Defence against home invasion - Use of evidence of independent witness - Accepting evidence of complainant where it differs from evidence of independent witness - Use of evidence of good character - Failure to give adequate reasons

Dog Act 1976 (WA), s 6, s 7, s 12A, s 16, s 17, s 18, s 29, s 31, s 32, s 33A, s 33G

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430

Devries v Australian National Railways Commission (1993) 177 CLR 472

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Hajinoor v Dench [2005] WASC 274

Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639

Lawless v Turner [2005] WASC 254

Lloyd v Faraone [1989] WAR 154

Magenta Nominees Pty Ltd v Webb, unreported; SCt of WA; Library No 980622; 29 October 1998

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

Oui v The Queen [2006] WASCA 76

Pallot v Harrison, unreported; SCt of WA, Library No 950261, 12 May 1995

R v Phillips (1936) 26 Cr App Rep 17

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588

Subramaniam v Public Prosecutor [1956] 1 WLR 965

1 JOHNSON J: The appellant, James Michael Quinlan, appeals against his conviction in the Magistrates Court in Perth on 21 April 2006 on a charge of assaulting a public officer, contrary to s 318(1)(d) of the Criminal Code (WA) ("the Code"). The victim of the assault, Trevor Joseph Salter, was a Ranger with the City of Stirling ("the City"). At trial, it was not in dispute that Mr Salter was a public officer nor that he was assaulted by the appellant. The only live issue was whether the assault was lawful in the circumstances.

"The Learned Magistrate erred in law in finding that the Appellant did not make out a Defence pursuant to Section 244 of the Criminal Code in circumstances where:

(a) the Learned Magistrate accepted, but misinterpreted the evidence of Mr Underwood-Lester;

(b) the Learned Magistrate found that she did not receive any evidence about the motor vehicle of Officer Salter being in the driveway when Mr Underwood-Lester said the vehicle was well up the driveway (T74);

(c) the Learned Magistrate accepted that Officer Salter did not enter the house yet Mr Underwood-Lester was informed by Officer Salter that he had been inside the house (T76);

(d) the Learned Magistrate erred in finding that Appellant had been the aggressor in the altercation between the Appellant and Officer Salter and had been involved in 'aggressive behaviour hunting Mr Salter back down to the path to his car' when there was no evidence to this effect."

"Whilst accepting the independence of witness Underwood-Lester the learned Magistrate erred in fact and in law by failing to have regard to Underwood-Lester's evidence to the effect that Salter:

(a) had informed Lester-Underwood [sic] that Salter had entered the Appellant's house contrary to the Learned Magistrate's finding that Salter had not entered the Appellant's house;

(b) had informed Underwood-Lester that Salter had injured his thumb inside the Appellant's house contrary to the Learned Magistrate's finding that the assault had occurred in Salter's car;

(c) had parked his car in the Appellant's driveway, contrary to the Learned Magistrate's finding that there was no evidence as to where the car was parked;

(d) had not been 'hunted' down by the Appellant contrary to the Learned Magistrate's finding and contrary to Lester-Underwood's [sic] assertion that the Appellant had walked away and requested Salter to leave his property."

"The learned Magistrate erred in law in finding that the withdrawal of the Appellant's consent for Salter to remain on the Appellant's premises was irrelevant for the purpose of determining whether the Appellant had assaulted Salter."

5 A further ground was sought to be added at the hearing. The amendment was opposed by counsel for the respondent but counsel did not oppose leaving the determination of the amendment application to the conclusion of the appeal.

"The Learned Magistrate erred in law in holding that the evidence of good character was not relevant to the charge or the actual events of the day.

PARTICULARS

(a) In holding that the evidence of good character was not relevant to the charge or events the Learned Magistrate misdirected herself at law.

(b) The Learned Magistrate failed to direct herself as to the proper use that might be made of good character evidence.

(c) The misdirection in law coloured and then infected the Learned Magistrate's findings of fact.

(d) As a result of the Learned Magistrate's misdirection as to how good character evidence may be used, the Appellant did not receive a trial according to law to which he was entitled. There has therefore been a miscarriage of justice."

7 It is apparent from the grounds of appeal that the appellant and the ranger, Trevor Salter, gave conflicting accounts of the circumstances surrounding the conduct the subject of the charge. Therefore, the credibility of the two primary witnesses was an import issue for the Magistrate to resolve. In order to determine whether the Magistrate fell into error in preferring the evidence of Mr Salter over that of the appellant, it is necessary to carefully consider their evidence. Because the evidence of independent witnesses can often assist in resolving areas of conflict in the evidence of those witnesses actually involved in the incident, I will also refer to the evidence of Mr Matthew Underwood-Lester, who witnessed part of the incident. I also propose to briefly refer to the medical evidence to see if that evidence supports the evidence of either the appellant or Mr Salter. Further, the ground of appeal which counsel for the appellant seeks to add raises an issue with respect to the evidence of character adduced on behalf of the appellant. On that basis, the evidence of the two character witnesses will also be considered.

8 For convenience, in considering the evidence I propose to refer to the witnesses by their surnames only. In the case of Mr Underwood-Lester, again for convenience, he will be referred to as Lester.

9 Salter gave evidence that he had been employed by the City for seven years. His duties as a ranger involved enforcing local government laws and other statutes, including the Dog Act 1976 (WA).

10 On Sunday 27 November 2004 Salter was on duty in Deanery Mews, Churchlands, checking firebreaks on a vacant lot. He had been on duty since 11.30 am and was in uniform. His marked City of Stirling van was parked on the street. At approximately 7.30 pm Salter saw a dog, on its own, wander out on the street having come from No 9 and then across the verge area of No 11 Deanery Mews. The dog came around onto the roadway where Salter's van was parked at the time. Salter finished what he was doing and then got out of the van with a view to attempting to find the dog's owner and checking its tags. As he got out the dog walked up to No 11 and lay down on the front lawn. According to Salter, from the relaxed way the dog was behaving, he concluded that No 11 was where the dog was from.

11 Salter approached the dog and gave it a pat. He took the opportunity to check the dog's tag and noticed that it had expired. Salter had moved his van on to the cross-over of the driveway of No 11 and went and knocked on the front door. Salter could hear loud music playing and a male voice singing to the music. The appellant came to the door and Salter introduced himself. He explained that he was at No 7 doing a firebreak inspection when he noticed the dog was out the front and the man apologised by saying that he was sorry and that he did not know how he got out.

12 Salter then said that he had noticed that the dog's registration tag had expired and asked the appellant whether he had a current registration tag for the dog. The appellant responded: "I don't know. My missus sorts that out". He added that she was away at that moment. Salter asked the appellant if he was the owner of the dog and he said he was. Salter then replied: "Okay. That's fine. What I'll do is I'll give you a caution for - - to get the dog registered within 7 days". The appellant then said, "Yeah. That's no problem. I'll get the dog registered." Salter replied, "Yeah. No worries. Just make sure you do that within 7 days otherwise a $100 fine gets sent out". Salter then said, "I'll just go to my car and get my caution book out".

13 Salter's evidence was that this conversation, which lasted for probably about two minutes, took place at the front door under a portico area. While the discussion was going on the dog moved away and Salter did not know where it had gone.

14 Salter walked back to his van and just as he was opening the driver's door he heard the appellant say words to the effect of, "Hang on a second. Fuck this. Come on to my property and threaten me". According to Salter, the appellant was walking down the driveway towards him as he was saying this. Salter continued to retrieve his caution book from the passenger side seat. He said that the appellant was obviously upset, aggressive and was shouting at him. Salter wanted to reassure the appellant that there was no payment of money involved. The appellant disregarded Salter's attempt to show him the caution book. He persisted in his verbal abuse and said "Come on, Come on you girl" and "chested" Salter. The appellant was also butting his forehead against Salter's forehead. He then pushed Salter backwards by placing both his hands on Salter's chest. Salter said that he took several steps back before telling the appellant that what he was doing was an assault and that he needed to settle down. The appellant just laughed this off. Salter felt that the appellant was under the impression that he was going to receive a fine and Salter wanted to reiterate that that he was only cautioning him.

15 Salter had noticed when he first pulled up looking for the vacant block that there was a person looking out the window of No 5, which was opposite No 11. In order to try and settle the appellant down Salter said to him, "I think you'll find someone's watching". The appellant looked over Salter's shoulder to the window across the road and, on Salter's evidence, he did settle down a bit.

16 At that point, the man from across the road, Matthew Langdon Underwood-Lester, came out and, according to Salter, the appellant backed right off on to his property. Salter was on the edge of the cross-over right near the kerb at that stage and took a step back on to the roadway. Lester came out on to the road about a metre or so off to the side of Salter's van. Salter said that the appellant then started to explain to Lester that Salter was on his property and threatening him. The appellant was saying things like, "How's his form? Come onto my property and threaten me". Salter said he reiterated to the appellant that he was not on his property and he was not threatening him, he was merely doing his job. He also explained that to Lester. The appellant continued complaining to Lester that Salter was on his property threatening him. The appellant then went back inside his house and Lester had a brief word with Salter before returning to his house.

