Gill v Warrener
[2021] WASC 332
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: GILL -v- WARRENER [2021] WASC 332
CORAM: DERRICK J
HEARD: 11 AUGUST 2021
DELIVERED : 1 OCTOBER 2021
FILE NO/S: SJA 1008 of 2021
BETWEEN: MATT CHANAN GILL
Appellant
AND
MICHELLE WARRENER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E SHACKLETON
File Number : PE 42707 OF 2018
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted of unlawful assault occasioning bodily harm - Whether magistrate made an error in finding that appellant told a lie - Whether magistrate found that lie told by appellant was evidence of guilt - Whether lie found by magistrate to have been told by appellant was evidence of guilt - Whether magistrate made an error in treating post‑offence conduct of appellant as evidence of guilt - Whether magistrate's verdict was unreasonable or not supported by the evidence
Criminal law - Appeal against sentence - Sentence of suspended imprisonment - Whether wrong type of sentence imposed - Whether spent conviction order should be made
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters and Mr K Burgoyne |
| Respondent | : | Ms H K Watson |
Solicitors:
| Appellant | : | Robertson Hayles Lawyers |
| Respondent | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
Ali v The State of Western Australia [2013] WASCA 55
Allami v The State of Western Australia [2013] WASCA 230
Ban v The State of Western Australia [2020] WASCA 91
Bradbury v The State of Western Australia [2020] WASCA 214
Clarke v The State of Western Australia [No 2] [2013] WASCA 197
Closter v Humphreys [2012] WASC 145
Dayananda v The State of Western Australia [2021] WASCA 11
Dillon v The State of Western Australia [2020] WASCA 24
Dodd v The State of Western Australia [2014] WASCA 13; (2014) 238 A Crim R 72
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Eldridge v The State of Western Australia [2020] WASCA 66
Eric v Bull [2014] WASC 342
Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310
Harper v Page [2004] WASCA 267
Holden v The State of Western Australia [2009] WASCA 50
Kelly v The State of Western Australia [2020] WASCA 29
Lardi v The State of Western Australia [No 2] [2021] WASCA 117
Law v The Queen [2020] WASCA 196
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mason v The State of Western Australia [2018] WASCA 43
McComish v Harman [2016] WASC 324
Mical v Ward [2003] WASCA 149
Miller v The State of Western Australia [2021] WASCA 138
Mourish v The State of Western Australia [2006] WASCA 257
Newhill v The State of Western Australia [No 2] [2015] WASCA 121
Page v The State of Western Australia [2018] WASCA 76
Quigley v The State of Western Australia [2013] WASCA 9
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Rajakovic v The State of Western Australia [2020] WASCA 98
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shoard v Van Der Zanden [2013] WASC 163
The State of Western Australia v Egeland [2018] WASCA 228; (2019) 276 A Crim R 77
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115
Willenberg v Downey [2015] WASC 282
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim 326
Wright v McMurchy [2012] WASCA 257
WRT v The State of Western Australia [2020] WASCA 68
DERRICK J:
Introduction
On 17 August 2018 the appellant was charged with one offence of unlawfully assaulting William Clarence Isgar (the complainant) and thereby causing him bodily harm contrary to s 317(1) of the Criminal Code (WA) (Code).[1] The appellant was alleged to have committed the offence with three other persons all of whom were separately charged. The three alleged co-offenders were Mr Mitchell Fitzgerald, Mr Jake French and Mr Gregory Street. The appellant, Mr Fitzgerald, Mr French and Mr Street all pleaded not guilty to the charge laid against them.
[1] Charge PE 42707 of 2018.
The trial of the appellant and his three alleged co‑offenders took place before Magistrate Shackleton on 15 to 17 June 2020, 26 August 2020 and 3 November 2020. The appellant was represented at the trial. At the conclusion of the trial the magistrate reserved his decision.
On 23 November 2020 the magistrate found the appellant and Mr French guilty of the charged offence and recorded judgments of conviction against them. His Honour found Mr Fitzgerald and Mr Street not guilty of the charged offence. His Honour delivered oral reasons for his decision.
On 4 January 2021 the magistrate sentenced each of the appellant and Mr French to 8 months imprisonment suspended for a period of 12 months.
The appellant applies for leave to appeal against the decision of the magistrate convicting him of the offence and for leave to appeal against the sentence imposed on him by the magistrate for the offence.[2]
[2] The applications for leave to appeal are made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to convict the appellant, and the sentence imposed by the magistrate, are decisions that may be appealed by the appellant: CAA, s 6(c), s 6(f) and s 7(1).
On 24 March 2021 the Principal Registrar ordered that the applications for leave to appeal were to be heard together with the appeal.
The terms of the grounds of appeal are set out below. In essence, so far as the appeal against conviction is concerned the appellant alleges by the grounds that the magistrate made an error in determining that a lie told by the appellant was evidence of his guilt, and further that the verdict was unreasonable and not supported by the evidence. With respect to the appeal against sentence, the appellant contends, in essence, that the magistrate made an error in determining that a term of imprisonment was the only appropriate disposition, and further, that the magistrate made an error in not making a spent conviction order under the relevant sections of the Sentencing Act 1995 (WA).
During the hearing of the appeal the appellant's counsel advanced arguments in support of the application for leave to appeal against conviction that were not encompassed by the terms of the grounds of appeal as expressed and that were not disclosed in the written submissions filed in support thereof. I will say more about this in due course.
Leave to appeal - principles
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[3] The ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[4] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[5]
[3] CAA, s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[5] CAA, s 9(3).
The trial - a summary
The prosecution case
At trial the prosecution case against the appellant was, in essence, as follows.[6]
[6] ts 5 - 8, 16 - 20, 26 - 27, 15 June 2020.
During the early morning hours of 14 July 2018 the appellant was working as a security person at The Voodoo Lounge in Northbridge (the club). The complainant was at the club with some work colleagues. The appellant became involved in the eviction of the complainant from the premises. The complainant was obviously drunk. In the course of evicting the complainant the appellant held the complainant in a headlock and dragged him towards an exit. While on a set of stairs leading to the exit the appellant unlawfully assaulted the complainant by either deliberately pushing the complainant down the stairs, or deliberately releasing the complainant in a way that he was, given his intoxicated state, unable to hold himself up. The complainant, as a result of the assault, fell down the stairs, hit his head, was rendered unconscious and suffered bodily harm in the form of an open wound to the back of his head which required stapling.
The prosecution case against Mr Fitzgerald, Mr French and Mr Street was that they were each parties to the commission of the offence by the appellant within the meaning of s 7(b) or s 7(c) of the Code.
The evidence adduced at trial
The prosecution called as witnesses the complainant, Mr Brian Behan who was a work colleague of the complainant and who was also at the club at the relevant time, Senior Constable Justin Stern who was an attending police officer, Constable Rick Toomey who was also an attending police officer, Detective Senior Constable Michelle Warrener who was the investigating officer and Dr Phillip Cantwell who was the doctor who treated the complainant for his injuries.
The complainant had no recollection of what occurred on the stairs leading to the club's exit and was therefore unable to give evidence as to the alleged incident the subject of the charged offence.[7] Mr Behan did not see what occurred on the stairs and was therefore also unable to give evidence as to the alleged incident the subject of the charged offence.[8]
[7] ts 41 - 42, 15 June 2020.
[8] ts 84 - 85, 15 June 2020.
The prosecution tendered as part of its case closed circuit television (CCTV) footage obtained from cameras situated inside the club and outside the club entrance. The CCTV footage, save for the footage obtained from one of the cameras, contained not only a visual but also an audio recording of events that preceded the alleged assault and occurred immediately after the alleged assault.[9] However, none of the footage depicted the area of the stairs on which the assault allegedly occurred. Accordingly, none of the footage depicted the alleged assault.
[9] Exhibits 2.1 and 2.2.
The prosecution also tendered as part of its case the recording of an interview conducted with the appellant on 17 August 2018 (the interview).[10] During the interview the appellant, in essence, asserted that while he had hold of the complainant and was in the process of lifting or carrying him down the stairs the complainant, given his drunken state and given that he was 'flailing all over the place', had 'kicked' or 'tripped over' a step with the result that he was forced to let go of the complainant in order to avoid falling down the stairs with and on top of the complainant.[11] The appellant said that this had occurred about half way down the first flight of stairs and that the complainant had 'smacked his head'.[12] The appellant initially said that the complainant had 'smacked his head on the corner of the rail of the stair'[13] but a little later said that the complainant had 'smacked his head' on the corner of a step.[14] The appellant said that after the complainant had smacked his head he, the complainant, was 'just before the landing' at the bottom of the first flight of stairs.[15]
[10] Exhibit 8.
[11] Interview, ts 7, 11, 15 - 16.
[12] Interview, ts 16.
[13] Interview, ts 16.
[14] Interview, ts 17.
[15] Interview, ts 21.
Neither the appellant nor any of his alleged co-offenders elected to give or adduce evidence.
The issues in dispute
The issues in dispute at trial, so far as the charge against the appellant was concerned, were as follows:
1.Whether the prosecution had proved that the appellant committed the assault as alleged; and
2.If the prosecution had proved the commission of the alleged assault, whether the prosecution had also proved that the alleged assault was unlawful; that is, not authorised, justified or excused by law by reason of s 23A, s 23B and/or s 254 of the Code.
It was not in dispute at trial that the complainant had suffered bodily harm and that if the appellant had assaulted the complainant as alleged the assault was the cause of the bodily harm.
The magistrate's findings
The magistrate expressed his reasons for finding the appellant guilty of the charged offence in the following terms:[16]
[16] ts 10 ‑ 13, 23 November 2020.
So I make the following findings of fact and…when I say I find something and throughout these findings I find these things beyond a reasonable doubt. [The appellant], Mr Street and Mr Fitzgerald were all working at the club on the relevant evening. Mr Street was the manager. [The appellant] and Mr Fitzgerald were crowd controllers. Mr Fitzgerald was at the front door. Mr French was a patron. [The complainant] was also a patron.
