Supreme Court of WA|2010-10-08|Before: Martin CJ

SCOLARO -v- SHEPHARD [No 2] [2010] WASC 271 (8 October 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against conviction - Whether magistrate convicted on factual basis not relied upon by prosecution - Whether verdict of guilt was against the evidence or weight of the evidence - Whether magistrate made errors of fact - Whether substantial miscarriage of justice

Criminal law and procedure - Sentencing - Relevance of community expectations in the sentencing process - Whether sentence manifestly excessive - Whether magistrate erred by finding attack unprovoked - Relevance of prevalence to sentencing process - Correct starting point for consideration of sentence - Overview of appellate cases - Relevance of public humiliation arising from the media treatment of an offender - Consideration of suspended sentence

Grounds 1 to 3 of the appeal against conviction dismissed

Grounds 1 and 2 of the appeal against sentence dismissed

Appellant resentenced to 12 months imprisonment backdated to 14 September 2010, eligible for parole

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Duggan v Coelho [2009] WASC 372

Einfeld v The Queen [2010] NSWCCA 87

Etrelezis v The Queen [2001] WASCA 327

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

Giles v Barnes (1967) SASR 174

House v The King [1936] HCA 40; 55 CLR 499

Inkson v R [1996] TASSC 13; (1996) 6 Tas R 116; (1996) 88 A Crim R 334

Janerka v Bethell [2002] WASCA 198

Johnson v Miller [1937] HCA 77; 59 CLR 467

Kenny v The Queen [2010] NSWCCA 6

Krijestorac v The State of WA [2010] WASC 35

Long v Mayger [2004] WASCA 41

Lowndes v The Queen [1999] HCA 29; 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

McKenna v The Queen (1992) 7 WAR 455, 465; (1992) 63 A Crim R 452

Nguyen v Lassau [2010] WASC 240

O'Callaghan v Ward [2010] WASC 246

Pearson v Newton [2010] WASC 98

R v Bailey [2009] QCA 251

R v Peterson [1984] WAR 329

R v Rayment [2010] NSWCCA 85

Robinson v R [2006] NSW CCA 192; (2006) A Crim R 88

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Stark v The State of Western Australia [2007] WASCA 44

The Queen v Treloar and Butler (1989) 43 A Crim R 75

Tickner v Powell [2010] WASC 142

Walker v Allen [2006] WASC 89

Wiltshire v Mafi [2010] WASCA 111

Winch v The Queen [2010] VSCA 141

1 The appellant, Ms Scolaro, was convicted in the Magistrates Court of one count of unlawful wounding contrary to s 301(1) of the Criminal Code (WA), and sentenced to 18 months imprisonment. Pursuant to leave, she appeals against her conviction, and against the sentence imposed.

2 Ms Scolaro was charged with unlawfully wounding the complainant, who it is unnecessary to name, on 8 March 2009. The events giving rise to the charge took place at a nightclub in Northbridge late in the evening of 7 March 2009 and early in the morning of 8 March 2009. Ms Scolaro and the complainant are each young women in their twenties. Prior to the events in question, they were not known to each other. Each had attended the nightclub with their own group of friends. Each of Ms Scolaro and the complainant had been drinking alcohol prior to the event in question, although it does not seem that either was intoxicated. Following a disagreement arising from an allegation that the complainant had taken a sip from the glass of either Ms Scolaro or Ms Scolaro's boyfriend while it was on the bar, an altercation ensued. In the course of that altercation, the complainant was struck in the face with a heavy glass that had been held by Ms Scolaro. The precise manner in which the glass came to strike the complainant's face was a central issue in the case, and is a central issue in the appeal against conviction. The glass struck the complainant's face with such force that it broke and caused significant lacerations. The complainant was conveyed to hospital, where she was eventually treated by a plastic surgeon, who applied between 32 and 36 sutures both internally and externally.

3 Ms Scolaro appeals against her conviction on the following grounds:

(1) The magistrate convicted the appellant on a factual basis not replied upon by the prosecution.

(2) The verdict of guilty was against the evidence or the weight of the evidence or was unreasonable and cannot be supported having regard to the evidence.

(3) The learned magistrate erred in fact in finding that:

The complainant did not pour or accidentally spill her drink onto the body or dress of the appellant.
The appellant did not react to a pouring or spilling of drink onto her body or dress.
After the appellant poured drink down the back of the complainant the complainant then turned around and did not throw her drink at the accused.
The appellant's actions were not a reaction to the complainant pouring drink onto the appellant's dress or throwing her drink over the appellant.

4 The third ground was added, with leave, after the first hearing of the appeal had been completed. I will set out the circumstances which gave rise to the addition of that ground later in these reasons.

5 It is appropriate to set the context for a consideration of these grounds by a review of the course taken at trial, and of the evidence that was led.

6 At the commencement of the trial, the prosecutor (a police sergeant) made no opening statement. Counsel for Ms Scolaro admitted on her behalf that she was the person involved in the incident which resulted in the injuries to the complainant, so that identification was not an issue. It was further admitted on behalf of Ms Scolaro that the complainant suffered a wound to her face that fell within the definition of 'wounding' within the Criminal Code. Counsel further asserted that:

... primarily the issue here is accident under s 23B of the Criminal Code.

7 The first witness called was the manager of the nightclub on the night in question. He produced a DVD which contained images that had been recorded at the nightclub that evening. The DVD was played to the court.

8 The DVD contains five separate segments. The first shows Ms Scolaro and her friends entering the club. The second segment shows Ms Scolaro and her friends in one of the bar areas in the nightclub. The third segment depicts the events immediately preceding the altercation which resulted in the complainant's injuries and the altercation itself. There is a gap of seven to eight minutes between the second and third segments, with the result that not all relevant events preceding the altercation are captured on the DVD. The fourth segment shows Ms Scolaro leaving the nightclub. The fifth segment also shows Ms Scolaro leaving the nightclub, and in addition shows the complainant leaving the nightclub.

9 The complainant stated that she arrived at the nightclub at about midnight with two friends. Those friends, Carrie Weatherall and Nicole Duthie, also gave evidence for the prosecution.

10 The complainant's evidence was that after arriving at the nightclub, she went to the bar to get a drink. Because of the number of people present, she had to wait some time to get her drink. During that time, by way of a joke, she grabbed one of a line of drinks that had been placed on the bar for another group. She denied having anything to drink from that glass. However, she heard another woman, who she identified as Ms Scolaro, say to her boyfriend that the complainant had taken a drink from the glass.

11 The complainant's group was then served with their drinks. They overheard discussion in the other group relating to the allegation that the complainant had drunk from Ms Scolaro's glass. As a result, Ms Weatherall approached Ms Scolaro's boyfriend to offer him some money for the drink. He declined to accept the money, after which the complainant approached him to explain that she had not drunk from the glass.

12 According to the complainant, after she had separated from Ms Scolaro and her boyfriend, she felt Ms Scolaro bump into her shoulder with the result that the complainant spilt her drink on Ms Scolaro. Then the complainant felt Ms Scolaro grab the back of her dress, and pour Ms Scolaro's own drink down the complainant's back.

13 According to the complainant, she then turned to face Ms Scolaro and flicked the contents of a drink at her, after which Ms Scolaro 'smashed her cup in my face, on my left cheek'.

14 The complainant then clarified that the vessel involved was a short, fat glass. The complainant then demonstrated the action used by Ms Scolaro, which was described by the prosecutor as 'an overarm action'. When asked by the prosecutor whether the glass had left Ms Scolaro's hand, the complainant replied, 'I don't think so'.