17 Salter got in his van and put the caution book away. He also engaged what he described as "the GPS point", a device which denotes the location of the van on the map at that particular point in time. According to Salter, the device takes a minute or two for the information to come up. While Salter was using this device the appellant came out of his house and shouted, "You're still fucking here. If you're here in five minutes I'm going to call the police". Salter responded by saying, "That would be great because that's what I was thinking". When the appellant came out of his house shouting, Salter, who was still sitting in the driver's seat, locked the door of his van and wound up the window about three quarters of the way. The appellant came up and kicked the lower portion of the driver's door of the van with his foot. He grabbed the top of the driver's side window and pulled his body close to the door of the van. The appellant then reached in the window forcefully grabbing at Salter with his hand. Salter said his initial reaction was to lean out of the way and raise his hand to defend his face. He tried to fend off the appellant by grabbing hold of his arm to stop the appellant grabbing at him. That was when the appellant's other arm came into the vehicle. Salter continued to fend the appellant off by raising his arms up to keep both the appellant's hands away from his face and force his arms back out the window. Whilst the appellant was reaching into the van grabbing Salter's hands, Salter heard a "grinding sound come from my thumb or my left hand". He said that he did not actually know at the time that the sound was from his thumb. When Salter tried to grab the appellant's arm again his thumb appeared to pop out of joint. Salter stopped trying to grab the appellant's arm with his left hand and used his right.

18 The appellant then got hold of his right hand and pulled his right arm out of the window. According to Salter, the appellant was "hanging off my right arm with all his weight". At this point, the top of the window was across Salter's bicep. Salter said that the appellant was "just, sort of, bouncing down putting extreme force to the point where it damaged my window winding mechanism". This lasted for approximately 20 seconds. Salter was trying to pull his arm away when the appellant bit his right wrist. It appears from the transcript that Salter was distressed during this part of his evidence. The wrist injury ultimately left a scar. Salter also sustained some scratching on his chest, a scratch on his ear and the thumb injury, as a result of the incident. In a photo taken by police later that night, marks from the contact between Salter's upper arm and forearm and the window can be seen

19 After the incident, which lasted about 20 seconds, the appellant left, shouting, "Just get the fuck off my property". As far as Salter was aware, there was no other person present during this part of the incident. Salter managed to bring his arm back into the van before reversing off the cross-over and moving the van to the middle of the road at the end of the cul-de-sac. As the appellant's house was towards the end of the cul-de-sac, Salter's van was still relatively near where the incident happened. Salter explained that he was "just getting everything organised". He was just checking out the GPS device when Lester came out of his house, came up to Salter and they had a short discussion. Salter rang the police and then drove the van around the corner, which was a continuation of Deanery Mews. Salter then rang his home to advise his partner he would be home late. He also rang his senior ranger to advise him of the incident after which he sat waiting for the police to attend. Shortly after, Salter received a call from a police officer and, as a result of that conversation, he went to Stirling Police Station and reported the incident. Salter's injuries required treatment. In particular, his thumb injury required operative intervention and rehabilitative physiotherapy.

20 In cross-examination, Salter denied that he had entered the house. He emphatically denied telling anybody that night that he had been into the appellant's house and maintained that he did not follow the appellant inside when he went to turn the music off. He denied injuring his thumb inside the house. Salter said that when he knocked on the front door the appellant opened the front door, which opened inwards, and talked to Salter from there whilst holding on to the door. He also denied that there was any kind of altercation between the two of them inside the house. Salter rejected the proposition that he drove his van right up the appellant's driveway. He disputed that he had a conversation with the appellant about seizing his dog and denied that he had ever assaulted the appellant.

21 It was put to Salter that he told the appellant he had a legal right to enter his property. Salter denied that he had said that to the appellant or anyone else. He also denied that at any stage he had assaulted the appellant, whether it be by striking him, grabbing his arm, twisting his arm or in any other way.

22 Salter indicated that he was aware of his obligation to leave a person's property upon request. Salter was also questioned about the position of the van on the cross-over and the ownership of the cross-over. He maintained that the van was on the cross-over which he believed was not part of the appellant's property. Salter admitted that when the appellant came out of his house and walked towards the van shouting he was aware that he was being directed to leave. However, he maintained that he was not on the appellant's property and he thought he could explain that to the appellant, and the fact that he was merely cautioning him, and hoped he could calm him down. Salter refuted the proposition that by remaining on the cross-over he had accepted the risk of what happened later.

23 It was suggested to Salter that he exaggerated both the injuries he sustained and the manner in which they occurred. He denied both propositions. He was then questioned about the contents of the statement he made to police. Salter was asked about his statement to the police that the appellant had punched him twice on the right side of his jaw with clenched fists. He agreed that he had not mentioned that in his evidence in chief and explained that he had just forgotten to mention it. Salter agreed that he had also forgotten to mention that the appellant had spat in his face but maintained that he had done so. His explanation for both omissions was that he was nervous about being in court and having to try and recollect the night in question. He denied that he had exaggerated to police or that he had fabricated the allegations. It was also suggested to Salter that he had not mentioned the punch to his doctor. Salter's response was that he may have but he did not recall. He could not recall whether he had told the doctor about being spat at.

24 Salter denied hitting the appellant or retaliating in any way. When asked to give an account of how the appellant might have received bruises and cuts to his right inner elbow Salter suggested it was possibly from reaching into the window. Salter stated that the appellant punched him after Salter pulled his arms back into the vehicle and that the appellant spat at him immediately after that.

25 Salter was also questioned about the conversation with Lester that took place after the incident where Salter sustained his injuries. Salter maintained that the conversation took place on the road whilst he was still in the van. Salter agreed with the proposition that the street lighting was good and could give no explanation for why Lester might say that when he spoke to Salter he saw no signs of injury.

26 Salter was the sole witness for the prosecution.

27 The appellant stated in his evidence that he was 52 years old with no criminal record and he worked as an air-conditioning contractor. He said that on 27 November 2005 he was at home on his own and was preparing his evening meal whilst listening to music, which was fairly loud. He looked from the kitchen to the front doorway and saw that the door was vibrating. He walked up to the door and opened the door. Salter was there and he started to speak. The appellant could not hear what he was saying so he put up his hand and said, "Just a minute", walked back to the dining room and turned the music down. Returning to the front door, the appellant noticed that Salter had invited himself into the house and was about 2 metres inside. He also said that he looked agitated. The appellant thought, "Who are you" but did not say anything and claims that Salter launched straight at him and said, "Your dog's not wearing a current registration badge on its collar". The appellant said "Look, you know, it might not be wearing it but I can assure you it will be registered". Salter is then alleged to have commented on how loud the music was and told the appellant that it was an offence. According to the appellant, he asked Salter what he was doing there at that time of night and was told that there had been a report of smoke in the area. It would seem that the appellant did not accept that explanation but did not comment on it. The appellant then said to Salter that he did not know what he was really there for but he was in the appellant's home and he could leave. The appellant's evidence was that Salter then looked at the dog and informed the appellant that he had the authority to take the dog. The appellant said that he understood the inference from this comment to be that if he wanted Salter to go, Salter was going to take his dog. The appellant informed Salter that he was not taking the dog and he could "bloody well leave". The appellant then put his hand on Salter's shoulder at which point Salter said, "That's assault" and hit the appellant with the base of his hand on the upper part of the appellant's left shoulder with a karate like punch.

28 The appellant's evidence was that they started grappling and then Salter's other hand came up. They wrestled and the appellant grabbed Salter's left hand, got his thumb and bent it back. According to the appellant, as he bent the thumb back Salter "had to go where I was bending his thumb". The appellant bent Salter down and when he was bent over the appellant grabbed him by the back of the neck and threw him out the front door. The appellant said that as Salter was standing out the front door he said to the appellant, "You're a fucking idiot. I'm going to charge you with assault". The appellant asked Salter for his name, Salter refused to tell him and the appellant asked him to leave. As Salter was walking away, he would stop every metre and turn around and the appellant would on each occasion tell him to "Fuck off". This occurred on about four occasions as Salter moved down the semi-circular walkway which leads away from the house and turns into the driveway. On the appellant's evidence, from the point where he threw Salter out the front door, their exchanges were full of expletives.

29 The appellant maintained that when he went outside he saw Salter's van parked in front of his garage door. Just as he and Salter reached the end of the semi-circle walkway, where it turns around into the drive-way, Lester called out to the appellant and asked if he was alright. According to the appellant, he told Lester that Salter would not leave his property and Lester then turned to Salter and told him that he thought it was probably a good idea if he left. The appellant alleges that Salter then repeated what he had earlier said to the appellant, which was that he could go anywhere in the course of his duties. The appellant then walked up to Salter again and told him to go, but Salter just stood there. At this point they were standing in the driveway, approximately one and a half metres from the garage door "well inside the letterbox".

30 The appellant then walked back inside the house and back into the kitchen. He said that he stood there stunned, looking out the window for a minute. Wondering if Salter had gone, the appellant went back outside but as he opened the door he noticed that Salter was sitting in his van which was still parked in the driveway and had not been moved.

31 On the appellant's evidence he walked over to the van and waved his hand at Salter with a pointing motion and said: "I'm going to ring the police and have you charged with trespass and assault". Salter then grabbed his hand, pulled it into the van and held it down over the window which was half way up. According to the appellant Salter was twisting his wrist and arm. The appellant said that he was trying to pull his arm out but could not get away. He said the only thing he could do was lean down to where his hand was and bite it. Salter then let go of the appellant's hand. When asked why he bit Salter, the appellant said:

"I wasn't - - what went through my mind was, 'Is the car running? Is he going to take off?' That's what I thought. I just wanted to get out of there. I mean, I don't think - - as I said in my statement I don't think it's a very manly act to do but I had no choice."

32 The appellant then went back inside. The inside right elbow area of his arm was hurting and he noticed a lump on the blood vein where it had been stretched over the window. The appellant's shoulder was also hurting but not as badly as his arm. According to the appellant, his shoulder was hurting from where Salter hit him inside the house. The appellant then rang the police and told the operator that he wanted to report an assault. The time of the call was 7.49 pm.

33 The CD of the telephone call to the police was played to the court. It was put to the appellant that he sounded upset in the conversation and he agreed. He said that the police did not attend. About four days later the appellant attended his medical practitioner. He thought the injury to his arm and shoulder would improve. The injury to the inside of his elbow gradually improved but the injury to his shoulder did not and he had to have cortisone injections.

