Gardiner v The King

[2023] SASCA 58

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

GARDINER v THE KING

[2023] SASCA 58

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Nicholson and the Honourable Justice Stein)

5 June 2023

APPEAL AND NEW TRIAL

CRIMINAL LAW - PROCEDURE - VERDICT - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - FALSE IMPRISONMENT AND DEPRIVATION OF LIBERTY

Application for leave to appeal against verdict.

The applicant was convicted, following a jury trial in the District Court, of aiding and abetting the false imprisonment of a complainant by a co-accused, Mr Joshua Barry.

On 7 December 2019, the complainant was taken to the applicant’s premises in Victor Harbor and falsely imprisoned by Mr Barry overnight. The jury was satisfied beyond reasonable doubt that: (1) Mr Barry committed the offence of false imprisonment; (2) the applicant knew the essential facts involved in the commission of the offence; (3) that the applicant intentionally aided, abetted, counselled or procured the commission of the offence.

The applicant sought permission to appeal on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence, as formulated in subsection 158(1)(a) of the Criminal Procedure Act 1921 (SA).

Held (the Court):

1.The objective evidence is sufficient to render any explanation for the applicant’s conduct consistent with innocence, fanciful and not a reasonable possibility.

2.Leave to appeal is refused.

3.Appeal dismissed.

Criminal Procedure Act 1921 (SA) s 158(1)(a), referred to.
Dansie v The Queen [2022] HCA 25; M v R (1994) 181 CLR 487, considered.

GARDINER v THE KING
[2023] SASCA 58

Court of Appeal – Criminal: Kourakis CJ, Nicholson AJA and Stein AJA

THE COURT.

Introduction and uncontested facts

1. Reon Gardiner stands convicted, following a trial in the District Court, of aiding and abetting the false imprisonment of a complainant by a co-accused, Joshua Barry. He has applied for permission to appeal on the sole ground, as stated in the notice of appeal, that the verdict is “unsafe and unsatisfactory”, that is, as formulated in subsection 158(1)(a) of the Criminal Procedure Act 1921 (SA) that it is unreasonable or cannot be supported having regard to the evidence.

2. The complainant was taken to the applicant’s premises in Victor Harbor and falsely imprisoned by Joshua Barry overnight on 7 December 2019.  The prosecution’s contention, as against the applicant, was that he made his premises available to Barry with knowledge of and for this purpose.  In order to make out this case, the prosecution had to establish beyond reasonable doubt that: (1) someone (Barry) committed the offence of false imprisonment; (2) the applicant knew the essential facts involved in the commission of the offence; and (3) the applicant intentionally aided, abetted, counselled or procured the commission of the offence. 

3. Barry was convicted of the principal offence at the same trial at which the applicant was convicted.  It is not in dispute that element (1) of the charge against the applicant was established on the evidence at trial.  So much was conceded by counsel on appeal.[1]  The contest at trial and on appeal concerned whether or not elements (2) and (3) had been established beyond reasonable doubt.

   [1]     Appeal transcript (AT) 2.  Different counsel appeared at trial and on appeal.

4. The prosecution case was based in large part on evidence from the complainant.  Counsel for the applicant at trial did not cross-examine the complainant.  Furthermore, very little, if any, of the other evidence adduced by the prosecution was challenged.  The applicant did not give or call any witness to give evidence.  However, the applicant did provide a police record of interview which formed part of the prosecution case.  The contest at trial concerned the competing inferences to be drawn from the evidence adduced in the prosecution case.

5. We accept as having been established the following summary of facts, as provided in the respondent’s written submissions on appeal.[2]

   [2] Respondent’s written submissions at [24].

   (i) [Barry] (the co-accused) was in possession of a blue Citroen hatchback on about 21 November. The complainant and her boyfriend, [LG], stole that vehicle from Barry on about 21 November.[3]

   [3]     See eg trial transcript 62-65.

   (ii)After the vehicle was stolen, Barry was looking for the complainant, who he also knew went by the name “Mixie Queen”.[4]

   [4]     See eg trial transcript 68-72.

   (iii)The complainant was known, in particular by her Facebook Messenger account, as Mixie Queen.[5]

   [5]     Trial transcript 171-172.

