Martinac v The State of Western Australia [No 2] - [2018] WADC 2

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: MARTINAC -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2018] WADC 2

CORAM: GOETZE DCJ

HEARD: 18 DECEMBER 2017

DELIVERED : 8 JANUARY 2018

FILE NO/S: IND BUN 51 of 2016

BETWEEN: RHANNAN NGAIRE MARTINAC
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Application to change plea - Inherent jurisdiction - Altered factual situation upon which the State relied at the sentencing of co-offenders and weakening of the State case against applicant

Legislation:

Criminal Code Act Compilation Act 1913

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr M R Gunning
Respondent: Ms Z M M Jenkins

Solicitors:

Applicant: Gunning Young
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

The State of Western Australia v Martinac [2017] WADC 59
Tihanyi v The Queen (1999) 21 WAR 377
Woods v The Queen (2008) 184 A Crim R 108

GOETZE DCJ:

Introduction

The State of Western Australia has charged Rhannan Ngaire Martinac with two offences:
1.On 21 February 2016 at Redcliffe, she unlawfully did grievous bodily harm to Mark Anthony Waghorn.
2.On the same date and at the same place, she stole Mr Waghorn's property to the approximate value of $1,600.
Ms Martinac entered pleas of guilty to both offences in the Magistrates Court at Bunbury and was remanded to this court for sentencing. She then applied for leave to withdraw her plea on count 1 before Bowden DCJ who, on 4 May 2017, rejected that application: The State of Western Australia v Martinac [2017] WADC 59.
On 16 May 2017, Ms Martinac's co‑offenders, namely Aaron Clifford Pierotti and Travis Noel Carrick, were due to stand trial on the same charges to which Ms Martinac pleaded guilty. On that occasion, Mr Carrick entered a plea of guilty to assaulting Mr Waghorn, thereby occasioning him bodily harm. This was accepted by the prosecutor in satisfaction of count 1. Mr Carrick then provided a statement detailing his involvement in the matter.
On 17 May 2017, Mr Pierotti entered a plea of guilty to assaulting Mr Waghorn, thereby occasioning him bodily harm. This was also accepted in satisfaction of count 1.
Both Mr Carrick and Mr Pierotti pleaded guilty to the stealing charge.
On 2 June 2017, Mr Carrick and Mr Pierotti were both sentenced to terms of imprisonment.
Ms Martinac, now for the second time, seeks leave to withdraw her plea of guilty utilising the court's inherent jurisdiction at common law as set out in her application for two reasons:
1.on the basis of the altered factual situation which the State relied upon in sentencing her co‑offenders, Pierotti and Carrick; and
2.on the further weakening of the State's case after receiving proofing notes and the statement of Carrick.
These reasons arise from matters occurring after Bowden DCJ had dealt with the previous application for leave to withdraw the guilty plea. It follows that the court is not functus officio as to these new matters, such that the application can proceed.

Authorities

The State accepted that there is an inherent jurisdiction in the court to permit a change of plea from guilty to not guilty. However, there are very limited circumstances in which this can be done. The court must be satisfied that there is a legal need to allow a change of plea to prevent a miscarriage of justice: Tihanyi v The Queen (1999) 21 WAR 377 [48]. There must be some vitiating factor as identified by Toohey J in Maxwell v The Queen (1996) 184 CLR 501, 552.
In this case, the vitiating factors which are said to give rise to a miscarriage of justice if the plea change is not allowed are those reasons set out in the application as detailed above.

