's property to pick up a clamp that he had dropped over the fence, and to check if he needed to repair the complainant's side of the fence. Defence counsel submitted that the appellant was entitled, under s 21 of the Dividing Fences Act, to go onto the complainant's property to check whether one of the fence panels needed to be pushed back into alignment or repaired.
3. Neither s 15(7) nor s 21 of the Dividing Fences Act are applicable to this case.
4. Section 15(7) of the Dividing Fences Act gives no express or implied right to someone in the position the appellant was in to enter upon an adjoining owner's land for the purpose of repairing a dividing fence. Section 21 of the Dividing Fences Act empowers a person engaged in constructing or repairing a fence under the Dividing Fences Act, and his agents or servants, to enter upon lands adjoining the fence to do such things on the land that are necessary, or reasonably necessary, to carry into effect the repairing of the fence. There was no evidence that the appellant was engaged in constructing or repairing a fence under the Dividing Fences Act, or that his entry upon the complainant's property was reasonably required to carry into effect any construction or repair of the dividing fence.
5. Importantly, the appellant's entry onto the complainant's property, albeit apparently brief, occurred in the context where the appellant and the complainant did not have a good relationship, and where the appellant made no attempt to obtain the complainant's permission to climb over the fence as he did. Although the appellant stated in his evidence that he thought the complainant was not at home at the time, he gave no evidence as to why he formed that belief. Further, there was no evidence that he made any attempt to find out whether the complainant was at home. It would have been a simple matter for him to have done so. Moreover, given that there was no evidence that any fence panel had been broken, or, indeed, moved, there was no urgency that required the appellant to enter onto the complainant's property without his consent. The situation was such that, if the appellant wished to enter onto the complainant's property, he could have waited until he believed the complainant had returned home, or simply knocked on the front door.
6. In his evidence, the appellant testified that a clamp had fallen onto the complainant's property. He said that he picked up the clamp, threw it over the fence, and was in the process of returning to his property when he was seen by the complainant. Although the appellant's evidence was challenged on a number of fronts, it was not challenged on this point. It may be thought that the appellant's trespass onto the complainant's property did not last for any length of time, and may have been for the purpose of retrieving the clamp. As Martin CJ stated in Wilson, the essential matter for judgment is whether the excuse established by the defendant justifies the trespass established by the prosecutor.
7. In our opinion, having regard to the facts and circumstances of this case, the appellant's actions did not justify the trespass, having regard to the matters referred to in [92] above.
8. Other 'excuses' asserted by the appellant were untenable. For example, the appellant asserted the position that the complainant was not in possession of the property in which he was living, and that the property was, in fact, under the control of a builder who was conducting the building works at the rear of the complainant's property, is incapable of acceptance. The uncontested evidence before the magistrate was that the complainant had been the occupier of the property in which he lived for more than two years. On appeal to Forrester J, the appellant asserted that he had defences pursuant to s 22 and s 24 of the Code. Those defences were not raised at the appellant's trial. Forrester J rejected that there was any evidential basis for the defences. For the reasons she gave, she was right to do so.[44]
9. The appellant's evidence at trial was at odds with many of the statements he made to police, which were electronically recorded on the BWC. It is clear that, amongst other things, the appellant asserted to police that he had not set foot onto the complainant's property, when, as the CCTV footage showed, he most certainly had. There is no doubt, on the evidence adduced at trial, that the appellant's statement to police, to the effect that he had not set foot on the complainant's property, was a lie. While it would be wrong to regard the lie told by the appellant as being told out of a consciousness of guilt, it could still be used as a lie which adversely impacted upon the appellant's credibility, such that his testimony as to his state of mind at the time he entered the complainant's property, and his reasons for being on the property, could not reasonably be accepted.
10. For these reasons, in our opinion, in the circumstances of this case, and leaving to one side any question of relying on the Edwards lie, we are satisfied of the appellant's guilt.
11. We are satisfied that, notwithstanding Forrester J's error, we consider that no substantial miscarriage of justice has occurred.

Other matters Grounds 2 - 7, 10 - 27, 30, 32 - 34, 37 - 53, 55 - 56, 58 - 59, 61

1. Grounds 2 - 7, 10 - 27, 30, 32 - 34, 37 - 53, 55 - 56, 58 - 59, and 61 have, as we have said, little or no merit. It is pointless to examine them in detail. None of them is reasonably arguable.

1. Grounds 2 - 7, 10 - 27, 30, 32 - 34, 37 - 53, 55 - 56, 58 - 59, and 61 have little or no merit. Leave to appeal should be refused in relation to each of them. Insofar as grounds 54, 57 and 60 assert that Forrester J erred in her application of the proviso under s 14(2) of the CAA, those grounds are upheld. However, having considered the proviso, we would apply it and find that there was no substantial miscarriage of justice. Accordingly, the appeal must be dismissed.
2. The orders that we would make are as follows:
   1. Leave to appeal is granted on grounds 54, 57 and 60.
   2. Leave to appeal is refused on all other grounds.
   3. The appeal is dismissed.

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

[1] The appellant's amended grounds of appeal, as contained in his appellant's case filed 20 December 2024, set out 61 grounds, of which eight, grounds 1, 8, 9, 28, 29, 31, 35 and 36, were deleted.

[25] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

[26] Primary decision [119] ‑ [121], [189].

[27] Primary decision [195] ‑ [199].

[28] The appellant's written submissions comprise those contained in his appellant's case and in a document provided to the court on 9 May 2025, entitled 'Appellant's supplementary submissions'.

[34] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [219] - [242].

[35] As this court noted in Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139, fn 129, some aspects of what was said by Mitchell J in WS may have been overtaken by the approach of the High Court in Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62, and other subsequent decisions of the High Court.

[36] Wark v The State of Western Australia [2020] WASCA 19 [689].

[40] Primary decision [193] - [198].

[41] See, for example, Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 [72] ‑ [76] (Gageler J).

[42] See Wilson v McDonald [2009] WASCA 39; (2009) 193 A Crim R 63 [52] and Lance v Weston [2014] WASCA 62 [42].

[44] See primary decision [123] - [165].