Gartner v Brennan

Case [2016] WASC 89

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   GARTNER -v- BRENNAN [2016] WASC 89

CORAM:   PRITCHARD J

HEARD:   31 JULY 2015

DELIVERED          :   23 MARCH 2016

FILE NO/S:   SJA 1079 of 2014

BETWEEN:   BENJAMIN DAVID GARTNER

Appellant

AND

JAMIE BRUCE BRENNAN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE M WHEELER

File No  :HC 78 of 2014

Catchwords:

Appeal against conviction - Assault occasioning bodily harm - Section 317(1) Criminal Code (WA) - Where use of force was excessive - Section 260 Criminal Code (WA)

Application for leave to appeal against conviction - Whether ground of appeal has reasonable prospect of success - Whether Magistrate convicted the appellant on a factual basis not relied on by the prosecution - Whether there was any unfairness to the appellant - Leave to appeal granted - Where Magistrate did not depart from factual basis relied on by prosecution - Where no unfairness to the appellant - Appeal dismissed

Application for leave to appeal against conviction - Whether Magistrate erred in law by finding that the charge of assault occasioning bodily harm had been proven beyond reasonable doubt - Whether Magistrate's finding was against the weight of the evidence - Where Magistrate's finding was not against the weight of the evidence - Where the offence had been proven beyond reasonable doubt - Leave refused

Application for leave to appeal against conviction - Whether Magistrate erred in law in relying on closed-circuit television footage - Whether Magistrate erred in law in relying upon evidence from unrelated cases - Whether Magistrate erred in failing to take into account only the evidence at trial - Whether Magistrate excluded other hypotheses reasonably open on the evidence - Where Magistrate did not take into account material extraneous to the evidence adduced at the trial - Leave refused

Application for leave to appeal against conviction - Whether Magistrate erred in law and in fact in rejecting the appellant's evidence - Where Magistrate expressly referred to appellant's evidence - Leave refused

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Leave granted in part
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms L B Black

Respondent:     Ms C J Thatcher

Solicitors:

Appellant:     Tindall Gask Bentley Lawyers

Respondent:     State Solicitor's Office

Cases referred to in judgment:

Bennett v Carruthers [2010] WASCA 131

Elwin v Robinson [2014] WASCA 46

Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434

Francis v Todd [2011] WASC 185

Hunt v Callaghan [2011] WASC 10

Johnson v Miller (1937) 59 CLR 467

Johnson v Staskos [2015] WASCA 32

Jones v The Queen (1997) 191 CLR 439

King v The Queen (1986) 161 CLR 423

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen (1994) 181 CLR 487

Maqdouf v Robinson [2010] WASC 15

Murphy v Spencer [2013] WASC 256

Re JRL; Ex parte CJL (1986)…

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Gartner v Brennan [2016] WASC 89
Case
[2016] WASC 89
Decision Date

CaseChat Overview and Summary

The case of Gartner v Brennan involved an appeal against a conviction for assault occasioning bodily harm, as charged under section 317(1) of the Criminal Code (WA). The appellant, a police officer, was convicted for an assault on a youth that occurred when the youth was placed in the pod of a police van. The appellant argued that the force used was reasonable and necessary under section 260 of the Criminal Code (WA). The appeal was heard in the Supreme Court of Western Australia.

The central legal issues in the appeal were whether the magistrate had convicted the appellant on a basis not relied upon by the prosecution, whether there was any unfairness to the appellant, and whether the magistrate had erred in law in various respects, including in evaluating the evidence and the charge of assault occasioning bodily harm. The court was also asked to consider whether the magistrate had erred in relying on closed-circuit television footage and in failing to consider only the evidence presented at the trial.

The Supreme Court found that the magistrate did not depart from the factual basis relied on by the prosecution and that there was no unfairness to the appellant. The court held that the magistrate's finding that the offence had been proven beyond reasonable doubt was not against the weight of the evidence. The court also concluded that the magistrate did not take into account material extraneous to the evidence adduced at the trial and that the magistrate had not excluded other hypotheses reasonably open on the evidence. Consequently, the appeal was dismissed, and the application for leave to appeal against the conviction was refused.

The court's final orders were to dismiss the appeal and to refuse leave to appeal against the conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Overview of the evidence at the trial At the trial, the key evidence in relation to the circumstances leading up to the assault, and the assault itself, was given by the appellant, Senior Constable Mallard, and the complainant. In addition, the prosecution tendered closed circuit television footage (CCTV footage) recorded by a camera positioned at the rear of the police station, and which was directed to the area where the police van was parked. The footage recorded the assault. The complainant did not recall the circumstances of the actual assault. Accordingly, the only evidence of the circumstances of the actual assault came from the appellant, Senior Constable Mallard, and the CCTV footage.[4][4] Other witnesses gave evidence in relation to the CCTV footage, to police internal processes in relation to determining when force could be used, and reporting the use of force, and to the fact that immediately after the assault, the complainant's face was bleeding, and his injury required medical attention at the hospital. Evidence of the complainant's physical injuries was admitted without objection. It is not necessary to refer further to this evidence for present purposes. No evidence was given by the youth who was arrested at the same time as the complainant, and who was present when the assault occurred. An application to adjourn the trial to permit him to attend was refused.[5] On the evening in question, the appellant and Senior Constable Mallard were driving through Halls Creek when they saw some youths who started swearing and yelling abuse at the officers before running away.[6] The officers gave chase and apprehended two of the youths, one of whom was the complainant and, as I have already observed, placed them in the pod of the police van to take them to the police station. The complainant was arrested by Senior Constable Mallard, and placed into the pod without being handcuffed. The other youth was arrested by the appellant and was handcuffed prior to being placed into the pod. [6] Trial transcript ts 65 - 66 (11 September 2014). Both of the youths were, to use the complainant's words, 'pretty wasted at the time',[7] having consumed a large quantity of alcohol and smoked cannabis.[8] [7] Trial transcript ts 65 - 66 (11 September 2014).[8] Trial transcript ts 64 - 65, 76 - 77 (11 September 2014). Senior Constable Mallard's evidence was that as the appellant went to shut the door of the pod, the complainant 'began to shout abuse and kick the door'[9] and threatened to kill the appellant.[10] During the drive back to the police station, the officers heard banging coming from the back of the pod.[11] The complainant recalled that while in the pod, the he was 'kicking at the door' of the pod.[12][9] Trial transcript ts 98 (12 September 2014).[10] Trial transcript ts 109 (12 September 2014).[11] Trial transcript ts 109 (12 September 2014).[12] Trial transcript ts 68 (11 September 2014). The appellant's evidence was that when he went to close the pod door after apprehending the youths, it was kicked from inside, and he saw the complainant with his foot on the door.[13] He said that he heard the door being kicked, and the complainant swearing and yelling abuse from inside the pod.[14]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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