15 The DVD was then played to the complainant and she was questioned about the images recorded. In the course of that questioning, the complainant stated:

16 The complainant described her injuries, and her attendance at Sir Charles Gairdner Hospital. At that hospital she waited 12 hours to see a plastic surgeon, who inserted between 32 and 36 stitches into her cheek and above her eye. At the time of giving evidence, she was wearing a silicone strip over her face, which assisted the healing process. As the hearing took place on 16 December 2009, this was more than nine months after the events in question. Photographs showing the extent of the injuries suffered by the complainant were tendered in evidence. Those photographs reveal extensive lacerations to the complainant's face. The complainant also stated that she had received psychological treatment and had suffered panic attacks following the incident.

17 During cross-examination, the complainant repeated that Ms Scolaro 'smashed her glass in my face'. She reiterated that she did not think the glass had left Ms Scolaro's hand prior to making contact with her face. Counsel for Ms Scolaro then put to her, twice, that the glass certainly was not thrown into her face and she agreed.

18 The complainant was then cross-examined on her written statement to police made on 9 March 2009, and in particular, the portion of that statement which records her statement to police that 'the girl threw her glass towards me'. When the inconsistency between that statement and her evidence-in-chief was put to her, the complainant asserted that her evidence-in-chief was correct, and denied that the glass left Ms Scolaro's hand. When another portion of the complainant's statement to police was put to her in which she had stated 'the girl had thrown the glass at my face', the complainant stated that use of the word 'thrown' was inappropriate.

19 Relevant portions of the DVD were then again played to the complainant. In that context it was put to her that the action used by Ms Scolaro immediately prior to the impact of the glass upon the complainant's face was 'more of a throwing action'. The complainant rejected that proposition.

20 I digress to observe that, up to this point, the complainant's evidence-in-chief, maintained during cross-examination, was to the effect that the glass was in Ms Scolaro's hand at the point of impact with her face, and that her earlier statement to police to the effect that the glass had been thrown was incorrect. Nevertheless, the prosecutor returned to that subject in re-examination, and asked whether the glass had left Ms Scolaro's hand prior to impact. The complainant replied:

It looked like a throw, but when it contacted my face it had quite a big force behind it to actually break on my face. So it felt - I guess it felt like there was enough force behind it that she throwed [sic] it. But, yeah.

21 The following interchange completed the re-examination of the complainant:

In relation to the glassing, are you saying that she smashed it, or whether she threw the glass at you. Which do you believe it is?---I thought that she threw it but it felt like it was driven, just because of the force behind it.

The glass certainly hit your face?---Yeah. If it was thrown I would think that her hand wouldn't have been far behind it.

22 Ms Carrie Weatherall gave evidence of discussions between Ms Scolaro and the complainant on the subject of whether the complainant had drunk from the glass placed on the bar. Following those discussions, Ms Weatherall offered Ms Scolaro's boyfriend some coins for the drink, which were originally taken, but then returned. According to Ms Weatherall, the complainant then stumbled and bumped into the back of Ms Scolaro, after which Ms Scolaro turned, pulled out the back of the complainant's dress and poured her own drink down the complainant's back. According to Ms Weatherall, Ms Scolaro's glass was 'upside down' with the result that all of the contents were emptied.

23 According to Ms Weatherall, the complainant then threw the contents of her drink at Ms Scolaro, after which Ms Scolaro extended her arm towards the complainant, with the glass in her hand. According to Ms Weatherall, she was unable to see whether Ms Scolaro threw the glass at the complainant, or whether she drove the glass into her face, because she was behind the complainant, holding her 'in like a bear hug'.

24 Ms Weatherall was then taken through the images recorded on the DVD by the prosecutor. The prosecutor asked Ms Weatherall about the 'spillage' of the complainant's drink. Counsel for Ms Scolaro interjected and questioned whether Ms Weatherall said there had been a 'spillage' by the complainant onto Ms Scolaro. Ms Weatherall stated that she had not 'actually' seen the drink spill on Ms Scolaro, but did see the drink spill as the complainant stumbled.

25 In the course of further questions from the prosecutor in relation to the DVD, Ms Weatherall stated that a few minutes after the incident, she stated to another patron of the nightclub:

A girl just threw a glass and it hit my friend's face.

26 During cross-examination, Ms Weatherall reiterated that she believed that the complainant had spilt some of her drink on Ms Scolaro's back in the course of bumping her, and that although she had not actually seen the drink spill, she had 'made that assumption from Ms Scolaro touching her back'. She also reiterated that the complainant had thrown the contents of her glass towards Ms Scolaro before the complainant was struck by Ms Scolaro's glass.

27 Ms Weatherall was then cross-examined on her earlier statement to police, in which she had stated that the complainant had spilt some of her drink on Ms Scolaro. She was also cross-examined on that portion of her earlier statement to police in which she had stated that she did not see whether the glass had left Ms Scolaro's hand before contacting the complainant's face. However, at another point in the statement to police, she had stated (in relation to Ms Scolaro):

28 Ms Weatherall adhered to her evidence that she was unable to say whether the glass had left Ms Scolaro's hand, and justified the use of the word 'throw' by reference to the action of Ms Scolaro's arm. Further, although she maintained her evidence that she did not see the glass leave Ms Scolaro's hand, she confirmed that she had assumed that the glass had left Ms Scolaro's hand because 'within a second of her [Ms Scolaro's] arm coming back ... [the complainant's] face [was] covered in blood ..., I believe [sic] that she had thrown the glass'.

29 In re-examination, the prosecutor asked Ms Weatherall to describe the arm action used by Ms Scolaro. In the course of those questions, the prosecutor described the action as a 'throwing action'.

30 Ms Duthie was the other member of the complainant's group. She gave evidence, although she was not able to give any description of the critical events. The evidence of a police investigator completed the prosecution case.

31 Ms Scolaro said in evidence that she saw the complainant drink part of her boyfriend's drink, and spit it out. According to Ms Scolaro, after she challenged the complainant with this, the complainant told her to 'fuck off'. However, a little while later, Ms Weatherall approached her and her boyfriend and offered to pay for the drink, but only had about $3.00 in coins to offer. They declined the offer. Ms Scolaro then 'just started talking to [her] friends' when she felt her dress move and then liquid running down her back and into her shoes. She denied that the complainant had bumped into her, but asserted that, 'I felt like someone had moved my dress, like a pinch or a poke or something in my back' prior to feeling the liquid on her back. She believed that it was the complainant who had wet her.

32 According to Ms Scolaro, she then turned and poured some of her drink down the complainant's back and then:

I went to throw the rest of the drink on her face, and as I did that ... the glass left my hand and it hit her. It hit her in the face.

33 Ms Scolaro reiterated that it was her intention to throw her drink on the complainant, and that the glass left her hand as she was doing so. She described the glass in these terms:

It was a really big glass, it was a really heavy bar glass, and I was wet and it just left my hand. It was all wet.

34 According to Ms Scolaro, after she realised that the complainant was hurt, she became scared and wanted to run. She went to get help from a security guard and then showed her boyfriend that she had a cut on the second finger of her right hand (which is the hand in which the glass had been held).

35 Ms Scolaro was then taken through the DVD images. She identified a point in the images in which, according to her, the complainant poured drink down her back, although she acknowledged that it could not be seen on the images. She asserted that the complainant had wet her with her drink twice - the second time 'front on', but again accepted that this was not captured in the recorded images.