During the evening, [the complainant] left the bar area and headed toward the toilet area. On the way he had a short interaction with one or more patrons near the toilet, one of whom was Mr French. [The complainant] then proceeds past the toilet area. He then walks back and into the toilet. Mr Street then walks over to Mr French, places his hand on Mr French's arm or shoulder in a friendly way, and the two of them interact. Mr Street also interacts with others who are there at the scene.
Mr Street then walks to the toilet door and appears to stand there for a period before he's joined by [the appellant]. Later [the complainant] exits the toilet and there's an interaction between him and Mr Street as well as others. Mr French moves away and into or near one of the seating areas. [The complainant] then moves towards the bar, and I find that Mr Street is attempting to guide him away from the bar and then grabs him from behind using both of his arms to pin [the complainant's] elbows back.
As this is occurring, [the appellant] grabs another person. Mr French, who is watching this happening from that seating area, moves very quickly towards Mr Street and [the complainant], moving past another patron in what I find to be an aggressive manner, and I find that he's intentionally inserting himself into a situation which, objectively speaking as a patron, he has no place to be. Mr Street and [the complainant] fall to the ground and [the appellant] quickly lets the other person that he had initially grabbed go and then assists Mr Street in getting [the complainant] up off the floor and both then physically move [the complainant] towards the exit of the bar area.
… [A]fter Mr Street and [the appellant] get [the complainant] off the floor and as they approach the doorway Mr Street shoves [the complainant] forward and [the appellant] then becomes the only person physically handling [the complainant].
At that point, [the appellant] is holding [the complainant] by the right arm and has his left arm over the complainant's shoulder, either around or very close to his neck. In the ATM area [the appellant] takes [the complainant] through the door and down the first flight of stairs. I find the force being used by [the appellant] at that stage is excessive. I find that the force used by [the appellant] was excessive because, first, [the complainant] is not putting up any resistance whatsoever and, in my view, nor was he in a position to.
He's being handled in a manner that could only be, in my view, described as rag dolled, swung around the door and onto the stairs by [the appellant]. Second, [the appellant] is much larger than [the complainant]. Third, [the appellant] is accompanied by others, not least of which is his manager and, fourth, once on the stairs [the appellant] was and would remain at all times in a higher position than [the complainant], so that is why I find that that was excessive, that portion. I'm unable to say that [the appellant] lied when he described the hold upon [the complainant] as an arm lock.
Watching his video record of interview closely, he describes and demonstrates the hold in a manner that, reminding myself on the difference between the size of [the appellant] and [the complainant] and that [the appellant] is holding [the complainant] from behind, the hold that he demonstrates in the video record of interview looks very similar to the hold that I can see in the CCTV. In fact, when directly asked whether [the appellant] placed his arm around [the complainant's] neck at any stage, [the appellant] said, "I tried my best not to do that. I hate doing that", rather than outright denying it.
So, as I say, I can't find that that was a lie, as the prosecution invites me to. I find that [the appellant's] version in the video record of interview that after [the complainant] fell, as he put it, he asked him if he was alright, whether he knew where he was and what day it was and put him in the recovery position and that another person who regularly attends the club offered him a water when what I can hear is someone yell, 'Get up. Get up, you fucking dog', after the first thump.
And then there is a second thump which I find was one or other of the accused on the stairs further assaulting [the complainant], I then hear someone say, 'Down you go, you little faggot', and someone says, 'Get him the fuck up'. That, in my view, is so at odds with what [the appellant] says that I am satisfied to the requisite standard that he was lying in the video record of interview about what occurred on the stairwell after he says that [the complainant] fell. And, on that basis, I reject in total what [the appellant] said in his video record of interview anything that is exculpatory.
I find further that the things that the [appellant] said and did at the bottom of the stairs is completely contradictory to the version that he gave, that is, that [the complainant] tripped or fell. I find that [the appellant] showed no concern whatsoever for [the complainant] as [the appellant] reached the bottom of the stairs. I find that his immediate concern was that Mr French leave the area. I find that [the appellant] said, "Jake, Jake, Jake, get fucking upstairs", and then Mr French comes back inside and does go up the stairs.
I find that [the appellant] says, 'Cops are right outside, bro', then checks both of his hands and says, 'Get your story straight'. I find that what [the appellant] says to Mr Street - that is, 'What happened? The cops are coming', to which Mr Street says something like, 'Arm reached out to the ATM, went onto the floor and then he rolled there', as I say, is just completely contradictory to someone having fallen down the stairs. [The appellant], in my view, was not at all interested in the so-called fall.
On the basis of the whole of the evidence, I do find beyond a reasonable doubt that upon carrying [the complainant] onto the stairs [the appellant] intentionally propelled [the complainant] down the stairs in a manner which was intended to cause him bodily harm and did cause him bodily harm. I find it's the only reasonable inference in all of the circumstances. I find it to be the only reasonable inference because, first, he was the only one holding [the complainant] as they entered the stairwell immediately before the thump.
Second, [the appellant] was already using excessive force at that stage towards [the complainant] and, third, because of his behaviour and the things that he said at the bottom of the stairs. In my view, the prosecution has proved causation to the requisite standard and proved to the requisite standard that sections 254, 23A and 23B of the Code do not apply. In relation to 254 because the force used was not reasonably necessary and because it was likely and intended to do bodily harm.
In relation to 23A because the prosecution has satisfied me that [the appellant's] propulsion of [the complainant] down the stairs was in the exercise of his will and a conscious decision on his part to do so. And in relation to section 23B, because he intended the event, that is the bodily harm, to occur. Obviously those findings constitute a finding beyond a reasonable doubt that [the appellant] is guilty of the offence as charged.
Later in his reasons for decision, the magistrate, in the course of dealing with the charge against Mr French, made the finding that the 'first thump' was caused by the appellant propelling [the complainant] forward, and that the 'second thump' was an assault committed by at least one other person, perhaps the appellant or perhaps some other person or persons who were on the stairs.[17] However, his Honour stated, in effect, that he could not make a finding beyond reasonable doubt as to who committed the 'second thump' assault.[18]
[17] ts 15, 23 November 2020.
[18] ts 15, 23 November 2020.
The magistrate did not, in stating his reasons for finding the appellant guilty of the charged offence, expressly identify the bodily harm that the appellant's assault had caused to the complainant. However, earlier in his reasons for decision the magistrate, in summarising the prosecution's case, did say the following:[19]
… the prosecution alleges that [the appellant] is the principal offender in that he pushed or released [the complainant] as he took him down the stairs, … causing [the complainant] to fall down the stairs, doing bodily harm to [the complainant's] head which had to be later stapled.
[19] ts 4, 23 November 2020.
The factual findings made by the magistrate which formed the basis of his Honour's conclusion that Mr French was a party to the commission of the charged offence by the appellant and was therefore guilty of the charged offence were as follows:[20]
1.Mr French had actual knowledge of the offence committed by the appellant;
2.Mr French waited on the stairs and then proceeded down the stairs in front of the appellant and the complainant; and
3.Mr French, by remaining on the stairs and then proceeding down the stairs in front of the appellant and the complainant intended to assist or encourage the appellant in the assault and did actually assist or encourage the commission of the offence.
[20] ts 14, 23 November 2020.
The appeal against conviction
Ground 1
The appellant's first ground of appeal against his conviction is pleaded in the following terms:
There was a miscarriage of justice when his Honour determined a lie told by the appellant was capable of being one told out of a consciousness of guilt when it was a lie going merely to credit only.
Although the ground of appeal as pleaded alleges a miscarriage of justice, the allegation the subject of the ground is in truth an allegation that the magistrate made an error of law or fact or both.[21]
[21] CAA, s 8(1)(a)(i).
Despite the terms of the ground of appeal and the contents of the written submissions filed in support thereof, at the hearing of the appeal the appellant's counsel, although he refrained from expressly abandoning the ground as pleaded, in effect argued that the magistrate's error was not that his Honour determined that a lie that he had found was told by the appellant was a lie told out of a consciousness of guilt, but rather that his Honour erred in finding that the appellant had told a lie.[22] The appellant's counsel did not seek to amend the ground of appeal as pleaded, or to add a ground of appeal, to reflect his oral submissions.
[22] Appeal ts 12-13, 11 August 2021.
The fact that the appellant's counsel's oral submissions departed markedly from the pleaded ground of appeal and the written submissions filed in support thereof was unsatisfactory. Nonetheless, the respondent's counsel did not seek to take issue with the appellant's counsel's approach (and I make no criticism of her for this) and was able to respond to the appellant’s counsel's oral submissions. In these circumstances, and given that the appellant’s counsel did not expressly abandon the ground as pleaded, I propose to approach the matter by dealing not only with the contention encompassed in the ground of appeal as elaborated upon in the appellant's written submissions, but also with the argument advanced by the appellant's counsel in his oral submissions.
The alleged Edwards lies
At trial the prosecution contended that the appellant told two lies during the interview and that both lies were 'Edwards lies', that is, were lies that were evidence of the appellant's guilt for the charged offence in the sense that the appellant told the lies because he knew that the truth of the matters about which he lied would implicate him in the commission of the charged offence.[23] The two alleged lies that the prosecution contended were Edwards lies were as follows:[24]
1.The appellant's statement that he removed the complainant from the club by placing him in an armlock (as opposed to a headlock or a hold involving the placing of his arm around the complainant's neck) (first alleged lie);[25] and
2.The appellant's statements to the effect that after the complainant 'fell' down the stairs, and prior to the complainant standing up in the stairwell and falling for a second time, he assisted and cared for the complainant (second alleged lie).
[23] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193; Newhill v The State of Western Australia [No 2] [2015] WASCA 121; Law v The Queen [2020] WASCA 196; Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310.