   (iv) On 4 December the applicant exchanged text messages which, unprompted, disclosed his knowledge that Barry was looking for a “Queen”; in particular the applicant, without prompting, said to Barry “…have info for U [sic] regarding a queen”.[6]

   (v) Late on 7 December 2019, Barry contacted the applicant via text message, saying “Yo I really need your help”, “I have the queen” and “Need to clean her up”.[7]

   (vi)The applicant replied to Barry confirming Barry could bring “the Queen” to his premises: “Sweet as. What should I have ready?”[8]

   (vii)Barry responded “Boxers post 12 round fight kit ice packs cut easy over eye”.[9]

   (viii)Upon arriving at the premises, the complainant saw a man who was “pretty tall” with “dark hair” and a goatee, that while she “didn’t get a good glimpse of him…I just saw, you know, sort of Jesus, Jesus style hair and stuff like that and saw that he was quite tall.”[10] This description was consistent with the applicant’s appearance which can be seen in his record of interview.[11] Counsel for the applicant at trial accepted this evidence was capable of founding an inference that it was the applicant.[12]

   (ix)The complainant gave evidence that when she was at the applicant’s premises, she was from her “nose upwards was all black…I was all puffy and stuff like that, very, very black eyes…I was bleeding…I just had blood everywhere.”[13] The photographs of the complainant after she had reported the offence to the police (and as a result after she had had the opportunity to clean her wounds) show the significant injuries that she suffered.[14]

   (x)After being at the premises in a bedroom for some time, the complainant went to the bathroom, which caused a disturbance. She gave evidence that a female who was in the house had seen her leave the room and that upon seeing the complainant, the female told another person to “Go wake up Josh”.[15]

   (xi) On 8 December 2019, while Barry and the complainant remained at the applicant’s premises, the applicant attended Big W in Victor Harbor at Barry’s request and with money provided by Barry to buy clothes for the complainant.

   (xii)While he was providing that assistance to Barry, the applicant received a text message telling him to hurry and that it was “not a fashion contest”.

   (xiii)That after Barry and the complainant had left the applicant’s house, Barry sent text messages to the applicant that were consistent with identifying that the complainant’s boyfriend was in Queensland and providing a phone number for him.

   [6]     Exhibit P44.

   [7]     Exhibit P44.

   [8]     Exhibit P44.

   [9]     Exhibit P44. 

   [10]   Trial transcript 140-141. 

   [11]   Exhibit P31. 

   [12]   Trial transcript 571. 

   [13]   Trial transcript 143-144. 

   [14]   Exhibit P20, including in particular photographs 18-23, 30-31. 

   [15]   Trial transcript 144, 146. 

6. The following matters[16] emerged from the applicant’s record of interview.[17]

   [16] Again, as summarised in the respondent’s written submissions on appeal at [25].

   [17]   Exhibits P31, P31A.

   (i)When the incident is first discussed, the applicant said that he knew what was being spoken about and that it was “…a mate’s girlfriend or something like that man, they came and hung out.”[18]

   (ii)The applicant said that the visit was arranged because his mate was in the area and “…his girlfriend was you know tired or whatever knackered and yeah just gave him the room, their own bed and that was it”.[19]

   (iii)While the applicant said that he “didn’t get a good look at her face”, he provided a description of the female: “probably mid, shoulder length brown hair I reckon brunette maybe…honestly it looked like she was knackered, tell you the truth look like she had been out partying man for a couple of days”.[20]

   (iv)The applicant said that [Barry] asked him to “…go grab some clothes for her, for his girlfriend I assume.”[21] The applicant said he went to Big W with his friend Amanda and purchased “…shoes, bra, like you know women’s underwear…basically a full outfit sort of thing, you know pants, shoes, underwear and stuff like that you know Bras, knickers whatever and a shirt, t-shirt or whatever and a hat”.[22] The applicant said that [Barry] had given him money to purchase the clothes.[23] The receipt from Big W tendered at trial shows the number of items purchased (and reflects the purchase of an entire set of clothing, shoes and a hat) for $100 in cash.[24]

   (v)After he was confronted with allegations by the interviewing officer that he may have been involved in the offending, the applicant said that [Barry] “…did say she had a black eye or something like that”.[25]

   (vi)The applicant described that they day [sic] after the complainant had stayed the night that “There was red shit on the fuckin sheets”.[26]

   (vii)The applicant had heard about a “Mixie Queen” who had ripped off Josh [Barry] and that he was looking for her.[27]

   (viii) The applicant then said that he had “…no idea it was even her, or had anything to do with her”[28] and, later in the interview, that “I didn’t see no injuries” and when told she had a fractured skull said “Oh you fucking kidding me, I didn’t know anything about this man, I honestly did not know anything about this whatsoever, when she left the next day” and then described saying goodbye and observing the complainant when she left his house.[29]

   [18]   Exhibit P31A page 2.