The statement of material facts relating to Ms Martinac

On 14 March 2017, the State prosecutor read the material facts relating to Ms Martinac as follows:
CLARE, MS: This matter proceeds to the court by way of a plea of guilty and subsequent conviction. I formally tender the papers comprising the State brief and the record of interview and state the statement of material facts as follows. In respect of count 1, at about 1.30 am on Sunday 21 February 2016, the victim was at 12 O'Neile Parade in Redcliffe. The victim had been living at this address for about a week with the offender and first co offender who's also been charged.
This offender attended the address in company with accused, Pierotti and the second accused, Carrick, not yet charged. All three entered the rear yard of the property through a side gate and rushed to the rear shed. The victim and two witnesses were inside the shed at the time. The first co‑accused has approached with a pole in his hand. The accused and two co‑accused have started throwing items from the vicinity at the victim, being beer bottles, a rake, a pole and a ladder.
The victim was in possession of a sword and was using this to try and deflect the items. During the incident, the victim has been struck to the face with an item believed to be a pole. The victim fell to the ground and lost consciousness. As a result of the incident, the victim's upper lip on the right side was partially detached from the middle and nearly severed from his face, requiring an initial three stitches to hold in place until he received surgery at Royal Perth Hospital from a plastic surgeon to reattach.
The victim also received a puncture stab wound to his upper right arm. The victim is a male, 38 years old, 195 centimetres and of medium build. The offender is female, 26 years old, 175 centimetres and solid build. The facts in relation to count 2 on the indictment are that following the victim being assaulted and rendered unconscious, the accused and co‑accused entered the premises. The accused collected her property from inside the premises.
The accused also took the victim's white iPhone 6 mobile phone, grey HP laptop computer and grey and red Nike Air Max shoes. The victim also had his black wallet containing assorted cards and birth certificate and grey Puma jacket stolen. At about 11.55 am on Wednesday 24 February 2016, the accused was arrested at 117 Mangles Street in South Bunbury. At about 4.10 pm, officers from Kensington Detectives Office executed a Criminal Investigation Act search warrant at the address.
The victim's Nike shoes were located and seized. The accused was conveyed to the Bunbury Police Station where she participated in a video record of interview. During the interview, the accused made admissions to assaulting the victim and stealing his property. The accused also admitted to stealing the victim's black and gold Ray-Ban sunglasses a few days prior to this incident. The accused was charged with her bail being refused.
Explanation, the accused stated the victim assaulted her first, so she retaliated. The accused stated she went above self defence and did not feel sorry for her actions. There is a request for reparations of $1,400, the value of property stolen to the victim. Those are the facts, your Honour. And I must admit through force of habit I supplanted the words 'accused' with 'offender' a number of times, but other than that the facts are as served.