[24] ts 7 - 8, 24 - 25, 16 June 2020; ts 2-3, 3 November 2020; ts 8 - 9, 23 November 2020.
[25] Interview ts 11 - 12, 15, 20, 23, 29.
The appellant's specific statements comprising the second alleged lie were that he put the complainant in the recovery position, and asked the complainant if he was alright, if he could hear him, if he knew where he was and if he knew what day it was.[26] The appellant also said that Mr French asked the complainant the same questions and whether he wanted a glass of water.[27]
The magistrate's relevant directions
[26] Interview ts 16, 17, 21 - 22, 29 - 30.
[27] Interview ts 17, 22.
In his reasons for decision the magistrate referred to the prosecution's contention that the first alleged lie and the second alleged lie were Edwards lies.[28] Having done so the magistrate proceeded to properly direct himself as to the matters that he needed to be satisfied of before he could treat either or both of the alleged lies as evidence of the appellant’s guilt for the charged offence.[29]
[28] ts 8 - 9, 23 November 2020.
[29] ts 9 - 10; 23 November 2020. The magistrate’s directions dealt with all the elements of an Edwards lies direction identified in Newhill v The State of Western Australia [63] - [71], Law v The Queen [62] - [91] and Evans v The State of Western Australia [66] - [69].
Further, immediately before directing himself as to the matters that he had to be satisfied of before he could treat any lie told by the appellant as an Edwards lie, the magistrate directed himself as to the use that he was permitted to make of the appellant's statements in the interview. His Honour’s directions in this regard were as follows (emphasis added):[30]
Mr Street and [the appellant] participated in video records of interview and, having done so, I can consider what each of them said in the interview along with all of the other evidence in this trial. What each accused said in their interviews may be used for and against each maker. What was said by each cannot be used against the other, nor any other accused. It's part of the evidence that I must consider in deciding whether or not the prosecution has proved the offence against each maker beyond a reasonable doubt.
However, what each of them said in the interviews was not made on oath, has not been tested by cross-examination, and I'm not obliged to give the same weight to any exculpatory statements made during the interviews. I'm entitled to give less weight to the exculpatory assertions contained within the record of interview. It's open to me to give exculpatory assertions no weight. If I believed what the maker said in the interview then, in my view, I would acquit.
If I have difficulty in accepting what the maker said in the interview but I think that it might be true then I would acquit that maker. Even if I do not believe what the maker said in the interview I cannot find an issue against that maker contrary to what was said in the interview if what was said or any other evidence, for that matter, has given rise to a reasonable doubt on that issue.
It is important for me to consider that the question I must consider is whether on all the evidence before me the prosecution has proven the charge against each accused beyond a reasonable doubt, and if any evidence, including what either accused said or any other evidence, has given rise to a reasonable doubt, then I cannot convict that accused of the charge. If I do not accept what a maker stated in the interview and I, in fact, reject what a maker said in the interview, it does not follow that automatically that I convict the accused of the offence charged.
The law is that I only deliver a guilty verdict if, on all the evidence, the prosecution has proven the charge beyond a reasonable doubt. If I do not believe or disbelieve and reject and (sic) accused's account given in the video then I simply put that account to one side.
The findings by the magistrate as to whether the lies were told
[30] ts 7 - 8, 23 November 2020.
The magistrate stated his findings as to whether the appellant's relevant statements made during the interview were in fact lies in the course of giving his above quoted reasons for finding the appellant guilty of the charged offence.
The magistrate was not satisfied that the first alleged lie was a lie. As his Honour stated in his reasons, he was unable to say that the appellant lied when he described the hold that he had on the complainant as an 'arm lock'.
The magistrate was satisfied that the second alleged lie was a lie. That is, the magistrate was satisfied that the statements made by the appellant as to what occurred in the stairwell after the complainant 'fell' were lies. As is apparent from his reasons, the magistrate made this finding on the basis of what he was able to see and hear on the CCTV footage.[31]
The argument advanced by the appellant’s counsel in his oral submissions
[31] ts 11 - 12, 23 November 2020; Exhibits 2.1 and 2.2, CH 02 - 333 - Voodoo Entry.
The argument advanced by the appellant's counsel in his oral submissions in support of the contention that the magistrate made an error in finding that the second alleged lie was a lie is in essence as follows.[32]
[32] Appeal ts 11 - 13 and 22, 11 August 2021.
The magistrate found that someone had yelled, 'Get up. Get up, you fucking dog' after the 'first thump'.[33] The magistrate also found that after the 'second thump' (second assault) a person or persons had said, 'Down you go, you little faggot' and 'Get him the fuck up'.[34] However, the magistrate was unable to, and did not, make a finding that any of these statements were made by the appellant. Nonetheless, it was on the basis of the findings that a person or persons had made these statements in the stairwell that the magistrate found that the appellant had, during the interview, lied in making statements to the effect that after the complainant 'fell' down the stairs, and prior to the complainant standing up in the stairwell and falling for a second time, he assisted and cared for the complainant. It was because the magistrate found that the statements made in the stairwell by a person or persons were 'so at odds' with the relevant statements made by the appellant during the interview, that his Honour concluded that he was satisfied 'to the requisite standard' that the appellant had lied during the interview. However, it was not open for the magistrate to conclude on the basis of a statement or statements that his Honour was unable to find were made by the appellant, that the appellant had lied during the interview.
[33] ts 11 - 12, 23 November 2020.
[34] ts 12, 23 November 2020.
So that is a statement of the argument advanced by the appellant's counsel. I note that the appellant does not take issue with the magistrate's findings that a person or persons did make the above referred to statements in the stairwell.
I do not accept the argument advanced by the appellant's counsel. The evidence of the fact of the making of the statements by a person or persons in the stairwell, whether or not the appellant, was part of the evidence of what occurred in the stairwell in the seconds after the complainant had 'fallen' down the stairs and at the time that the appellant, on his version, was providing care and assistance to the complainant. It was therefore open to the magistrate to take account of the making of the statements, along with the other relevant evidence, in determining if the appellant had lied when he said during the interview that after the complainant 'fell' down the stairs he assisted and cared for the complainant. Further, having watched and listened to the relevant CCTV footage myself,[35] it was also, in my opinion, clearly open to the magistrate to find on the basis of what was said by the person or persons in the stairwell, how the words were said, the extremely short time frame within which the words were said, and the extremely short period of time which elapsed between the words being said and the complainant being dragged in a barely conscious state to the bottom of the stairs by Mr French that the appellant did lie during the interview when he made statements to the effect that after the complainant 'fell’ down the stairs and while the complainant was still in the stairwell he assisted and cared for the complainant by putting him in the recovery position and by asking him if he was alright, if he could hear him, if he knew where he was and if he knew what day it was. Indeed, even if the statements made by a person or persons in the stairwell are put to one side, the extremely short period of time which the CCTV footage reveals elapsed between the complainant’s initial 'fall' and the complainant's appearance at the bottom of the stairs is, in my opinion, of itself sufficient to prove that the appellant could not have, and did not, provide care and assistance to the complainant of the type that he described in the interview.
[35] Exhibits 2.1 and 2.2, CH 02 - 333 - Voodoo Entry.
In summary, the audio and visual evidence was totally inconsistent with the relevant statements made by the appellant during the interview. Accordingly, in my opinion it was open to the magistrate, for the reasons expressed by his Honour, to find that the second alleged lie had been proved.
The argument encompassed by the ground of appeal as elaborated upon in the written submissions
The appellant's submissions
The appellant, by the ground of appeal, asserts that the magistrate made an error in treating the lie that he found had been told by the appellant, that is, the second alleged lie, as an Edwards lie. The appellant submits that the magistrate erred in finding the second alleged lie to be an Edwards lie because given his Honour did not find that the appellant was one of the persons who committed the second assault it 'was not reasonably open for him to find the appellant's lie about the second assault … was one told out of a consciousness of guilt'.[36] The appellant submits that a 'central plank' of the magistrate's finding that the appellant told a lie that was capable of being an Edwards lie was '[the magistrate] stating [the appellant] had lied about any involvement in the second assault'.[37] Thus the appellant's submissions in support of this ground of appeal hinge on the acceptance of two propositions. First, that the lie found by the magistrate to have been told by the appellant related to the appellant's involvement in the second assault. Second, that the magistrate treated the lie as an Edwards lie going to prove the guilt of the appellant for the charged offence.
Did the lie relate to the appellant's involvement in the second assault?
[36] Appellant's submissions dated 4 June 2021 (Appellant's submissions), par 23.
[37] Appellant's submissions, par 24.
In my view the submission that the lie that the magistrate found was told by the appellant, the second alleged lie, was a lie about the appellant's involvement in the second assault is without merit. As is apparent from what I have already said, the statements made by the appellant which the magistrate found constituted a lie related to whether the appellant had provided any care or assistance to the complainant in the stairwell after he had 'fallen' down the stairs. The statements did not relate to whether the appellant was involved in the commission of the second assault. Moreover, it cannot be said that implicit in the magistrate's finding that the statements made by the appellant constituted a lie is a finding that the appellant participated in the second assault. I say this because the magistrate's finding that the statements made by the appellant constituted a lie is not inconsistent with his Honour's inability to find to the necessary standard of proof that the appellant was one of the persons who committed the second assault. It was open for his Honour to find that the statements constituted a lie without making a finding that the appellant was involved in the conduct that resulted in the 'second thump', that is, the second assault.
For these reasons I am not satisfied that the lie found by the magistrate to have been told by the appellant was a lie about his involvement in the second assault.
Did the magistrate treat the lie as an Edwards lie?
I am not persuaded that the magistrate did in fact treat the lie that he found had been told by the appellant, that is, the second alleged lie, as an Edwards lie.
