Pigdon v Read
[2008] WASC 218
•30 SEPTEMBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PIGDON -v- READ [2008] WASC 218
CORAM: EM HEENAN J
HEARD: 30 SEPTEMBER 2008
DELIVERED : 30 SEPTEMBER 2008
FILE NO/S: SJA 1041 of 2008
BETWEEN: KERRY ANNE PIGDON
Appellant
AND
TAMARA MICHELE READ
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE E K LANGDON
File No :AR 2373 of 2008
Catchwords:
Appeals - Assault - Substantial variation between facts found and facts alleged by prosecution - Lack of evidence to support charge as laid - Lack of procedural fairness - Splitting prosecution case - Appeal conceded
Legislation:
Criminal Code (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr J G Kitto
Respondent: Ms D E Quinlan
Solicitors:
Appellant: Kitto & Kitto
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Hatt v Magro (2007) 34 WAR 256
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
R v Alexander and McKenzie [2002] 6 VR 53
R v Chin (1985) 157 CLR 671
Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365
Soma v The Queen [2003] HCA 13; (2003) 196 ALR 421
EM HEENAN J: In the written submissions filed in advance on behalf of the respondent it was conceded (and, in my respectful opinion, properly conceded) that the factual basis for finding that the appellant had assaulted the respondent relied upon by the learned magistrate at trial was substantially different to, and inconsistent with, the facts alleged by the prosecution and did not support the charge as originally laid and presented. By these submissions, counsel for the respondent also conceded that, to the extent that there was some evidence from a single witness to support the variation in the sequence of facts relied upon by the learned magistrate, this evidence was contradictory of other evidence given by that witness and that the totality of the evidence was not sufficient to support a conclusion that the assault, as found to have been committed, was proven beyond reasonable doubt.
Accordingly, and by consent, I ordered that the appeal should be allowed; the conviction of the appellant should be set aside, and that the fine and costs paid by the appellant pursuant to the order of the learned magistrate should be refunded. I also ordered that the respondent should have her costs of the original trial and of this appeal in agreed amounts pursuant to the provisions of the Official Prosecutions (Accused's Costs) Act 1973 (WA).
However, because this outcome and these orders have the effect of reversing the judgment of the learned magistrate, it is both necessary and desirable that I outline the background of these proceedings, the findings of the Magistrates Court and the issues arising on the appeal.
Background of proceedings
The trial in the Magistrates Court was before her Honour on 14 and 15 May 2008. It involved the present charge against the appellant, one further charge against the appellant and a third charge against her husband. Her Honour took time to consider her decision and on 21 May 2008 delivered reasons dealing with each of the three charges which had been heard.
The background of the case can be discerned from these reasons. Her Honour said:
This case involved a disgruntlement by the Pigdon family of the reckless behaviour of a neighbour on the day of the football grand final in 2006. It was a regrettable event precipitated by a neighbour riding his motorcycle across the front lawn of the Pigdon residence. It ought not to have degenerated into this event. It is important to appreciate the quality of the relationship between the Pigdon family and their neighbours, the Carter family, which involved a series of petty, but nevertheless unresolved, conflicts.
It [is] the prosecution case that the Pigdon family comprising both co‑accused Kerry and David Pigdon, their two sons Trent and Ryan and their sons' girlfriends, Stephanie Keller and Esther Dawe, had been watching the AFL grand final match on TV when a neighbour, Parl Larner, rode his motorcycle across the Pigdons' front lawn causing damage to the lawn. Consequently, Kerry and David Pigdon attended at the nearby Carter residence where Paul Larner was believed to frequent, and the owner of the motorcycle Chris Carter resided.
Their purpose of attending the Carter residence was to confront Mr Larner and/or Chris Carter about the burnout on the lawn. The prosecution alleged that Kerry Pigdon was stonewalled at the Carter residence by Amanda Ingraham, the girlfriend of Chris Carter, who refused to allow Mrs Pigdon to enter the Carter home. It was at that point that Kerry Pigdon headbutted Ms Ingraham to the forehead prior to Mrs Pigdon being pushed out of the doorway. The prosecution further alleged that within seconds of Paul Larner and his girlfriend Jessica Lang arriving at the Carter residence by motor vehicle, Kerry Pigdon struck Jessica Lang to the chest with her hand and struck her to the face and the back of the head, to which Ms Lang responded by administering pepper spray to Mrs Pigdon's face.