36 In the course of her commentary in relation to the images showing her thrusting her glass towards the complainant, Ms Scolaro stated:

I aim [sic] liquid at her face and the glass leaves my hand and it hits her in the face.

37 In cross-examination, the prosecutor put to Ms Scolaro that the images recorded on the DVD did not show the complainant pouring a drink down her back. Ms Scolaro accepted that the pouring of the drink could not be seen on the recorded images. However, she insisted the drink had been poured down her back. She asserted that she was 'all wet from head to toe'.

38 The prosecutor also put to Ms Scolaro that she had poured the whole contents of her drink down the back of the complainant. Ms Scolaro denied that proposition.

39 The prosecutor cross-examined on the recorded images showing Ms Scolaro lean forward with the glass in her hand. In that context, he put to her that she was putting weight on her left leg in the course of 'a throwing action'. It was put to Ms Scolaro that she wanted 'the most powerful throw, the most powerful use of that arm and that leg'. In response, Ms Scolaro denied that she ever wanted to hurt the complainant.

... you used an almighty amount of force as far as a throw goes at [the complainant].

41 Ms Scolaro responded that she just wanted to wet the complainant.

... glass her with the glass coming out of your hand. But do you not agree that there was a substantial amount of force in your throw?

43 Ms Scolaro agreed with that proposition, but denied that she ever intended to hurt the complainant.

44 The prosecutor then put to Ms Scolaro, three times, that it was foreseeable that the glass would come out of her hand, given that it was slippery and wet.

45 The prosecutor again put to Ms Scolaro that she was endeavouring to throw the glass. In response, Ms Scolaro indicated that:

I wanted to flick the contents in her face. The glass was only half full.

46 The transcript of the hearing suggests that Ms Scolaro then demonstrated the action she had used, which involved raising her hand and bending her elbow.

47 The prosecutor then put, for the fourth time, the proposition that it was foreseeable that the wet glass could have left her hand while she was endeavouring to disgorge its contents. The magistrate then intervened and asked whether the prosecutor was conceding that the glass had left Ms Scolaro's hand. In reply, the prosecutor said:

The prosecution is saying ... that the glass has been thrown at [the complainant]. I don't think I can say that it was a smashing, or whether it was a throw, but I will ...

48 Counsel for Ms Scolaro then interjected, and put that the prosecution case had changed from one of a thrusting or smashing of the glass which had not left the accused's hand, to a case of throwing the glass. There was further interchange between bench and bar which was itself unclear, after which the magistrate asked the prosecutor to clearly state the prosecution case. In reply, the prosecutor stated:

The prosecution case is that the glass is in her hand and the glass has left her hand and it's the case that the glass has then gone into a throw from her hand ... and it's hit her in the face.

49 The prosecutor then continued his cross-examination, on the basis that the glass had been thrown. Ms Scolaro continued to deny that assertion, and asserted that all she had wanted to do was to flick the contents of the glass on the complainant. She denied intending to throw the glass, and asserted that it was an accident.

50 After completion of cross-examination, counsel for Ms Scolaro did not re-examine. Another member of Ms Scolaro's group in the nightclub that evening was called to give evidence for the defence. His evidence was that he saw the complainant drink from the glass of Ms Scolaro's boyfriend. However, he did not see the critical altercation.

51 The prosecutor closed the case for the prosecution on the basis that after pouring the contents of her drink down the back of the complainant:

The accused then takes two steps backwards before lunging towards [the complainant], loading up on her left leg and with an almighty overarm action has thrown a glass at the complainant's ... face.

52 It was put that the type of throw used to throw the glass, and the amount of force in the throw, dispelled any chance of it being an accident. It was further submitted that 'accident' within the meaning of s 23B of the Criminal Code (WA) was excluded because it was foreseeable that the glass was likely to leave Ms Scolaro's hand, given the force with which it was thrown.

53 Defence counsel commenced his closing address with the observation that the prosecution case now was that Ms Scolaro had unlawfully thrown a glass at the complainant. He pointed out that up until the re-examination of the complainant, the magistrate may have been wondering whether it was a different prosecution case - that of glassing by way of thrusting or smashing the glass into the face of the complainant. The general thrust of the closing address on behalf of the defence was to the effect that the evidence did not enable the court to be satisfied that the glass did not slip from Ms Scolaro's hand in an unforeseeable accident.

54 In that context, defence counsel made submissions in respect of the credibility of all witnesses, including the complainant. Specific reference was made to the complainant's evidence relating to the question of whether the glass was thrown or driven. Counsel also addressed on that aspect of Ms Weatherall's evidence, and submitted that it was not possible to see, from the recorded images, whether the glass had left the hand of Ms Scolaro prior to impact.

55 After the completion of counsel's closing address, the magistrate asked questions relating to the significance of the distance between the accused and the complainant, in a circumstance in which something is thrown. Counsel responded, reiterating that Ms Scolaro's evidence was to the effect that she had not intended to throw the glass.

56 The magistrate reserved his decision. On 27 January 2010, he published his reasons for concluding that the prosecution case had been proven. In those reasons, he commenced with an overview of the facts. In the course of that overview, he observed:

After taking only a couple of steps away Ms Scolaro approached [the complainant] pulled her dress away from [sic: her] back and emptied her glass of drink down the back of [the complainant]. [The complainant] turned around and Ms Scolaro drove the glass in her hand with considerable force into the face of [the complainant].

57 The magistrate then summarised the evidence that had been given by the various witnesses. In relation to the evidence of the complainant, he recorded her evidence to the effect that:

The accused then smashed her glass into [the complainant's] face with an overarm action. [The complainant] did not see the glass leave the hand of the accused.

58 He further recorded that in cross-examination the complainant had confirmed that the glass did not leave Ms Scolaro's hand, but conceded that it may well have slipped out of Ms Scolaro's hand close to her face. The magistrate referred also to the evidence of Ms Weatherall, to the effect that she did not see if the accused had thrown the glass or driven it into the face of the complainant. The magistrate then summarised the evidence of Ms Duthie, Ms Scolaro and the other member of Ms Scolaro's group.

59 The magistrate also recorded the findings that he made from his viewing of the images recorded on the DVD. Amongst those findings are findings in the following terms:

[The complainant] and Ms Weatherall appear to terminate contact with Ms Scolaro and her boyfriend by stepping away from them.

Ms Scolaro who is to the right and back of [the complainant] reaches out and grabs the dress of [the complainant] and pulls it away from [the complainant's] back.

Ms Scolaro upturns her glass and pours the contents down [the complainant's] back.

Ms Scolaro steps back 2 paces.

[The complainant] turns presumably to see who poured the drink down her back.

Ms Scolaro raises to shoulder height her right hand holding the glass and then steps forward and forcefully drives the glass into [the complainant's] face.

[The complainant] raises her right hand and disposes of her glass but not at Ms Scolaro who has hurriedly left the area.

Having heard the evidence in this matter and viewed the DVD of the incident I am satisfied beyond reasonable doubt that this action by Ms Scolaro of propelling her glass into the face of [the complainant] was not an accident but a deliberate act to drive her glass with some force into the victim's face. It was suggested that the incident was an attempt by Ms Scolaro simply to throw the liquid contents of her glass into [the complainant's] face and that the glass slipped out of her hand prior to the impact and thus accidentally struck [the complainant] in the face. It was suggested that it was not her intention to strike [the complainant] in the face with the glass.