It is worth repeating at this point the portion of the magistrate's above quoted reasons in which his Honour dealt with the effect of his finding that the appellant had told the second alleged lie. His Honour said this:[38]
… I find that [the appellant's] version in the video record of interview that after [the complainant] fell, as he put it, he asked him if he was alright, whether he knew where he was and what day it was and put him in the recovery position and that another person who regularly attends the club offered him a water when what I can hear is someone yell, 'Get up. Get up, you fucking dog', after the first thump.
And then there is a second thump which I find was one or other of the accused on the stairs further assaulting [the complainant], I then hear someone say, 'Down you go, you little faggot', and someone says, 'Get him the fuck up'. That, in my view, is so at odds with what [the appellant] says that I am satisfied to the requisite standard that he was lying in the video record of interview about what occurred on the stairwell after he says that [the complainant] fell. And, on that basis, I reject in total what [the appellant] said in his video record of interview anything that is exculpatory.
[38] ts 11 - 12, 23 November 2020.
In my view the magistrate's above statements do not provide a basis for concluding that his Honour treated the appellant's lie as an Edwards lie. This is particularly so when his Honour's statements are read in the context of the directions that his Honour had already given to himself as to not only the matters that he needed to be satisfied of before he could treat a lie as evidence of the appellant's guilt for the charged offence but also in relation to the use that he was permitted to make of the appellant's statements in the interview. Given his Honour's earlier express acknowledgment of the prosecution’s contention that the lie was an Edwards lie it can reasonably be expected that if his Honour was treating the lie as an Edwards lie he would have expressly said so; that is, would have said that he accepted that the lie was evidence of the appellant's guilt for the charged offence and/or that the lie was circumstantial evidence that contributed to his finding that the appellant was guilty. However, his Honour made no such statement. Rather, what his Honour did say was that given that the appellant had lied about assisting and caring for the complainant after he had, on the appellant's account, fallen down the stairs, he rejected (that is, put to one side) the appellant's other exculpatory statements made during the interview which obviously included the appellant's statements that the complainant had fallen down the stairs. In other words, his Honour found that the lie reflected adversely on the credibility of the appellant's other exculpatory statements made during the interview to such an extent that they should be rejected. This was an approach that was properly open for the magistrate to take.
The fact that the magistrate did not treat the lie as an Edwards lie is further evidenced by the magistrate's identification of the circumstances from which he drew the inference that the appellant had intentionally propelled the complainant down the stairs. As is apparent from the above quoted reasons of the magistrate for finding the appellant guilty, the circumstances identified by his Honour did not include the lie told by the appellant but were rather comprised of: [39]
1.the fact that the appellant was the only person holding the complainant as they entered the stairwell immediately before the 'first thump';
2.the fact that the appellant was already using excessive force towards the complainant at the time that they entered the stairwell; and
3.the behaviour of the appellant and the things that the appellant said at the bottom of the stairs (that is, after the second assault and after the complainant had been removed from the stairwell and taken outside of the club).
[39] ts 9 - 10, 23 November 2020.
There is no other passage in the magistrate's reasons for decision which indicates that the magistrate treated the lie as an Edwards lie.
For these reasons I am not satisfied that the magistrate did treat the lie told by the appellant as an Edwards lie. In my opinion the lie was only used by the magistrate in assessing the credibility of the appellant's exculpatory statements made during the interview.
Was the lie capable of being treated as an Edwards lie going to prove the guilt of the appellant for the charged offence?
I propose, for the purposes of completeness, to briefly address the question whether it would have been an error for the magistrate to treat the second alleged lie as an Edwards lie, that is, as a lie that went to prove the appellant's guilt for the charged offence?
Before the magistrate could have found that the second alleged lie was an Edwards lie his Honour would need to have been satisfied of the following matters:[40]
1.The relevant statements made by the appellant amounted to a lie, that is, were false and were made by the appellant knowing that they were false;
2.The lie related to a material issue and revealed knowledge of the charged offence or some aspect of it; and
3.The appellant told the lie because he realised that the truth of the matter about which he lied would implicate him in the commission of the charged offence. The appellant’s lie must have been one that an innocent person would not have told.
[40] Edwards v The Queen; Newhill v The State of Western Australia [No 2] [63] - [71]; Law v The Queen [62] - [91]; Evans v The State of Western Australia [66] - [69].
For the reasons I have already stated, in my opinion it was open to the magistrate to find that the second alleged lie was a lie. However, in my opinion it would not have been reasonably open to the magistrate to find that the second alleged lie related to a material issue and revealed knowledge of the charged offence or some aspect of it. The material issue was the cause of the complainant 'falling' down the stairs. The second alleged lie related to whether the appellant had provided care and assistance to the complainant in the stairwell after the 'fall'. In my opinion it would not have been reasonably open to the magistrate to find that the appellant's lie about whether he had provided care and assistance in the stairwell related to the cause of the complainant falling down the stairs and revealed knowledge of the cause of the complainant falling down the stairs.
Nor, in my opinion, would it have been reasonably open to the magistrate to find that the appellant told the lie because he realised that the matter about which he lied would implicate him in the commission of the charged offence. More specifically, in my opinion it would not have been reasonably open on the evidence for the magistrate to find that the lie was not told by the appellant for some other reason, for example, out of panic and/or in an attempt to cover up his moral wrongdoing in not providing care and assistance to the complainant in the stairwell.
In summary, and for the reasons I have stated, if the magistrate had treated the second alleged lie as an Edwards lie he would, in my opinion, have fallen into error.
Disposition
For the reasons I have given the ground of appeal, as pleaded and argued, has not been made out. I would grant leave to appeal on the ground but dismiss the ground.
Ground 2
The appellant's second ground of appeal against his conviction is pleaded in the following terms:
The verdict of guilty was unreasonable and/or not supported by the evidence given, in particular, that his Honour stated the 'second assault', said to be when the actual injury occurred, may have been committed by others, being persons other than the appellant or his co-accused.
In an appeal brought under s 7(1) of the CAA a claim that a magistrate's verdict was, having regard to the evidence, unreasonable or unable to be supported, is a claim that there has been a miscarriage of justice.[41]
[41] CAA, s 8(1)(b); The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [40].
Again, the ground of appeal as pleaded, given the stated particularisation of the basis for the assertion that the guilty verdict was unreasonable and not supported by the evidence, does not reflect the argument that was actually advanced by the appellant's counsel in support of the ground during the appeal hearing. Further, the appellant's written submissions filed in support of the ground do not clearly disclose the argument that was advanced by the appellant's counsel. Nonetheless, the respondent's counsel was again able to respond to the submissions that were made by the appellant’s counsel.
Despite the divergence between the appellant's counsel's oral submissions and the appellant's written submissions, the appellant's counsel refrained from expressly abandoning the argument advanced in the written submissions in support of the ground. I will therefore once again deal not only with the argument advanced by the appellant's counsel in his oral submissions but also the argument advanced in the written submissions.
Applicable legal principles
The general principles governing an appeal on a ground of this sort, derived from the decision of the High Court in M v The Queen,[42] are well established and may be summarised as follows:[43]
[42] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.
[43] Ban v The State of Western Australia [2020] WASCA 91 [166] - [168]. See also Dayananda v The State of Western Australia [2021] WASCA 11 [46] - [53].
1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty;
3.This question requires consideration of whether the trier of fact must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
4.In answering this question the appeal court must pay full regard to the consideration that the trier of fact was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the trier of fact had of seeing and hearing the witnesses;
5.A doubt experienced by an appellate court would be a doubt which a trier of fact ought also to have experienced, unless the trier of fact's advantage in seeing and hearing the evidence is capable of resolving that doubt;
6.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantage enjoyed by the trier of fact, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict; and
7.A setting aside of the trier of fact's verdict on the ground that it was unreasonable or unable to be supported and that therefore a miscarriage of justice was occasioned is a serious step, not to be taken without regard to the advantage enjoyed by the trier of fact over an appellate court which has not seen or heard the witnesses called at trial.
The appellant's written submissions
The argument advanced
The appellant submits in support of this ground of appeal that because the magistrate could not determine who committed the second assault it is 'hard to reconcile how the Magistrate found the appellant culpable on the factual basis he did'.[44] The appellant submits that 'applying the relevant law to the … facts, it is difficult to see … that if the assault was possibly inflicted by unknown others, how the appellant was then found guilty'.[45]
Analysis of the argument
[44] Appellant's submissions, par 31.
[45] Appellant's submissions, par 31.
I have already referred to the magistrate's findings in relation to the second assault. The actual wording of this portion of the magistrate's reasons was as follows:[46]
… I do find the charge against [Mr French] proven beyond a reasonable doubt on the basis that the prosecution opened, that is that he was there to encourage.
And while I do find that the first thump was the propelling forward by [the appellant] of [the complainant] and that the second thump was an assault committed by at least one or others or perhaps [the appellant], I can't say beyond a reasonable doubt that it was any one of them or [the appellant] or someone else that was in the stairs, but that a second assault, in my view, has been proved beyond a reasonable doubt, but who by I don't know. So I find [Mr French] guilty beyond a reasonable doubt.
[46] ts 14 - 15, 23 November 2020.
The magistrate made his above quoted statements:
1.after he had already convicted the appellant of the charged offence in accordance with the case advanced by the prosecution at trial, namely that the appellant had propelled the complainant down the stairs;
2.after he had acquitted Mr Street, who the prosecution had alleged had been a party to the appellant's assault of the complainant;
3.after he had acquitted Mr Fitzgerald, who the prosecution had also alleged was a party to the appellant's assault of the complainant; and
4.directly after he had found Mr French guilty of the charged offence by reason of being a party to the appellant’s conduct in propelling the complainant down the stairs.
