Gardiner v Hunter
[2020] WASC 305
•21 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GARDINER -v- HUNTER [2020] WASC 305
CORAM: CURTHOYS J
HEARD: 7 AUGUST 2020
DELIVERED : 21 SEPTEMBER 2020
FILE NO/S: SJA 1164 of 2019
BETWEEN: CLINTON DAVID GARDINER
Appellant
AND
BRODIE HUNTER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MAUGHAN
File Number : PE 10360 of 2019
Catchwords:
Element of continuous assault - Opening whether case properly put - Prejudice
Legislation:
Criminal Code (WA), s 317(1)(b)
Result:
Leave to appeal is refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S B Watters and T M Andrews |
| Respondent | : | R N Paljetak |
Solicitors:
| Appellant | : | Mark Andrews Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Gardner v Caporn [2005] WASCA 153
McElholum v Hughes [2015] ACTSC 78
Roberts v State of Western Australia [2019] WASCA 83
Samuels v Roberts [2005] WASCA 193
CURTHOYS J:
Introduction
Mr Gardiner was charged that on 3 March 2019 he unlawfully assaulted Ashley Michelle Renfro and thereby did her bodily harm in circumstances of aggravation namely being in a family/domestic relationship contrary to s 317(1)B of the Criminal Code (WA).
On 25 November 2019 Mr Gardiner was convicted of the lesser charge of aggravated common assault. He was fined $750 and ordered to pay costs of $107.50. A spent conviction was recorded.
The appeal
On 20 December 2019 Mr Gardiner filed an appeal against conviction. The ground of appeal was that the verdict was unreasonable and/or unsupported by the evidence.
At the hearing of the appeal Mr Gardiner sought to amend the ground of appeal. They were amended without opposition from the respondent. The new grounds were:
Ground 1
There was a miscarriage of justice and/or an error when the learned Magistrate convicted the appellant by following a pathway to guilt that was not relied upon by the prosecution;
Particulars
1.1The prosecution did not at any time rely upon an assault concerning the toilet door as either a primary or alternate pathway to guilt;
1.2As the prosecution case was both opened and closed on a materially different basis, the appellant did not have an adequate opportunity to respond to the facts that underpinned the offence he was ultimately convicted of;
1.3Defence counsel objected to the appellant being convicted upon such a factual basis.
Ground 2
The verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it was unreasonable or cannot be supported and, pursuant to Section 8(1)(b) of the Criminal Appeals Act, a miscarriage of justice was therefore occasioned when His Honour found the charge proved.
Leave to appeal
Leave to appeal is required and leave is not granted unless I am satisfied that the ground has a reasonable prospect of succeeding, that is, in effect, it has a real prospect of success.[1]
[1] Samuels v Roberts [2005] WASCA 193 [56].
The trial
The trial was conducted in Perth on 21 June 2019 and 8 November 2019.
The prosecution opening relevantly stated:[2]
By way of opening the prosecution case, your Honour, essentially, is this. A Ms Renfro, being the victim, and Mr Gardiner have attended a party in Claremont. At that party in Claremont, there has been a disagreement. That disagreement has been about an Uber being called. Both Ms Renfro and Mr Gardiner then catch the Uber to their home premises … And this is around about 2.30 am.
By the time they arrived back at that location around 3 am, you will hear evidence from Ms Renfro that there was an altercation. That altercation, Ms Renfro will say, started in the house, moved to the toilet. Ms Renfro will say in her evidence that she went to the toilet. Whilst she was in the toilet, the accused, Mr Gardiner, has placed his foot in between the door of the toilet. It's at this stage here that Ms Renfro has then tried to shut the door and then Mr Gardiner, the accused, has then pushed the door in by force.
Once the door was pushed in, he has moved the door from its hinges and placed it against the wall. He has then come at Ms Renfro. She was concerned about her welfare and the aggressive state of Mr Gardiner. And it was at that stage there that she has hit out at Mr Gardiner. She has then forced her way past Mr Gardiner. She has gone to go to a set of drawers to get some clothing to remove herself from the house and the situation.