34 The appellant denied that he spat at Salter but he did admit biting him when he was in the car and twisting his hand or thumb when they were standing inside the house.

35 In cross-examination, the appellant stated that when he answered the door to Salter the dog was standing next to him but then bolted inside the house. He also said that he was aware that Salter was an officer with the City. The appellant said that he did not hear what was said to him when he opened the door and before he turned the music down. He denied the proposition put to him that Salter had never entered the house. The appellant said that when he returned after turning down the music Salter was obviously upset. He said that he presumed this was because he had been waiting and bashing on the door for a while and had not been heard. The appellant said that it was Salter's posture that led him to the conclusion that Salter was upset.

36 The appellant admitted that the dog was in fact unregistered but alleged that it was because of an input error committed by the City when the address was changed. When asked whether Salter told him he was there because the dog was out the appellant agreed, but added that he did not think that answer added up because Salter swapped from that to the next story which was the smoke. According to the appellant, he thought to himself that Salter was searching for reasons to be there. He said that Salter had told him three reasons for being there. That statement was not entirely consistent with the appellant's evidence in chief.

37 The appellant was cross-examined about his evidence that he put his hand onto Salter's shoulder when they were inside the house. The appellant was asked whether he then pushed him out. He denied that and said, "If anything, I got his shoulder to try to turn him that way to go out the door". The appellant also denied that he had injured his shoulder installing air-conditioning. The appellant was questioned about what he said when he rang the police, in particular his statement that he wanted to report an assault "or whatever". The appellant maintained that he was there referring to a trespass but he was not sure of the terminology. He was also asked about his response to the question about whether he had been assaulted which was, "Well, yeah. Pretty well". He maintained that this referred to the fact that he had not been severely assaulted. The appellant was also questioned about his statement to the police that Salter tried to take the dog from the house. His response was that Salter told him he was going to seize the dog but in fact what he had alleged Salter said was that he had the authority to seize the dog. The appellant's response was that he considered the inference from that statement was that Salter was going to seize the dog.

"You never asked him his name at all, did you? - - - No. Never asked his name.

Thank you? - - - Why would I?"

39 In fact, in his evidence in chief the appellant stated that he had asked Salter for his name.

40 The appellant was asked why he followed Salter down the driveway rather than going inside and shutting his door. He said that he just wanted to make sure he was gone. He then said, "I wasn't going to ring the police at any - - I didn't think, you know, I was going to - - I just thought, I want to make sure he's gone". He then went on to say that he did not know whether he was going to come back, jump the fence, take the dog or come inside the house again.

41 In cross-examination the appellant was asked why he did not ring the police when he became aware that Salter had not left when he had been told to. His initial response was that he was going to call the police. He then said that he did not ring them because he though Salter would go. However, when he looked out the lounge room windows and noticed that Salter had not gone he went outside and did not ring the police at that stage. The appellant admitted that his shoulder was already sore at the time he went outside. The appellant also admitted that when he went outside he went right up to Salter's car window and pointed his finger at him and told him he would ring the police. He denied that he told Salter at this stage to get off his property.

42 The appellant was also asked about his evidence that Salter grabbed his arm and pulled it into the van. He was asked what he did with his free arm. He said that he had that arm up on the window trying to get his other arm out the door. He was trying to push some weight on to counteract Salter's weight on his other arm.

43 The appellant repeated his view that he bit Salter's hand because he thought he would take off. However, he also said that he could not hear the motor running. In response to a question about why he thought Salter might take off in the van, the appellant said it was because Salter's behaviour to that point made the appellant think he was a raving lunatic. Shortly after giving that evidence, the appellant said that he did not know if the engine was running. He added:

"I thought, 'Is it running because I don't know', and I thought, 'Maybe it is. What will he do next', and that's why I bit. I just wanted him to let me go".

44 Dr Kester gave evidence that he conducted an examination of the appellant and found that he had a graze and bruise on the inside of his right elbow. His left shoulder was painful and tender with movements, in particular extending up sideways and also externally rotating. He referred the appellant for x-ray and ultrasound and the report received was that the appellant's injuries in relation to his left shoulder was a tendon strain in the shoulder and there was swelling within the shoulder joint which restricted his range of movement. Dr Kester was asked if this injury was consistent with the appellant grabbing onto something and pulling it directly down but the doctor considered that it was not. He said "It's consistent with having resisted force applied to the arm". Dr Kester described the shoulder injury as a significant injury.

45 In cross-examination, Dr Kester was asked whether the injury to the elbow was to the inner or exterior portion of the elbow and he indicated that it was to the inner area. With respect to the injury to the shoulder, the doctor agreed that if it had been reported to him that the injury had occurred while lifting heavy articles such as air-conditioning units he would have accepted that report as correct. Dr Kester also said in his evidence that an injury of the nature of the appellant's shoulder injury could be sustained in any number of ways.

Matthew Langdon Underwood-Lester ("Lester")

46 Lester gave evidence that he was having dinner with his family when he heard shouting and swearing. He went outside to investigate. He saw a van parked in the driveway. It was well onto the appellant's property. It was fully into his driveway and not part of the van was off the property. It was put to the witness that there was differing evidence about the location of the van with one version that it was on the cross-over which is the paved over section of the verge and another that the van was well up the driveway closer to the house. Lester said that the van was well up the driveway and near to the house. When asked whether he was absolutely clear about that, he said that was his recollection.

47 The witness said that he saw two people across the road. The appellant was standing somewhere around his front porch. The other man seemed to be walking down a circular or semi-circular footpath that the appellant has on his property. He said that the man was walking away from the house. According to Lester, the appellant was shouting so he went across and asked him if he was alright. The appellant said, "This guy won't get off my fucking property. I've asked him to leave". By this stage Lester realised that the man was a ranger because of his uniform and the wording on the side of his van. He approached the ranger and said to him that if he's been asked to leave the property he should leave. Lester could not remember the exact words of the ranger's response but the gist of it was, "I have the right to go anywhere on any property".

48 According to Lester, at that point the appellant walked up to the ranger and confronted him verbally very close to his face and told him to "fuck off". He said that nothing happened and then the appellant took a big inhalation of breath, shook his head and walked back inside the house and shut the front door. The ranger went to his van and Lester went back home believing that whatever had happened was over.

49 After he finished eating, Lester looked out the front curtain out of curiosity and saw that the ranger's van was still outside, however it was now parked in the cul-de-sac on the road and off the appellant's property. Lester said that he was curious and a bit concerned because of all the anger he had seen. He went out to the ranger and asked if he was okay. The ranger told Lester that he had hurt his thumb inside earlier. The witness was asked whether he meant inside the van but the witness said, "He - - no. Inside the house". He went on to add, that he was sure he said "inside the house". When Lester was told that the ranger had denied having this conversation with him and asked whether he was sure the ranger had said that he hurt his thumb inside the house, Lester said:

"Yes; because I told him then that if he had hurt himself he needed to get medical attention. Certainly if he had been injured in his work he needed to go back, report it and claim - - and obviously seek medical attention as his first priority."

50 Lester recounted what he had been told by the ranger about how he came to be working that night. The ranger also told him that having noticed the appellant's dog did not have the appropriate collar, he went to the appellant's house to advise him that the dog was out and that it needed to be registered, thinking that he was doing the right thing. The ranger said to him that when he knocked on the door and the appellant answered, there was loud music and that the appellant then disappeared inside. The ranger said that he had entered the house believing that he had been invited in by the owner but then the appellant became aggressive and started scuffling and wrestling with him. During this conversation the ranger was holding his thumb and indicating that he had hurt it. Lester stated that he did not see any evidence of the ranger having been spat on.

51 In cross-examination, Lester said that the shouting and swearing he had heard when he was having his dinner was the appellant's voice. He did not believe there were two voices. When Lester first saw the appellant and the ranger he was 30 metres away. He recounted the conversation with the appellant and agreed that the appellant did not complain of being punched, of an injury to his shoulder, of blows being exchanged and he saw no evidence of blows being exchanged. The witness also agreed in cross-examination that the van was parked near the letterbox. According to Lester, the ranger was walking away from the house while the appellant was saying, "Get off my fucking property" in a very loud voice. Lester said he thought it was confusing because he could not actually see that the ranger was leaving the property because he just seemed to be walking around his van and did not go to his driver's door to get off the property. He went behind the van "like putting the van between him and Jim". The ranger was not saying anything. Lester said that when the appellant walked up to the ranger and got close to his face and swore at him to leave, the ranger had walked back towards where Lester was standing just on the property between the letterbox and the kerb. When the appellant came up to the ranger he was right up against him and speaking as loud as he could. Lester agreed that the appellant was very angry.

52 Lester was also cross-examined about his conversation with the ranger when he came out of his house the second time. He said that what the ranger had said to him about his thumb was that he had hurt his thumb inside. Lester said that he took "inside" to mean the house. It was put to him that he did not know if it was inside the portico or inside the vehicle. The witness agreed that he did not know but added that he did not know why you would refer to inside the portico when that was outside the house. He also said that he believed the ranger was writing a report when he spoke to him. Lester said that he did not notice any other injuries but that it was dark at the time, although there was a little light on inside the van. He agreed that he did not actually look for any injuries to the ranger.

53 Lester's contact with the appellant after the event was the subject of the following series of questions in cross-examination:

"All right. I think you said that you had no further conversation with Jim that night? - - - That's correct.

What about later? - - - How much later?

Did you have a conversation with him later about giving evidence in these matters? - - - I had a conversation with his wife later.

Right. Did you have a conversation with him later? - - - A long time later.

About what had occurred? - - - He didn't seem to want to discuss it but we did - - I was talking about what I had seen. I told him that I was prepared to make a statement over what I had seen although I had not seen any physical assault by either party on any other party, and I don't know how much my evidence would help. I spoke to the police on the phone."