Given that Ms Scolaro just poured the contents of her glass down the back of [the complainant's] dress, Ms Scolaro would have been well aware that there were no liquid contents in her glass to throw into [the complainant's] face. The DVD clearly shows Ms Scolaro pulling at the back of [the complainant's] dress and then fully upturning the glass and emptying its liquid contents down her back. Having done this Ms Scolaro would have been well aware that the glass was empty. It was not a simple pouring of the drink down [the complainant's] back which may have left some liquid in the glass. It was a full upside down tipping of the glass' contents down [the complainant's] back. There would have been no liquid left in the glass (except for the surface wetness inside the glass) to throw into [the complainant's] face, and Ms Scolaro would have been well aware of this. What is more is that the 2 events, namely the pouring of drink and then the striking of the glass into [the complainant's] face occurred in such close proximity timewise that Ms Scolaro had no time to see if there was any drink in the glass. It was almost one action of tipping the drink down the dress, 2 quick steps back and then the blow to the face. The blow was delivered to [the complainant's] face as she turned quickly to see who had poured the drink down her back. But regardless of that point the DVD of the incident clearly reveals that this was not a case of Ms Scolaro attempting to throw a glass of liquid over [the complainant] but a deliberate action to propel with considerable force the glass into [the complainant's] face. The glass may well have slipped out of her hand at the last moment before it made contact with [the complainant's] face but by then it was inevitable that forceful contact was going to be made by the glass into [the complainant's] face and at the direction and guidance of Ms Scolaro. In her evidence Ms Scolaro indicated that after this incident she discovered that her hand had also been cut which would seem to indicate that her hand came into close proximity of [the complainant's] face, at the point the glass was breaking up. The DVD confirmed this fact.

The DVD does not reveal any pouring or accidental spilling of drink by [the complainant] onto the body or dress of Ms Scolaro and it also does not reveal any reaction by Ms Scolaro to a pouring or spilling of drink onto her body or dress.

Much seemed to be made of this issue in the evidence. In the evidence of [the complainant] she said that after she felt the drink being poured down her back she turned around and threw her drink at the accused and the accused then smashed her glass into the complainant's face. The video vision we saw simply reveals this is not the case. The video clearly reveals the glass smashing into [the complainant's] face and then [the complainant] raising her glass as if it to throw it either onto the ground or at the accused.

The evidence of Ms Weatherall was that after [the complainant] left the accused's boyfriend and walked away from Ms Weatherall she stumbled and fell into the side and back of the accused spilling some drink on her. The accused then turned and pulled the back of [the complainant's] dress and poured the contents down her back. [The complainant] then turned and threw the contents of her drink at the accused. The video vision reveals that this is not the case.

The evidence of Ms Scolaro was that at one point she turned away to speak to her friends whilst her boyfriend continued talking to [the complainant]. She then felt something touch her dress and felt liquid running down her back. She turned around and saw [the complainant] moving away. The video vision reveals that this is not the case.

It also reveals that Ms Scolaro's actions in driving the glass into [the complainant's] face was not a reaction to [the complainant] pouring drink onto Ms Scolaro's dress or throwing her drink over Ms Scolaro.

The video reveals that at the point the glass was driven into her face [the complainant] was simply holding her glass in her hand. After the moment of contact [the complainant] did raise her hand presumably with her glass in her hand and throw the glass. Whether she threw it on the ground or at Ms Scolaro is debatable but it clearly cannot be said that Ms Scolaro's action was in response to what [the complainant] did with her glass. It is clear that what [the complainant] did with her hand and glass was in response to what Ms Scolaro did with her glass.

Ms Scolaro was charged with unlawful wounding thus the defence of provocation was not available to her. But even if it had been available to her there was nothing that the complainant did that could be said to be provocation. There is also nothing that the complainant did that would require Ms Scolaro to take action to defend herself from the complainant. The defence does not rely on 'self-defence' and it cannot rely on provocation.

I am satisfied beyond reasonable doubt that when the accused smashed her glass into the face of [the complainant] that she did so intending to do so and that it was not accidental.

It matters not whether the glass slipped from the accused's hand prior to the point of contact. If it did so slip it did so only momentarily before the glass crashed into [the complainant's] face. The video of the incident clearly shows the glass in the hand of the accused being delivered into [the complainant's] face with considerable force.

Even if the glass did slip out of the accused's hand, by the time it did so its course was set and it was inevitable that forceful deliberate contact was going to be made to [the complainant's] face. The fact that the accused herself suffered a cut hand indicates how close her hand was to [the complainant's] face at the time and point of contact.

The extent of the force of the contact is demonstrated by the shattering of the large glass and the numerous wounds and gouges inflicted on [the complainant's] face.

The video of the incident confirms all of the above propositions.

Even if the defence of provocation was available to the accused there was nothing in the behaviour of [the complainant] that was sufficiently provocative to justify the accused's action. Likewise there was nothing in the behaviour of [the complainant] to require the accused to take defensive action and clearly her deliberate action of driving her glass into the face of [the complainant] was not an accident but a deliberate, vicious and cowardly act by the accused.

Accordingly, the charge is proven.

61 Ms Scolaro's first ground of appeal against her conviction asserts that the magistrate erred by convicting her on a factual basis not relied upon by the prosecution. Shortly put, she asserts that following the interchange with the magistrate during the course of her cross-examination, the prosecution case was thereafter put on the basis that she had thrown the glass into the face of the complainant, rather than driven it into her face while still connected to her hand.

62 It is appropriate to commence with a consideration of the legal principles governing a ground of appeal of this kind. First, it is significant to note that either version of the facts identified in the ground would be sufficient to sustain a conviction of the offence charged. Put another way, the question of whether the glass was intentionally thrown by Ms Scolaro into the face of the complainant, or driven into the complainant's face with the direct force of Ms Scolaro's hand makes no difference to the legal principles applicable to the charge Ms Scolaro was facing. Either factual version was quite sufficient to sustain a conviction. Accordingly, the difference between the two alternative ways in which a conviction might have been sustained is one of fact only.

63 The classic statement of the entitlement of an accused person to know with precision the case which has been brought by the prosecution is that of Dixon J in Johnson v Miller [1937] HCA 77; 59 CLR 467, 489. His Honour observed that the prosecutor:

... should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.

64 Consistently with this principle, s 131(3) of the Criminal Procedure Act 2004 (WA) provides that a court may order a prosecutor to give an accused further particulars of a charge. However, this does not mean that a prosecution will inevitably fail if the prosecutor fails to prove, to the requisite standard, all particulars that have been provided (see, for example, Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434 per Steytler P at [38]). Nor does it mean that an accused person is entitled to particulars which descend into the facts in minute detail, or which would prevent the prosecution from seeking to prove a charge on the basis of alternative factual scenarios (provided those factual scenarios are not fundamentally inconsistent).

65 Provided that the prosecution has proven, and the tribunal of fact has found the essential elements of the offence charged beyond reasonable doubt, when questions of the adequacy of particulars, or of changes in the prosecution case, or of a trial judge leaving the case to the jury on a different basis to that put by the prosecution, or, as in this case, the magistrate having allegedly found the case on a basis different to that put by the prosecution, the essential question is one of fairness to the accused (see, for example, King v The Queen [1986] HCA 59; (1986) 161 CLR 423 and Robinson v R [2006] NSW CCA 192; (2006) A Crim R 88).