The statement of material facts relating to the co‑accused

On 2 June 2017, the statement of material facts in relation to the co‑accused Mr Pierotti and Mr Carrick were as follows:
O'CONNOR, MS: The facts are that as at Saturday, 20 February 2016, the offender Mr Pierotti was in a relationship with his co offender Ms Martinac. The offender Mr Carrick is a long time friend of Mr Pierotti. For a few days leading up to 20 February 2016 Mr Pierotti and Ms Martinac, who normally resided in the south west of WA, were staying at 12 O'Neile Parade, Redcliffe. That is the residence of Rosemary Walker, the mother of Mr Pierotti.
Ms Martinac's four year old son was with them. The complainant Mark Waghorn, who was an acquaintance of Ms Walker was also staying on a short term basis at the Redcliffe residence.
During the afternoon on Saturday, 20 February, there was an argument between Mr Pierotti and his mother when they, together with Ms Martinac and the complainant, were returning to Redcliffe after visiting a friend. Ms Walker, who was driving, stopped the car and told Mr Pierotti and Ms Martinac to get out. They did so and Mr Pierotti then threw an object at the driver's side of the car. Ms Walker told Mr Pierotti and Ms Martinac not to return to the Redcliffe house.
In the evening of that day the complainant took Ms Martinac's son in a taxi to meet up with Mr Pierotti who was at a residence in Morley. The complainant paid for Mr Pierotti to continue in the taxi to a hospital in Midland where Ms Martinac was receiving treatment. The complainant then returned to the Redcliffe residence.
Later that evening Mr Pierotti and Ms Martinac went to Mr Carrick's house in Bayswater. During the late evening texts were exchanged between the complainant and Mr Pierotti or someone using his phone. Call charge records for Mr Pierotti's phone at brief 252 to 253 show there was text contact between the complainant's phone and Mr Pierotti's phone in the period from 2346 on the Saturday night to 1.49 on the Sunday morning. There were 27 texts in all.
The complainant contacted Mr Pierotti by phone because some of his property had gone missing from the Redcliffe house and he thought Mr Pierotti was responsible. The tone of the texts became threatening. Mr Pierotti texted:
I'm going to come over and fuck you up.
The complainant texted back, saying:
I'll fuck you up too –
‑ or words to that effect.
The two offenders and Ms Martinac left Mr Carrick's house by taxi and travelled to the Redcliffe residence, arriving at 1.54 am on Sunday, 21 February 2016. Taxi footage shows a mobile phone being passed between Mr Pierotti and Ms Martinac. Comments are made by the offenders about what is on the phone, and I tender the disc of that footage which your Honour has already.
When the taxi arrived at the Redcliffe residence the offenders and Ms Martinac got out of the taxi. At that stage the complainant Mr Waghorn, together with Ms Walker and another person, Kelvin Chalkley, were together in a shed situated at the end of a driveway to the right of the house. They had been socialising there during the evening. There was a high double gate at the front of the driveway. The gate was closed but not locked.
The complainant became aware of the taxi's arrival and fearing it was Mr Pierotti arriving he armed himself with an ornamental sword, which has also been described as a Samurai sword. The offenders, Ms Martinac and the complainant started yelling at each other - I should say, the offenders and Ms Martinac on the one hand and the complainant on the other started yelling at each other.
The offenders and Ms Martinac made their way through the gate and approached the complainant. They picked up objects in the vicinity and threw those objects at the complainant who waved his sword to prevent the objects hitting him. At the same time he backed into the shed. The objects thrown included glass bottles.
During the incident Mr Carrick went into the shed and punched the complainant in the face approximately five times using both hands. The complainant fell to the ground after the first punch. As a result of this assault the complainant suffered injuries to his nose and mouth which bled. That is the bodily harm the subject of the offence of assault occasioning bodily harm.
The complainant was subsequently struck by another object which caused a further injury to his mouth, and that is the subject of a charge which Ms Martinac has pleaded guilty to and that has not yet been dealt with.
