KNEEN-MCDAID -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 211

[2026] WASC 211 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : KNEEN-MCDAID -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 211 CORAM : MUSIKANTH J HEARD : 20 JANUARY 2026 DELIVERED : 2 JUNE 2026 PUBLISHED : 2 JUNE 2026 FILE NO/S : SJA 1049 of 2024 BETWEEN : BEN KNEEN-MCDAID Appellant AND DIRECTOR OF PUBLIC PROSECUTIONS Respondent ON APPEAL FROM: For File No : SJA 1049 of 2024 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE B MAHON File Number : AR 3883 of 2023 Catchwords: CRIMINAL LAW - Appeal against conviction - Aggravated unlawful assault occasioning bodily harm - Whether conviction unreasonable or incapable of -- 1 of 25 -- [2026] WASC 211 Page 2 support having regard to the evidence as a whole - Causation in issue - Circumstantial case - No direct evidence establishing cause of injury - Rejection of accused’s evidence and acceptance of complainant’s evidence not determinative - Failure by prosecution to exclude reasonable alternative causes consistent with innocence - Conviction set aside - Turns on own facts Legislation: Criminal Code 1913 (WA) Criminal Appeals Act 2004 (WA) Result: Leave to amend grounds of appeal granted Leave to appeal on Ground 1 granted Appeal allowed Conviction set aside Category: B Representation: Counsel: Appellant : Ms H Muhling Respondent : Ms K Cook Solicitors: Appellant : Legal Aid Western Australia Respondent : The Director of Public Prosecutions for The State of Western Australia Case(s) referred to in decision(s): C v WA Police [2024] WASC 79 Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 Egan v The State of Western Australia [2024] WASCA 3 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Loh v The State of Western Australia [No 2] [2024] WASCA 166 -- 2 of 25 -- [2026] WASC 211 Page 3 Pezzano v The State of Western Australia [2020] WASCA 181 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 193 The State of Western Australia v Bolton [2024] WASCA 95 Wong v The King [No 2] [2026] WASCA 18 -- 3 of 25 -- [2026] WASC 211 MUSIKANTH J Page 4 MUSIKANTH J: 1 On 10 July 2024, following a two-day trial in the Magistrates Court, the appellant was found guilty of one charge of aggravated unlawful assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code 1913 (WA) (Code), and was sentenced to a fine of $5,000. 2 The 'bodily harm' underlying the conviction was bruising and swelling to the complainant's left eye area (bruising injury), which was alleged to have been caused by the appellant during a physical altercation with the complainant on 28 January 2023. 3 The circumstance of aggravation was that, at the relevant time, the appellant was in a family relationship with the complainant. 4 By these proceedings, the appellant seeks leave, pursuant to pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act), to appeal against his conviction. 5 For the reasons which follow, it was not reasonably open for the learned magistrate to conclude, on the totality of the evidence and beyond reasonable doubt, that the appellant caused the bruising injury. 6 The appellant's conviction was therefore unreasonable. Leave to appeal should be granted in respect of Ground 1, the appeal allowed, and the conviction set aside. Leave to appeal 7 A decision to convict an accused after a trial, whether by judge alone or jury, is a decision that may be the subject of an appeal.1 8 Leave must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of success;2 that is, it must be demonstrated that the ground has a rational and logical prospect of succeeding.3 9 If leave is not granted in respect of a ground of appeal, that ground is taken to have been dismissed.4 1 CA Act s 6(c) and s 7(1). 2 Criminal Appeals Act 2004 (WA) (CA Act) s 9(2). 3 The State of Western Australia v Bolton [2024] WASCA 95 [44] quoting Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 193 [56]. 4 CA Act s 9(3). -- 4 of 25 -- [2026] WASC 211 MUSIKANTH J Page 5 10 In determining an appeal, s 14 of the CA Act prescribes the powers available to an appellate court. Relevantly, these include dismissing the appeal, allowing the appeal, setting aside or varying the decision of the court of summary jurisdiction.5 11 Where an appeal asserts that a verdict is unreasonable or cannot be supported having regard to the totality of the evidence, and that contention is made out, an error material to the decision will be established, as will a substantial miscarriage of justice.6 Background 12 The prosecution case centred on events that occurred while the appellant and the complainant were in an 'on-again, off-again' relationship. 13 At the time of the alleged offending, they occupied separate bedrooms in a shared residence. An argument arose concerning fumigation (or 'flea bombing') treatment for the appellant's cats. The appellant retreated to his bedroom and locked the door to avoid the complainant. The complainant then went outside, retrieved a garden hose, inserted it through the appellant's bedroom window, and turned on the water. 14 The appellant subsequently went outside to turn off the hose. He then observed the complainant sitting on a couch recording him with a mobile phone. During a physical altercation that followed, the appellant took three mobile phones from the complainant. 