66 The function of particulars in a criminal case is to provide the accused person with sufficient knowledge of the case brought by the prosecution to adequately understand and answer that case. So, provided that the requirements of procedural fairness are met, it is not appropriate to require the prosecution to give particulars which are not material or which would confine the case to one only of a number of alternative factual scenarios which are consistent with each other, and equally consistent with guilt. Much will depend upon the factual circumstances of the particular case. For example, in most cases the date upon which the offence is alleged to have occurred will not be critical, or even material, and a change in the prosecution case in that respect, or a failure to prove the date particularised, will not cause relevant unfairness. However, where the accused relies upon an alibi defence, to the effect that he or she was somewhere else at the precise time the offence was allegedly committed, or would have relied upon an alibi defence if aware of the precise prosecution case, a change in the prosecution case could be critical to the ability of the accused to meet the charge, and therefore to the fairness of the trial process.

67 The circumstances that will determine the appropriate scope of the particulars that the prosecutor can be required to give are as infinite and as variable as the circumstances that come before the courts. As the alibi example I have given indicates, in some cases the ambit of the particulars the prosecution may be required to give, may be affected by the nature of the defence case. More usually, however, the appropriate ambit of particulars will be dictated by a consideration of the essential elements of the offence, as applied to the general factual circumstances of the case. So, in the present case, where the charge was unlawful wounding occasioned by the impact of the glass upon the complainant's face, the critical element which the prosecution was required to prove beyond reasonable doubt was that the accused, Ms Scolaro, acted in such a way as to cause the glass to strike the complainant's face, and with the intention that it do so. Accordingly, in this case if, at the outset, counsel for Ms Scolaro had sought particulars of the prosecution case, in my view it would have been sufficient for the prosecutor to state that it was alleged that Ms Scolaro propelled the glass into the face of the complainant, with the intention that the glass strike her face. In the circumstances of this case, it would not have been necessary for the prosecution to state whether the glass was propelled into the complainant's face by the direct force of Ms Scolaro's hand at the point of impact, or whether the glass had been released from Ms Scolaro's hand at some point prior to impact with the complainant's face. The critical issue in the case was whether Ms Scolaro intentionally propelled the glass into the complainant's face. If that was established beyond reasonable doubt, it is immaterial whether the glass was in Ms Scolaro's hand at the point of impact, or whether it had been released at some point prior to impact. Accordingly, it would have been wrong for a court to have confined the prosecution to one or other of those alternative factual scenarios at the commencement of the case, by requiring particulars to be given as to whether or not the glass was in Ms Scolaro's hand at the point of impact.

68 However, the question did not arise at the commencement of this case, and no particulars were sought. The factual issue first arose in the cross-examination of the complainant, when it was put to her that the glass had been thrown rather than driven into her face. It is clear that this line of cross-examination had two forensic purposes. The first was to attack the credibility of the complainant, given that the statement which she made to police was inconsistent with the evidence which she had given in chief in this respect. The second purpose was no doubt to endeavour to secure a concession that the glass may have left the hand of Ms Scolaro prior to impact. That concession, if made, could then provide a factual basis for the submission that the court could not be satisfied beyond a reasonable doubt that the glass had not slipped from Ms Scolaro's hand by accident, when she was attempting to disgorge its contents onto the complainant.

69 In further cross-examination the complainant acknowledged the difference between the statement she had made to police, and her evidence in court. She maintained the assertion that the evidence she had given in court was correct until re-examination, when, in response to the prosecutor, she conceded that the glass may have been thrown rather than driven into her face. However, no request for particulars was made by defence counsel at this point.

70 Ms Weatherall was examined in chief and cross-examined on the question of whether the glass was thrown into the complainant's face. She maintained her position that she could not see whether the glass had left Ms Scolaro's hand prior to the point of impact. The other witnesses for the prosecution gave no evidence bearing upon this question.

71 In her evidence-in-chief, Ms Scolaro asserted that the glass had neither been driven into the complainant's face, nor had she thrown it at the complainant. Rather, she asserted that she was endeavouring to flick the contents of the glass into the complainant's face when it accidentally slipped from her hand. Accordingly, on her version of events, the distinction between the glass being driven into the face of the complainant, or thrown, was immaterial, because she denied each.

72 However, in cross-examination, the prosecutor focused his questions upon the proposition that the glass had been thrown by Ms Scolaro. In that context, he was asked to particularise the prosecution case, and he did so, in the manner I have set out above. For the reasons I have already given, in my view, it was not incumbent upon him to do so, and it would have been quite open to the prosecutor to respond on the basis that the prosecution case was that the accused had propelled the glass into the face of the complainant, with the intention that the glass strike her face, either in the hand of the complainant, or having left the hand of the complainant prior to impact.

73 However, that is not the course which the prosecutor took. He agreed to state the prosecution case in terms of the glass being thrown, and cross-examined only to that effect. The critical question for the purposes of ground 1, is whether the findings of fact later made by the magistrate resulted in unfairness to the accused, having regard to the position adopted by the prosecutor.

74 The particulars were not provided by the prosecutor until the prosecution case had been closed, and the defendant had given her evidence-in-chief. Accordingly, the particulars had no impact upon the line taken by defence counsel in cross-examination of the prosecution witnesses, or in the ambit of the evidence led in chief from Ms Scolaro. As I have indicated, all witnesses who were capable of giving evidence on the subject were examined and cross-examined upon it. The only witness called after the prosecutor particularised the case did not observe the glass strike the complainant's face, and was incapable of giving evidence on this point.

75 This is not to say that the basis upon which the magistrate decided the case could not have resulted in unfairness to the accused, having regard to the line taken by the prosecutor in cross-examination of the accused. For example, in O'Callaghan v Ward [2010] WASC 246, the magistrate found a version of the facts which was quite different to the version of facts upon which the appellant had been cross-examined, with the result that there was relevant unfairness. The rule in Browne v Dunn (1893) 6 R 67 HL requires, as a principle of procedural fairness, that a party who relies upon a version of events different to that given by the witness is obliged to put that version to the witness.

76 In this case, the prosecutor did not cross-examine on the basis that Ms Scolaro had her hand on the glass at the point of impact. However, no unfairness was thereby occasioned, as Ms Scolaro had made her position abundantly clear in the course of her evidence-in-chief, and it was to the effect that the glass had slipped accidentally from her hand prior to the point of impact with the complainant's face. Counsel appearing on her behalf in this appeal did not assert that any unfairness was occasioned by the line taken by the prosecutor in cross-examination. Rather, as counsel for Ms Scolaro at appeal appropriately conceded, given the point in the trial at which the prosecution particularised its case, any relevant unfairness could only lie in the impact which that particularisation had upon the submissions which were made, or might have been made by counsel on behalf of the accused.

77 Before considering that question, it is appropriate to briefly return to the findings made by the magistrate, for the purpose of identifying the extent to which they differ from the case particularised by the prosecution during the cross-examination of Ms Scolaro. I have already set out a number of extracts from the reasons given by the magistrate for concluding that the charge against Ms Scolaro was proven. In summary, it seems clear that the magistrate found the charge proven on the basis that Ms Scolaro acted with the intention of propelling her glass into the complainant's face with considerable force. He accepted that the glass may well have slipped from her hand immediately prior to contact with the complainant's face, but did not consider that to be material to the question of guilt. He was also satisfied that Ms Scolaro's evidence did not give rise to a reasonable doubt to the effect that the glass had accidentally slipped from her hand while she was attempting to flick its contents into the face of the complainant.

78 In summary therefore, the magistrate found the case proven in the way in which I think it would have been open to the prosecutor to have particularised it - namely, on the basis that he was satisfied beyond reasonable doubt that Ms Scolaro had propelled the glass into the face of the complainant with the intention that the glass strike her face. The magistrate took the view, correctly in my view, that if he was satisfied beyond reasonable doubt of that fact, it was immaterial whether or not the glass had left Ms Scolaro's hand prior to impact with the complainant's face. The critical question under this ground is whether it was unfair to the accused to find the charge proven in this way, having regard to the way in which the case was run by the prosecution.