Soon after the two offenders and Ms Martinac went into the house. Mr Pierotti and Mr Carrick told the occupants not to call the police. Inside the house Mr Pierotti and Ms Martinac collected some of their belongings. Also, Mr Pierotti stole the complainant's Nike shoes valued at $200, and that stealing is the subject of count 2 on the indictment. Those Nike shoes were subsequently recovered.
After collecting property and stealing the shoes the offenders and Ms Martinac left the house on foot. Mr Pierotti and Ms Martinac subsequently travelled to Bunbury where they were both arrested on 24 February 2016. When located Mr Pierotti was wearing the complainant's Nike shoes. Mr Carrick was arrested in Ashfield on 13 March 2016.
Each offender participated in an electronic record of interview on the day of his arrest. In respect of Mr Carrick, he said that he was asked by Mr Pierotti to go with him to his mum's house - that's Mr Pierotti's mum's house, to pick up property. He had met the complainant at that house a few days before.
In the taxi to the house Mr Carrick became aware that Mr Pierotti and the complainant were sending each other threatening texts. He said that after getting out of the taxi with Mr Pierotti and Ms Martinac he heard the complainant yelling and saw him with the sword. He then zoned out, in his words.
He climbed on the gate and said, 'Come on then', and in his interview he says:
I was, like, you want to come at me with a sword, do it.
He said he then got through the gate and threw about three bottles at the complainant who was hiding in the shed. He admitted he threw another item, possibly a car part, as well. He admitted that in the shed he got close enough to the complainant to punch him in the head and did so with both hands, even though he had a case on his right wrist.
He said:
I left‑hooked him which dropped him and then hit him a few times while he was – after he fell.
He admitted hitting the complainant five or six times in total. He said he did so to prove he wasn't scared of him coming at him with a sword.
After the punches the offender said he saw the complainant's nose and mouth were bleeding. When he saw the complainant later he was lying on the ground and looking pretty messed up. Mr Carrick admitted that he was coming off the gear, namely amphetamine, that night, after being up for two days - and that means up, not sleeping, as opposed to being intoxicated. He had used the day before. He still felt under the effect of the drug. He said he felt 'like shit' after the incident and thought his actions were stupid and he 'messed up'.
In relation to Mr Pierotti, in the first half of his interview he said that on the early morning of 21 February 2016 he went to his mother's house to pick up property. After arguing with his mother he collected his property and walked off. He denied assaulting anyone at the house at the time.
He claimed he didn't have a phone that night as he'd smashed it. He denied Mr Carrick was with him. After a break in the interview, his version of events changed. He said when he arrived at the house he saw his belongings out the front, then became aware of the complainant who was armed with a Samurai sword. He said he went up to the shed where the complainant had gone and tried to use things to barricade the complainant in the shed, so that his mother could get away.
He admitted throwing bottles at the complainant. He said he wasn't sure if he grabbed a pole, he threw a ladder. He admitted throwing a ladder into the shed. He said he did so to protect his mother who was standing between him and the complainant. And I should say in her statement, Ms Walker doesn't say that she was between the complainant and Mr Pierotti, but says she was on the couch for most of the incident that occurred in that vicinity.
Mr Pierotti claimed the complainant was using Ms Walker as a body shield. He said that a bottle he threw may have hit the complainant at one point in the interview, but later said nothing he threw connected with the complainant. He said:
I told him to back the fuck away and was like, 'You're going to fucking swing a sword? Then learn how to fucking use it'. I was pissed off.
He said when he left the area of the shed, there was nothing wrong with the complainant. He said it was a panic situation and he was scared. He also said the whole situation went out of hand.
I didn't ask for that, I didn't need that. Neither did that fucking dude –
‑ referring to the complainant. He initially claimed his uncle had given him the Nike shoes he was wearing when arrested, but later admitted stealing them. He said he did so:
Out of spite because of him attacking us.