54 This witness gave character evidence on behalf of the accused. He said that he has known the appellant since 1986 in both business and social circumstances. He worked with the appellant from 1986 to 1993 but had not seen much of him in the last 10 years. With respect to the allegations Marwick said that he did not believe the appellant would tell a lie because he was an honest person. He said that he certainly was not an aggressive individual. He had seen him go through a divorce and seen him under pressure at work. He had never acted in an unruly or aggressive manner.

55 In cross-examination, Marwick revealed that he had only seen the appellant twice a year from 1993 to 2000 and had not seen him since 2000.

56 Anderson gave evidence that he has known the appellant since 1974. The appellant used to come to his property to engage in fox shooting with mates. He then employed the appellant for a couple of years and they have remained in touch since then. He is godfather to the appellant's son. He has seen the appellant a couple of times a year over the last five years. According to Anderson, the appellant had never been seen by him to display aggressive conduct. He considered the allegation that the appellant had assaulted a public officer to be totally out of character. He said that he had never witnessed the appellant to be aggressive. He had also found him to be extremely honest. He maintained that for the appellant to have done what is alleged he would have had to be extremely provoked.

57 In cross-examination, it was suggested to Anderson that if, as he said, he had not seen the appellant in aggressive circumstances or circumstances where he had been provoked, how would he know that he would have had to be extremely provoked to be aggressive. Anderson said that he was just assuming that to be the case, and he did not know.

Ryan William Patrick Kervin ("Constable Kervin")

58 The statement of Constable Kervin was read into evidence by consent. In his statement, Constable Kervin said that he was on duty at Stirling Police Station on Sunday 27 November 2005 when Salter attended at about 8.40 pm. Salter reported an assault and Constable Kervin took down the details of the assault before taking a statement from him. Constable Kervin noticed that Salter had marking around his neck and a bite mark on his right forearm. Constable Kervin took photos before advising Salter that he should seek medical advice for the bite. It was Constable Kervin who arrested the appellant on 25 December 2005 when he entered the police station. The appellant refused to participate in a record of interview.

59 At the commencement of her reasons for decision, the Magistrate correctly stated the burden and standard of proof which applied to the charge against the appellant. The Magistrate accepted that s 244 of the Code would be a defence to the charge, depending upon which evidence was accepted. The Magistrate identified the witnesses actually involved in the events and proceeded to consider the evidence that each witness gave.

60 With respect to the witness, Lester, the Magistrate noted from the outset that that he "really only saw part of what occurred between Mr Salter and Mr Quinlan". She was also well aware, and expressly stated that, there were issues of credibility to be considered, and referred to some of the matters which required consideration in reaching a decision as to credibility. It is apparent from her comments that the Magistrate was well aware of the requirements of the task confronting her.

61 The evidence of each witness was dealt with in detail and issues relating to the evidence were addressed as they arose. In particular, where the evidence of Lester supported or contradicted the evidence of Salter or Quinlan, it was dealt with in the course of considering the evidence of the particular witness. I don't propose to refer to each such occasion as I will deal with them in the course of addressing the grounds of appeal.

62 Ultimately, the Magistrate determined that the evidence of Salter should be accepted. She considered his evidence to be consistent whereas the evidence of the appellant was not. In stating her conclusion, the Magistrate identified certain factors which led her to conclude that the appellant's account was not to be preferred. Examples of these factors are the lack of consistency and the appellant's aggressive behaviour on the particular evening. However, most of the factors were identified in the course of considering the evidence. One particular matter considered to detract from the veracity of the appellant's evidence was his failure to mention to Lester that the accused had entered his house or assaulted and injured him, despite the fact that he was making it clear to both Salter and Lester that he wanted Salter off his property. These matters would have provided good reason to want Salter to leave. The appellant's failure to mention in the triple zero call that he had suffered an injury to his shoulder or to make any mention of the altercation in Salter's car was also considered to be a relevant factor. The fact that the appellant failed to call out for assistance or at all during the incident in the car was also taken into account in considering the appellant's evidence.

63 Evidence relating to the level of the appellant's aggression was considered by the Magistrate in her reasons for decision. In that context reference was also made to the fact that the appellant had consumed alcohol. The Magistrate also referred to the medical evidence which included a reference in the doctor's notes of a consultation approximately a month after the incident to the fact that the appellant had self reported that he became aggressive easily. In this context considerable attention was given to the evidence of Lester as to his observations of the appellant out the front of his house, in particular that he was very angry.

64 In reaching her decision, the Magistrate dealt specifically with the evidence of Lester that Salter told him he had hurt his thumb inside the house. The fact that, under cross-examination, Lester stated that Salter had referred only to hurting his thumb inside and Lester had simply assumed he meant inside the house, lead to the following conclusion: "It could equally in my view have been inside the motor vehicle".

65 Having considered the evidence, the contradictions, the explanations and the weaknesses and strengths of that evidence, the Magistrate referred to the fact that there were obviously two versions of the events and both versions could not be correct. The Magistrate acknowledged that it was her responsibility to determine the credibility of the witnesses and come to a view as to which evidence to accept or which parts of the evidence to accept. She then concluded:

"It is my view that the evidence of Trevor Joseph Salter is to be accepted, that his version of what happened on that particular evening - - or late afternoon into the evening in relation to going to the premises at Deanery Mews is to be.....accepted, that the chronology he gave - the evidence that he gave is consistent. The evidence of the accused is not. His behaviour on this particular evening was aggressive."

66 The Magistrate then gave a short summary of the facts she found establish which were in accordance with Salter's evidence. Of particular significance was that she found that Salter did not enter the house, that when Salter returned to his vehicle the appellant followed him in an aggressive state and assaulted him in the motor vehicle, as Salter had stated. Those facts having been established to the Magistrate's satisfaction she considered that the issue of the withdrawal of consent was not relevant. The Magistrate found that the charges had been proved and convicted the accused.

67 Section 318(1)(d) of the Code provides that any person who assaults a public officer who is performing a function of his office or employment or on account of his performance of such a function is guilty of a crime.

68 The term "public officer" is defined in s 1 of the Code to mean, relevant to the facts of this case, a member, officer or employee of local government and also a person exercising authority under a written law.

69 The written law which Salter was enforcing at the relevant time was the Dog Act. The evidence reveals that the dog in this case was at large. The appellant's proposition is that the ranger had no authority to pursue the dog in the particular circumstances and definitely not into his house. It is therefore necessary to consider the powers of a local government ranger under the Dog Act and the circumstances which give rise to those powers.

70 The provisions of the Dog Act apply to all dogs: s 6(1). Section 7(1) of the Dog Act requires all dogs to be registered and if a dog is not registered the owner commits an offence. The local government of the district where the dog is ordinarily kept is the organisation which registers dogs: s 16. Section 18(1) of the Dog Act provides that a registration tag shall (a) be of durable material; (b) be of a colour specified by the Minister under subsection (2); and (c) contain such particulars as are prescribed. As I understand the position, the purpose of the colour is to allow the currency of the dog license to be determined from a distance. Section 18(2) requires the Minister to publish in the government Gazette in respect of a registration period an order specifying the colour of the registration tags.

71 Section 29(1) of the Dog Act requires a local government to appoint, in writing, persons to exercise on its behalf the powers conferred on an authorised person under the Act. In this case there was no evidence of Salter's appointment but, at trial, no objection was taken to the complaint on that basis, probably as a result of the fact that he was a public officer and also as a result of his status as a local government employee.

72 The evidence outlined above reveals that certain witnesses allege that Salter maintained he was entitled to exercise certain rights arising from his position. There are a number of provisions of the Dog Act which confer powers on an authorised person which might be exercised if the facts, as alleged by Salter, did indeed arise.

73 Section 29(3)(b) states that, if it appears to an authorised person that a dog is, or is deemed under s 17(6) to have been found, in a place in apparent contravention of s 31, s 32 or s 33A, the authorised person may seize and detain the dog and, if he is in pursuit of the dog for the purpose of seizing it and he has reasonable grounds to believe that it is necessary to do so for that purpose, enter any premises, other (unless s 33G(1) applies) than a building or part of a building that is used for residential purposes. Section 31(1)(a) provides that a dog shall not be in a public place unless it is held by a person who is capable of controlling the dog by means of a chain, cord, leash or harness of sufficient strength. Under s 31(3), if a dog is in any place in contravention of s 31(1) then every person liable for the control of the dog commits an offence. Section 32 is of no relevance on the facts of this case. Section 33A(1) prohibits a dog from being in any place that is not a public place without consent by the occupier or owner of the place, and s 33A(3) creates an offence for which the person liable for the control of the dog is liable if the dog contravenes s 31(1).

74 There is a power of entry to any premises contained in s 12A but it applies only to a registration officer and only for the purposes of ascertaining whether there are on the premises means for effectively confining the dog within the premises or for ascertaining whether a dog which is reasonably suspected to be on the premises is registered. Most importantly, entry can only be affected with the consent of the occupier.

75 The limits under the Dog Act on the power of Salter, or any other suitably authorised person, to enter premises was the matter of considerable emphasis at the hearing of the appeal by counsel for the appellant. The thrust of the submission was that Salter had no power to enter the appellant's premises, irrespective of the dog's conduct or the status of the dog's registration. However, it was never suggested at trial or on appeal that Salter had the power to enter a dwelling without the consent of the owner. Indeed, it is abundantly clear from s 29(3)(b) that the Dog Act does not empower those persons enforcing the Act to enter residential premises without permission. The prosecution's position was that Salter had not entered the appellant's home so the issue of whether there existed a power for him to do so did not arise.