79 The first point to note in that regard is that the most significant aspect of the way in which the prosecutor ultimately presented the case was that it involved a concession that the glass had left Ms Scolaro's hand before striking the face of the complainant. That concession achieved the second of the forensic purposes which I have attributed to counsel for the accused in the cross-examination of the complainant - namely, establishing that the glass had left Ms Scolaro's hand. That concession provided a basis for the submission that there was a reasonable doubt that the glass may have accidentally slipped from Ms Scolaro's hand while she was engaged in an activity which did not have, as its object, the striking of the complainant's face with the glass. However, it was only a step along the road to that submission, and in the context of this case, a relatively small step. Most significantly for the purposes of ground 1, it was a step which the magistrate was prepared to take in that he has clearly accepted in his reasons for decision, that the glass may well have left Ms Scolaro's hand before striking the face of the complainant.

80 If the magistrate had decided the case on the basis of a finding against Ms Scolaro on a material fact which had been conceded by the prosecution, it would be relatively easy to conclude that unfairness had been established. However, when the prosecution case is properly analysed, the only concession made was that the glass left Ms Scolaro's hand prior to striking the complainant's face. The reasoning of the magistrate was consistent with that concession. The prosecutor never conceded that it was not Ms Scolaro's intention to propel the glass into the complainant's face with considerable force. On the contrary, that is how the prosecution case was put in closing. That is the case that was found by the magistrate to have been proven.

81 On this appeal, counsel for Ms Scolaro asserts that there were two ways in which Ms Scolaro was unfairly prejudiced in respect of the submissions which were, or might have been, put to the magistrate on her behalf by counsel. First, it is said that defence counsel at trial was denied the opportunity to put to the magistrate that finding the charge proven according to the reasoning which he adopted was unfair to the accused. However, if the course taken by the magistrate was unfair to the accused, ground 1 will succeed, and the appeal will be allowed. If the course taken by the magistrate was not unfair to the accused, no unfairness arises from defence counsel at trial being denied the opportunity to put a contrary submission.

82 Next, it is said that counsel for the accused might have adopted a different line in his closing address, if the prosecution had not presented its case on the basis that the glass was thrown. However, the closing address by counsel for Ms Scolaro was focused upon the critical issue in the case - namely, whether the prosecution had established beyond a reasonable doubt that Ms Scolaro had propelled her glass into the face of the complainant with the intention that it strike her face, or, alternatively, whether the court should entertain a reasonable doubt that the glass had slipped while she was attempting to disgorge its contents into the complainant's face, as Ms Scolaro had asserted in evidence. The whole thrust of the submissions put on behalf of the accused by her counsel was directed squarely to the issue that was found against her. In the course of those submissions, counsel specifically addressed the evidence that had been given on the question of whether or not the glass had left Ms Scolaro's hand prior to the point of impact.

83 When asked to indicate with specificity the submissions that might have been put and which were not, because of the way in which the prosecution presented its case, counsel for Ms Scolaro on the appeal advanced two propositions. The first was that counsel might have directed submissions in opposition to a finding that Ms Scolaro had deliberately driven her glass into the complainant's face, in the sense that the glass remained in her hand at the point of impact. However, that was not the case found by the magistrate, as he accepted that the glass may well have left Ms Scolaro's hand prior to the point of impact. But in any case, the critical issue, as the magistrate found, was not whether Ms Scolaro intended to drive the glass into the complainant's face with her hand, but rather, whether she intended to propel the glass into the complainant's face, and that issue was squarely addressed by counsel for Ms Scolaro in his closing address.

84 Next, it was put by counsel on appeal that the concession made by the prosecution might have affected the submissions that were put on the question of whether Ms Scolaro had employed a throwing action, which was consistent with her evidence to the effect that she intended to disgorge the contents of the glass into the face of the complainant. However, that is precisely the point that was addressed at length by counsel for Ms Scolaro at trial in his closing address, which was to the effect that the magistrate should not be satisfied beyond a reasonable doubt that the throwing action engaged by Ms Scolaro, and depicted on the DVD, was inconsistent with her evidence to the effect that she intended to disgorge the contents of the glass into the complainant's face.

85 For these reasons, the findings made by the magistrate, viewed in light of the way in which the case was conducted, and in particular, the way in which the case was put by the prosecution, did not occasion any relevant unfairness to Ms Scolaro. Had I come to a contrary view, it would have been necessary to consider whether there was nevertheless no substantial miscarriage of justice, with the result that the ground of appeal should be dismissed in any event, pursuant to s 14(2) of the Criminal Appeals Act 2004 (WA). I will express my views on that subject after considering grounds 2 and 3. Ground 1 should be dismissed.

86 Ground 2 asserts that the verdict of guilt was against the evidence or the weight of the evidence. The question of whether such a ground is available on an appeal from the Magistrates Court was not argued at any length before me, although counsel for Ms Scolaro properly drew attention to the fact that s 8 of the Criminal Appeals Act, which specifies the grounds upon which appeals may be brought from courts of summary jurisdiction, does not specifically refer to such a ground, unlike s 30(3) of the Criminal Appeals Act which concerns appeals from superior courts. As the matter was not argued at any length, I will assume, without being taken to decide, that such a ground is available in respect of appeals from courts of summary jurisdiction.

87 In support of this ground it is submitted that the magistrate could not have reasonably concluded, beyond a reasonable doubt, that the glass did not slip from the appellant's hand as she tried to throw what she believed were the contents of the glass at the complainant. In support of that proposition, it is put that the action of throwing the glass is consistent with the action of throwing its contents, and therefore the prosecution, as presented, was consistent with the evidence of Ms Scolaro.

88 Much of the reasoning that I have applied to the assessment of ground 2 is revealed by the reasons for my conclusion in respect of ground 3. I will therefore return to briefly consider ground 2, after setting out my reasons in relation to ground 3.

89 As I have mentioned, ground 3 was added, with leave, in somewhat unusual circumstances. I will briefly relate those circumstances.

90 Because ground 2 asserted that the verdict of guilt was against the evidence and the weight of the evidence, it was necessary for me to review that evidence in detail. I did so by reference to the transcript of the proceedings before the magistrate, and by reviewing the video images which were tendered in evidence. In the course of undertaking that review, I noted that the magistrate had relied upon the video images to reject the evidence of the three witnesses (the complainant, Ms Weatherall and Ms Scolaro) who had described the sequence of events as being:

(a) the complainant had spilled part of her drink on Ms Scolaro's back before Ms Scolaro turned and poured her drink down the complainant's back; and

(b) the complainant had thrown the remainder of the contents of her glass at Ms Scolaro before Ms Scolaro took the action which resulted in the glass striking the complainant's face.

91 With that evidence in mind, I reviewed the video images using a slow motion replay facility that may not have been available to the magistrate or to the parties. After conducting such a review, it appeared to me that there were images which suggested that the complainant had thrown part of her drink onto Ms Scolaro's back before Ms Scolaro turned and poured her drink down the complainant's back. It also appeared from my review of the video images that they did not enable one to say conclusively that the evidence of all three witnesses to the effect that the complainant had thrown the balance of her drink at Ms Scolaro before Ms Scolaro took the action which resulted in the glass striking the complainant's face was wrong.