   [19]   Exhibit P31A page 5. 

   [20]   Exhibit P31A page 7. 

   [21]   Exhibit P31A page 18. 

   [22]   Exhibit P31A page 18. 

   [23]   Exhibit P31A page 19. 

   [24]   Exhibit P26. 

   [25]   Exhibit P31A page 26. 

   [26]   Exhibit P31A page 26. 

   [27]   Exhibit P31A page 31. 

   [28]   Exhibit P31A page 33. 

   [29]   Exhibit P31A page 38.  

   An unnecessary restriction on the prosecution case

7. When summing up to the jury, the Judge imposed the following temporal limitation on the prosecution case.[30]

   The second part that the prosecution must prove is that [the applicant] knew the essential facts involved in the commission of the offence of false imprisonment by Mr Barry. So, again, this is state of mind, this is about the state of [the applicant’s] knowledge.

   The prosecution must prove that either before or by the time of Mr Barry's arrival with [the complainant], [the applicant] knew that Mr Barry had the intention to unlawfully deprive her of her liberty against her will and without her consent at [the applicant’s] house. So I repeat that: must prove that either before or at the time of Mr Barry's arrival with [the complainant] at Victor Harbor, [the applicant] knew that Mr Barry had the intention to unlawfully deprive her of her liberty against her will and without her consent at [the applicant’s] house. Prosecution relies on the text messages on 4 and 7 December between [the applicant] and Mr Barry.

   Thirdly, if the prosecution has proved that [the applicant] had that knowledge by that stage, the prosecution must go on to prove that [the applicant] intentionally aided and abetted Mr Barry to commit that offence of false imprisonment of [the complainant] by providing his premises for that purpose.

   I direct you that his mere presence at his house, of course, is insufficient to prove this offence. You must be satisfied that [the applicant], with that knowledge by the time they arrived at his house or as at the time they arrived at his house, helped Mr Barry to commit the offence of false imprisonment by providing his premises for that purpose.

   The direction was unnecessarily favourable to the defence.  It would appear to imply an assumption that the false imprisonment by Barry, pertinent to the applicant’s accessorial liability, occurred only at the time of his arrival at the applicant’s house.  Such an approach would limit (unnecessarily) the relevance of the evidence of events that occurred after that arrival.  Further, the Judge’s directions as to the use of such evidence were ambiguous and failed to take into account the context established by the temporal limitation, as set out above.

   [30]   Appeal Book (AB) 101-102.

8. For example, shortly after giving the temporal limitation direction, the Judge summarised the evidence and inferences contended for, relied on by the prosecution with respect to the second element (knowledge).  That summary included the following.[31]

   [31]   AB102, 103-104.

   In terms of the evidence, there is no evidence that [the applicant] had any involvement in the endeavours of people to find [the complainant] or, indeed, in the events of 7 December which occurred prior to the phone contact he had from Mr Barry at 10.13 p.m. I direct you that that evidence is not to be used in the case against [the applicant].

   The prosecution relies upon, one, the evidence of [the complainant] that she was falsely imprisoned at Victor Harbor. Two, the phone contact between [the applicant] and Mr Barry on 4 December 2019 regarding his knowledge about Mixie Queen or the queen. Three, the phone contact between Mr Barry and [the applicant] on the evening of 7 December, as summarised at pp.12-13 in Exhibit P47. Four, the evidence that [the applicant] purchased clothes for [the complainant] at Big W on 8 December 2019 and Five, the interview of [the applicant].

   .  .  .  .

   On behalf of the prosecution, [the prosecutor] submitted that you may well conclude from that text on 4 December with Mr Barry that [the applicant] did in fact have no further involvement until that text on 7 December. The prosecution case is that it would seem like it was spontaneous contact from Mr Barry that night. Nevertheless, [the prosecutor] said that [the applicant] knew before then, from that text and also from his own account in the interview, that Mr Barry was searching for Mixie Queen. [The prosecutor] said that the texts from Mr Barry that night make it clear that the queen was not there willingly, she needed to be cleaned up and the most favourable interpretation to [the applicant] is he knows that Mr Barry has the queen and that she's been badly beaten.