Mr Gardiner has then grabbed hold of Ms Renfro, straddled her on the bed, placed himself in a position where he's on top of Ms Renfro. He has then restrained Ms Renfro in a hold that has been similar to the arm being crossed over her chest, forcing Ms Renfro difficulty in breathing and then has yanked the wrists of Ms Renfro, effectively fracturing her wrist. And you will hear evidence from the doctor that Ms Renfro does have a fractured wrist. And that will be the prosecution case, your Honour.
[2] ts 4 ‑ 5, 21/06/2019.
Mr Gardiner's counsel did not open the defence case at this point.
Ms Spark gave evidence that whilst she was in the toilet she took her left foot and tried to move the door. Mr Gardiner then slammed the door - 'the door came slamming in on me and knocked me back on the toilet so I'm balancing … on my rear on the toilet and my feet are up. And I screamed 'what are you doing'. And so I'm - the door keeps coming in on me. And I - so I'm pushing out with my feet. And the next thing I know, the door has come off the hinges and has landed on my head'.[3]
[3] ts 13, 21/06/2019 (see also ts 24 ‑ 25, 21/06/2019).
Ms Renfro then gave evidence that Mr Gardiner was blocking her from leaving the toilet, she slapped him and she looked to escape. Mr Gardiner then grabbed Ms Renfro's hair and slammed her head into the back of the bathroom.[4] She then pushed past him to get out of the toilet to a chest of draws and get some clothes so she could leave. He then forced her on to the bed, flipped her on her back and straddled her. He then crossed her arms over her chest.[5] Ms Renfro's evidence when asked what happened between the toilet and getting to the bed was 'it's a very small distance. So I pushed past him and I got maybe three steps, if you will, three to four steps. And I didn't realise he was behind me until I was tackled'.[6] She screamed, some neighbours came and Mr Gardiner then jumped off her. She then left the apartment with the neighbours.[7]
[4] ts 14, 21/06/2019.
[5] ts 15, 21/06/2019.
[6] ts 23, 21/06/2019.
[7] ts 16, 21/06/2019.
Mr Gardiner disputed Ms Renfro's evidence.
In cross‑examination of Ms Renfro the following exchange took place:[8]
Counsel: Clint has then pushed the door open?
Ms Renfro: While I was sitting on the toilet? I went to close the door and he pushed it back on me with force. Yes.
Ms Renfro was cross‑examined extensively as to the incident. It was put to Ms Renfro that she 'began crying and kicking the door'.[9]
[8] ts 34, 21/06/2019.
[9] ts 43, 21/06/2019.
A neighbour gave evidence that Ms Renfro told him 'the fact that he [Mr Gardiner] was trying to get into the toilet and then talking about what happened inside there'.[10]
[10] ts 76, 21/06/2019.
In examination-in-chief of Mr Gardiner the following exchange took place:[11]
And was anything said at that point? --- She struck me and I kind of stepped to the side and then she pushed past me into the toilet and slammed the door. I stood there for a second and then said, 'Yes, have you - did you seriously hit me again, did you?' and she said 'yes' and then I opened the door - or went to open the door and she kicked it shut again so - - -
Was the door locked or not? --- No. No, the door wasn't locked. Then I opened the door again and just placed my foot in between the door and the door frame just so there was a bit of space, you know, to talk through. Then she continued to kick, or strike the door which I - - -
Sorry. Before you get to that, when you say you put your foot in the door so there was a bit of space that you could talk through, was anything being said? --- Yes. She - as I said, she was striking the door and I just said - told her she needed to calm down, that all of this over a minor incident and, yes, that's what I can remember.
Okay. All right. So she was striking the door. And what happened then? --- Then she opened the door and she hit me in my face on the left side of my jaw.
[11] ts 12, 08/11/2019.
In cross-examination of Mr Gardiner the following exchange took place:[12]
[12] ts 29 ‑ 30, 08/11/2019.
Well, what's the need to follow your partner to the toilet? --- I hadn't followed her, I was outside the door when she has closed it, and when she pushed past.
But there was the need for you to actually be outside the toilet rather than to be on the lounge or in the bedroom? --- Yes, because - - -
While she was going to the toilet; correct? --- Yes.