In short, the fatal and obvious flaw in the appellant's argument is that the magistrate did not find the appellant guilty of the charged offence on the basis that he had engaged in conduct the subject of the second assault. Rather, his Honour found the appellant guilty of the charged offence on the basis that he had engaged, as the principal offender, in the conduct that the prosecution had identified as being the conduct the subject of the charge, specifically deliberately pushing the complainant down the stairs. There is therefore no difficulty whatsoever in reconciling the magistrate's guilty verdict with his Honour's inability to find on the evidence before him that the appellant was the person, or one of the persons, who committed the second assault. The fact that the magistrate was unable to determine who committed the second assault does not provide any basis for concluding that the verdict against the appellant was unreasonable or not supported by the evidence. The appellant's argument lacks merit.
The appellant's counsel's oral submissions
The argument
As is apparent from my above quote from the magistrate's reasons for finding the appellant guilty of the charged offence[47] his Honour, in the course of giving his reasons, said the following:[48]
On the basis of the whole of the evidence, I do find beyond a reasonable doubt that upon carrying [the complainant] onto the stairs [the appellant] intentionally propelled [the complainant] down the stairs in a manner which was intended to cause him bodily harm and did cause him bodily harm.
[47] See par 20 above.
[48] ts 12, 23 November 2020.
It is the magistrate's reference to 'the whole of the evidence' which the appellant's counsel, in his oral submissions, focused upon. Counsel submitted that the magistrate's reference to the 'whole of the evidence', when read in light of what his Honour had already said to that point in his reasons, reveals that his Honour, in finding the appellant guilty, erroneously took into account matters that were, if not exculpatory, incapable of supporting the drawing of an inference of guilt.[49] The matters which the appellant's counsel submitted the magistrate's reference to the 'whole of the evidence' reveals that his Honour erroneously took into account are as follows:
1.The statements made by a person or persons in the stairwell after the complainant had, on the magistrate's finding, been pushed down the stairs by the appellant, specifically, 'Get up, get up you fucking dog', 'Down you go you little faggot' and 'Get him the fuck up';[50]
2.The second assault;[51]
3.The statements made by the appellant at the bottom of the stairs (that is, after the second assault and after the complainant had been removed from the stairwell and taken outside of the club) that, 'Cops are right outside bro' and 'Get your story straight';[52]
4.The statement made by the appellant to Mr Street at the bottom of the stairs, 'What happened? The cops are coming';[53] and
5.The conduct of the appellant in checking both his hands.[54]
[49] Appeal ts 4 - 10, 11 August 2021.
[50] Appeal ts 3 - 6, 11 August 2021.
[51] Appeal ts 3 - 6, 11 August 2021.
[52] Appeal ts 7 - 8, 11 August 2021.
[53] Appeal ts 7 - 8, 11 August 2021.
[54] Appeal ts 7, 11 August 2021.
Counsel submitted that it was not open to the magistrate to take into account the first of the above identified matters because his Honour did not find that the appellant made the statements. Counsel submitted that it was not open to the magistrate to take into account the second of the above identified matters because his Honour did not find that the appellant committed the second assault. Counsel submitted that it was not open to the magistrate to take into account the remaining three above identified matters because they were, if not exculpatory, neutral and incapable of implicating the appellant in the commission of the charged offence. The appellant's counsel did not, during the course of his submissions, expressly articulate the contention that the magistrate’s asserted erroneous reliance on the identified matters meant that the verdict of guilty was unreasonable and/or not supported by the evidence. However, this was clearly the intended thrust of counsel's submissions.
Did the magistrate erroneously take into account the identified matters?
It is trite to say that in considering the appellant's counsel's submissions it is important to ensure that the magistrate's remarks are read as a whole, in context and not with an eye finally tuned for error.[55]
[55] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61].
It is true that the magistrate did refer to all the matters identified by the appellant's counsel before making the statement that 'on the basis of the whole of the evidence' he was satisfied beyond reasonable doubt of the appellant's guilt. However, it is important to read the magistrate’s statement in light of what his Honour went on to say immediately thereafter. The magistrate, having stated that 'on the basis of the whole of the evidence' he found beyond reasonable doubt that the appellant had intentionally propelled the complainant down the stairs, immediately went on to say that he found that 'it', that is, the appellant’s intentional propulsion of the complainant down the stairs, was the only reasonable inference in all the circumstances.[56] The magistrate then stated that he found 'it' to be the only reasonable inference 'because' of the three circumstances which I have already identified in dealing with ground 1 but which I will repeat, specifically:[57]
1.the fact that the appellant was the only person holding the complainant as they entered the stairwell immediately before the 'first thump';
2.the fact that the appellant was already using excessive force towards the complainant at the time they entered the stairwell; and
3.the 'behaviour' of the appellant at the bottom of the stairs and 'the things that [the appellant] said' at the bottom of the stairs (that is, after the second assault and after the complainant had been removed from the stairwell and taken outside of the club).
[56] ts 12, 23 November 2020.
[57] ts 12, 23 November 2020.
Thus the three circumstances specifically identified by the magistrate did not include the statements made by a person or persons in the stairwell or the second assault. It is therefore in my opinion clear that despite his use of the phrase 'on the basis of the whole of the evidence', the magistrate did not, in finding the appellant guilty, take into account the statements made by a person or persons in the stairwell or the fact of the commission of the second assault. I do not accept the appellant's counsel's submission to the contrary.
I accept the appellant's counsel's submission that the magistrate did, in finding the appellant guilty, take into account the statements made by the appellant at the bottom of the stairs and the appellant's conduct in checking his hands. The statements made by the appellant at the bottom of the stairs were obviously 'things that [the appellant] said at the bottom of the stairs'. The appellant's conduct in checking his hands was part of the appellant's 'behaviour' at the bottom of the stairs.
The question which the appellant's counsel's argument therefore raises for determination is whether the magistrate made an error in taking into account the statements made by the appellant at the bottom of the stairs and the appellant's behaviour at the bottom of the stairs (including his checking of his hands) in deciding that the appellant's guilt for the charged offence had been proved beyond reasonable doubt.
In order to properly answer the question posed in the preceding paragraph it is necessary at the outset to do two things. First, to clearly identify the nature of the evidence that the magistrate took into account and to state the principles that govern the use of such evidence (something that neither the magistrate nor the appellant's counsel did). Second, to set out precisely what can be seen on, and heard in, the CCTV footage that was tendered at the appellant's trial and which records events that occurred at the bottom of the stairs.
The evidence of the appellant's conduct in making the relevant statements at the bottom of the stairs and in checking his hands at the bottom of the stairs was evidence of the appellant’s post-offence conduct. Evidence of post-offence conduct is circumstantial evidence. Save in a case in which the evidence of post-offence conduct is an indispensable link in the chain of reasoning on which proof of guilt depends, a trier of fact may accept and act upon evidence of an accused's post-offence conduct if the conduct constitutes an implied admission against interest without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation for the post-offence conduct that is reasonably open on the facts).[58] So, ordinarily, an accused's post‑offence conduct that constitutes an implied admission against interest may be considered by a trier of fact together with other evidence (direct and circumstantial) without it being necessary for the prosecution to prove beyond reasonable doubt that the post-offence conduct demonstrates a consciousness of guilt, unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends.[59] Ordinarily, an accused's post-offence conduct that constitutes an implied admission against interest is merely part of the evidence as a whole which the trier of fact must consider in determining if the prosecution has proved its case against the accused beyond reasonable doubt.[60]
[58] Allami v The State of Western Australia [2013] WASCA 230 [81]; Dodd v The State of Western Australia [2014] WASCA 13; (2014) 238 A Crim R 72 [103], [143]; Rajakovic v The State of Western Australia [2020] WASCA 98 [93].
[59] Dodd v The State of Western Australia [104], [143].
[60] Dodd v The State of Western Australia [104], [143].
In the present case the evidence of the appellant's statements and behaviour at the bottom of the stairs was not the only evidence against the appellant or an indispensable link in the chain of reasoning on which proof of the appellant's guilt depended. The evidence of the appellant's conduct at the top of the stairs prior to the alleged commission of the charged offence was also evidence against the appellant for the charged offence. Accordingly, provided the appellant, by making the statements at the bottom of the stairs and by behaving in the way that he did at the bottom of the stairs made implied admissions against interest, the magistrate was able to take the making of the statements and the behaviour into account in determining if the prosecution had proved the guilt of the appellant for the charged offence without being satisfied that there was no other explanation for the making of the statements and the behaviour that was reasonably open on the facts.
Turning to the issue of precisely what can be seen on, and heard in, the CCTV footage that was tendered at the appellant's trial and which records events that occurred at the bottom of the stairs. The relevant audio and visual footage was in the main recorded by a camera that depicts the small entrance hall area of the club that is at the bottom of the stairs and just inside the entrance to the club,[61] but also, to a lesser extent, by a camera that depicts the entrance to the club from outside the club.[62] Having watched and listened to the footage, I am satisfied beyond reasonable doubt on the basis of the footage of the following matters:[63]
[61] Exhibits 2.1 and 2.2, CH 01 – 333 – Voodoo door.
[62] Exhibits 2.1 and 2.2, CH 02 – 333 - Voodoo entry.
[63] The time references are references to the minutes and seconds time counter shown on the footage obtained from the camera depicting the entrance hall area of the club at the bottom of the stairs. They are not references to the time of day.