   [The prosecutor] referred to [the applicant’s] interview lacking credibility. He said to suggest to the detective that he was not able to see [the complainant’s] injuries is fanciful, you have seen the photographs. He said so was the possibility that others in the house knew that she was being imprisoned by Mr Barry but he did not. You can also infer that he knew that she was a prisoner in his house at Mr Barry's behest because he is the one who went and purchased those clothes for [the complainant]. He said if [the applicant] did not know then why did [the complainant] not get those clothes herself or Mr Barry, why did [the applicant] go himself? The answer is that if she was being falsely imprisoned she could not leave to get the clothes. [The applicant] was the only option and he knew she was being imprisoned in his house by Mr Barry and neither of those two could leave.

   He also referred you to the subsequent texts between [the applicant] and Mr Barry the following evening. Members of the jury, you can have regard to evidence of conduct after an offence has been allegedly committed to infer a state of mind or a knowledge at the relevant time. He referred you to the text about Mackay and the contact for [LG]. [The prosecutor] submits that supports [the complainant’s] evidence that Mr Barry and [the applicant] were discussing contacting her boyfriend, which is more evidence that Mr Barry had indeed fully informed [the applicant] of the imprisonment of [the complainant] when they were at Victor Harbor.

   For [the applicant], [the applicant’s counsel] submitted that the factual matters on the prosecution case are not significantly disputed. What is in dispute are the inferences that you are being asked by the prosecution to draw from those facts. He said the prosecution must satisfy you that [the applicant] had actual knowledge of the false imprisonment by Mr Barry and, with that knowledge, he intentionally assisted Mr Barry. He made a number of points to say that the prosecution had not established that beyond reasonable doubt.

9. The evidence that the applicant agreed to purchase clothing for the complainant at Barry’s request (the clothing evidence) was probative in two ways.  First, the fact that the applicant was asked to go shopping for women’s clothing rather than Barry himself or his “girlfriend” (the complainant) doing the shopping, when considered with other evidence, allows for the inference (amongst others)[32] that the complainant was not permitted to leave[33] and that Barry wished to stay with her to ensure that she did not.  Second, the fact that the applicant complied with such an unusual request without question or objection allows for the inference that, at the time of the request or earlier, his state of mind was that the complainant was being held against her will.  Neither use assists with a finding that the applicant necessarily had the required state of mind as at the time of the complainant’s arrival the night before.

   [32]   Such as the weak inference that Barry and the “girlfriend” simply preferred to stay in the house and have others perform such domestic tasks for them. 

   [33]   There was no evidence to the effect that the applicant was aware of the complainant being physically incapable of leaving.  Indeed, she had walked into the house under her own steam the night before.

10. The prosecution case would have been made out if, at any time the applicant was sufficiently aware of the circumstances for element 2 to be satisfied, he had made or continued to make his house available so as to assist Barry in falsely imprisoning the complainant.  If it were to be the case that the applicant only acquired the requisite knowledge on the Sunday morning, his continuing to make his house available until Barry left with the complainant would complete the accessorial offence.

11. It was not necessary (although would be sufficient) for the applicant to have had the requisite knowledge at any earlier time.  As earlier stated, the temporal limitation direction was unnecessarily favourable to the defence.  Given the Judge’s potentially confusing explanation as to use to be made of the clothing evidence, the use, if any, made of this evidence by the jury cannot be known or assumed.  None of this assists the applicant to identify a material error in the Judge’s directions unless, by virtue thereof, the applicant had been prejudiced because, as a matter of fairness, the jury was not entitled to use the clothing evidence in either of the ways earlier outlined.

12. The same question arises in the context of this appeal.  Is this Court, when considering the applicant’s unreasonable verdict ground of appeal, restricted to the prosecution case as put to the jury with the temporal limitation direction?  The following events bear on this issue.

    (i)At the conclusion of the prosecution case, the applicant made a no case submission during which both parties referred to the clothing evidence but without specifying its use other than, implicitly, as to the applicant’s Sunday state of mind.[34]

    (ii)Following the Judge’s refusal of the no case submission the usual discussion as to directions to be given by the Judge took place.  During this discussion, counsel for the applicant continued to speak in generalities concerning the “provision of the house” by the applicant.  There was no suggestion that this had to have occurred at a single point in time rather than as a continuing course of conduct.[35]

    (iii)In his final address the prosecutor referred to and relied on the clothing evidence in a general sense,[36] that is, as strongly probative of the applicant’s state of mind as at the Sunday.