Okay. Well, it's fair to say you were angry, weren't you? --- No, I wasn't angry at all. She - numerous times when she has come home intoxicated or even when there has been a disagreement, she would - the next day or when we discussed it later, she would deny things that had happened or she would say it was done in a - that she said things in a joking way and she didn't really mean it. So the reason I opened the door after she admitted to striking me again was just, once again, to confirm that the reason she was striking me was because she was upset about the Uber, and then to explain to her how silly that is to get to a point where she's striking me over something small like that.
Well, isn't it the case on your evidence you said that when she gets irate you tend to disengage and walk away? --- I had, yes.
But you didn't in this situation? --- I had before, yes, but she had taken to a next level by striking me.
So you have put your foot inside the door of the toilet? --- Yes.
Why? --- I had - I had explained that just before.
Why not walk away?---Well, as I said, I was attempting to get her just to confirm that, yes, she had, to not give her an excuse to say the next day that it hadn't happened or that she had done it jokingly.
So Ashley tried to close the door; is that correct? --- Yes.
Do you accept she deserves some privacy in relation to being on the toilet? --- We always had the door open.
Okay. And can you recall the door falling on Ashley? --- The door never fell on Ashley.
Never fell on Ashley, that would be your evidence. Okay. But the door came off its hinge, didn't it? - - It came off the top hinge, and then when I was fixing it the bottom hinge came out.
Is it fair to say that things were starting to get out of hand once you put your foot in the toilet door? --- Yes. She was out of hand, yes.
Not you? --- No.
And is it the case that once you got your foot in the door, that you started to get into Ashley's face? --- No.
The prosecution closing stated:[13]
[13] ts 50 ‑ 57, 08/11/2019.
SPARK, MR: …
… There was certainly a disagreement in relation to Ms Renfro not being happy about leaving the party. Ms Renfro has left in the Uber. She has made little conversation with Clint in the Uber. They get home and Ms Renfro makes her way to the toilet. Clint follows her to the toilet. The parties agree on little and there are differing versions of events, but it's clear the accused puts his foot in the door of the toilet. This they agree on. And both parties agree Ms Renfro slapped Clint to the face.
Both parties agree Ms Renfro was held by the wrists on the bed in the form of a restraint hold. And the prosecution would submit there was no striking by Ms Renfro to the head of Clint Gardiner on the bed. Mr Gardiner has thrown Ms Renfro on to the bed, as he was angry about the slap in the toilet and he has put Ms Renfro in the restraint. And in fact, Ms Renfro said in her evidence that she was making her way from the toilet to the actual chest of drawers to grab some clothes to leave. He straddled Ms Renfro.
…
It was because she was frightened and she was very much concerned and she wanted to get out of there. And why did the accused not walk away when in previous incidents he said he did, and it was because he was angry in this particular situation and it's ridiculous in relation to his evidence to say he wasn't upset. The prosecution will say the issue is a narrow one. The injury is certainly real and it certainly amounts to bodily harm. It's a finding of fact your Honour can find. And the prosecution believe that an expert can prove that. (indistinct)
…
SPARK, MR: Well, the prosecution would say Ms Renfro certainly doesn't say that she struck the door. Her evidence is that he put his foot in through the door, go into her face ---
HIS HONOUR: Yes.
SPARK, MR: - - - she slapped him to get him out of her face. He grabbed by the hair and pushed her against the wall.
HIS HONOUR: Yes.
…
Mr Gardiner's closing stated:
ANDREWS, MR: I suppose the prosecution's closing has narrowed the issues a little bit, your Honour. Essentially, the defence case being that Ms Renfro and Mr Gardiner were in the bedroom. Following, there was some sort of dispute, there doesn't seem to be an issue or details.
HIS HONOUR: No. I think the events leading up to what happened at the house are largely not in dispute.
ANDREWS, MR: Yes. That's right.