15 According to the complainant, a second physical altercation occurred shortly thereafter; this was disputed by the appellant. In any event, when police attended the premises several hours later, at approximately 7:00 pm, injuries were observed to the complainant's face. 16 The appellant was subsequently charged, relevantly, with aggravated assault occasioning bodily harm. 17 The appellant's position at trial was that the defences of accident or provocation applied such that any assault was not unlawful. 5 CA Act s 14(a) - (c). 6 C v WA Police [2024] WASC 79 [50] - [52] and the authorities there cited. -- 5 of 25 -- [2026] WASC 211 MUSIKANTH J Page 6 18 In his evidence, the appellant accepted that there had been a physical altercation on the day. He did not dispute that the complainant sustained either a scratch to her right cheek (scratch injury) or the bruising injury; however, the cause of those injuries remained in issue. 19 In his reasons, the learned magistrate among other things accepted that it was reasonably possible the scratch injury was caused accidentally or inadvertently during the first physical altercation (on the appellant's version, the only such altercation).7 20 Nevertheless, his Honour otherwise rejected the appellant's defence. Critically, the magistrate found that, during a second physical altercation, the appellant applied sufficient force to cause the bruising injury by causing the complainant's face to make 'hostile contact with the floor' on approximately three occasions.8 21 His Honour reached this conclusion after accepting the complainant's version of events and rejecting that of the appellant.9 Grounds of appeal 22 At the commencement of the appeal proceedings, the appellant was unrepresented. 23 The application for leave to appeal and the appeal were, initially, listed for hearing on 30 June 2025 after the appellant failed, more than once, to comply with the timetable for filing submissions. On that occasion, the appellant informed the court that he was considering discontinuing the appeal. 24 Following further discussion, I made orders permitting the appellant, by specified dates, to file either a minute of proposed amended grounds of appeal or a notice of discontinuance. In the absence of a notice of discontinuance, the appellant was to file an outline of submissions, with the respondent to file any amended or substituted outline within three weeks thereafter. 25 Subsequently, the appellant obtained legal representation and filed a minute of proposed amended grounds of appeal. 7 ts 10 July 2024, 33. 8 ts 10 July 2024, 39 - 40. 9 ts 10 July 2024, 22 - 23, 33, 40. -- 6 of 25 -- [2026] WASC 211 MUSIKANTH J Page 7 26 Both parties thereafter filed written submissions addressing the proposed amended grounds and the appeal proceeded on that basis at the adjourned hearing where it was fully argued. 27 In those circumstances, and noting no objection was taken to the proposed amendments, leave will be granted to the appellant to amend the grounds of appeal. 28 The appellant's grounds (as amended) are to the following effect: (1) The verdict of guilty is unreasonable and cannot be supported by the evidence (Ground 1). (2) The learned magistrate erred in law by reversing the onus of proof by: (a) making findings against the accused's credibility which were then used to bolster the complainant's credibility, and (b) requiring the accused to provide an explanation of the cause of the injury to the complainant's eye (Ground 2). (3) The learned magistrate erred in law and fact by making findings on the timing and causation of the bruising injury when there was no expert evidence to support those findings (Ground 3). Ground 1 – unreasonable verdict 29 The principles relevantly applicable to Ground 1 were recently summarised by the Court of Appeal in Loh v The State of Western Australia [No 2].10 30 These principles also apply by analogy to a trial by a judicial officer alone.11 31 In the context of Ground 1, the appellant's primary contention is that there was insufficient evidence before the magistrate to establish, beyond reasonable doubt, that the appellant caused the bruising injury. 32 On the other hand, the respondent submits that, at trial, there was no suggestion of any intervening event of relevance occurring between the physical interaction(s) between the appellant and the complainant 10 Loh v The State of Western Australia [No 2] [2024] WASCA 166 [76] (Buss P, Hall JA & Tottle J). See also, more recently, Wong v The King [No 2] [2026] WASCA 18 (Mazza, Mitchell & Hall JJA). 11 Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [15] (Gageler, Keane, Gordon, Steward & Gleeson JJ). -- 7 of 25 -- [2026] WASC 211 MUSIKANTH J Page 8 and the observation of the complainant's injuries by police several hours later.12 33 In those circumstances, the respondent contends that the complainant's evidence as to the events in question, which was accepted by the magistrate, was sufficient to prove causation.13 The evidence 34 At trial, the prosecution led evidence from the complainant, a shopkeeper, and a police officer who attended the premises several hours after the alleged offending. 35 As noted earlier, the appellant also gave evidence. He and the complainant were the only eyewitnesses to the altercation. The complainant 36 The complainant gave evidence that she had been in a domestic relationship with the appellant for approximately nine months, and that they were living together at their shared home at the time of the alleged offence.14 37 According to the complainant, the appellant had been out on the day in requestion and returned home at around 1:00 pm.15 Things were 'not good' between them upon his return.16 38 The complainant described two incidents: the first occurring in the loungeroom, and the second in the hallway. 