76 Section 244 of the Code is in the following terms:

"(1) It is lawful for a person ('the occupant') who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary -

(a) to prevent a home invader from wrongfully entering the dwelling or an associated place;

(b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place;

(c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is -

(i) attempting to wrongfully enter the dwelling or an associated place; or

(ii) wrongfully in the dwelling or on or in an associated place;

or

(d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.

(2) A person is a 'home invader' for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person -

(a) intends to commit an offence; or

(b) is committing or has committed an offence,

in the dwelling or on or in an associated place.

(6) In this section -

'associated place' means -

(a) any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and

(b) if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;

'offence' means an offence in addition to any wrongful entry;

'place' means any land, building or structure, or a part of any land, building or structure."

77 It is convenient to deal with these grounds together because both relate to the way in which the Magistrate interpreted the evidence of the witness, Lester, which allowed her to accept Salter's evidence, thereby rejecting the appellant's evidence that he was defending himself against a home invader.

78 Section 244 of the Code allows the occupant of a dwelling to use reasonable force to cause a home invader to leave or to make effectual defence against violence used by a home invader. On the appellant's evidence at trial, having opened the door to Salter, then having walked to another room to turn down the music, he returned to find Salter two metres inside the house. The appellant's evidence also included two assaults made upon him by Salter. One was inside the house after the appellant told Salter to leave and Salter punched him in the shoulder. The other assault occurred when Salter, who was sitting in his van which was parked, according to the appellant, in the driveway, grabbed the appellants arm, pulled it into the van and twisted it. The altercation inside the house was the conduct on which the appellant principally relied to render the complainant a home invader and to justify the appellant's own conduct in bending Salter's thumb back inside the house.

79 The altercation inside the van, which on the appellant's evidence resulted in him biting Salter's hand to make him release his arm, is said to fall within s 244 as well. Counsel for the appellant submitted that the allegation of error on the part of the Magistrate in failing to find that a defence under s 244 had been made out applied to both altercations. With respect to the altercation inside the van, the applicability of a defence under s 244 depends on whether a driveway falls within the provision. Section 244 extends the power conferred by it to "associated places" as well as dwelling. Section 244(6) defines "associated place" to mean any place that is used exclusively in connection with or for purposes ancillary to, the occupation of the dwelling. The term "place" is defined in the same subsection to mean any land, building or structure, or a part of any land building or structure. It is not for present purposes necessary to determine whether a driveway is indeed an associated place.

80 Salter's evidence was in conflict with that of the appellant in relation to both these incidents. In particular, he denied assaulting the appellant. Further, he maintained he never entered the house and denied that his van was in the driveway during the second incident: insisting that he was parked on the cross-over which is publicly owned. It was, of course, necessary to resolve that conflict before determining the charge. Counsel for the appellant conceded that if Salter's evidence was accepted, he could not be a home invader and no defence was available to the appellant under s 244.

81 In resolving the conflict in evidence, the Magistrate had the benefit of Lester's evidence that he observed some of the contact between Salter and the appellant, although he was not present during either of the two particular incidents referred to above. However, Lester did speak to and observe both men immediately following the first incident and spoke to Salter immediately after the second. As I have noted, it is the way in which the Magistrate dealt with the evidence of Lester which is the subject of the particulars to this ground of appeal.

82 One general allegation is that the Magistrate misunderstood or failed to have due regard to Lester's evidence. Counsel for the appellant submitted that the Magistrate should have looked at it more carefully. These criticisms of the Magistrate relate to three aspects of Lester's evidence: the location of the van in the driveway; his conversation with Salter in which it is said that Salter told him that he had entered the house and his hand injury occurred inside the house; and his observations of the appellant and Salter when the appellant left the house and followed Salter out as Salter returned to the van.

83 Counsel for the appellant submitted that the Magistrate accepted Lester as an independent, unbiased and truthful witness. What the Magistrate said about Lester was that "he certainly came to the court with no knowledge of either person, Mr Quinlan and Mr Salter". I do not accept that this observation is the equivalent of counsel's description of the Magistrate's attitude. Nevertheless, it is the case that with respect to a number of matters, the Magistrate relied on Lester's evidence in support of the evidence of Salter and preferred it to that of the appellant. Of course, that is not to say the Magistrate accepted all of Lester's evidence without reservation or that she believed he was at all times an accurate or truthful witness.

84 The first observation made of Lester's evidence by the Magistrate was that he only saw part of what occurred between Salter and the appellant. Lester's evidence was that, having heard shouting and swearing, he went outside to investigate and saw the appellant standing near his front porch and Salter walking away from the house. It was apparent from Lester's evidence of the subsequent conversation with the appellant that the first incident had already occurred. Shortly after, Lester went back inside his house. At a later point, Lester looked out the window and after noticing that Salter's van was still there went outside and spoke to him. His evidence of that conversation makes it clear that the second incident had already occurred. It is apparent then that the Magistrate's observation was entirely correct and Lester was not an eyewitness to either event. Therefore, it was necessary to consider the impact of what he saw and heard in the intervening period on the direct evidence of those incidents. That exercise would necessarily involve assessing the accuracy of Lester's evidence and the inferences which could reasonably be drawn from his evidence.

85 Complaint is made of the Magistrate's finding on the location of the van. Salter's evidence was that when he first arrived at the appellant's property he moved his van onto the cross-over. This is consistent with his account of the location of the van at the time Lester spoke with him. He described Lester as being on the road about a metre or so off to the side of the van. Salter's description of his own location was consistent with the van being parked on the cross-over. At the time the second altercation occurred, Salter said that his van was still parked on the cross-over which he considered to be Crown land and not part of the appellant's property. Therefore, if Salter's evidence was accepted, no defence under s 244 was available in relation to any assault that occurred whilst Salter was sitting in the van unless the cross-over was an associated place. Whether the cross-over was an associated place depends on whether it was a public place. As I have indicated, it is not necessary at this point to resolve that issue.

86 The evidence of the appellant was that Salter's vehicle was parked right up the driveway and was parked in front of his garage door. Lester's evidence in chief was that when he first observed Salter and the appellant the van was "parked in the driveway". He elaborated on that statement in the following terms when asked whereabouts in the driveway the van was:

"Well on to his property. Not so that there was any part of the van off the property. It was fully into his driveway."

That particular response seemed to be emphasizing that no part of the van was on the roadway. When made aware of the conflict in the evidence of Salter and the appellant, Lester said that to his recollection "it was well up the driveway and near to the house", which would seem to support the appellant's version.

87 However, in cross-examination Lester was asked whether there was a letterbox on the driveway and he agreed there was. He then agreed to draw on a whiteboard the driveway, the street and where the van was parked in relation to the letterbox. Unfortunately, that drawing was not tendered into evidence. The following exchange then takes place:

"Where's the van parked? --- (No audible response).

How far was the back of the van off the bitumen road surface...(indistinct)...Are you able to say? If you're not...(indistinct)...? --- ...(indistinct)...six feet but off.

Okay. Fine. Thank you. Have a seat. Was it nearer to the road surface than it was to the driveway in fact - - to the garage, I mean? --- About half way as I've drawn."

88 It is apparent that parts of the questions and the answers could not be transcribed. However, what was said would have been heard by the Magistrate. She therefore had the benefit of some evidence which is not available to this court. Later in his evidence Lester said that he was at the bottom of the path just on the property between the letterbox and the kerb. This would seem to indicate that the letterbox was relatively close to the kerb, as might be expected.

89 The accounts given by Lester and Salter as to the location of the van do differ, although in the case of Lester it is somewhat difficult to ascertain on his evidence the precise location of the vehicle. The submission of counsel for the appellant was that Lester's evidence was fairly clear that the van was well up into the driveway, beyond the letterbox. However, in this regard, I accept the submission of counsel for the respondent that the difference between the evidence of these two witnesses is of little consequence and does not reflect on the credibility of either witness. Whilst Lester's evidence doesn't support Salter's evidence, neither does it support the evidence of the appellant who maintained that the van was "right up the driveway...parked in front of my garage door".

90 Of course, the position of the vehicle is irrelevant, other than to credibility, if the appellant was not entitled to rely on s 244. As I have noted, I would have been surprised if the Magistrate had found that Salter's credibility was impaired by the difference between his evidence and that of Lester on this issue. In fact, the Magistrate made no mention in her reasons for decision about the location of the van, which was hardly surprising considering that it was not necessary for the prosecution to prove that fact to establish the charge. In view of the defence position that the cross-over was part of the appellant's property and therefore an associated place, it matters not where the vehicle was as long as it was not on the road. In any event, the issue of whether the cross-over was an associated place and whether a defence under s 244 had been made out would not be an issue once the Magistrate accepted Salter's evidence that he had neither entered the appellant's house nor assaulted him.

91 In the grounds of appeal it is alleged that the Magistrate found that there was no evidence as to where the car was parked. I assume that this is a reference to the statement made by the Magistrate in the course of referring to Salter's evidence that, "I did not actually receive any evidence as such about the motor vehicle in the driveway....". When the balance of the reference is read it becomes apparent that the Magistrate was referring to evidence about the vehicle itself rather than its location in the driveway. The full reference is as follows:

"I did not actually receive any evidence as such about the motor vehicle in the driveway but it seemed from the evidence of Mr Lester at least that the motor vehicle was marked in some way because he was under no illusion that that is where the motor vehicle came from. So I am assuming that somewhere on the car was marked with 'The City of Stirling' but certainly that a uniform of Officer Slater [sic] indicated with a badge that he had some public figure, if I can put I that way."

Further, the sentence immediately preceding that extract relates to Salter's status as a public officer and is in these terms:

"He was addressed [sic] in uniform as he appeared in court yesterday so there were no issues as to knowing that he was in a uniform and a person of some authority in a public sense."