HIS HONOUR: I mean, there's some minor discrepancies about who yelled at who and who was happy about leaving and who wasn't. But ---
ANDREWS, MR: I think that's right. So, I mean, the two key issues are really going to be causation in relation to the wrist injury and having regard to particular medical evidence about that being a particularly vulnerable part of the body being susceptible to injury. The application of a relatively small amount of force and the possibility that that injury could have been sustained during the events immediately preceding or transpired in the bedroom. And, then, if the causation is proved, of course, there's issue of self-defence not in dispute, but Mr Gardiner did restrain Ms Renfro by her wrists. We maintain that he had a subjective belief that the actions were necessary to defend himself. That those - that belief was based on reasonable grounds and it was a reasonable response to the situation, as Mr Gardiner knew it to be. In terms of Ms Renfro's evidence, she admitted some reluctance. She had consumed quite an amount - a significant amount of alcohol.
Was affected by alcohol at the party and after party. There was then - it wasn't an issue that was fairly trivial or mundane disagreement between the parties, proceeding only in the ride home during the Uber ride home and then continuing whilst she was in the bathroom. Mr Gardiner was outside the bathroom. She then said that she has closed the door on Mr Gardiner and described what could only really be characterised as a volcanic reaction on the part of Mr Gardiner. She says she has closed the door with her left foot to block his face from her face and then she says:
I could not - I had stage fright. I couldn't urinate. As soon as I did that, though, the door was fully past my face - well, a bit and he slammed - the door came slamming in on me and knocked me back to on the toilet so I'm balancing - I'm balancing on my rear on the toilet and I screamed, 'What are you doing?', and he just keeps coming in on me, pushing out of my feet.
She then says that she slapped Mr Gardiner. In response to that she claims that Mr Gardiner has slammed her head into the wall by taking a hold of her - the back of her head by the hair. So that reaction that really (indistinct) described (indistinct) can be - characterises a profound overreaction and one that we say is inherently unlikely when one looks at all of the objective evidence, in particular, the photographs taken by Ms Renfro - of Ms Renfro by police immediately after the incident which showed no injuries to her head whatsoever, despite, she says, her head being slammed into a wall.
…
That's another matter which we say bears adversely on the assessment of her credibility. In relation to her evidence that the door fell on to her head again, there's no marks on the door or, indeed, any injuries consistent - or tend to bear out her evidence against that. We would submit Mr Gardiner's explanation that the door came off the top hinge, which is consistent with some of the wood having come - or come away from the corner of the door is the more credible explanation.
She then described moving to the bedroom and the events that transpired there. She denied, of course, having struck Mr Gardiner. Essentially, she maintained that Mr Gardiner was the aggressor throughout the entire episode. But in our submission - well, the nature of the injuries and the manner in which it was inflicted are consistent with Mr Gardiner commit self-defence as opposed to injuries which were inflicted in the course of an offensive assault. It simply doesn't make sense that if Mr Gardiner is the aggressor.
He's attempting to assault Ms Renfro. That he would pin her wrists down. The more likely explanation, the more credible explanation in our submission was that he was acting in self-defence. In our submission, the nature of the injuries sustained by Ms Renfro are consistent with Mr Gardiner's explanation that he, having restrained her in that way, she has then wriggled and attempted to free herself. In our submission, that explanation hasn't been negated by prosecution.
The issue of common assault was directly raised by His Honour with counsel for Mr Gardiner in the following exchange:[14]
[14] ts 63 ‑ 64, 08/11/2019 (see also ts 65).
HIS HONOUR: Well, given his version of events and the manner in which the State open their case, what do you say about the proposition that he could be found guilty of common assault when he tried to enter the toilet? What lawful reason did he have that point to try to enter the toilet and apply force either directly or through the door to the complainant?
ANDREWS, MR: Well, I think the difficulty with that would be that the prosecution haven't relied on that allegation as - - -
HIS HONOUR: Yes, they have. Their opening [the prosecution] was there was an altercation at 3.30 am. It started at the house. She was in the toilet. Gardiner put his foot in the door. She tried to shut. He pushed the door with force and removed the door hinges. She hit out, forced past him, went to get her clothing. He grabbed her, straddled her on the bed, he on top of her and restrained her. So it forms - clearly forms part of their opening. And under the Criminal Procedure Act I'm entitled to have regard to that as an ongoing course of conduct in terms of an assault. So given that opening, given his evidence, what do you say about him being found guilty of a common assault by reason of his attempts to enter into the toilet? What was his - what's the justification - excuse - for that conduct?