39 In relation to the first incident, the complainant gave evidence that the appellant seized three mobile phones from her. Parts of this incident were captured in video footage tendered as Exhibit 2, the metadata of which indicates that it was created at approximately 2:55 pm on the day of the alleged offending. 40 Towards the end of this footage, the complainant is seen pointing to the area of her right eye or upper cheek and referring to an assault. 12 ts 20 January 2026, 105. 13 ts 20 January 2026, 105 - 106. 14 ts 25 June 2024, 14. 15 ts 25 June 2024, 58. 16 ts 25 June 2024, 16. -- 8 of 25 -- [2026] WASC 211 MUSIKANTH J Page 9 As the magistrate correctly observed, the complainant's left eye area appears to be 'unmarked' in the footage.17 41 The second incident, which was not recorded, is said to have occurred shortly thereafter in the hallway. It was during this incident (hallway incident) that the complainant alleges she sustained the bruising injury involving her left eye area. 42 The complainant's description of what occurred during the hallway incident was as follows: [PROSECUTOR]: Okay. And when did things move into the passageway? ----I know when there was the main assault, where I suffered the injuries, that that occurred in the hallway. But I think because he was taking things from me and being awful to me, from what I remember doing a lot was just sitting in that chair until I asked him for my phones back.18 … [PROSECUTOR]: Okay. So you mentioned that there was more than one struggle. What happened on the second occasion? --- I don't recall exactly. I recall an afternoon that was filled with scuffles, that was filled with him coming at me for phones. I recall sitting down in a chair and crying…19 … [PROSECUTOR]: [Showing the complainant a photograph forming part of a bundle of photographs which would become Exhibit 4] Where is it that you say this injury – the injury is?---It's to the outside corner of my eye. And what's the injury that you're indicating?---It's a – it looks to be a bruise. Okay. And how was that bruise caused?---That bruise I think was caused in the scuffle that is not on video, the later scuffle. The later assault, where I'm like bashed into the floor.20 … … Now, where [the video, Exhibit 2] ended, what happens between you and the accused after you pointed to your face?---He continued to take my phones from me. There was another scuffle. I may have been grabbing his; he might have been grabbing mine. I really honestly don't remember.21 17 ts 10 July 2024, 38. 18 ts 25 June 2024, 23. 19 ts 25 June 2024, 24. 20 ts 25 June 2024, 36. 21 ts 25 June 2024, 36. -- 9 of 25 -- [2026] WASC 211 MUSIKANTH J Page 10 … I was trying to call for police help. I sustained an injury, as you can see in the last video, and was trying to contact police for help. As you can hear in there, he says, “Ha ha, you can't prove anything now.” I was trying to contact police for help.22 …. And it – it might have been I was grabbing at my phone, it could have been I was grabbing at his phone - - - Yes?--- - - but, at that point, the main attack and the main assault occurred where I found myself down on the ground. 23 … … now, you mentioned that there was a part where you ended up on the floor? ---Yes.24 How did that happen?---I don't recall how I fell to the floor…25 … [PROSECUTOR]: How were you positioned on the floor? ---For parts of it I was on my back and then I rolled over onto one of my sides and I – while I was on my back – sorry – I will stop – I could feel pressure on my eyes, pressure to my face, and I don't think I was – my head was slammed on the floor at the back. It was when I was trying to get away. I curled myself up and rolled away from Mr McDaid, who was on top of me. That's when my head was grabbed and - - -26 Okay. You're just motioning there that the front of your face – back of your head was grabbed. 27 HIS HONOUR: By your hair?---I don't think it was by the hair, exactly. I think it could have been hair or a hand to the back of the head, like --28 Yes?---- - - possibly like that.29 Head grabbed at - - -?---But I remember I - - -30 Head grabbed at rear, yes, and then what?---Yes. The striking action, at least – at least three times, and then I remember pressure like my 22 ts 25 June 2024, 36. 23 ts 25 June 2024, 36 - 37. 24 ts 25 June 2024, 37. 25 ts 25 June 2024, 37. 26 ts 25 June 2024, 37 - 38. 27 ts 25 June 2024, 38. 28 ts 25 June 2024, 38. 29 ts 25 June 2024, 38. 30 ts 25 June 2024, 38. -- 10 of 25 -- [2026] WASC 211 MUSIKANTH J Page 11 head was being pushed into the ground with the weight of a body. It felt like my head was being pushed into the wooden floorboards.31 [PROSECUTOR]: Okay. And who was it that did all those actions to you?---[the appellant]. And how was he positioned in relation to your body?: ---He was on top of me.32 When you say he was on top of you, can you just describe how he was on top of you?---I can't really describe – I don't know whether he had his legs over my head or whether he was just leaning over my body. I close my eyes when I'm being abused to block out. That's why my statement has a lot more about what he said to me - - -33 So you closed - - -?--- - - - than what I can see.34 Sorry. So you closed your eyes, and where did you feel the pressure?