1.At 3.46 the complainant is dragged to the bottom of the stairs by Mr French who drops the complainant on his back on the floor just inside the entrance to the club. The complainant, who is unconscious or at best barely conscious, has a cut or laceration to his left cheek area and is bleeding from the back of his head;
2.At 3.54 Mr Fitzgerald opens the club's entrance doors (he had closed the doors a short time earlier when events were occurring in the stairwell). Mr Fitzgerald and Mr French pick up the complainant by his legs and arms and carry (drag) him out of the club and away from the club's entrance. An unidentified male or unidentified males who are still in the stairwell and therefore not visible laugh. As the complainant is being carried out of the club the appellant arrives at the bottom of the stairs;
3.At 4.01 Mr Street and an unidentified male wearing a black shirt which has the word 'Security' on the back of it (security officer) arrive at the bottom of the stairs;[64]
[64] The security officer can be seen with others in the CCTV footage recorded by a camera situated at the top of the stairs near an automatic teller machine (ATM): exhibits 2.1 and 2.2, CH 01 – 333 – Voodoo ATM. The footage shows the security officer, after arriving at the top of the stairs, walking down the stairs a relatively short time after the appellant had commenced to walk down the stairs holding and pushing the complainant in front of him and also after Mr Street had commenced to walk down the stairs. In this footage, which is black and white and does not contain audio, the security officer's shirt appears white but he is clearly recognisable and the word 'Security' can still be seen on the back of his shirt.
4.At 4.03 the security officer walks outside the club and states to the appellant and Mr Street, 'Cops right here';
5.At 4.05 the appellant, who is standing in the entrance to the club, yells at Mr French to get upstairs;
6.At 4.13 Mr French walks back inside the club and up the stairs;
7.At 4.15 the appellant and Mr Street are in the club's entrance hall area at the bottom of the stairs just inside the entrance to the club. The appellant says to Mr Street, who is in the process of cleaning blood off the floor, 'Cops right out front bro';
8.At 4.45 the appellant, who is obviously able to hear through his radio earpiece what Mr Fitzgerald, who is still outside the club, is saying to the attending police, says to Mr Street, 'Mitch [Mr Fitzgerald] is trying to make it look like a glassing';
9.At 4.57 the appellant looks at his hands;
10.At 5.07 the security officer, who is standing on the footpath outside the front of the club, approaches the appellant, who is still standing just inside the entrance to the club, and states, 'What the fuck happened?'
11.At 5.08 the appellant says into his radio mouthpiece to Mr Fitzgerald, 'Get story straight';
12.At 5.11 the appellant says to Mr Street, who is still with him in the entrance hall area at the bottom of the stairs just inside the entrance to the club, 'What happened? What happened? Cops are coming';
13.At 5.14 the security officer, who is right outside the entrance to the club, says to the appellant and Mr Street, 'He fell down the stairs'. The rest of the security officer’s statement to the appellant and Mr Street is largely indecipherable although he does say something about the ATM (this being an obvious reference to the ATM at the top of the stairs);
14.At 5.18 the appellant says to Mr Street, in obvious response to the statement made by the security officer, 'But his face is split open';
15. At 5.20 Mr Street says to the appellant, in response to the appellant’s reference to the complainant's face being 'split open', 'He reached out for the ATM, went onto the floor, then he rolled down'; and
16.At 5.41 the appellant tells Mr Street that he is going upstairs. The appellant then goes upstairs.
In relation to the statement made by the security officer to the appellant and Mr Street at 5.14, it is obvious that the security officer is in effect directing the appellant and Mr Street what they should tell the police about what had occurred to the complainant. Further, in relation to Mr Street's statement to the appellant at 5.20, it is obvious that Mr Street is in effect confirming with the appellant the version of events that the two of them had been directed to provide to the police by the security officer.
I now come back to the question whether the magistrate made an error in taking into account the statements made by the appellant at the bottom of the stairs and the appellant's behaviour at the bottom of the stairs in deciding that the appellant's guilt for the charged offence had been proved beyond reasonable doubt.
Dealing first with the appellant's statement to Mr Street at the bottom of the stairs, 'What happened? What happened? Cops are coming'.
The appellant was, quite obviously, present at the time that the complainant 'fell' down the stairs. He knew what had happened. In these circumstances it was, in my opinion, open to the magistrate to find that the appellant, by asking Mr Street 'what happened' in the context of telling Mr Street that the 'cops are coming' was, in effect, asking Mr Street to tell him what he should say to the police about what had occurred to the complainant in the stairwell even though he knew what had occurred and regardless of what had in fact occurred. Further, it was also, in my opinion, open to the magistrate to find that the appellant, by asking Mr Street to tell him what he should say to the police in circumstances where he must have known what had occurred and regardless of what had in fact occurred, made an implied admission against interest. The fact that there might have been explanations for the appellant asking Mr Street to tell him what he should say to the police which were reasonably open on the facts other than that the appellant had deliberately propelled the complainant down the stairs, for example, that the appellant had committed the second assault or had seen someone with whom he was associated commit the second assault, did not preclude the magistrate from treating the appellant's statement as an implied admission against interest that was evidence against the appellant for the charged offence (as opposed to proof of the charged offence). The magistrate was not precluded from treating the appellant's statement in this way because this aspect of the appellant’s post-offence conduct was not the only evidence against him for the charged offence or an indispensable link in the chain of reasoning on which proof of his guilt depended. It therefore follows, in my opinion, that the magistrate did not make an error in taking account of the appellant's statement to Mr Street in deciding if the appellant was guilty of the charged offence.
Turning to the appellant's statement to Mr Street, 'Cops right out front bro' and the appellant's statement to Mr Fitzgerald using his radio mouthpiece, 'Get story straight'.
I accept that even when viewed in the context of everything else said and done at the bottom of the stairs, the appellant's statement to Mr Street, 'Cops right out front bro' does not provide a basis for inferring the appellant's guilt. The statement is neutral. However, the position is, in my opinion, different so far as the appellant's direction to Mr Fitzgerald to 'Get story straight' is concerned.
The appellant was questioned about his making of this statement during the interview.[65] In response to the questioning the appellant said, in substance, that he had told Mr Fitzgerald to get his story straight because Mr Fitzgerald had 'asked me on the radio' and because Mr Fitzgerald 'wasn't there when it happened' and because 'the police were asking him'.[66]
[65] Interview, ts 31 - 32.
[66] Mr Fitzgerald was on duty at the entrance to the club at the time of the incident the subject of the charged offence. The magistrate, in acquitting Mr Fitzgerald of the charged offence, found that the prosecution had failed to prove that he had any knowledge of the commission of the charged offence by the appellant and that it was reasonably possible that he engaged in his conduct with the intention of providing assistance with an eviction: ts 13 - 14, 23 November 2021.
If viewed in isolation it might reasonably be contended that the appellant’s statement to Mr Fitzgerald that he, that is, Mr Fitzgerald, should 'get [his] story straight' is not capable of being viewed as any sort of implied admission against interest by the appellant. However, the statement cannot be viewed in isolation. The statement, 'Get story straight' must be viewed in light of the appellant's earlier statement that 'Mitch is trying to make it look like a glassing' (which reveals that the appellant knew that Mr Fitzgerald was trying to provide to the police a false innocent explanation for the complainant's injuries) and in light of the appellant's immediately following request of Mr Street to tell him what he should say to the police about what had occurred. The statement, 'Get story straight' must also be viewed in light of the fact that Mr Fitzgerald was, to the appellant's knowledge, not even in the stairwell at the time of the complainant's 'fall' and could not have seen what had occurred. When the appellant's direction to Mr Fitzgerald to 'get [his] story straight' is viewed in the context of these other statements made by him and in the context of his knowledge that Mr Fitzgerald could not have seen the complainant's 'fall', the conclusion that necessarily follows, in my opinion, is that it was open to the magistrate to find that the appellant, in telling Mr Fitzgerald to 'get [his] story straight' made an implied admission against interest. Again, the fact that the statement was not only explicable on the basis that the appellant had deliberately propelled the complainant down the stairs, and that there were other possible explanations for the appellant telling Mr Fitzgerald to 'get [his] story straight', for example, that the appellant was concerned about Mr Fitzgerald providing a false version of events to the police or that the appellant had committed the second assault or had seen someone with whom he was associated commit the second assault, did not preclude the magistrate from treating the appellant’s statement to Mr Fitzgerald as an implied admission against interest that was evidence against the appellant for the charged offence (as opposed to proof of the charged offence). The magistrate was not precluded from treating the appellant’s statement in this way because this aspect of the appellant's post-offence conduct was not the only evidence against him for the charged offence or an indispensable link in the chain of reasoning on which proof of his guilt depended. It therefore follows, in my opinion, that the magistrate did not make an error in taking account of the appellant's statement to Mr Fitzgerald in deciding if the appellant was guilty of the charged offence.
That leaves the appellant's conduct in looking at his hands.
I accept that the appellant's conduct in looking at his hands is not, if viewed in isolation, capable of amounting to an implied admission against interest. However, the magistrate made his reference to the conduct of the appellant in checking his hands very shortly after he had expressly found that the appellant showed 'no concern whatsoever' for the complainant once he had reached the bottom of the stairs.[67] In these circumstances it is clear from the magistrate’s reasons that his Honour referred to the appellant checking his hands because this was an aspect of the appellant's conduct that, on his Honour's assessment, demonstrated the appellant's lack of concern for the complainant.
[67] ts 12, 23 November 2020.
In my opinion it was open for the magistrate to find that the appellant, once he arrived at the bottom of the stairs, showed ‘no concern whatsoever’ for the complainant. It is apparent from watching the CCTV footage that the appellant was completely disinterested in, and unconcerned about, the complainant. He at no point ventured outside of the club to check on the complainant. His only apparent concerns were to ensure that Mr French returned inside the club as quickly as possible and to ensure that he and his work colleagues were 'all on the same page' when it came to telling the police what had occurred in the stairwell.
In my opinion it was open for the magistrate to conclude that the appellant's behaviour at the bottom of the stairs comprised of his complete lack of concern for the complainant despite the fact that the complainant had just 'fallen' down the stairs, as was in part demonstrated by his conduct in looking at his hands, amounted to an implied admission against interest. Once again, the fact that there might have been explanations for the appellant's lack of concern for the complainant which were reasonably open on the facts other than that the appellant had deliberately propelled the complainant down the stairs, for example, that the appellant had committed the second assault or had seen someone with whom he was associated commit the second assault, did not preclude the magistrate from treating the appellant's lack of concern as an implied admission against interest that was evidence against the appellant for the charged offence (as opposed to proof of the charged offence). The magistrate was not precluded from treating the appellant's lack of concern for the complainant in this way because this aspect of the appellant's post-offence conduct was not the only evidence against him for the charged offence or an indispensable link in the chain of reasoning on which proof of his guilt depended. It therefore follows, in my opinion, that the magistrate did not make an error in taking into account the appellant's behaviour at the bottom of the stairs, including the appellant's behaviour in checking his hands, in deciding if the appellant was guilty of the charged offence.