Ms Martinac's record of interview

In the first statement of material facts relating to Ms Martinac, the State relied upon a recorded interview of her with the police in which she said:
1.She threw beer bottles at the complainant – brief page 95.
2.She threw everything at the complainant 'and then the boys jumped in' – brief page 95.
3.She stood outside the shed throwing bottles, a ladder and a rake at him ‑ brief page 95, adding (brief page 96):
I know they all connected to his face, and so I know he's not in a good way.
4.Further, when asked about the rake and which end she threw at the complainant, she said (brief page 97):
I'm pretty sure the not so nice end hit his face ‑ ‑ ‑
which probably tore half his face off.
Just the end that you rake your shit up with like the ‑ ‑ ‑ .
5.When asked about the ladder, she said (brief page 97):
And I pu ‑, picked it up and threw like that, so the pole part would have hit him.
I wanted it to go straight for his head.
And (brief page 98):
That was like a spear, you know how you throw a spear, it just goes straight.
6.When asked whether these items connected with the complainant, she indicated (brief page 98):
Yeah.
7.When asked whether she saw her co‑offenders assault the complainant, she said (brief page 100):
I did not see an assault –
‑ ‑ ‑ so I'm guessing if, if he (Carrick) he would have assaulted him.
I wouldn't have a clue (if they assaulted the complainant) –

The essential differences in the two statements of material facts

Mr M R Gunning, as counsel for Ms Martinac, drew attention to differences between the two sets of material facts. In the first statement of material facts:
1.All three offenders threw items at the complainant, Mr Waghorn, being beer bottles, a rake, a pole and a ladder.
2.It was Mr Pierotti who approached Mr Waghorn with the pole in his hand.
3.Mr Waghorn was struck in the face with an item believed to be a pole and thereby suffered grievous bodily harm. However, the thrower of the pole was not identified.
4.There is no reference to Mr Carrick punching Mr Waghorn and causing him to fall to the ground.
However, in the second statement of material facts:
1.All three offenders threw objects at Mr Waghorn. Mr Carrick threw beer bottles and another item, possibly a car part. Mr Pierotti threw bottles and a ladder. He was not sure about the pole.
2.Nobody is alleged to have approached Mr Waghorn with a pole in their hand.
3.Mr Carrick went into the shed and punched Mr Waghorn in the face approximately five times, using both hands. Mr Waghorn then fell to the ground suffering bodily harm.
4.Mr Waghorn was subsequently struck by another object which caused the grievous bodily harm. This is the offence to which Ms Martinac pleaded guilty. Soon after, the three offenders went into the house.
In short, Mr Gunning complains that:
1.There is no reference in the first statement of material facts to Mr Carrick's assault upon Mr Waghorn by way of punching him.
2.Mr Pierotti went from being a principal offender 'with a pole in his hand' in the first statement of material facts, to being a mere aider of Mr Carrick, who only punched Mr Waghorn in the second statement.
3.From the second statement of material facts, Ms Martinac inflicted grievous bodily harm on Mr Waghorn subsequent to the assault of him occasioning bodily harm by Mr Carrick.