---I felt pressure around my – when I was on my back, around my neck somewhere. I don't know whether it was this part of his arm or a hand, but I felt – being my head when I rolled over onto my tummy side, I felt the pressure to the back of my head with my head being struck into the floor and then I felt pressure to the back of my head pushing my face, like grinding it into – into the wooden floorboards.35 And which part of your face struck the wooden floorboards?---I think it was the left – I'm not – I think. It was my forehead.36 What side of your forehead?---The left side of my forehead.37 Okay. And how long was it before you rolled onto your side?---Less than a minute. 38 Okay. And you said that it was three times that your face struck the floorboards. Did all three of those strikes connect in the same area?--- No.39 Okay?---There was some, like, impact closer to the middle, but mostly localised on the side because of how I was laying.40 (emphasis added) 31 ts 25 June 2024, 38. 32 ts 25 June 2024, 38. 33 ts 25 June 2024, 38. 34 ts 25 June 2024, 38. 35 ts 25 June 2024, 38. 36 ts 25 June 2024, 39. 37 ts 25 June 2024, 39. 38 ts 25 June 2024, 39. 39 ts 25 June 2024, 39. 40 ts 25 June 2024, 39. -- 11 of 25 -- [2026] WASC 211 MUSIKANTH J Page 12 43 At an early point in the above exchanges, the prosecution tendered a bundle of three photographs, comprising Exhibit 4, taken at 7:54pm on the day of the alleged offending. 44 The first photograph forming part of this exhibit is of the respondent's face and upper torso, while the second and third photographs are close ups of the left side of her face. Relevantly the first photograph shows a mark on the complainant's right cheek, some discoloration on the left side of her forehead, and some discoloration around the left corner of her left eye. 45 The complainant was shown the first photograph, and the following exchanges occurred: 41 [PROSECUTOR]: Just the first photo. On your forehead, where is it that your forehead struck the floor?---Where – sorry – it's just quite hard to see. (indistinct)?---It looks like both sides. I can see marks to both sides of my head. I can see bruising at the top on my left, where I'm seeing it now, but I can see a shadow on the right-hand side as well, which could be a lump over the – do you understand what I'm saying? (emphasis added) 46 On being shown the second photograph, the following exchanges occurred:42 [PROSECUTOR]: … …. what injury is it that the court is looking at in this photo?---You can see that my eye is hurt and there's a scratch to my face. And how is it that you say that the injury to your eye, your left eye, occurred?---When [the appellant] bashed my face into the floor.43 … (emphasis added) 47 The complainant was not asked why she believed the injury was so caused, though I note the following exchange took place some 40 minutes later while she was under cross-examination:44 41 ts 25 June 2024, 39. 42 ts 25 June 2024, 47. 43 ts 25 June 2024, 47. -- 12 of 25 -- [2026] WASC 211 MUSIKANTH J Page 13 HIS HONOUR: … What do you say Ms [complainant]? [i.e. as to how the injuries were sustained], --- Blunt force trauma to the head can cause bruising to the eye. I've said that my head got smashed down against the ground. And that's what happened. (emphasis added) 48 Earlier, during her examination in chief, the complainant also gave evidence that after the hallway incident, the appellant left in his car while she stayed in the house. According to the complainant, she looked at herself in the mirror and 'looked around stupidly for different ways to try and contact the police and get help'.45 She testified further that she did not leave the house until 'a bit later, and that was to run to a phone box'. 46 She then added that 'I did look at myself quite closely in the mirror'.47 49 In answer to a follow-up question, as to what she saw (I infer when looking in the mirror), the complainant responded, 'I saw the bruising and the lumps to my face and I saw, like, just me, like, the state of me, and it wasn't good …'.48 50 The complainant was not asked how long after the hallway incident she looked in the mirror. Nor was she asked to clarify what she meant by 'the bruising', or where on her face she observed it. Further, no follow-up questions were directed to whether her left eye (or any other part of her face) may have come into contact with anything other than the floor during the several hours that elapsed between the hallway incident that afternoon and the arrival of police that evening. 51 The complainant gave evidence that, at some unspecified time, she left the house and went to a nearby telephone box in an attempt to contact a police station.49 However, she encountered a recorded message and returned home, where she locked herself inside after observing the appellant driving past as she made her way back.50 52 After some time, the complainant said that the appellant returned to the premises, screaming and demanding to be let inside. She refused and instead asked him to contact the police, which she believed he did. The complainant also stated that, while the appellant remained outside 44 ts 25 June 2024, 67. 45 ts 25 June 2024, 40. 46 ts 25 June 2024, 40. 47 ts 25 June 2024, 40. 48 ts 25 June 2024, 40. Emphasis added. 49 ts 25 June 2024, 40 - 41. 