92 In fact, the Magistrate made no finding in relation to the location of the vehicle on the driveway. Once she had concluded that the evidence of Salter was to be preferred, it was unnecessary for her to do so. Therefore, there was no factual finding made by the Magistrate which was inconsistent with Lester's evidence.

93 A further particular of both grounds of appeal alleges that the Magistrate failed to have sufficient regard to Lester's evidence that Salter had informed him he had been inside the house. That allegation is related to another particular which alleges that the Magistrate failed to give effect to Lester's evidence that he had been told by Salter that the injury to his hand occurred when he was inside the appellant's house. Counsel for the appellant submitted that Lester's evidence of his conversation with Salter in which both statements were alleged to have been made by Salter was in fact consistent with the appellant's version of events.

94 The appellant's evidence was that when he found that Salter had entered his house he asked him to leave and put his hand on Salter's shoulder. Salter then punched the appellant on his left shoulder. There followed a struggle during which the appellant grabbed Salter's left hand and bent his thumb back before throwing him out the front door. Salter's evidence was that his initial conversation with Salter took place at the front door. He denied that he had entered the house. According to Salter, his thumb was injured during the second altercation when the appellant approached him when he was sitting in his van.

95 Lester's evidence was that when he went outside on the second occasion he approached Salter and asked him if he was okay. Salter said to him that he had hurt his thumb inside earlier. When asked to clarify his evidence as to where inside Salter had told him he injured his thumb, Lester said: "He - - no. Inside the house". The following exchange then took place:

"Did he say that? --- I'm sure he said 'inside the house'.

When I put these questions to the ranger in cross-examination earlier today he was adamant that he didn't have the conversation you're now attributing to him with anyone. Are you quite sure that he said, 'I hurt my thumb inside the house' ---Yes; because I told him then that if he had hurt himself he needed to get medical attention. Certainly if he had been injured in his work he needed to go back, report it and claim - - and obviously seek medical attention as his first priority."

In considering the content of Lester's confirmation, it is difficult to see how a subsequent conversation about medical attention and the work related nature of the injury could have confirmed Lester's recollection that Salter said the injury occurred inside the house.

96 In cross-examination, Lester said that his recollection was that Salter had told him that he hurt his thumb inside and he took that to mean inside the house. Another relevant factor was that when Lester approached Salter after the second altercation, he observed that Salter was holding his thumb and indicating that he had hurt it. No similar observation was made after the first altercation when Salter was observed by Lester walking down the semi-circular path. According to Lester, Salter was walking away from the house. He also said that he saw Salter walking around behind his van and then walked back to where Lester was at the bottom of the path near the roadway. He observed the appellant "chesting up" to Salter. As the appellant returned to his house, Lester said that he briefly spoke to Salter and told him that if he had been asked to leave the property then he should leave. Salter then said, "I've got the right to go anywhere I like", or words to that effect.

97 There are two aspects of Lester's account that are of significance. The first is that, despite Lester's proximity to Salter following the first altercation and his conversation with him, however brief, Salter neither mentioned an injury to his thumb nor appeared to have injured it. This can be distinguished from the position following the second altercation during which Salter alleges that the appellant injured his thumb and he was seen to be holding it. Secondly, it is apparent from Lester's evidence that at no stage did the appellant say that Salter had been inside his house nor that an assault had taken place in there or that his shoulder had been injured. He simply said that Salter would not leave his property. These points were properly noted by the Magistrate in her reasons. The Magistrate also noted Lester's evidence that Salter had only said "inside" rather than "inside the house" and found that Salter's comment to Lester that he had hurt his thumb inside could equally have meant inside the vehicle. Indeed, he could equally have meant that he had injured the inside of his thumb. In view of the evidence I have referred to, I am not persuaded that the Magistrate fell into error in drawing the conclusion that she did.

98 The Magistrate did fail to deal with Lester's evidence that Salter told him that he had entered the house believing that he had been invited in by the owner but that the appellant became aggressive inside the house and started scuffling and wrestling with him. On Lester's evidence this was said during the same conversation in which the injured thumb was mentioned. He was not cross-examined on this aspect of his evidence. The fact that Lester was found to be in error in relation to one aspect of the conversation with Salter would be relevant to whether Lester's evidence as to the balance of the conversation should be accepted. However, although specific reference was made by the Magistrate to the error concerning Salter's statement about his location when he hurt his thumb, the Magistrate did not address the impact of that error on the rest of Lester's evidence about the conversation.

99 It was also admitted by Lester that he had discussed the events of that night at a later time with both the appellant and the appellant's wife, although not at the same time. It is, of course, always a relevant consideration with respect to the accuracy of a witness' evidence that the witness has discussed his or her evidence with one of the parties. The danger is the potential for the witness to confuse what he saw or heard with what he was told. However, the Magistrate made no reference to this or any other issue with respect to Lester's credibility.

100 The Magistrate made no specific finding about Lester's credibility, other than to conclude that he was mistaken about his interpretation of Salter's evidence about injuring his thumb "inside". Otherwise the Magistrate simply noted that Lester had no prior relationship or issue with either Salter or the appellant and relied on certain parts of his evidence. That is not to say that the Magistrate did not draw conclusions as to Lester's credibility or reliability or that there were not certain aspects of his evidence she was not prepared to accept. I will return to this issue when I address the issue of the Magistrate's findings on credibility generally.

101 There are two matters in relation to the issue of whether Salter entered the house, and whether he told Lester that he had, that require comment. As to the latter, counsel for the respondent alleged that the evidence of Lester of what he had been told by Salter was not admissible as to its truth as it was hearsay. The decision of the Court of Appeal in Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970 is relied upon as authority for that proposition. While the statement of the rule against hearsay is accurate it overlooks the fact that, where Salter has said in his evidence that he did not enter the house, his statement to Lester constitutes a prior inconsistent statement which is admissible as one of the established exceptions to the rule against hearsay: see Heydon JD (ed), "Cross on Evidence" 7th Aus ed Butterworths, 2004 at 33800; R v Phillips (1936) 26 Cr App Rep 17 at 21.

102 The second matter requiring comment was the observation made by counsel for the appellant that Salter came to court quite some time after the event and must have been mindful that it was not in his interests to say that he went into the house. This is said to be because he would have known if he looked at the Dog Act that he had no such right of entry. It was suggested that he may have thought that if he said his van was on the cross-over as opposed to the driveway this would exculpate him from any wrong doing so far as s 244 was concerned. In response to that proposition counsel for the respondent attempted to submit that the witness statement given on the day of the incident by Salter contains the same version of events. There was before the court no evidence of either matter. It was never suggested to Salter that he had changed his story because he had become aware that the right he asserted did not exist. In those circumstances the proposition was purely speculative and had no basis in admissible evidence. Neither was Salter's statement ever tendered into evidence. In those circumstances, it was not appropriate for either submission to have been made on appeal, as both counsel should have been aware. However, the conduct of counsel for the respondent is more readily explicable because it was made in reply.

103 The final matter specifically raised as a particular was that the Magistrate fell into error in finding that the appellant was the aggressor and had hunted Salter back down the path to his car. In my view there was a wealth of evidence from which such a conclusion could legitimately be drawn if the evidence was accepted.

104 Salter's evidence was that when he walked back to his van after speaking with the appellant at the door, the appellant walked down the driveway towards him shouting abuse and insults in an upset and aggressive manner. The appellant then "chested" him and put his head up against Salter's forehead. This latter action was described on occasions during the trial as "headbutting" but that is not the description I would give to the conduct Salter described in his evidence. However, clearly the appellant was so close to Salter that his head and his chest were actually making contact with Salter. According to Salter, the appellant then pushed him backward with both hands.

105 What first attracted Lester's attention to the incident was hearing the appellant shouting and swearing. He said it was only the appellant who was doing this and Salter wasn't saying anything. When Lester first saw the appellant he was shouting at Salter who was walking away from the house. He also described how the appellant walked up very close to Salter, confronting him verbally and swearing at him. According to Lester, the appellant was very angry and at one point was right up against Salter's chest speaking as loud as he could.

106 In her reasons for decision, the Magistrate recounted Lester's evidence and noted that it was only the appellant's voice he could hear swearing and that he observed the appellant and Salter very close to each other. She also stated that "Mr Lester's evidence was that Mr Quinlan was in fact the aggressor, that he did not recall Mr Salter swearing or shouting...". At another point in the Magistrate's reasons she noted that Lester's evidence was that the appellant was angry and from his observation of the circumstances the appellant seemed to be the aggressor. I am not persuaded that the Magistrate fell into error in describing the appellant's conduct and manner in that way. There was certainly evidence to support the conclusion and, in my view, no evidence of a nature that would preclude the Magistrate from reaching that conclusion.

107 I note that the relevant particular of ground 1 alleges that the Magistrate erred in finding that the appellant had been the aggressor in the altercation between the appellant and Salter. Although, having accepted the evidence of Salter, the Magistrate drew the conclusion that the appellant behaved aggressively, the particular factual findings made by the Magistrate to which I have referred were in relation to the appellant's behaviour when he first came out of the house, as observed by Salter and Lester, and his behaviour when he came out of the house on the second occasion, as observed by Salter. They were not, in my view, findings that the appellant was the aggressor at all stages of the incident. They did, however, play a part in the Magistrate's determination of credibility and her acceptance of the evidence of Salter. I am not persuaded that the Magistrate's approach to this issue manifested error.

108 Complaint is made by the appellant of the description of the appellant's conduct which appears in the following extract from the Magistrate's reasons:

"In relation to generally the situation, the evidence of Officer Salter is that he never indicated he was going to take the dog. Certainly Mr Quinlan came to a view that that is what he had said or thought he had said, or inferred that is what he was going to do. Effectively the accused was chasing the officer off his property having told him to go and him not going, and not leaving, not going as fast as he wanted him to go. Having gone inside again the accused then came back out of the house to hunt him off the property. Certainly the evidence of Mr Lester is that he was angry and for his observation of the circumstances Mr Quinlan seemed to be the aggressor."