Witness statements and proofing disclosures

It is also appropriate to note the evidence of the State witnesses. First, Mr Waghorn said in his statement that his attackers were swearing and yelling at him. All three of them started throwing things at him, but he could not recall what they were throwing or if anything hit him. He was trying to deflect things thrown at him when he was speared in the face with the pole, which he did not see coming and he did not know who threw it. This caused him to fall and he lost consciousness.
Before proceeding any further, it must be observed here that Mr Waghorn did not complain in his statement or on proofing prior to the trial of Mr Carrick or Mr Pierotti, that Mr Carrick punched him, or as Mr Waghorn's partner, Ms Rosemary Walker, said in her statement, that Mr Carrick and Mr Pierotti struck him with weapons.
In proofing prior to the trial of Mr Carrick and Mr Pierotti, Mr Waghorn was only able to say that something was thrown at him which hit him in the face. He did not see who threw it. He was not aware of anything else hitting him, but he also had a wound to the upper arm. He lost consciousness. This is consistent with his statement that he fell after being hit with the pole and lost consciousness. That Mr Waghorn was not able to elucidate who threw what at him does not assist Ms Martinac.
In her police statement, Ms Walker said that Mr Pierotti was armed with a large bar or baseball bat and Mr Carrick had 'a weapon'. They were both bashing Mr Waghorn with their weapons.
Further, Ms Walker, provided proofing details that she was in the shed when Mr Pierotti and Mr Carrick entered the shed. One was holding a wooden beam and the other was holding a metal pole with which they hit the complainant. This is consistent with the first statement of material facts that Mr Pierotti approached Mr Waghorn with a pole in his hand.
Ms Walker did not see Mr Waghorn being struck with the pole which caused the grievous bodily harm. Eventually, when she left the shed, she saw Ms Martinac outside that shed. Ms Martinac agrees with this. Ms Walker then went into the house. Her statement refers to Mr Carrick being in the house, followed by Mr Pierotti and Ms Martinac, but she did not say when Mr Carrick and Mr Pierotti left the shed ie, whether it was before or after she went into the house. This does not assist Ms Martinac as Ms Walker appears to suggest she left the shed before Ms Martinac and before Mr Waghorn suffered grievous bodily harm.
Mr Kelvin Chalkly said in his police statement that those people who came through the gate ie, the offenders, started picking items up and throwing them at Mr Waghorn, including smashed beer bottles. A male threw a ladder into the shed, following which, he then left to call the police.
Further, Mr Chalkly provided a proofing details that three men arrived at the complainant's home. One went into the shed. The second followed straight after. The third stayed at the entrance. When Mr Chalkly left to call the police, Ms Martinac, whom he had previously met, was jumping on the trampoline, which he was standing next to. She was 'egging the boys on'.
That Mr Chalkly in his proofing indicated that Ms Martinac was by the trampoline when he left does not assist her. The reason for this is that he left the shed area after a male threw a ladder and went to seek assistance from the police. He was therefore not present throughout the incident.
In her police interview, Ms Martinac said both that she did not see either Mr Carrick or Mr Pierotti assault Mr Waghorn, but 'I wouldn't have a clue' (brief page 100).
On the evidence of Ms Walker and Mr Chalkly, Ms Martinac had the opportunity to throw a pole at Mr Waghorn after everyone left the shed.
There is conflict between the evidence of Mr Carrick, who said that Mr Waghorn fell to the ground after his punches and Mr Waghorn, who said he fell to the ground after being hit with the pole. Perhaps they are both correct as Mr Waghorn may have gotten up on his feet again after being punched by Mr Carrick. Alternatively, Mr Waghorn cannot recall all events, but he does recall being struck with the pole which caused him to fall and lose consciousness and this may explain his loss of memory of all details.
The revised factual situation in the lead up to the trial of Mr Carrick and Mr Pierotti came about by reason of Mr Carrick offering to plead to an assault occasioning bodily harm. This was accepted by the State. He then provided a statement to the police admitting he punched Mr Waghorn. This then resulted in Mr Pierotti accepting his responsibility in aiding Mr Carrick. From the State's point of view and allowing for the self‑serving nature of the admissions of Mr Carrick and Mr Pierotti of an assault occasioning bodily harm given that they were charged with doing grievous bodily harm, this gave some clarity to the role played by all three offenders, with Ms Martinac's role remaining as stated by her in her interview, whilst acknowledging she did not see either Mr Carrick or Mr Pierotti assault Mr Waghorn, but she 'wouldn't have a clue'.
The only known purpose, from the State brief, of the three accused in going to Mr Waghorn's home was to recover Mr Pierotti's property. Mr Pierotti is Ms Walker's son and he and Ms Martinac had been living at the property before disagreements arose and they left.
There is no evidence on the State brief or in the proofing notes of any plan to prosecute an unlawful purpose, including to assault Mr Waghorn, even if the earlier disagreements were bitter. However, there is evidence from the hearing before Bowden DCJ that Ms Martinac told one of her former legal advisors that there was going to be a fight: see the reasons of Bowden DCJ at [171] – [173]. That was Mr Pierotti's idea and that is why Mr Carrick joined them to visit Mr Waghorn. This was not part of the submissions in this application, but if there had been such a plan, then Ms Martinac's conviction could be upheld by reason of s 8 of the Criminal Code.
The proofing notes do not weaken the State case against Ms Martinac under s 7(a) of the Criminal Code. Statements and proofing notes of State witnesses do not reveal who was responsible for the act causing Mr Waghorn's grievous bodily harm. However, Ms Martinac's admissions in the video record of interview reveal that she caused that grievous bodily harm. When the State case is scrutinised, it would have been difficult to on the known evidence prove beyond reasonable doubt that either Mr Carrick or Mr Pierotti caused the grievous bodily harm. That is because the evidence points to them having left the shed before Mr Waghorn suffered grievous bodily harm.
Mr Carrick admitted throwing bottles at Mr Waghorn and another unknown item, possibly a car part. However, this seems to have been before he punched Mr Waghorn to the ground and so, this is inconsistent with the unknown item being the cause of the grievous bodily harm.