50 ts 25 June 2024, 42. -- 13 of 25 -- [2026] WASC 211 MUSIKANTH J Page 14 and she was inside, she attempted to attract assistance by preparing a paper sign seeking help, which she intended to place in the front window.51 53 After a further period, the complainant said that she opened the door, at which point the appellant forcibly pushed past her to regain entry to the house.52 Once inside, he told her that he was going to his room and did not wish to be disturbed, then proceeded to his room and slammed the door. 53 54 According to the complainant, after the appellant went to his room:54 (1) She attempted to call out for help, including to a man walking a dog and then to a woman. Both attempts were unsuccessful. (2) She walked around the house in a distressed and panicked state. (3) The appellant later exited from his room, sat at the dining table, and initiated a conversation about the living arrangements. (4) Shortly afterwards, two police officers arrived. 55 The complainant testified that she did not recall observing any marks on her face before the alleged incident, including when applying make-up or brushing her teeth.55 She also gave evidence that she experienced pain for approximately one week, but that the 'shame of having it on [her] face' persisted for a significantly longer period, namely about three to four weeks, until the bruising and the haematoma to her eye had resolved.56 56 In this regard, I note that, during the complainant's evidence, the prosecution tendered, as Exhibit 5, a further bundle of five photographs taken on 1 February 2023, being four days after the alleged offending. Four of those photographs depict prominent bruising around the upper and lower regions of the complainant's left eye, a lighter mark in the left-hand corner of that eye, and redness within the eye itself. 51 ts 25 June 2024, 43. 52 ts 25 June 2024, 43. 53 ts 25 June 2024, 43. 54 ts 25 June 2024, 43 - 44. 55 ts 25 June 2024, 40 - 41. 56 ts 25 June 2024, 41. -- 14 of 25 -- [2026] WASC 211 MUSIKANTH J Page 15 57 The complainant's evidence under cross-examination was not materially different from her evidence in chief, although the following further matters relevantly emerged: (1) When she landed on the floor (during the hallway incident) she did not hit her head (or eye) on a 'lamp'.57 (2) When asked if she agreed she had not given a clear explanation to the police, in her written statement,58 of how she had sustained her injuries, the complainant responded: '[b]lunt force trauma to the head can cause bruising to the eye. I've said that my head got smashed down against the ground. And that's what happened.'59 58 The following further exchanges then occurred between the appellant's counsel and the complainant: 60 [APPELLANT'S COUNSEL]: Okay. So that's when you're saying you believe you got the eye injury?---Yes. And I'm suggesting that you may have hit it on the way when you fell over?---That's not correct. No. That's wrong. That's not what happened. And that you caught – possibly caught the left-hand corner of your eye as you fell?---No, that's not what happened. 59 Under cross-examination the complainant also confirmed that the appellant had left in his car 'pretty much straight away' after the hallway incident, and that she no longer had her mobile phones with her at this time.61 The shopkeeper 60 Mr Abhishek Saini, a shopkeeper, also gave evidence. 61 He testified that, at about 4:00 pm on the day of the alleged offending, the appellant attended his bottle shop, handed him two mobile phones, and asked if he could keep them 'somewhere safe'.62 Mr Saini then passed the phones to a staff member, instructed the staff 57 ts 25 June 2024, 66. 58 The complainant’s written statement, which according to the transcript was made on 1 February 2023, was not tendered. 59 ts 25 June 2024, 67. 60 ts 25 June 2024, 67. 61 ts 25 June 2024, 67. 62 ts 25 June 2024, 97. -- 15 of 25 -- [2026] WASC 211 MUSIKANTH J Page 16 member to place them in the safe, and to return them to the appellant '[w]henever he comes in'.63 62 According to Mr Saini, the appellant remained in the shop for less than a minute and appeared somewhat upset at the time.64 63 Mr Saini further gave evidence that, later that evening, approximately three hours after the appellant's attendance at the shop, he received a call from the police station requesting that the mobile phones be provided to police. He then instructed his staff member to hand the phones over accordingly.65 The police officer 64 Constable Lewis Thomas was the police officer who gave evidence. 65 He testified that he and Constable Bowen attended the shared residence at approximately 7:00pm on the day of the alleged offending.66 66 Constable Thomas gave evidence that the complainant appeared distressed and was crying. He also testified that he observed 'a probably small scar on her left eye and some scratch marks on her right shoulder'.67 67 Regarding the 'mark on her left eye', Constable Thomas testified that the complainant:68 … from recollection … couldn't directly identify how it occurred; however, there was – I believe, in her terms, there was a scuffle and – which, in turn, caused the injuries. (emphasis added) 68 Constable Thomas further testified that he spoke with the complainant for approximately one hour. After concluding that discussion, he, Constable Bowen, and the appellant attended the bottle 63 ts 25 June 2024, 97. 64 ts 25 June 2024, 97 - 98. 65 ts 25 June 2024, 97. 66 ts 25 June 2024, 99 - 100. 67 ts 25 June 2024, 100. Emphasis added. 