The prosecution alleged that seconds later, David Pigdon assaulted Jessica Lang by forcing her arm to her chest, pushing her backwards. The prosecution also alleged that Kerry Pigdon chested Jessica Lang after Mrs Pigdon's husband forced Ms Lang backwards. Mrs Pigdon denies assaulting either Amanda Ingraham or Jessica Lang, submitting that they were in fact both aggressors, and Mr Pigdon pleads not guilty on the basis of aiding in his wife's self‑defence …
Those respective accounts vary between the prosecution and the defence and also between each other. The events occurred some 20 months ago in a confined period of space and time. It would have been difficult to recall the events with any clarity or consistency and I acknowledge that that accounts for some variancy. Having considered the evidence of Amanda Ingraham and James Carter, I am left with a clear impression that they both embellished their evidence given in court by adding incidents that they each failed to report in their respective statements to the police.
In relation to the charge of assault by the appellant's husband, David Pigdon, the learned magistrate found that the prosecution had not proven its case by failing to negate the defence that he was aiding the appellant in self‑defence pursuant to s 250 of the Code and, accordingly, that charge was dismissed.
In relation to the charge of assault by the appellant against Amanda Ingraham (AR 2372 of 2007) her Honour dismissed the charge on the basis that her Honour found that the witnesses Ingraham and James Carter had fabricated the allegation of the headbutt.
However, in relation to the charge of assault by the appellant against Jessica Lang (AR 2373 of 2007) her Honour found that this had been proved and therefore convicted the appellant. The appellant was fined $500 and ordered to pay costs of $105.70 but was granted a spent conviction order. The detail of her Honour's finding was that the appellant had assaulted the complainant by walking into the complainant and 'chesting' her in the upper body. Her Honour found that this incident occurred after Jessica Lang had pepper sprayed the appellant ('post pepper spray chesting'). There was no doubt that the complainant had pepper sprayed the appellant but the particulars given in support of the charge, the opening of the case by the prosecution, and the evidence‑in‑chief of the complainant was all to the effect that the alleged assault, 'the chesting', had occurred before the pepper spray had been used and not afterwards.
Grounds of appeal
The application for leave to appeal was made on behalf of the appellant on 10 June 2008 on two specified grounds. Leave to appeal on those grounds was granted by McKechnie J on 22 July 2008. By a notice filed 29 July 2008, the parties consented to an order giving the appellant leave to amend her grounds of appeal by replacing the original two grounds of appeal with four specified grounds of appeal set out in an accompanying minute. It is those amended four grounds of appeal upon which the appeal has since proceeded.
In summary, the four grounds of appeal as amended are:
(a)the conviction was based on a version of facts not alleged by the prosecution and not the subject of the charge as laid;
(b)the ensuing conviction based on findings of fact, not alleged by the prosecution and not the subject of the charge, was a miscarriage of justice;
(c)the learned magistrate made an error of fact because there was no evidence of the assault upon which the conviction was based which could be relied upon; and
(d)the learned magistrate erred in failing to consider a defence of self‑defence by the appellant, pursuant to s 248 of the Criminal Code (WA), in circumstances where such a defence had been successful in the related charge against her husband arising from the same series of events.
Findings in the Magistrates Court
It is clearly the case that the charge was laid, and the prosecution opened on the basis that the alleged assault by the appellant preceded retaliatory pepper spraying by Ms Lang and that Ms Lang's actions in using the pepper spray were in self‑defence to this preceding assault. In the statement of material facts delivered in support of the charge can be found the assertion that the appellant pushed the complainant to the chest, was threatened with pepper spray and then that the appellant punched the complainant to her right cheek prior to the pepper spraying. However, in the opening address by the prosecutor, the case was explained on the footing that the appellant struck the complainant on the chest and began pushing her, that she then struck the complainant on the back of the head, that pepper spray was threatened by the complainant and that the appellant then punched the complainant in the right cheek before the pepper spray was then used. However, in the closing address by the prosecutor at the trial, the case for the prosecution was put on the basis that the appellant pushed the complainant in the chest, then hit her on the back of the head, that pepper spray was then taken out and used and that the appellant proceeded to 'chest' the complainant, and that this 'chesting' constituted the assault.