In particular, it is the use of the term "hunt" to describe the appellant's actions with respect to Salter of which complaint is made. Although the use of the term "hunt" was in the context of the second occasion on which the appellant came out of his house and confronted Salter, it was, in my view, quite appropriate for the Magistrate to take into account in considering the appellant's conduct on the second occasion, his conduct on the first occasion. The evidence of Salter was that while he was sitting in his car waiting for certain electronic equipment in his car to work, the appellant came out of his house a second time shouting, "You're still fucking here. If you're still here in five minutes I'm going to call the police". According to Salter, the assault on him occurred shortly thereafter. Based on that evidence, I can see no difficulty with the particular descriptive term used by the magistrate. When the appellant's earlier conduct, which was observed by Lester, is taken into account, the description is apt. Of course, it doesn't follow from that description that the appellant was the instigator of the struggle which led to the charge. However, in my view, there can be no suggestion that the evidence was used in that way.

109 Counsel for the appellant raised some additional matters which were not specifically included in the grounds of appeal but which are said to identify error on the part of the Magistrate in that the Magistrate gave no, or no sufficient, weight to them. It is also said that these matters support the appellant's account of the altercations with Salter.

110 One such matter was the way in which the Magistrate dealt with the appellant's assertion that he had difficulty with his hearing. The Magistrate referred to the appellant's hearing only in the context of his explanation for the need to bite Salter's hand. She said:

"There was an issue about whether the car was running and Mr Quinlan indicated that he did not know what Mr Salter was going to do. He was concerned that he might drive off. Mr Quinlan's explanation for that is that he is hard of hearing and he did not know if the car was running or not, but certainly in the course of the court proceedings that did not seem to be an obvious problem in relation to Mr Quinlan."

111 The other area in which the appellant's hearing might have had some minor relevance was, on his version of events, when he opened the door to Salter, who started to speak. According to the appellant, he could not hear what Salter was saying so he put up his hand and said, "Just a minute", before walking back to the dining room to turn the music down.

112 The submission put on behalf of the appellant was that the Magistrate did not accept that he had impaired hearing. In my view, that is not a fair reflection of the statement made by the Magistrate who merely observed that the appellant didn't seem to have an obvious problem. There was no medical evidence adduced on behalf of the appellant. The only evidence to which counsel for the appellant could point in support of a conclusion that the appellant suffered from impaired hearing was the number of times he said "Sorry?" in reply to a question put to him. The Court was taken to several pages of the transcript in which the appellant made that response a total of approximately 16 times. Fortunately, the court was not asked to undertake the exercise of determining whether it was only in cross-examination that this response was given or to calculate the percentage of the appellant's responses to questions which were of that type. In my view, there was insufficient evidence upon which to draw a conclusion as to the state of the appellant's hearing which could safely be relied upon to influence findings on any significant issue. There could have been many reasons for responding to the questions in the way in which the appellant did during cross-examination, all of which would have been evident to the Magistrate but cannot be appreciated by an appellate court.

113 It was submitted by counsel for the appellant that a hearing deficiency was consistent with appellant's evidence that when he answered the door and the music was loud he couldn't hear what the ranger was saying. Certainly, a hearing deficiency might be one explanation but it would not be the only one. On Salter's evidence, the music was far too loud. That fact could readily explain why the appellant could not hear what Salter was saying. I consider this submission to be wholly without merit.

114 Attention was also directed by counsel for the defendant to an error on the part of the Magistrate concerning whether the appellant complained of an assault when he rang the police. It was also submitted that the Magistrate didn't deal with the whole call in a satisfactory manner. This issue was not included as a particular of either the first or second ground of appeal but counsel for the appellant submitted that the finding was a contributing factor to the Magistrate's decision not to accept the evidence of the appellant.

115 The relevant portion of the Magistrate's comments on the appellant's emergency call to the police is this:

"The triple-0 call that he made to the Emergency Services - - he indicated to that person on that call that this man had come into his house, that he had tried to take his dog - which in fact was not true - and there was no mention in the triple-0 call itself of any assault by Mr Salter on Mr Quinlan nor that inside the house with the hitting to the shoulder, which he said was quite painful at this stage, nor of the incident in the motor vehicle in the driveway....."

116 It is the case that, in the emergency call the appellant makes, it is clear that he is alleging he has been assaulted and repeats the word a number of time. No person who had actually read the transcript could conclude that there was no complaint of an assault. It is apparent that the Magistrate had read the transcript from her reference to its contents.

117 The part of the Magistrate's reasons referred to above follows a consideration of the appellant's evidence and immediately follows that portion of his evidence where he recounts the incident in which Salter is said to have grabbed his arm and pulled it into the car. I am not persuaded that in that passage the Magistrate was saying anything more than the appellant did not mention the injury to his shoulder which he said occurred inside the house and nor did he mention anything about the incident in the driveway. Counsel for the appellant submits that, in circumstances where the appellant was obviously distressed and upset during the call, the Magistrate should not have made anything of the fact that he didn't mention the location of where he was assaulted. In my view, the comment made by the Magistrate with respect to the triple zero call was one which was open to her, notwithstanding the emotional state of the appellant, and does not manifest error. Even if it did, I am not persuaded that it is of sufficient significance when considering the various matters to which the Magistrate referred to undermine the Magistrate's finding as to credibility.

118 In her reasons for decision, the Magistrate identified a number of factors which led her to conclude that the evidence of Salter should be accepted. She considered his account to be consistent whereas the appellant's was not. Some of the factors which influenced the Magistrate's conclusion have been referred to above. Some others were the discrepancy in the appellant's evidence about whether he asked for Salter's name and the fact that the appellant didn't call for any assistance and wasn't heard to be doing so, despite allegedly being assaulted by Salter in the driveway. The Magistrate stated:

"...there are issues of credibility to be assessed by the court, issues of demeanour of the witnesses, consideration of their evidence consistencies or inconsistencies as the case may be and the court needed to obviously make an assessment of that and of the witnesses."

119 Ultimately, the Magistrate made a decision based on her assessment of the credibility of each of the three primary witnesses and her conclusions as to which parts of the evidence of those witnesses could be accepted and relied upon. In my view, the Magistrate was by far in the best position to make the necessary assessments and draw the relevant conclusions.

120 The advantage of a trial judge in determining the credibility of witnesses on the basis of the opportunity to hear and observe the witnesses, is a well established principle: Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 per McHugh J at 178 with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed). An appeal court is not entitled to reverse a finding of fact based on an assessment of credibility unless it is satisfied that any advantage enjoyed by the Magistrate could not be sufficient to explain or justify the finding of fact: Abalos v Australian Postal Commission at 178. The oft-stated examples of where it is appropriate to set aside a finding of fact based on credibility is where it can be shown that the judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: De Vries v Australian National Railways Commission at 470 per Brennan, Gaudron and McHugh JJ. An example of the situation where the judge acted on evidence which was inconsistent with facts incontrovertibly established by the evidence can be found in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 where the Court of Appeal decided that the evidence of the police officer concerning the skid marks on the respondent's correct side of the road fell into the category of inconsistent facts "incontrovertibly established by the evidence" and that the skid marked were unexplained or insufficiently explained to warrant a conclusion adverse to the respondent's version of events. The High Court concluded that the Court of Appeal did not err in reaching that conclusion: at [42].

121 In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 Kirby J questioned the emphasis on appellate restraint identified in the authorities mentioned above and in many others. Having considered the history of the approach to appellate review and its constraints (at [72] - [80]), the changing context of witness credibility (at [87] - [88]) and the trial judge's real, rather than assumed, advantages (at [89] - [91]), Kirby J observed at [91] - [92]:

"But because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.

This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it."

122 In my view, this case is one of the type to which Kirby J referred; a case where the decision is dependant on the assessment of the credibility of three witnesses and also of the reliability of their evidence. It is, in my view, a case where an appellate court is in a position of extreme disadvantage in not being able to judge the true character of the witness as well as assess the quality of the answers given to the questions asked and to reach an informed view on the significance of any conflicts in the evidence.

123 No matter drawn to my attention on behalf of the appellant persuades me that the Magistrate has failed to use or has palpably misused her advantage of having seen the witnesses give their evidence. Neither were there any facts incontrovertibly established by the evidence which were inconsistent with evidence upon which the Magistrate relied. As counsel for the appellant submitted, there was evidence to suggest that Salter went into the house, but that evidence certainly wasn't incontrovertibly established.

124 The Magistrate had, at the outset of her reasons, reminded herself of the burden and standard of proof. She was aware of the need to consider and evaluate credibility. The Magistrate did not simply state a preference for one version over another; she made real efforts to reconcile the evidence of Lester and Salter. As counsel for the respondent observed, any apparent points of distinction were not sufficient to cause the Magistrate to have a reasonable doubt as to the complainant's veracity. In my view, that was a conclusion the Magistrate was entitled to reach.

125 For these reasons I have concluded that there is no substance in the submission that the Magistrate erred in law in not considering the possible application of s 244 to the facts, neither was she required to determine the limits of Salter's powers under the Dog Act to enter the appellant's premises. Once she determined that Salter's evidence was to be accepted there was no finding that Salter had entered the appellant's house such as to create a need to make effectual defence as referred to in s 244. Nor was there evidence that Salter had committed, was committing or intended to commit an offence anywhere on the property and hence he could not be a "home invader" for the purposes of s 244 of the Code. Once the Magistrate accepted the evidence of Salter, any defence under s 244 simply fell away.