Mr Gunning's submissions

Mr Gunning's written submissions were that:
The material differences between the two sets of facts can be summarised as follows: one set alleges that Pierotti armed himself with a pole and suggests that he was the principal offender, while the other makes no mention of a pole; in the other set of facts Carrick is made out to be a principal offender, by way of punching Waghorn in the face approximately five times; and the set of facts Pierotti and Carrick were sentenced on claim that Martinac further assaulted Waghorn after Carrick caused him to fall to the ground, which is supposedly the charge Martinac has pleaded guilty to, but is not mentioned in the facts upon which she was convicted. Neither Pierotti nor Carrick were said to be s 7 or s 8 offenders to the charge of grievous bodily harm, meaning that it must be asserted that the injury occurred after their assault. From a reading of all the facts it does not appear that Martinac is involved in a separate assault occurring after that of Pierotti and Carrick.
The real complaint is that the State changed its case when Mr Carrick and Mr Pierotti came to trial. The first statement of material facts alleged only the throwing of objects at Mr Waghorn, in consequence of which he suffered grievous bodily harm. However, the second statement of material facts alleged that Mr Carrick punched Mr Waghorn after all three offenders had thrown things at him and then, subsequent to the punches and the departure of Mr Carrick and Mr Pierotti from the shed, the pole was thrown at Mr Waghorn causing grievous bodily harm.
Mr Gunning submitted that the State ignored reality by accepting that Mr Carrick and Mr Pierotti only committed the offence of assault occasioning bodily harm and then guessed by a process of elimination that it must have been Ms Martinac who, after the assault by Mr Carrick and Mr Pierotti, subsequently threw something to cause Mr Waghorn's grievous bodily harm, when there is no evidence of this. He said this is clearly unfair.
Mr Gunning submitted that by reason of differences between the two statements of material facts and the matters now detailed in proofing notes obtained for the trial of Mr Carrick and Mr Pierotti, the conviction of grievous bodily harm entered by Ms Martinac is not sustainable. He submitted there is no evidence to suggest that Ms Martinac did anything after Mr Carrick had assaulted Mr Waghorn and Mr Pierotti had aided him in doing so.
Mr Carrick said Mr Waghorn was bleeding from the nose and mouth after the assault he committed. Mr Waghorn fell to the ground. Mr Carrick did not refer to a torn lip. He then went inside the house. Mr Carrick said he left Mr Waghorn with a bleeding nose and mouth. This is consistent with a photograph of Mr Waghorn at page 34 of the brief.
On Mr Pierotti's evidence, he left the shed and followed Mr Carrick into the house.
Mr Chalkly left the shed before anybody else. Ms Walker also left the shed, but she did not indicate whether this was before or after Mr Carrick and Mr Pierotti had done so. However, when she left, Ms Martinac was still outside the shed.
Mr Chalkly's evidence cannot advance matters further. Ms Walker's evidence is at least not inconsistent with that of Mr Carrick and Mr Pierotti, save as to their alleged use of weapons. However, she could not assist as to the causation of Mr Waghorn's grievous bodily harm.
There is no evidence from anyone who saw the object thrown at Mr Waghorn which caused the grievous bodily harm to Mr Waghorn. There is also no evidence as to when that object was thrown to cause that grievous bodily harm. However, Ms Martinac admitted to throwing objects 'which connected to his face' and which 'probably tore half his face off'. The State was entitled to rely on her admission. Mr Gunning fairly conceded that it was possible Ms Martinac entered the shed after Ms Walker left the shed and caused Mr Waghorn's grievous bodily harm.
The State was entitled to accept the admissions of punches from Mr Carrick as aided by Mr Pierotti.
Mr Gunning also submitted that the admissions made by Ms Martinac in her video recorded interview were grandiose claims which should not be relied upon. However, Bowden DCJ also heard an application from Mr Gunning on behalf of Ms Martinac to exclude her record of interview. That application was dismissed. Therefore, the interview stands as evidence of her admissions detailed above.
Further, Mr Gunning submitted that the State ignored s 7 and s 8 of the Criminal Code for Mr Carrick and Mr Pierotti insofar as the grievous bodily harm is concerned. However, if they had left the shed and Ms Martinac's act was subsequent to them so leaving, then her act of throwing the pole and causing grievous bodily harm to Mr Waghorn was her act alone. She was then the sole principal offender in respect of that grievous bodily harm.
Had it been necessary to do so, the State possibly could have developed a case theory for trial alleging that Ms Martinac was guilty of causing grievous bodily harm to Mr Waghorn on any one or more of four bases, namely:
1.her admissions in the video recorded interview, making her a principal offender: s 7(a) of the Criminal Code;
2.she was acting in concert with the two co‑offenders: s 7(a);
3.she was aiding them: s 7(c); or
4.she formed a common intention to prosecute an unlawful purpose with her two co‑offenders ie, to assault Mr Waghorn and in the prosecution of that purpose, the offence of grievous bodily harm was committed, such that its commission was a probable consequence of the assault: s 8. However, the evidence on the State brief and in the proofing notes does not support such a case theory.
How the State might have sought to run its case at trial, in the event that Ms Martinac had pleaded not guilty, was a matter for the State to determine. However, she pleaded guilty and so the State did not need to develop a case theory against her. Nor did the State need to proof witnesses before her trial in order to clarify their witness statements and, if necessary, to disclose any new information to Mr Gunning. That proofing only became necessary when Mr Carrick and Mr Pierotti were proceeding to trial.