The complainant in her evidence in‑chief testified only that the appellant pushed and punched her up to the point that the complainant deployed the pepper spray against the appellant, after which Ms Lang stated that she was not sure what happened to the appellant and that it was then that Ms Pigdon's husband came into contact with her. In cross‑examination the complainant said that the appellant had hit her to the right‑hand side of her face, after which the complainant warned she would use the pepper spray and, in fact, did then use the pepper spray.
In her reasons for decision the learned magistrate found that Ms Lang's evidence lacked credibility and that she had attempted to minimise her role in the altercation. Her Honour also found that Ms Lang had become hysterical and had previously armed herself with the pepper spray as an offensive weapon and used that weapon to inflict harm on the appellant.
The evidence from the complainant that the appellant had assaulted her after the pepper spray deployment only emerged in cross‑examination. It was contrary to her evidence in‑chief and to a signed statement which she had provided to the police. It was because of this evidence emerging in cross‑examination that her Honour was invited to convict the appellant, not on the case as opened, but in respect of an alleged assault said to have occurred when the appellant 'chested' Ms Lang after the pepper spray had been used.
Issues arising on appeal
The appellant contended in written submissions that this constituted a splitting of the prosecution case and suffered from the further defect that it sought conviction on a second or different assault than for the one alleged and advanced in the prosecution case.
The prosecution did not adduce as part of its case the appellant's statement made to police officers after the event, nor did it call any of those officers to give evidence of any admissions which it might have been asserted were contained in the statement. Rather, the witness statement given by the appellant to the police was used as the basis for cross‑examining the appellant in an attempt to rebut her evidence. This, according to the submissions for the appellant, constitutes an improper use of the statement and a splitting of the case ‑ see R v Alexander and McKenzie [2002] 6 VR 53, 76 (Winneke P); Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365 and Soma v The Queen [2003] HCA 13; (2003) 196 ALR 421.
The appellant also submitted that, by inviting the learned magistrate to convict on a different series of facts, emerging only after cross‑examination and inconsistent with the case alleged, deprived the appellant of important procedural safeguards. In particular, so the submission ran, it deprived the appellant of adequate prior notice of the particular allegation said to constitute the offence, which should have been given, even if as the result of an amendment, before the presentation of the defence case ‑ see R v Chin (1985) 157 CLR 671, 868 (Dawson J). Further, a consequence of this procedure was to deprive the defendant of an opportunity to submit that no case to answer had been given, or to decline to cross‑examine, at the point when the complainant had concluded her evidence in‑chief, because not until after that point was there any evidence given of an alleged assault after the use of the pepper spray: Hatt v Magro (2007) 34 WAR 256, 273 and Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100, 118 (Pidgeon J).
The appellant also advanced further submissions in support of grounds 3 and 4 of the appeal but it is not necessary to attend to these in view of the acceptance by the respondent that the matters relied upon in the first and second grounds of appeal have been established.
Outcome
In view of the concessions, in my view properly made, by the respondent in its written submissions and when the appeal was called on for hearing, it is unnecessary for me to make any findings or determinations of the issues raised by the appellant's grounds of appeal. However, the submissions which have been advanced make it clear to my satisfaction that this appeal had substantial prospects of success and that the concessions made by the respondent were properly made.
For these reasons, therefore, I allow the appeal, order that the conviction entered in the Magistrates Court against the appellant be set aside, order that the fine of $500 and the costs of $105.70 paid by the appellant should be repaid to her, and that the appellant should have orders for her costs of the original trial and of this appeal in the amounts agreed by the parties under the provisions of the Official Prosecutions (Accused's Costs) Act 1973.
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