126 There is one final comment that I would make with respect to the matters raised in these two grounds of appeal. In a perfect world Magistrates would give detailed reasons referring to each relevant issue and analysing the evidence and explaining any decision with respect to the various issues which arise in a case such as this where there was competing evidence from three different witnesses, various conflicts in the evidence and decisions which had to be made with respect to particular pieces of evidence. I refer in the consideration of ground 3 to the standard required of judicial officers in providing reasons for decision. A necessarily practical approach has been taken in those authorities which make it clear that the duty to provide reasons does not extend to identifying precisely every item of evidence which has been considered. There is clear authority for the proposition that reasons must enable an appellate court to consider and determine whether or not the judgment is erroneous: Lloyd v Faraone [1989] WAR 154 at 164; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 per Pidgeon J at 237. In Pallot v Harrison, unreported; SCt of WA, Library No 950261, 12 May 1995, Owen J concluded that the reasons must show to the litigant and the appeal court why a decision was made in a particular way. His Honour added that unless it is apparent on the face of the reasons why the decision maker arrived at the conclusion which he or she did the entire process can be called into question: see also Garrett v Nicholson at 237 where the decision in Pallot v Harrison was cited with approval.

127 However, in my opinion, there is a clear distinction between an absence of explanation for a specific finding or a failure to refer to certain evidence, and an inability to identify, on the face of the reasons in their entirety, the reasons for the finding or whether the evidence has been considered. In many cases, the way in which a specific issue or item of evidence has been dealt with by the Magistrate may not be adequately explained or referred to at all in the relevant part of the reasons. However, it is often abundantly clear from the reasons as a whole, often including the ultimate decision itself, the basis of the finding or the way in which the Magistrate dealt with that evidence. I emphasise this point because when a failure to refer to, or adequately refer to, a matter is being considered for the purposes of an appeal, I consider it is important that the extra step is taken to consider whether the way in which the Magistrate dealt with the matter is apparent from the reasons as a whole. It should not be assumed that an absence of reference to a particular issue or item of evidence means that it was afforded no consideration.

128 In my view, the appellant has failed to establish ground 1 and ground 2.

129 This ground alleges that the Magistrate erred in law in finding that the withdrawal of the appellant's consent for Salter to remain on the appellant's premises was irrelevant for the purpose of determining whether the appellant assaulted Salter. In the written submissions filed on behalf of the appellant it was submitted that the Magistrate's findings were based on errors of law and fact as outlined in ground 1, ground 2 and ground 4 herein. As a result of these errors, it was submitted, the Magistrate erred in finding that the appellant's revocation of Salter's licence to remain on the property was irrelevant for the purpose of determining whether the appellant had assaulted Salter. It can be seen that this ground of appeal is linked to the submissions made on the first two grounds which I have rejected.

130 The Magistrate did conclude that the withdrawal of consent was not relevant. That conclusion was drawn after the Magistrate had found that the evidence of Salter was to be accepted. Salter had never entered the house but the appellant became aggressive when Salter knocked on his door and advised him that his dog's registration tag had expired and that if he didn't register the dog within seven days a fine of $100 would be sent out. The appellant then followed Salter down the driveway shouting abuse at him before going inside. He came outside again a short time later, approached Salter who was sitting in his car parked on the cross-over and assaulted him. That being the accepted version of events, Salter could not be a home invader in terms of the definition in s 244(2) and hence the withdrawal of consent to be on the premises was irrelevant to the charge.

132 As I have noted, counsel for the appellant sought leave to add this ground at the commencement of the hearing. Counsel for the respondent opposed the amendment but considered that the issue of leave could be addressed at the conclusion of the hearing.

133 This ground involves the allegation that the Magistrate erred in law in holding that the evidence of good character was not relevant to the charge or the actual events of the day. The comment by the Magistrate was that the character evidence was "not relevant to the charge itself in relation to the actual events on the Sunday the 27th of November". It is clear to me that the Magistrate was not suggesting that the character evidence was wholly irrelevant; simply that it did not assist in identifying what occurred on that night. As a statement of fact, it was completely correct.

134 However, it is the case that the Magistrate did not otherwise refer to the way in which she dealt with that body of evidence. It does not follow that the evidence was ignored, but in the absence of any other reference to that evidence this Court is simply not in a position to make any assessment of whether the evidence as to character was dealt with appropriately. It is well established that a Magistrate's duty to provide reasons does not extend to identifying precisely ever item of evidence which he has considered, but reasons must enable an appellate court to consider and determine whether or not the judgment is erroneous: Magenta Nominees Pty Ltd v Webb, unreported; SCt of WA; Library No 980622; 29 October 1998 per Wheeler J at 5 (Malcolm CJ and Kennedy J agreeing); Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 per Meagher JA at 647; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 per Pidgeon J at 237; Lawless v Turner [2005] WASC 254 per Le Miere J at [30]; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444; Hajinoor v Dench [2005] WASC 274 at [44].

135 Counsel for the appellant made the following submission about the consequences of the Magistrate's omission:

"In our submission this comment of her Worship below is fatal to the prosecution because it effectively coloured the way in which she has approached the credibility of Mr Quinlan. If she had properly taken into account, as she is required to do by way of an evaluation process, then she might have looked at the evidence of what took place, if it did take place, in the house in a different way. In our submissions, your Honour, that is a fundamental flaw in the way in which her Honour has come to her decision-making process."

136 It was further submitted that a consideration of the character evidence would have assisted the Magistrate to understand that that appellant was not a man who was aggressive without good reason and who did not have the propensity to attack someone without good reason.

137 In Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1, the High Court considered whether a trial judge is obliged to direct a jury on the use which can be made of character evidence and in addressing that issue also considered the matters to which evidence of good character may be relevant. In that case, the character evidence was said to be relevant to the improbability of the appellant having committed the offence and also to his credibility: at 9 - 10. The Court held that a judge is not obliged to direct a jury about an accused's good character but has a discretion whether or not to do so after evaluating the probative significance of the evidence in relation to the accused's propensity to commit the crime charged and the accused's credibility: Per McHugh J at14, per Gummow J at 30, per Hayne J at 56 - 57; see also Oui v The Queen [2006] WASCA 76 at 6 - 8 per McLure JA with whom Buss JA agreed.

138 Having considered these statements of principle I understand the position to be that, if the character evidence is considered sufficiently probative, it should be considered by the trier of fact in relation to propensity to commit the offence and also in relation credibility.

139 In this case, in the absence of express reference to the character evidence, the approach taken by the Magistrate to that evidence is not easily identifiable from the judgment as a whole. Certainly, the Magistrate did not accept the evidence of the appellant and concluded that he did in fact behave aggressively and commit the offence. However, it is not apparent from that conclusion whether the Magistrate ignored the character evidence, found it insufficiently probative to have any impact on the outcome, or considered it but found that the impact of it was outweighed by other evidence in relation to the two matters to which character evidence was relevant. In those circumstances, it would normally follow that error has been identified and, unless the proviso could be applied, the ground of appeal would be upheld.

140 However, in this case the character evidence was not, in my view, in any way compelling. Counsel for the respondent submitted the evidence was of little probative value to the issues to be determined and I agree with that view.

141 The witness Marwick stated that his contact with the appellant was "twice annually socially" from 1993 to 2000 and he had not seen him since 2000, almost six years prior to this incident and the trial. Marwick stated that he didn't believe the appellant would tell a lie because he was an honest person. I am not convinced that the first part of that statement is even admissible. Irrespective of admissibility, such statements are of no real assistance to a trier of fact, particularly where there are established inconsistencies in the evidence of the person about whom the statement is made. In my view, the most that can be taken from the statement is that, based on the level of contact, the appellant was considered by the witness to be an honest person 6 years ago.

142 Marwick also said that the appellant was certainly not an aggressive individual. However, in this case, the evidence of not only Salter but also of Lester was that the appellant was behaving in a very aggressive manner. In my view, the nature of the relationship described was not such as to shed any real light on the appellant's character nor on his behaviour on the night of the offence.

143 The witness Anderson gave evidence that he had had contact with the appellant "a couple of times a year" over the preceding five years. He described the appellant as honest but gave no examples of the appellant's honesty which would allow the Magistrate to consider whether the opinion could have any real impact in the particular circumstances in which the appellant's account of events was to be judged. Anderson stated that he had never seen the appellant display aggressive conduct and to have done what is alleged against him, the appellant would have to have been provoked. Cross-examination revealed that Marwick was making assumptions in relation to his view of the appellant's aggressiveness. That factor and the limited nature of the contact between Anderson and the appellant could not reasonably have overcome the strength of the direct evidence, nor have had any impact on issues of credibility.

144 I consider that the Magistrate should properly have referred to the character evidence in the context of her consideration of the evidence of the appellant and her attitude to it. However, in my view, a consideration of the character evidence would not have led to a different outcome. The evidence was of little probative force because of the limited contact between the witnesses and the appellant and the fact is that some comments were based on assumption or not based on any experience of the appellant in any relevant situation. For these reasons I am not persuaded that any adverse consequence flowed to the appellant as a result of the Magistrate's failure to refer to the impact of the evidence as to character.

145 Finally, as I have noted, it was sought to add this ground of appeal at the commencement of the hearing. The character evidence was adduced at a trial at which the appellant was represented. Counsel who appeared for the appellant at trial was aware of the way in which it was dealt with by the Magistrate. There was in this case an application for leave to appeal which was granted and there was no explanation given for why the ground was not included at any earlier stage. In those circumstances I am not persuaded that it would be appropriate to grant leave. To do so in these circumstances would render the process of obtaining leave almost meaningless. For these reasons I would not allow the amendment. If I am wrong in that conclusion I would dismiss the ground, in any event, for the reasons I have given.

146 As the appellant has failed to establish any of the grounds on which he relies, I would dismiss the appeal.