The State's response

Counsel representing the State, Ms Z M M Jenkins, submitted that by the time sentencing of Mr Carrick and Mr Pierotti occurred on 2 June 2017, the State had additional information to hand namely, proofing notes of various witnesses in anticipation of the trial against Mr Carrick and Mr Pierotti, Mr Carrick's statement and the admissions from Mr Pierotti as to his aiding Mr Carrick in assaulting Mr Waghorn.
None of this additional information is inconsistent with the information provided by Ms Martinac in her video recorded interview with the police from which her admissions of throwing objects at Mr Waghorn thereby causing him grievous bodily harm became, and remained, the basis of the State case against her. Nothing changed in the case against her by reason of the State accepting pleas to an assault occasioning bodily harm on the part of Mr Carrick and Mr Pierotti. The facts relating to the elements of the offence against Ms Martinac remained the same. Any changes from the first statement of material facts to the second statement of material facts relate only to Mr Carrick and Mr Pierotti.
Ms Jenkins also made the point that if, at the trial concerning Mr Carrick and Mr Pierotti, facts emerged which conflicted with the first statement of material facts concerning Ms Martinac then, her sentencing would not be limited to the first statement of material facts as read out. Rather, the State would have been able to make submissions about, and the sentencing judge would have been able to take information from, the trial such that, so far as is possible, the sentencing process for all three offenders reflected the true facts which emerged at trial. However, the trial did not proceed.
As to Mr Gunning's concern that the State case was weakened by reason of proofing notes and the written statement provided by Mr Carrick, Ms Jenkins submitted that even if that were so, that does not mean, of itself, that Ms Martinac is entitled to change her plea. Whether or not the State case was weakened by proofing notes and the statement of Mr Carrick is not the point. To change the plea, Ms Martinac should demonstrate a miscarriage of justice in that she is not guilty of the offence of doing grievous bodily harm to Mr Waghorn. In that regard, she has not been successful. None of the new evidence indicates that Ms Martinac could not have caused the grievous bodily harm as alleged.

This application

Ms Martinac is now not able to re‑argue the submissions with which she failed to persuade Bowden DCJ to allow her to change her plea of guilty to doing grievous bodily harm to Mr Waghorn. She made admissions in the police interview as to this offence.
Mr Carrick and Mr Pierotti ultimately pleaded guilty to the offence of assault occasioning bodily harm following admissions of Mr Carrick punching Mr Waghorn five times and Mr Pierotti aiding Mr Carrick. Neither Mr Carrick nor Mr Pierotti admitted causing grievous bodily harm to Mr Waghorn. There was no evidence of them causing that grievous bodily harm. The evidence of Mr Carrick was that he left the shed after assaulting Mr Waghorn, who had then fallen and was bleeding from the nose and mouth. Mr Pierotti said he followed Mr Carrick. Ms Walker said they went into the house and Ms Martinac was still outside the shed. A properly instructed jury could therefore draw the inference that it was then that Ms Martinac caused Mr Waghorn's grievous bodily harm, consistent with her admissions to the police in her interview.
That Mr Carrick and Mr Pierotti were sentenced in respect of a lesser offence does not in itself give rise to a miscarriage of justice in respect of Ms Martinac.
The State was able to accept pleas from Mr Carrick and Mr Pierotti of assault occasioning bodily harm given their late admissions and the difficulties which it had in proving grievous bodily harm against them, bearing in mind that, at that time, Ms Martinac's first application to change her plea had been rejected and she stood awaiting sentence at the end of the trial concerning Mr Carrick and Mr Pierotti.
It cannot be said that there is any new information which shows that Ms Martinac could not be guilty of the offence of doing grievous bodily harm. The State's submissions in this regard should be accepted.
The result is that the fact of Mr Carrick and Mr Pierotti being sentenced on a lesser charge following their respective admissions was a plea deal accepted by the State in circumstances in which, absent Ms Martinac's admissions, it was difficult to determine who had inflicted the grievous bodily harm and when. Proofing of witnesses prior to trial did not clarify that issue. Rather, it left the State case as it was. These matters have not resulted in a miscarriage of justice for Ms Martinec.
When discussing authorities as to the change of plea, Bowden DCJ referred to Woods v The Queen (2008) 184 A Crim R 108 as follows:
Issues such as the strength of the State's case and the likelihood of conviction are not the focus of attention in such applications. The true issue is the genuineness of the confession of guilt.
Mr Gunning's submissions as to the additional information or the altered factual situation and any suggested weakening of the State case by reason of proofing sessions do not detract from the true status of Ms Martinac's plea given her admissions in the record of interview and do not demonstrate a miscarriage of justice.

Conclusion

This application must be dismissed.