92 Having formed those tentative views, I arranged for the hearing of the appeal to be reconvened, and communicated those tentative views to the parties, inviting further submissions in light of the matters which I raised. I also suggested to counsel for the respondent that it might be that the respondent had either better versions of the video images, or technology available which would enable a better view of the matters depicted in those images.

93 At the next hearing, the appellant moved to add grounds to each of the appeal against conviction and the appeal against sentence. The respondent produced and tendered two further DVDs, one containing the images initially received by police, and the second containing a version of those images capable of being viewed on conventional computer systems. The second version was played to the court a number of times during the resumed hearing of the appeal. It provides better resolution of the recorded images than the DVD tendered in evidence before the magistrate.

94 The appellant's new ground of appeal against conviction asserts that the magistrate made four errors of fact. Each error is said to have been made because the magistrate misconstrued the images recorded on the DVD which was tendered in evidence. I have carefully reviewed the images recorded on that DVD, and on the additional DVD which has been tendered in evidence on the appeal which showed the images at a higher degree of resolution, using a computer which enables me to view the images very slowly or in frozen frames.

95 It is clear from the images I have reviewed that the complainant did in fact spill her drink on Ms Scolaro's back, and that Ms Scolaro reacted to that event by turning and pouring her drink down the complainant's back. The respondent concedes that these facts should be found from the recorded images. The respondent asserts that the recorded images leave open the possibility that the complainant accidentally spilt her drink on Ms Scolaro's back. I do not accept that proposition. The complainant was about a metre distant from Ms Scolaro when liquid can be seen leaving her glass and travelling to Ms Scolaro's back. There is a clear inference from the recorded images, which I draw, that the complainant deliberately threw part of her drink on Ms Scolaro's back as a consequence of their earlier disagreement.

96 It follows that the appellant has made out the first two errors of fact particularised in ground 3 of the appeal against conviction.

97 The actions of the complainant after Ms Scolaro poured her drink down the complainant's back are harder to discern from the recorded images. That is essentially because the complainant had her back to the camera at the time she and Ms Scolaro squared off prior to Ms Scolaro taking the action which caused her glass to strike the complainant's face. The complainant's body therefore obscures the action that she may or may not have been taking with her right hand, which held her drink. I therefore find that it is not possible to deduce from the recorded images whether or not the complainant threw the balance of her drink at Ms Scolaro just before Ms Scolaro lunged forward with her own glass.

98 It is significant that all three witnesses of these events, the complainant, Ms Weatherall and Ms Scolaro, stated clearly and unequivocally that the complainant threw her drink at Ms Scolaro, while the two were squared off, before Ms Scolaro lunged forward with her glass. The evidence given by the complainant and her friend, Ms Weatherall, was, in this respect, adverse to the interests of the complainant. It is unlikely that they would have given that evidence unless convinced of its truth, based on what they did or saw respectively. The recorded images do not provide a sufficient basis for rejecting this testimony, which is consistent with the testimony of Ms Scolaro. Further, it seems to me to be clear from his reasons, that the magistrate has confused the image of the complainant throwing her glass in the direction of Ms Scolaro after she had been struck with Ms Scolaro's glass, with the evidence given on the subject of the complainant throwing the contents of her glass at Ms Scolaro prior to being struck. I therefore conclude that the magistrate erred in finding, as a fact, that the complainant did not throw the balance of her drink at Ms Scolaro prior to Ms Scolaro taking the action which resulted in her glass striking the complainant's face. The appellant has made out the third error of fact particularised in ground 3 of the appeal against conviction.

99 The errors made by the magistrate, and which I have identified, on the subject of whether the complainant initiated the physical contacts between the two women by throwing part of her drink on Ms Scolaro's back, and on the question of whether the complainant responded to Ms Scolaro pouring her own drink down the complainant's back by throwing the balance of her drink at Ms Scolaro, caused the magistrate to erroneously conclude that Ms Scolaro's actions were not a reaction to the actions of the complainant in twice throwing drink at Ms Scolaro. Thus the appellant has established the fourth error of fact particularised in ground 3 of the appeal against conviction.

100 The appellant having succeeded in establishing that the magistrate made the four errors of fact particularised in ground 3, the next question is whether those errors were material to the process of reasoning used by the magistrate to conclude that Ms Scolaro was guilty.

101 After setting out the findings of fact which he had made based on his viewing of the recorded images, the magistrate correctly posed the critical issue which he had to determine as being whether he was satisfied beyond reasonable doubt that Ms Scolaro had deliberately propelled her glass into the face of the complainant, with the intention that the glass strike her face, or whether there was a reasonable doubt that the glass had slipped accidentally from her hand while she was attempting to disgorge its contents into the complainant's face.

102 The magistrate addressed that question in the long paragraph which followed. Analysis of that paragraph shows that there were three critical steps in the process of reasoning which he used to conclude that he was satisfied beyond reasonable doubt that Ms Scolaro had deliberately propelled the glass with considerable force into the complainant's face. First, the magistrate held that the DVD clearly shows Ms Scolaro 'fully upturning the glass and emptying its liquid contents' down the back of the complainant. That finding of fact is not challenged by Ms Scolaro and is sustained by the recorded images. It follows, as the magistrate reasoned, correctly in my view, that Ms Scolaro would have known that there was little or no liquid left in her glass at the time she propelled it towards the face of the complainant.

103 Second, the magistrate regarded the action employed by Ms Scolaro at the time of propelling the glass towards the complainant's face as only being consistent with an intention of propelling the glass itself, rather than its contents. Again, that finding is not specifically challenged, and is amply justified by the recorded images.

104 Third, the magistrate relied upon Ms Scolaro's evidence to the effect that her hand had been cut in the incident, from which he reasoned, correctly in my view, that Ms Scolaro's hand must have been in close proximity to the complainant's face at the point the glass was breaking up. That fact is inconsistent with Ms Scolaro's evidence that she only intended to disgorge the contents of the glass into the complainant's face. If that was her intention, it is highly unlikely that she would have moved her hand so close to the complainant's face that it was cut. Rather, it is much more likely that her hand would have stopped some distance from the complainant's face after giving sufficient momentum to the contents of the glass (if any) that they would strike the complainant, if that was her intention.

105 The errors of fact made by the magistrate have no impact whatever on the three critical components in the reasoning which he applied to conclude that he was satisfied beyond reasonable doubt that Ms Scolaro deliberately propelled the glass into the complainant's face with considerable force.

106 It is only after elucidating that process of reasoning, and expressing his conclusion, that the magistrate went on to make the errors of fact which are identified in ground 3 of the appeal against conviction. The errors made do not impugn in any way the line of reasoning adopted by the magistrate. On the contrary, the facts which I consider to have been established by the recorded images are at best equivocal on the question of guilt. The fact that the complainant had twice discharged liquid onto Ms Scolaro prior to Ms Scolaro lunging forward with the glass in her hand might suggest that Ms Scolaro was attempting to twice disgorge the contents of her own glass, but might also suggest that Ms Scolaro was so incensed by the complainant's conduct that she acted so as to strike the complainant with her glass.

107 It was submitted on behalf of Ms Scolaro that the magistrate's error on the question of whether the complainant had thrown drink at Ms Scolaro's front, when they were squared off, may have caused him to wrongly evaluate Ms Scolaro's evidence to the effect that the glass slipped from her hand while it was wet, by causing him to erroneously diminish the likelihood of that version of events. However, I do not accept that submission. The magistrate found that Ms Scolaro had tipped the entire contents of her glass down the complainant's back, in the course of which she could easily have wet her own hand. As I have observed, the magistrate's critical processes of reasoning focused upon his findings that Ms Scolaro's glass was completely upturned with the consequence that it retained little or no liquid, the type of arm action used by Ms Scolaro at the time of propelling the glass towards the complainant, and the proximity of Ms Scolaro's hand to the complainant's face at the point of impact. That process of reasoning is not diminished by the errors made by the magistrate with respect to the complainant's actions. Further, the magistrate accepted that the glass may have left Ms Scolaro's hand prior to the point of impact, but did not consider that to be material to the critical question he had to determine.