68 ts 25 June 2024, 100. -- 16 of 25 -- [2026] WASC 211 MUSIKANTH J Page 17 shop, located approximately 200 metres away, retrieved the mobile phones, and returned them to the complainant.69 The appellant 69 Contrary to the complainant's evidence, the appellant testified that there was '[o]nly one scuffle' on the day of the alleged offending70 and denied that any assault occurred in the hallway.71 70 On the appellant's account, he entered the loungeroom where the complainant was seated and attempted to take the phones from her. 71 The appellant described the incident as follows:72 We got into a scuffle when I tried to grab the phone out of her hand. We were in between the chairs, the dining room chairs, and the coffee table. She tried to pull the phone backwards towards herself to, kind of, protect it. As she has done that, I've taken a step backwards and tripped over the chair, and she has come with me. I believe, I don't know, I can't be certain, but I think I landed on top of her … I think, from memory, and I can't be positive, but I believe I tripped over the chair that was at the end of the dining room table, and I think she tripped over the coffee table, the white coffee table … Then I believe I rolled up off of her and got off of her. 72 The appellant denied banging the complainant's head into the floor.73 He maintained that, if any pressure was applied to the complainant's face, it occurred while he was 'rolling off her to stand back up'.74 He further denied using his hands to apply pressure to her face.75 He further denied, in effect, that he put any pressure on the complainant's neck, or that he pushed her face in any way.76 73 Nevertheless, the appellant accepted that he might have come into contact with the complainant's face while attempting to take a phone, but maintained that he had no intention of hurting her. He suggested that the scratch to her face could have occurred accidentally in that context.77 69 ts 25 June 2024, 100 - 101. 70 ts 26 June 2024, 136. 71 ts 26 June 2024, 154. 72 ts 26 June 2024, 137. 73 ts 26 June 2024, 138. 74 ts 26 June 2024, 138. 75 ts 26 June 2024, 138. 76 ts 26 June 2024, 139. 77 ts 26 June 2024, 138 - 139. -- 17 of 25 -- [2026] WASC 211 MUSIKANTH J Page 18 74 He also gave evidence that a lamp fell over in the course of the scuffle. 78 75 In cross-examination, the appellant speculated that the complainant may have sustained the black eye when he fell on top of her, stating: '[m]aybe [the complainant] got the black eye when I fell on top of her. I don't know'.79 76 The appellant further testified that the hallway adjoined the dining room (I infer, loungeroom) where, on his account, the scuffle took place. He said that, in the vicinity of the incident, there was a coffee table and a lamp, as well as a smaller coffee table near the doorway leading to the hallway.80 77 According to the appellant, after the scuffle he left the premises, took the phones to the bottle shop,81 and then visited his sister in another suburb.82 He said that, following that visit, he attended a police station to make a report and to apply for a restraining order.83 He later returned home, where he found that the complainant had locked him out, told him she was afraid of him and wanted the police present, and he then contacted the police himself.84 78 The appellant testified that, when police attended the premises at about 7:00 pm,85 he informed them of the location of the mobile phones, and they then attended the nearby bottle shop together to retrieve them.86 The magistrate's reasons 79 The magistrate reserved his decision. 80 In his reasons, his Honour summarised the respective cases advanced by the parties and the applicable legal principles, correctly directing himself as to the presumption of innocence, the burden of proof, and the standard of proof. 87 78 ts 26 June 2024, 139. 79 ts 26 June 2024, 156. 80 ts 26 June 2024, 165. 81 ts 26 June 2024, 140. 82 ts 26 June 2024, 141. 83 ts 26 June 2024, 141. 84 ts 26 June 2024, 141 - 142. 85 ts 26 June 2024, 160. 86 ts 26 June 2024, 143. 87 ts 10 July 2024, 11. -- 18 of 25 -- [2026] WASC 211 MUSIKANTH J Page 19 81 Having observed that issues of credibility lay 'at the very heart of this case',88 and after a detailed analysis of the competing accounts given by the complainant and the appellant concerning their physical interactions, his Honour ultimately rejected the appellant's account and accepted that of the complainant. 82 In doing so, the magistrate accepted the critical aspects of the complainant's evidence, taking into account, amongst other things, that: (1) There was 'no love lost' between the complainant and the appellant.89 (2) The complainant had, in her evidence, used 'buzzwords from a family violence perspective' (though less so as her evidence progressed).90 (3) The situation between the complainant and the appellant was dysfunctional.91 (4) Over time, both the complainant and the appellant had been, at different points, victims and perpetrators of family violence, and their relationship was 'difficult and demanding'.92 83 Specifically, and relevant to the bruising injury, his Honour rejected the appellant's account that there had been only one scuffle in the loungeroom, and instead found that:93 (1) During a 'brief phase' in the hallway, the appellant's body weight was applied in the complainant's upper body area. (2) While in this position, and in a rage, the applicant caused the complainant's face 'to make hostile contact with the floor [on] approximately three occasions'. (3) The force used by the appellant was 'adequate to cause the injury that is indicated on her left eye area' in the photographs tendered into evidence. 