In summary, and for the reasons I have expressed, I am not satisfied that the magistrate, in determining if the appellant was guilty of the charged offence, made an error in taking into account the appellant's statement to Mr Fitzgerald, 'Get story straight', or in taking into account the appellant's statement to Mr Street, 'What happened? What happened? Cops are coming'. Nor, for the reasons I have expressed, am I satisfied that the magistrate, in determining if the appellant was guilty of the charged offence, made an error in taking into account the appellant’s conduct in looking at his hands. I accept that to the extent that the magistrate, in determining if the appellant was guilty of the charged offence, placed any reliance on the appellant's statement to Mr Street, 'Cops right out front bro', his Honour erred in doing so.
Was the verdict unreasonable or not supported by the evidence?
It remains for me to consider, in light of my above expressed conclusions, whether the verdict was unreasonable and/or unsupported by the evidence. I note in this regard that the appellant's counsel did not advance any arguments in addition to those to which I have already referred in support of the contention that it was not, upon the whole of the evidence, open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.
I have reviewed the footage recorded by the camera situated near the top of the stairs inside the club.[68] The footage clearly supports the above quoted findings made by the magistrate as to the way that the appellant was dealing with the complainant at the time that he and the complainant arrived at, and commenced to go down, the stairs.[69] The footage shows the appellant using his right arm to hold or pin the complainant's right arm, and using his left arm to hold the complainant over his left shoulder (very close to his neck) and around the front of his chest area. The footage shows the appellant to be using significant and in my view excessive force against the complainant who is not putting up any resistance to what is occurring and does not, in any event, appear to be in a position to put up any resistance to what is occurring. The magistrate's description of the complainant being 'rag dolled' and swung around a door onto the stairs is entirely apt.
[68] Exhibits 2.1 and 2.2, CH 01 - 333 - Voodoo ATM.
[69] See par 20 above.
I note in this context that during the interview the appellant said that as he and the complainant were 'just going to go down the stairs' he 'gave [the complainant] a chance at the top of the stairs' and 'asked [the complainant] if was going to walk by himself'. The appellant said that the complainant responded to the invitation to walk by himself by saying 'No' and that the complainant 'kept going on his swearing rant'.[70] The appellant's statements in this regard are clearly contrary to what is shown in the footage recorded by the camera at the top of the stairs. The footage (even in the absence of audio) shows that the appellant did not at the top of the stairs give the complainant 'a chance' by asking the complainant if he was going to walk by himself. The footage (even in the absence of audio) shows that the complainant did not say anything to the appellant at the top of the stairs. Indeed, it seems to me that it may well have been open to the prosecution to contend at the appellant's trial that the appellant, by making the statements about what occurred at the top of the stairs, told a lie that was evidence of his guilt for the charged offence; that is, told an Edwards lie. However, given that such a contention did not form part of the prosecution case against the appellant at trial I will not, in fairness to the appellant, treat his statements in this way. That is, I will not, in determining the ground of appeal, treat the appellant's statements as constituting evidence that the magistrate was able to take into account in deciding if the appellant was guilty of the charged offence.
[70] Interview, ts 14.
[101] Code, s 317(1).
[102] Code, s 317(1).
The appellant's offence was serious. The act of propelling a person down a set of stairs is inherently serious. The risk of serious injury arising from such an act is obvious.
Although the complainant was intoxicated the CCTV footage obtained from the club shows that he was not, at the time of the appellant's initial attempts to evict him from the club, or at the time that the appellant had hold of him at the top of the stairs, acting aggressively.[103] Indeed, and as I have already stated, the magistrate's description of the complainant as being 'rag dolled' by the appellant at the time that the appellant swung the complainant out of the doors and to the top of the stairs is entirely apt. In short, the assault was not provoked by any violence or aggressive behaviour exhibited by the complainant towards the appellant.
[103] Exhibits 2.1 and 2.2, CH 12 - 328 (inside the club) and CH 1- 326 - Voodoo ATM.
The bodily harm caused to the complainant was not at the upper end of the range of seriousness of injuries capable of constituting bodily harm. However, it was by no means insignificant. It was, as the magistrate found, within the middle of the range of seriousness for injuries constituting bodily harm.
The inherent seriousness of the appellant's conduct in committing the offence was in my view aggravated by the following factors:
1.The appellant was working as a security person. As a security person he had a duty to do what he could to ensure the safety of patrons of the club including patrons that, for whatever reason, he was required to evict. By committing the offence the appellant breached this duty;
2.The complainant was due to his state of intoxication very vulnerable and for all intents and purposes completely defenceless. It is patently apparent from watching the CCTV footage that his ability to put up any resistance to being propelled down the stairs or to protect himself in any way once he had been propelled was non-existent;
3.The appellant knew, or ought reasonably to have known, that the complainant was intoxicated and therefore vulnerable in the sense I have described; and
4.The appellant showed a callous lack of concern for the complainant following the assault. The appellant did not assist the complainant or even check on his welfare at any time after the assault, including when the complainant was unconscious on the hallway floor,[104] when the complainant was pulled outside and lay unconscious for approximately 3 minutes and 20 seconds, or when the complainant was receiving treatment for a further 28 minutes before being driven away in an ambulance.[105]
[104] Exhibits 2.1 and 2.2, CH01 - 0333 - Voodoo Door at 03:30:46 - 03:31:17.
[105] Exhibit 4 - City of Perth CCTV at 00:07231:20.
Taking into account all of the above factors, it is my opinion that the offence committed by the appellant was well within the middle of the range of seriousness of offences of assault occasioning bodily harm.
Mitigating factors
There were a number of mitigating factors present in the appellant's case.
First, the appellant was 21 years old at the time of committing the offence. He was therefore at the time of committing the offence and at the time of his sentencing a relatively young man. His relative youth was a significant mitigating factor.[106]
[106] Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115 [71]; Quigley v The State of Western Australia [2013] WASCA 9 [20].
Second, the appellant was employed and presented with strong family support.[107]
[107] PSR, page 2.
Third, the appellant had no criminal record. He was a first offender. His prior good character was a significant mitigating factor.
According to the PSR the appellant 'minimised some aspects of his offending'.[108] However, in the PSR it was also stated that 'whilst [the appellant] disputed some aspects of the offence [he] overall accepted that his actions were unacceptable and was able to demonstrate victim empathy in his account'.[109] Accordingly, it cannot be said that the appellant had, following his conviction after trial, demonstrated either a full acceptance of responsibility for his conduct in committing the offence, or full and genuine remorse for his conduct in committing the offence. Nonetheless, the appellant's partial acceptance of responsibility and his remorse to the extent that it existed in the form of having empathy for the complainant were matters that carried some, albeit very limited, mitigatory value.[110]
Protection of the public, personal deterrence
[108] PSR, page 1.
[109] PSR, page 2.
[110] The State of Western Australia v Egeland [2018] WASCA 228; (2019) 276 A Crim R 77 [39]; Bradbury v The State of Western Australia [2020] WASCA 214 [53].
The appellant's prior good character and personal circumstances indicated that he was unlikely to reoffend in a similar way and that he had good prospects of rehabilitation. Accordingly, the sentencing considerations of personal deterrence and protection of the public did not have a material role to play in the exercise by the magistrate of his sentencing discretion.
General deterrence
The sentencing consideration of general deterrence was, as the magistrate recognised, relevant to the determination of the sentence to be imposed on the appellant. There was a need for the magistrate to impose a sentence that was capable of acting as a deterrent to other persons working in the security industry from engaging in unnecessarily violent conduct towards patrons, including of course, patrons who were intoxicated.
Standards of sentencing customarily observed - comparable cases
It is difficult to discern a range of sentences for the offence of assault occasioning bodily harm due to the great variation in the circumstances in which such offences are committed and the personal circumstances of offenders.[111]
[111] Holden v The State of Western Australia [2009] WASCA 50 [43]; Lardi v The State of Western Australia [No 2] [2021] WASCA 117 [40].
The appellant refers to nine cases in which appeals against sentences imposed for offences of assault occasioning bodily harm have been determined.[112] In doing so the appellant identifies some of the various similarities and differences between each of the cases and the appellant's case. The appellant concedes that a number of the cases referred to are, given the particular circumstances of the appellant's offending, 'at best superficially relevant'.[113] Nonetheless, the appellant contends that the cases do reveal that it was reasonably open to the magistrate to impose a sentence other than imprisonment.
[112] Mical v Ward [2003] WASCA 149; Mourish v The State of Western Australia [2006] WASCA 257; Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim 326; Holden v The State of Western Australia; Closter v Humphreys [2012] WASC 145; Ali v The State of Western Australia [2013] WASCA 55; Shoard v Van Der Zanden [2013] WASC 163; Clarke v The State of Western Australia [No 2] [2013] WASCA 197; Eric v Bull [2014] WASC 342; .
[113] Appellant's submissions, par 67.
I have reviewed the nine cases referred to by the appellant. I do not intend to refer to them individually. It is not necessary for me to do so. Some of the cases have features that might be said to be broadly comparable to the appellant's case. All of the cases have features which distinguish them from the appellant’s case. Indeed, in my opinion the objective seriousness of the appellant's offence was greater than the offences committed by the offenders in the majority of the cases.[114]
[114] The cases in which the objective seriousness of the offender's conduct was, in my opinion, at a lower level than that of the appellant are Holden v The State of Western Australia, Closter v Humphreys, Ali v The State of Western Australia, Clarke v The State of Western Australia [No 2] and Eric v Bull.