    (iv)During his final address the applicant’s counsel referred to the clothing evidence and contended for an explanation consistent with innocence and that “it doesn’t necessarily mean that he had any knowledge … of a false imprisonment … let alone intending to assist [Barry]”.[37] 

    [34]   Trial transcript (TT) 569-570, 573, 574.

    [35]   For example, TT588.28.

    [36]   TT639-640.

    [37]   TT711.

1. To this point there had been no mention of the temporal limitation issue.  It was raised for the first time by the Judge after final addresses and immediately before the summing up.[38]

   HER HONOUR:        [Prosecutor], in relation to the timing of knowledge of [the applicant] for count 4, given that it's the provision of his premises, he must have that knowledge at the stage either just before or at the time of the arrival?

   [PROSECUTOR]:      Yes, I would say by the arrival by [the complainant].

   .  .  .  .

   HER HONOUR:     All right, I think that covers everything.

   [38]   TT718-719.

2. The temporal limitation favoured the defence and it is not surprising that counsel for the defence did not demur.  However, it cannot be contended that the applicant was prejudiced in the presentation of his case.  Counsel are assumed to have had a proper understanding of the elements of the aid and abet offence.  The Judge’s decision to give the temporal limitation direction could not have had any effect on the defence forensic decisions such as whether to cross-examine or call evidence including from the applicant.  Evidence of events that took place after the complainant’s arrival can be relied on to assist in establishing the applicant’s state of mind as at any time during the period that he made his premises available to Barry over that weekend.

   Unreasonable verdict – the task before the appeal court

3. The task before the appeal court is[39] to “to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of [the] offence”.  The Court[40] in Dansie v The Queen[41] amplified the above proposition as follows.

   That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”,[42] that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.[43]

   The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”.[44] The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:[45]

   “It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

   That passage was immediately followed in the joint judgment in M with an explanation that “[a]lthough the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above”.[46] As a consequence of M, prior formulations of principle to be found in numerous decisions on the unreasonable verdict ground which preceded M must be approached with caution. Indeed, some prior formulations are irreconcilable with the key passages in M and must be understood to have been overtaken by M.

   [39]   Dansie v The Queen [2022] HCA 25 at [7].

   [40]   Gageler, Keane, Gordon, Steward and Gleeson JJ.

   [41] [2022] HCA 25 at [8]-[10].

   [42]   M v R [1994] HCA 63; (1994) 181 CLR 487 at 493. See also at 508.

   [43] [1994] HCA 63; (1994) 181 CLR 487 at 492.

   [44] [1994] HCA 63; (1994) 181 CLR 487 at 493.

   [45] [1994] HCA 63; (1994) 181 CLR 487 at 494-495 (footnotes omitted).

   [46] [1994] HCA 63; (1994) 181 CLR 487 at 495.

4. In this case, the jury did not enjoy any of the usual advantages consequent on seeing and hearing the witnesses give their evidence.  This Court on appeal is in the same position, as was the jury, when coming to assess and draw inferences from the whole of the evidence, including the applicant’s video record of interview, as the Court is obliged to do.

   Resolution

5. We have reviewed the evidence, in particular, that as summarised above at paragraphs [5] and [6] and the parties’ respective submissions.  The jury must have rejected the explanations given by the applicant in his video record of interview in support of his innocence.  The jury was entitled to do so and to put the rejected parts of the record of interview to one side when considering the evidence relied on by the prosecution. 

6. On the basis of the findings of fact in paragraph [5] considered as a whole, but with particular weight being given to (iii) to (ix) inclusive, we are satisfied beyond reasonable doubt that, at the time of or shortly after the arrival of the complainant, the applicant knew that the complainant was being held by Barry against her will and was willing to provide his premises to facilitate that purpose.  The applicant’s readiness to comply and his behaviour with respect to the clothing incident are explainable on no other basis.  It was open to the jury to be satisfied beyond reasonable doubt that at all times between Barry’s and the complainant’s arrival and their leaving, the applicant made his premises available with the knowledge of and to assist Barry’s purpose.  The objective evidence is sufficient to render any explanation for the applicant’s conduct consistent with innocence, including that suggested in his counsel’s submissions at trial and on appeal and in his record of interview, fanciful and not a reasonable possibility.

7. We would refuse the application for leave to appeal and dismiss the appeal.