88 ts 10 July 2024, 11. 89 ts 10 July 2024, 19. 90 ts 10 July 2024, 19. 91 ts 10 July 2024, 23. 92 ts 10 July 2024, 34. 93 ts 10 July 2024, 39 - 43. Emphasis added. -- 19 of 25 -- [2026] WASC 211 MUSIKANTH J Page 20 (4) The appearance of the complainant's face in those photographs contrasted with its appearance in the video footage taken in the immediate aftermath of the first (loungeroom) incident. (5) The only injury which could be seen in the video footage (and the only injury pointed to in the footage by the complainant herself who was, according to the magistrate, 'a personality who would be quick to indicate injury') was to the complainant's right eye. Disposition: Ground 1 84 Although his Honour rejected the appellant's account, and accepted that of the complainant, a guilty verdict ought not necessarily to have ensued. 85 Rather, the magistrate was required to put to one side his rejection of the appellant's version and determine whether, on the basis of the complainant's version and all the other evidence which his Honour did accept, the prosecution had in fact proven the appellant's guilt beyond reasonable doubt.94 86 As the Court of Appeal observed in Pezzano v The State of Western Australia:95 To prove that an assault occasioned bodily harm it is necessary for the prosecution to prove both that some bodily injury resulted from the assault and that the resulting bodily injury interfered with the health or comfort of the victim… (emphasis added) 87 While it was not in dispute at trial that the latter element was satisfied, there was, in my view, insufficient evidence before the magistrate to enable him to be satisfied beyond reasonable doubt as to the former. 88 In this regard, his Honour's ultimate finding that the appellant caused the bruising injury during the hallway incident appears to have been based substantially on the following considerations: (1) The complainant's account was, in the magistrate's view, consistent with the video footage,96 in which no injury to the left 94 Cf. De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 [12] (Kiefel CJ, Bell, Gageler & Gordon JJ); Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J). 95 Pezzano v The State of Western Australia [2020] WASCA 181 [94] (Mazza, Mitchell & Beech JJA). -- 20 of 25 -- [2026] WASC 211 MUSIKANTH J Page 21 side of the complainant's face was visible, including any black eye, its onset, or reddening, and in which the complainant pointed only to her right eye. 97 (2) The bruising injury depicted in the later photographs98 was, in his Honour's view, consistent with the complainant's account of the physical events. 99 (3) The appellant's account did not provide any possible explanation for how the bruising injury could have occurred, notwithstanding his Honour noting that the appellant did not 'have to prove anything'.100 (4) The acceptance of the complainant's evidence to the effect that the bruising injury was caused by the appellant striking her face into the floor three times while applying his weight to her back in the hallway.101 89 While I recognise that the complainant gave direct evidence as to her recollection of events in the hallway, her responses concerning the cause of the bruising injury appear, on analysis, to have been expressions of lay opinion based on inferences she herself drew. 90 This much is clear from the following extracts of the complainant's evidence: [PROSECUTOR]: … … how was that bruise caused?---That bruise I think was caused in the scuffle that is not on video, the later scuffle. The later assault, where I'm like bashed into the floor.102 … And how is it that you say that the injury to your eye, your left eye, occurred?--- When [the appellant] bashed my face into the floor.103 … 96 ts 10 July 2024, 27. 97 ts 10 July 2024, 30. 98 ts 10 July 2024, 40. 99 ts 10 July 2024, 24. 100 ts 10 July 2024, 27, 32. 101 ts 10 July 2024, 24. 102 ts 25 June 2024, 36. 103 ts 25 June 2024, 47. -- 21 of 25 -- [2026] WASC 211 MUSIKANTH J Page 22 HIS HONOUR: … What do you say Ms [complainant]? [i.e. as to how the injuries were sustained],104 ---Blunt force trauma to the head can cause bruising to the eye. I've said that my head got smashed down against the ground. And that's what happened.105 (emphasis added) 91 Indeed, given the evidence of Constable Thomas recorded at [67] above, it would appear that the complainant was not, at least on the day of the incident, entirely certain as to the precise manner in which the injury had occurred. 92 In any event, and although the application of force can cause bruising as a matter of common sense,106 as the plurality of the High Court observed in R v Baden-Clay:107 (a) When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. (b) The jury can be satisfied of the accused's guilt only where guilt is not simply a rational inference but, rather, the only rational inference that the circumstances permit. (c) For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence. (d) In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion. 93 In my view, it was not open to the magistrate to conclude that the only rational inference available on the totality of the evidence was that 104 ts 25 June 2024, 67. 105 ts 25 June 2024, 67. 106 Respondent’s amended outline of submissions filed 31 July 2025 [45]. 