ANDREWS, MR: Well - I mean, I'm not sure that based on the evidence that he gave it would be open to finding that he applied force against Ms Renfro's person. He said that he has essentially opened the door and then -
HIS HONOUR: Put his foot in the door.
ANDREWS, MR: - - - put his foot in there, yes.
HIS HONOUR: And she was pushing against it and he was pushing back because he wanted an explanation.
ANDREWS, MR: That's right. Well, I mean, she's kicking the door shut. He has ---
HIS HONOUR: She's in the toilet.
ANDREWS, MR: He has got his foot in there carrying on a conversation. In my submission there's nothing in terms of what he said transpired there which would amount to an unlawful application of force ---
HIS HONOUR: If she's - if he's kicking the door against her, that's an application of force. The question then becomes whether that's authorised, justified or excused by law.
ANDREWS, MR: Well, I don't think he admitted to kicking the ---
HIS HONOUR: If I find that it's the case, what do you say ---
ANDREWS, MR: Well ---
HIS HONOUR: --- authorises, justifies or excuses that conduct in terms of a finding in a common assault verdict open to me as an alternate to the charge preferred? I invite the sergeant to make comment as well. It can't be self-defence at that stage when she's on the other side of the door.
ANDREWS, MR: No. Well - - -
HIS HONOUR: It can't be provocation in circumstances where he says he never lost control. He wasn't ever angry. So what is it?
ANDREWS, MR: Well, I think it really comes down to a question of fact in terms of whether - well - - -
HIS HONOUR: My question is, if I make that finding of fact, what's the defence, if there is one?
ANDREWS, MR: Well, I think it would come down to your Honour's finding as to the nature and degree of the force that was used and where it was applied.
HIS HONOUR: Well, the Act doesn't require a degree of force. It requires an application of force, however slight.
In his reasons for decision His Honour relevantly found:[15]
HIS HONOUR: The medical evidence is not clear on the point. The accused's injuries are not inconsistent with offensive or defensive injuries. The only evidence which appears not to be substantially challenged is that whilst the complainant was in the toilet the accused tried to open or, better put, prevent the complainant from closing the door so as to confront her. I am satisfied to the required standard that in doing so he applied force to the complainant who was resisting his attempts. She was, in my view, entitled at that moment and in the prevailing circumstances entitled to her privacy.
The accused's attempts to enter the door are in any version corroborated by the words heard by Mr Snowdon. The accused was neither acting under provocation, on his own evidence he did not become angry at this point, nor could it be said that he was acting in self-defence in circumstance where the complainant was on the other side of a door. I can't be satisfied, however, to the required standard that any injury amounting to bodily harm was sustained at this point in time.
As to the balance of the allegations, whilst I might prefer the complainant's version, that hardly amounts to proof beyond a reasonable doubt. I propose to enter a judgment of conviction of one count of aggravated common assault in respect of the accused's attempts to enter the toilet.
[15] ts 8, 25/11/2019.
The authorities
In Roberts v State of Western Australia[16] the Court of Appeal stated:[17]
The prosecution opening address plays an important function in a criminal trial. That function is not merely to outline the facts which the State proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the prosecution case to assist the judge and counsel for the accused, as well as the jury. In that manner, in the opening, the prosecution must formulate the basis on which it puts it case and must then, essentially, adhere to that case. If there is to be any change in the nature of the prosecution case after the prosecutor has opened, that change should be identified with some precision, in the absence of the jury, before counsel commence their final addresses.
It was further stated:[18]
In Nuhana v The State of Western Australia [2018] WASCA 79 [69] this court said as follows:
Generally speaking, in directing a jury a trial judge should not advance to the jury an argument in support of the prosecution case that was not put by the prosecution. A miscarriage of justice will arise where a judge leaves the prosecution case to the jury on a basis which significantly departs from that advanced by the prosecution, in such a manner as to deprive the accused of a fair trial. The unfairness of the trial may consist of the loss of an opportunity to make responding submissions, even where there is no additional evidence which the accused could have adduced.
