Gardiner v Hunter - [2020] WASC 305

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gardiner v Hunter

Details

AGLC: Gardiner v Hunter [2020] WASC 305
Case: [2020] WASC 305
Decision Date: 21 SEPTEMBER 2020

CaseChat Overview and Summary

The matter before the court involved a dispute between Gardiner and Hunter. The primary issue was whether Hunter's conduct constituted a continuous assault, which would make Gardiner's failure to prove it at trial a fatal flaw. The case was heard in the Supreme Court of New South Wales. The core legal issue was whether the trial judge erred in allowing Hunter's case to proceed on the basis that the alleged assault was not continuous, thereby depriving Gardiner of the opportunity to adequately address the matter. The court also needed to determine whether Gardiner was prejudiced by this error, which could have implications for the outcome of the case.

The court analysed whether the nature of the alleged assault, occurring over a period of time, constituted a continuous assault. It was necessary to decide if Gardiner's inability to respond to this specific legal argument constituted a miscarriage of justice. The court considered whether the trial judge's decision to allow Hunter's case to proceed under the assumption that the assault was not continuous was correct and whether Gardiner's opportunity to present a full defence was compromised. Ultimately, the court had to determine whether Gardiner suffered any prejudice as a result of this error.

The court concluded that the trial judge's decision to proceed with the case on the basis that the assault was not continuous was erroneous. However, it found that Gardiner did not suffer any prejudice due to this error. The court held that Gardiner's evidence was sufficient to establish the assault and that the error did not affect the outcome of the case. Consequently, the court dismissed the appeal, finding that Gardiner had not been prejudiced by the trial judge's error. The court emphasised the importance of ensuring that all parties have a fair opportunity to present their cases, but in this instance, the error did not result in any prejudice to the appellant.

Orders