107 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] - [47] (French CJ, Kiefel, Bell, Keane & Gordon JJ) (citations omitted); as summarised in Egan v The State of Western Australia [2024] WASCA 3 [120] (Quinlan CJ & Hall JA). -- 22 of 25 -- [2026] WASC 211 MUSIKANTH J Page 23 the bruising injury was caused by the appellant causing the complainant's face to make 'hostile contact with the floor' in the hallway earlier that day. 94 I say this for at least the following reasons. 95 First, the complainant's evidence appears to have been that this contact with the floor occurred after she had rolled over onto her 'tummy side',108 and were to her 'forehead'; '[t]he left side of my forehead',109 though the 'strikes' did not connect in the same area, with 'some … impact closer to the middle, but mostly localised on the side'.110 96 However, the injury relied upon to establish the 'bodily harm' element of the charge was not to the forehead, but rather a bruising injury that developed from a mark (or 'scar') at the outer left corner of her left eye. 97 Secondly, at its highest, the complainant's evidence amounted to a belief that the appellant's conduct in the hallway caused the bruising injury. That belief may well be correct. 98 However, as a matter of common sense, an injury of the kind depicted in Exhibit 4, involving the area around the eye, may have a range of reasonably possible causes, of which the application of force by another person is only one. Common household hazards - such as cupboard doors, sharp edges, uneven surfaces, or stray objects (including items such as hosepipes) - are among a range of other alternative possibilities. 99 Notwithstanding this, the complainant was not asked whether she could recall any other occasion during the period of at least three hours between the hallway incident and the arrival of police in which her left eye (or any other part of her face) may have come into contact with anything else. It was not incumbent upon the defence to raise such matters in cross-examination. Rather, it was for the prosecution, bearing the onus of proof, to address and exclude all reasonable alternative causes consistent with innocence. 100 In my view, the complainant's evidence concerning what she observed in the mirror takes the matter no further. She was not asked 108 ts 25 June 2024, 38. 109 Emphasis added. 110 ts 25 June 2024, 39. -- 23 of 25 -- [2026] WASC 211 MUSIKANTH J Page 24 when she looked in the mirror, what she meant by 'the bruising', or where on her face she observed it. Further, the first photograph forming part of Exhibit 4 depicts some discolouration to the left side of her forehead, in addition to the discolouration near the corner of her left eye. When shown that photograph, the complainant said: 'I can see marks to both sides of my head. I can see bruising at the top on my left …'. 111 101 Having regard to that response in context, it is, in my view, more than reasonably open to conclude that the complainant may well have been referring to the discolouration on the left side of her forehead, as shown in the first photograph in Exhibit 4, rather than to the area near the corner of her left eye, where no clearly defined bruise was, at that time, in any event yet visible. 102 In reaching the above conclusion, I have not overlooked his Honour's observation there was no evidence that the complainant sustained the bruising injury by 'injuring herself, or anything like that'…112 103 Nor have I ignored the fact that the only hypothesis explored in cross-examination relating to a possible alternative cause of the bruising injury having been the respondent hitting her head on a lamp in the nearby vicinity.113 104 However, once again, it was not for the defence to raise such matters. Causation was in issue, and it was for the prosecution to prove its case beyond reasonable doubt by negativing any other reasonable inference. 105 In my view, the evidence before his Honour was, for the forgoing reasons, insufficient in both nature and quality to remove any reasonable doubt that the appellant was guilty of the offence charged. 106 Accordingly, and while I consider it was certainly reasonable for the magistrate, having found the hallway incident occurred, to infer that the complainant may have sustained the bruising injury during the course of it, I do not consider it was open to his Honour to be satisfied, on the whole of the evidence, that this was the only reasonable inference to be drawn. 111 Emphasis added. 112 ts 10 July 2024, 24. 113 ts 25 June 2024, 66. -- 24 of 25 -- [2026] WASC 211 MUSIKANTH J Page 25 107 Thus, even allowing for the advantage which his Honour plainly had by having seen and heard all the evidence at trial, I am left with a reasonable doubt as to the appellant's guilt on the totality of the evidence. 108 In the circumstances, I consider that the verdict of guilty is unreasonable and cannot be supported by that evidence. 109 It necessarily follows that Ground 1 will be upheld. Grounds 2 and 3 110 Given my conclusion with respect to Ground 1, it is in my view unnecessary to determine Grounds 2 and 3. Conclusion 111 For the foregoing reasons, the appellant be granted leave to amend his grounds of appeal, leave to appeal will be granted on Ground 1, Ground 1 (and the appeal) will be upheld, and the appellant's conviction set aside. 112 I will hear further from the parties as to the final form of orders and on any question relating to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IL Associate to the Hon Justice Musikanth 2 JUNE 2026 -- 25 of 25 --