[16] Roberts v State of Western Australia [2019] WASCA 83.
[17] Roberts v State of Western Australia [32].
[18] Roberts v State of Western Australia [52].
In Gardner v Caporn[19] the court stated:[20]
It cannot be the law that every single blow (or series of blows) in a continuous assault must be charged as a separate assault. That conclusion does not change because each blow causes a different injury to the victim. It may be that in a particular case, the first blow (which perhaps causes a disabling injury) is justified as being in self-defence or provocation but immediately succeeding blows causing further injuries are not. That possible outcome does not dictate the charging of them as separate assaults.
[19] Gardner v Caporn [2005] WASCA 153.
[20] Gardner v Caporn [105].
By way of illustration, in Gardner the court went on to state:[21]
In this case there was one continuous assault alleged. It commenced in the hallway when the appellant struck the complainant's arm and grabbed him by the shirt and throat. 'Within seconds' they hit the wall and went into the spare bedroom, the appellant still holding onto the complainant. He pushed the complainant up against the bedroom wall, the complainant pushed backwards off the wall and they ended up in the centre of the room, with the complainant partly down, partly bent over. The appellant threw three punches, two of which the complainant avoided and one of which felled Ms Allardyce. The complainant moved backwards but tripped over Ms Allardyce and fell. The appellant grabbed hold of his arm and then punched the complainant three times in the face. All of this happened quickly. It was a continuous event, albeit comprising a number of different acts of the appellant, any one of which had it occurred in isolation, could have constituted an assault. However, that situation was no different in principle to one in which an armed robber takes a number of different items from his victim at gunpoint - the stealing is properly charged as one offence notwithstanding a number of items were alleged to have been taken and even though the prosecution may be able to prove only some of them. Here there was no separation in time or circumstance (as in Stratis), and no intervening event which brought different factual or legal considerations into play (as in Xu Dong Chen). Nor was there any uncertainty of conviction or injustice or unfairness to the appellant, as is shown by the fact that the Magistrate found it was only the three blows to the face which constituted an unlawful assault.
[21] Gardner v Caporn [131].
Mr Gardiner's submissions
Mr Gardiner's submissions on the appeal relevantly stated:
E.Defence Case:
22.The transcript reveals the defence case was focused upon the issues relating to causation concerning the wrist jury allegedly caused during the bed incident and having regard to the medical evidence about that being a particularly vulnerable part of the body susceptible to injury with the application of a relatively small amount of force. Defence also proposed that the fractured wrist could have occurred when the complainant was striking the appellant or striking the door.
23.If causation was found, defence argued it was force applied in the course of self-defence. Counsel maintained that the appellant had a subjective belief that the actions were necessary to defend himself (t-s 54).
24.During cross-examination of Ms Renfro she agreed the bathroom door was pushed with considerable force and fell on her head. She told defence counsel the door did not cause any head injuries because ' it was not a heavy door' (t-s 36).
…
34.His Honour noted the only evidence which was not substantially challenged was that whilst Ms Renfro was in the toilet, the appellant tried to prevent her from closing the door to confront her (t-s 8). With respect, it can be readily inferred this was not challenged because it was not relied upon by the prosecution as any more than, at its highest, contextual evidence. That is, it was not relied upon as being the factual basis for the offence.
G.Ground One:
a)There was a miscarriage of justice when the learned Magistrate convicted the appellant following a pathway to guilt not relied upon by the prosecution;
40.There was a miscarriage of justice when Magistrate Maughan convicted the appellant by following a pathway to guilt which was not relied upon by the prosecution.
41.The prosecution did not rely upon an assault in relation to the toilet door as either a primary or alternate pathway to guilt. Therefore, as the prosecution case was both opened and closed on a materially different basis, the appellant did not have an adequate opportunity to respond to the facts that underpinned the offence he was ultimately convicted of.
…
c)Applying the relevant case law to facts of this case;
i)Particular 1.1;
45.The appellant agitates the learned Magistrate followed a pathway to guilt through the appellant's actions with the toilet door and trying to get inside. This is materially different to the prosecution's case that the assault causing bodily harm occurred when the appellant restrained the complainant on the bed holding her wrists.