In six of the cases the offender pleaded guilty to the offence. Accordingly the offender in these cases had the benefit of a significant mitigating factor that is absent in the appellant’s case.[115]
[115] Mical v Ward; Wiltshire v Mafi; Closter v Humphreys; Shoard v Van Der Zanden; Clarke v The State of Western Australia [No 2]; Eric v Bull.
In eight of the cases the post-appeal final sentence was immediate imprisonment, a conditional suspended term of imprisonment, or a suspended term of imprisonment. Accordingly, none of these eight cases provides any obvious support for the appellant's contention that it was reasonably open to the magistrate to impose a sentence other than imprisonment. To the contrary, in my view these eight cases tend to support the conclusion that the sentence imposed by the magistrate was well within the range of sentences commonly imposed for offences of assault occasioning bodily harm.
The single case cited by the appellant in which the post-appeal final sentence was something other than imprisonment is Closter v Humphreys.
In Closter v Humphreys the offender pleaded guilty to an offence of assault occasioning bodily harm. The facts of the offence were as follows.
The offender was at a licensed premises and was asked to leave by crowd controllers due to her state of intoxication. As the offender was being escorted out of the premises she attempted to run away in the direction of the toilets. The victim, a female crowd controller, followed the offender and a struggle between the two ensued as a result of the victim attempting to forcibly remove the offender from the premises. During the struggle the offender threw her arms up with the result that a glass bottle that she was holding and from which she had been drinking broke on the forehead of the victim. As a result the victim suffered bruising and superficial cuts to her face, as well as a 1.5 cm laceration to her forehead that did not penetrate the full thickness of her skin and did not require medical treatment.
The offender was of a similar age to the appellant. She had lost her full‑time job as a result of the commission of the offence. She had one prior conviction for aggravated unlawful assault which had occurred in the context of a confrontation with a former partner who she had discovered had been unfaithful. She had entered her plea of guilty at an early opportunity. She had demonstrated genuine remorse. She had an ill mother with the result that she was on occasions responsible for caring for her mother and her two youngest siblings.
The offender was sentenced by a magistrate to 10 months immediate imprisonment. The offender was sentenced on the factual basis that although her conduct in throwing her arms up and resisting the victim was deliberate, she did not intentionally strike the victim with the bottle. In other words, it was accepted that the offender’s conduct in striking the victim with the bottle was an unwilled act.
Hall J allowed the offender's appeal against the sentence imposed by the magistrate and imposed an intensive supervision order (ISO). His Honour expressed the view that the sentence imposed by the magistrate was more consistent with offences involving the deliberate use of a glass weapon.[116] His Honour, without detracting from the seriousness of the offender's conduct, considered that the offence was clearly not one which in all the circumstances required the imposition of a sentence of immediate imprisonment.[117] His Honour, in resentencing the offender to the ISO, took into account that the offender had spent four weeks in prison before being released on bail pending her appeal and had, since being released on bail, continued to attend counselling sessions in relation to alcohol use and anger management.[118]
[116] Closter v Humphreys [42].
[117] Closter v Humphreys [42].
[118] Closter v Humphrys [44] - [45].
In my opinion it is readily apparent from my above discussion of Closter v Humphreys that the case had many features that distinguished it from the appellant's case such that it does not provide any support for the appellant's contention that it was reasonably open to the magistrate to impose on him something other than a sentence of imprisonment.
The respondent has properly drawn my attention to McComish v Harman,[119] a case in which a sentence of 7 months immediate imprisonment for an offence of aggravated assault occasioning bodily harm was overturned and replaced with a community based order (CBO). However, the case is not an appropriate comparator for the appellant's case given the following factors:
1.The assault was comprised of the offender punching his father several times;
2.The assault was committed due to the offender being in a drug induced psychosis by reason of which he thought that his father was saying that he was going to do sexual things to the offender's sister. Although the fact that the offender had committed the offence while in a drug induced psychosis did not mitigate the seriousness of his offence, the presence of the psychosis did explain why the offender thought that the assault was justified;
3.The offender had spent 60 days in custody for the offence;
4.The offender had pleaded guilty at an early opportunity and shown remorse; and
5.The injuries suffered by the offender's father were at the lower end of the scale of seriousness being comprised of swelling, an abrasion and a small cut to the inside of the mouth which did not require medical treatment.
[119] McComish v Harman [2016] WASC 324.
In addition to the cases referred to by the parties I have also had regard to the recent decision of the Court of Appeal in Lardi v The State of Western Australia [No 2].[120]
[120] Lardi v The State of Western Australia [No 2].
In Lardi v The State of Western Australia [No 2] the offender was convicted on his pleas of guilty of one offence of assault occasioning bodily harm and one offence of stealing. He was sentenced to 11 months immediate imprisonment for the assault offence and to 3 months immediate imprisonment for the stealing offence, the sentences to be served concurrently. A sentence of 11 months immediate imprisonment was also imposed for the assault offence on the offender's two co-offenders.
The offender's conduct comprising his assault offence was, in essence, that he aided, by his presence and by giving encouragement, in the commission by his co-offenders of the assault on the victim. The assault involved one of the co-offenders punching the victim once to the face and wrestling with the victim and the second of the co‑offenders also punching the victim. As a result of the punch to the face the victim suffered a fracture to the left maxillary bone of his face, a swollen and bruised left eye. The facial fracture was treated conservatively.
The offender's stealing offence was comprised of him picking up and retaining the victim's mobile phone as it fell to the ground during his struggle with the co-offender. However, the offender did not remove the phone from the scene and it was recovered intact by the police a short time later.
The offender was 19 at the time of committing the offences. His personal circumstances were favourable. He did not have any relevant criminal record. During the 22 months for which he was on bail for his offences prior to being sentenced he did not commit any further offences.
The offender's pleas of guilty were entered a relatively short time prior to his listed trial.
The offender appealed against the sentences imposed on grounds which included allegations of manifest excess and a breach of the parity principle.
The court allowed the appeal on the parity ground. In resentencing the offender the court held that the seriousness of the offending was such as to call for nothing less than imprisonment despite the mitigating factors that were present. However, the court further held that given that the offender did not strike the victim and the mitigating factors that were present, it was appropriate to suspend the term of imprisonment. The court resentenced the offender for the assault offence and the stealing offence to 8 months imprisonment and 2 months imprisonment respectively. The court ordered that the sentences were to be served concurrently. The court suspended the total sentence of 8 months imprisonment for a period of 9 months.
The assault offence committed by the offender in Lardi v The State of Western Australia [No 2] was objectively considerably less serious than the offence committed by the appellant. Moreover, the offender in that case was younger than the appellant and had pleaded guilty, albeit not at the first reasonable opportunity. In these circumstances the court's imposition on the offender of a suspended term of imprisonment tends, in my view, to provide further support for the conclusion that the sentence imposed on the appellant by the magistrate was well within the range of sentences commonly imposed for offences of assault occasioning bodily harm.
Decision
In my opinion, taking into account the maximum penalty for the offence, the seriousness of the offence as I have assessed it, the mitigating factors that I have identified, the need to give effect to the sentencing consideration of general deterrence and the range of sentences customarily imposed for offences of assault occasioning bodily harm to the extent that a range is discernible from the cases to which I have referred, I am not at all persuaded that it was not reasonably open to the magistrate to find that a sentence other than imprisonment was inappropriate. The appellant's sentence was not unreasonable or unjust.
This ground of appeal has not been made out. I would refuse leave to appeal on this ground.
Ground 2
The appellant's second ground of appeal against the sentence imposed on him is pleaded in the following terms:
If ground one is upheld and a lesser type of sentence is imposed, a miscarriage of justice will be occasioned if this Honourable Court does not grant the appellant a spent conviction.
Given the conclusion that I have arrived at in relation to ground 1 of the appellant's appeal against the sentence imposed on him, it is strictly unnecessary for me to deal with this ground. However, in order to avoid any uncertainty on the point, I state that even if I had allowed the sentence appeal on ground 1, and even if I had found that the appropriate sentence was a CBO and/or a fine,[121] I would not have found that the appellant should be granted a spent conviction order. Although I would have been satisfied that the appellant is unlikely to again commit an offence of the type of which he has been convicted[122] and is of prior good character, [123] I would not, taking into account all the circumstances of the offence and the appellant as well as the public interest,[124] have been satisfied that it was appropriate to exercise the discretion to immediately relieve the appellant of the adverse effect that his conviction for the offence might have on him by making a spent conviction order.[125] I would not have been so satisfied having regard to the seriousness of the appellant's offence, the appellant's personal circumstances (including the fact that there is nothing before me to suggest that his future career prospects in areas other than security have in fact been significantly hampered) and the public interest in ensuring that the appellant's conviction and sentence is exposed to public scrutiny and is consequently capable of sending the deterrent message that serious assaults committed by those employed in the security/crowd control industry are likely to result in the courts imposing substantial punishments.
[121] Under s 39(2) of the Sentencing Act a court can only make a spent conviction order if the sentence imposed is one of the sentences specified in s 39(2)(a) to s 39(2)(d), that is, is a sentence that is lower in the sentencing hierarchy than a ISO.
[122] Sentencing Act, s 45(1)(a).
[123] Sentencing Act, s 45(1)(b)(ii).
[124] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] - [28]; Wright v McMurchy [2012] WASCA 257 [59].
[125] Sentencing Act, s 45(1).
I refuse leave to appeal on this ground.
Orders
For the reasons that I have given I would make orders in the following terms:
1.Leave to appeal on grounds 1 and 2 of the appeal against conviction is granted;
2.Leave to appeal on grounds 1 and 2 of the appeal against sentence is refused; and
3. The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
1 OCTOBER 2021
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