46.In the prosecution's opening address, the incident with the door was presented as a lead up to the act of assault on the bed. Counsel only stated: 'Ms Renfro has then tried to shut the door and then ... the accused has then pushed the door in by force. Once the door was pushed in, he has moved the door from its hinges and placed it against the wall. He has then come for Ms Renfro ...'
47.The prosecution's case was the appellant proceeded to grab hold of Ms Renfro, straddle her on the bed and restrained her in a hold with her arms crossed over her chest and then yanked her wrists which effectively fractured her wrist. This is the act the State relied upon and argued resulted in bodily harm caused to the complainant.
48.In their closing address, the prosecution again stated the appellant pushed Ms Renfro's wrists into the mattress twice and that it is that movement which has fractured her wrist (t-s 51). The prosecutor did not seek to depart from the basis on which the prosecution case had been opened.
b)Particular 1.2;
49.His Honour noted the only evidence which was not substantially challenged was that whilst Ms Renfro was in the toilet, the appellant tried to prevent her from closing the door to confront her (t-s 8). With respect, it can be readily inferred this was not challenged because it was not relied upon by the prosecution as any more than, at its highest, contextual evidence. That is, it was not relied upon as being the factual basis for the offence.
50.His Honour only raised the alternate pathway to guilt once defence were giving their final address. As a result, defence counsel did not have the chance to properly cross-examine Ms Renfro regarding the bathroom door incident. Consequently, this had led to a miscarriage of justice as defence were not able to properly argue their case.
51.In conclusion, the appellant was refused procedural fairness which resulted in a miscarriage of justice.
c)Particular 1.3;
52.During Mr Andrews' final address, His Honour asked counsel what they thought about the proposition that the appellant could be found guilty of common assault as an alternate to the charge when he tried to enter the toilet, given the appellant's version of events and the manner in which the State opened their case (t‑s 63).
53.Defence counsel raised the issue that the prosecution did not rely on that allegation (t-s 63). To the extent this objection was raised and His Honour proceeded nonetheless, the appellant contends an error occurred.
54.His Honour disagreed with counsel and stated the prosecution opening mentioned the toilet door incident. His Honour said this clearly formed part of their opening (t-s 63). The appellant contends this overstates the import of the opening. The toilet door incident was mentioned by way of mere background to the primary assault that was relied on.
55.The learned Magistrate said under the Criminal Procedure Act he was entitled to have regard to that as the ongoing course of conduct in terms of an assault (t-s 63). However, the prosecution did not rely on this as the basis for the assault and mentioned it as a lead up to the event of assault on the bed and it was unfair for His Honour to effectively excise what was merely a contextual aspect of the events and find that was 'the' assault.
56.The learned Magistrate questioned defence counsel as to what they thought of the appellant being found guilty of common assault through his attempts to enter the toilet and what the appellant's justification was.
57.Defence counsel raised the issue that based on the appellant's evidence it may not be open to His Honour to find proved the appellant did in fact apply force to Ms Renfro's person, as the evidence was that he essentially opened the door and he did not admit to kicking the door.
58.Magistrate Maughan followed an alternate pathway to guilt concerning a charge of common assault in relation to the appellant's actions in trying to open the door. This was materially different to the case the prosecution both opened and closed its case on, namely that the assault occurred when the appellant yanked Ms Renfro's wrists on the bed.
H.Ground Two:
a)The verdict of guilty was unreasonable and/or unsupported by the evidence;
59.The verdict of guilty concerning a charge of aggravated common assault in relation to the appellant's actions with the toilet door was unreasonable and/or unsupported by the evidence.
…
c)Applying the relevant case law to facts of this case;
61.The learned Magistrate had to either accept or reject the evidence of the appellant. If His Honour accepted it, or it caused him a reasonable doubt, Mr Gardiner was entitled to be acquitted; Wark v The State of Western Australia [2020] WASCA 19 per Beech JA. His Honour's failure to expressly reject the appellant's evidence resulted in a verdict that was unreasonable.
62.In addition, the evidence adduced by the prosecution at trial regarding the appellant's force on the door was insufficient to convict the appellant for common assault.
The respondent's submissions
The respondent argued that two questions arose in the context of ground 1:
(a)first, did his Honour convict Mr Gardiner on a basis different from that put by the prosecution?; and
(b)second, if the answer to (a) is yes, did Mr Gardiner suffer any prejudice?
Analysis
Defence case
The fact that the defence case may have been focused upon the issues relating to the bed injury caused during the bed incident does not characterise the way the prosecution put its case.
His Honour did not find that there was self-defence.
The prosecution case was that the toilet door was pushed with force against Ms Renfro. The defence cross-examined both Ms Renfro and the evidence from Mr Gardiner about that.
Ground 1
A pathway to guilt which included the application of force during the door incident was relied upon by the prosecution. It opened on the basis that there was a continuing altercation. That is the way his Honour understood the prosecution case. One incident of a continuing assault can constitute an assault.[22]
[22] Gardner v Caporn [105].
The prosecution case was not opened or closed on a materially difference basis. In the closing the prosecution stated: 'but it's clear the accused puts his foot in the door of the toilet. This they agree'.
Particular 1.1
As stated above His Honour's pathway to guilt was consistent with the prosecution opening.
The opening referred to an altercation consisting of the toilet door and the bed incident. There is no suggestion in the opening that there was any delay between the two parts of the altercation as it was alleged to have occurred immediately after Ms Renfro pushed past Mr Gardiner. That is the way His Honour understood the prosecution case.
Particular 1.2
His Honour noted that the only evidence that was not challenged was that whilst Ms Renfro was in the toiler the appellant apparently tried to prevent her from closing the door to confront her. Mr Gardiner submitted that it can be inferred from that that it was not challenged because it was not relied upon by the prosecution. I don't accept that that inference can be drawn. As can be seen from the passages noted above, and in particular those underlined, the defence cross examined extensively on the door incident and the application of force. His Honour's proposed finding was put to defence counsel by his Honour in the course of defence counsel's closing.
Defence counsel had every opportunity to properly argue the case.
Particular 1.3
Mr Gardiner's submissions state that defence counsel raised the issue that the prosecution did not rely on the door incident in its opening. What defence counsel said was 'Well, I think the difficulty with that would have been the prosecution haven't relied on that allegation'. It was then put to defence counsel by His Honour, correctly, that in fact the prosecution had raised the door incident in its opening and defence counsel responded to that.
Ground 1 is not made out.
Ground 2
In McElholum v Hughes[23] Refshauge J found that an application of force can be constituted by the imposition of force through a door.
[23] McElholum v Hughes [2015] ACTSC 78 [187] ‑ [192].
Ms Renfro gave evidence of the assault in Mr Gardiner forcing the door open when she was in the bathroom. His Honour accepted that. It was a finding that was supported by the evidence as set out above.
It was open His Honour to accept that Ms Renfro's evidence established guilt beyond reasonable doubt.
His Honour did not convict Mr Gardiner on a basis different from that put by the prosecution.
Ground 2 is not made out.
Did Mr Gardiner suffer any prejudice?
In any event, Mr Gardiner's counsel cross examined Ms Renfro extensively about the door incident. Mr Gardiner gave evidence about the door incident. The prosecution cross-examined Mr Gardiner about the door incident. It was raised by his Honour during defence counsel's closing. The incident was squarely raised in the case. Defence counsel had every opportunity to deal with it, and in fact did.
If defence counsel did not believe the issue was fairly raised he could have applied to re-open.
This is demonstrably not a case where the defence suffered the loss of an opportunity to make responding submissions.
Mr Gardiner did not suffer any prejudice.
Leave to appeal
I am not satisfied that the grounds have a reasonable prospect of succeeding - that is a real prospect of success.
Leave to appeal is refused. Accordingly the appeal should be dismissed.
Orders
The orders I make are as follows:
1.Leave to appeal is refused.
2.Accordingly, the appeal is dismissed.
3.The appellant is to pay the respondent's costs of the appeal to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MDM
Associate to the Honourable Justice Curthoys21 SEPTEMBER 2020
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