108 Although not covered by any specific ground of appeal, attention was drawn, in the submissions advanced on behalf of Ms Scolaro, to those parts of the recorded images which show two marks on the floor under the complainant's feet after the interchange between the two women. It was submitted that one of those marks was consistent only with liquid having travelled from Ms Scolaro's glass down the front of the complainant, thus reinforcing Ms Scolaro's evidence that she was attempting to throw her drink, rather than her glass at the complainant.

109 I have looked very carefully at this aspect of the recorded images a number of times. I have concluded that the proposition advanced in this submission is entirely speculative. The marks which appear near the feet of the complainant in the recorded images first appear a couple of seconds after the completion of the exchange between the two women, and appear to be related to that exchange. It is not at all clear whether the marks are liquid or pieces of glass, or a combination of both. The recorded images which later show mopping and sweeping of the area do not appear to me to shed any light on that question. It seems to me that the marks on the floor are consistent with liquid having spilt from the complainant's glass, or dripping onto the floor from the complainant's dress (after Ms Scolaro emptied the contents of her glass down the complainant's back). Accordingly, I have concluded that the marks shown on the floor in the recorded images have no probative significance, one way or the other.

110 However, it remains the fact that the magistrate made the errors of fact which have been identified above. It is also the fact that aspects of the recorded images were probed and considered at much greater depth on the hearing of the appeal than they were before the magistrate. I have therefore given anxious consideration to the question of whether the interests of justice require that there be a retrial at which the evidence of the witnesses could be tested by reference to the conclusions properly drawn from the DVD.

111 I have concluded that Ms Scolaro did not suffer a forensic disadvantage by the course taken at trial so as to render a retrial necessary in the interests of justice. The factual conclusions properly drawn from the images recorded on the DVD are entirely consistent with the evidence given on behalf of the prosecution by the complainant and Ms Weatherall. Accordingly, it cannot be said that Ms Scolaro was deprived of the opportunity of challenging the credibility of those witnesses because of the erroneous conclusions drawn from the recorded images by the magistrate. To the contrary, the magistrate's errors caused him to reject material portions of their evidence. Nor could it be said that these matters affected the testimony given by Ms Scolaro. She also asserted that she had been twice wet before moving forward with her glass in the direction of the complainant's face. For the reasons I have given, I reject the proposition that there is any conclusion properly drawn from the recorded images which supports Ms Scolaro's evidence that there was liquid in her glass at the time she lunged forward, or that would have had a significant impact upon her evidence to the effect that the glass slipped from her hand because it was wet.

112 Each of the critical witnesses, the complainant, Ms Weatherall and Ms Scolaro, were clearly committed to their version of the sequence of events. No forensic disadvantage was suffered by either the prosecution or the defence as a result of the magistrate's errors of fact, made at the time he gave his reasons for decision. Given that each of the three witnesses adopted a clear position with respect to the sequence of events, I am in as good a position as the magistrate to assess whether a different conclusion should be drawn on the question of guilt, having regard to the facts properly found. The concession made by counsel for Ms Scolaro to this effect during the course of the argument on the appeal was, in my view, properly made.

113 The magistrate's errors of fact constitute a ground of appeal falling within s 8 of the Criminal Appeals Act. However, pursuant to s 14(2) of that Act, if, notwithstanding those errors, I am satisfied that there was no substantial miscarriage of justice, the ground should be dismissed. After reviewing all the evidence in its entirety, I have concluded that the evidence of Ms Scolaro's guilt is overwhelming. In my view, the DVD shows that Ms Scolaro's glass was fully inverted at the time she poured its contents down the complainant's back, from which it follows that she must have known that there was little or no liquid left in the glass at the time she propelled it towards the complainant's face. Ms Weatherall gave evidence to the same effect. The action taken by Ms Scolaro to propel the glass, shown in the recorded images, is in my view entirely inconsistent with the proposition that she was merely intending to disgorge its contents into the face of the complainant. Further, the fact that Ms Scolaro's hand was cut by broken glass is only consistent with her hand having been very close to the complainant's face at the point of impact, which is again inconsistent with the proposition that she merely intended to disgorge the contents of the glass into the complainant's face. There is nothing in the recorded images showing marks on the floor near the complainant's feet, or in the fact that the complainant twice wet Ms Scolaro before Ms Scolaro propelled the glass into her face, that casts any reasonable doubt on this process of reasoning.

114 For these reasons, having reviewed the evidence in its entirety, and having given detailed consideration to the higher resolution images now available, I am satisfied beyond reasonable doubt of Ms Scolaro's guilt, essentially for the same reasons as given by the magistrate. In particular, I do not entertain any reasonable doubt on the question of whether the glass struck the complainant's face by accident, or as a result of the unwilled act of Ms Scolaro, within the meaning of those terms in s 23B and s 23A of the Criminal Code (WA) respectively.

115 It follows that notwithstanding that the errors of fact made by the magistrate particularised in ground 3 have been established, in my view, those errors did not cause any substantial miscarriage of justice, and ground 3 should be dismissed. Essentially for the same reasons, ground 2, which asserts that the conviction of Ms Scolaro was against the evidence and the weight of the evidence should also be dismissed. Further, if I had come to a different view in relation to ground 1, I would nevertheless have dismissed that ground because of my conclusion that there was no substantial miscarriage of justice in the conviction of Ms Scolaro.

116 Following conviction, the magistrate heard submissions in respect of sentence. After hearing those submissions, he adjourned the matter for the provision of a pre-sentence report. The pre-sentence report confirmed that Ms Scolaro had no prior convictions of any significance to the charge of which she was convicted, had a stable family background, and had been in stable employment.

117 When the matter resumed, counsel for Ms Scolaro put further submissions, including submissions based on the pre-sentence report, and in relation to matters that had occurred since Ms Scolaro's conviction, including the making of an order prohibiting her from attending licensed premises, pursuant to the provisions of the Liquor Control Act 1988 (WA), and the effect of the media attention which the case had attracted.

118 In the course of his sentencing remarks, the magistrate repeated the findings that he had made with respect to the circumstances of the offence. In that context he observed that he was prepared to accept that perhaps the glass had slipped from Ms Scolaro's hand prior to the point of impact, but that if it did, it slipped in very close proximity to the complainant's face.

119 The magistrate summarised the pre-sentence report, and the submissions that had been put on Ms Scolaro's behalf as to the effect of her conviction, and the attendant publicity. The magistrate made various other findings in respect of Ms Scolaro's personal circumstances, which it is unnecessary to catalogue. A number of written references had been tendered in support of Ms Scolaro's character. The magistrate cited a number of passages from those references in the course of his sentencing remarks. He indicated that he had many more similar references, which he had read but did not repeat. The magistrate also made findings with respect to Ms Scolaro's employment record. Accordingly, there can be no suggestion, and it is not put, that the magistrate failed to give appropriate weight to Ms Scolaro's personal circumstances.

120 The magistrate went on to contrast the favourable findings he had made in respect of the antecedents of Ms Scolaro with the findings he had made in respect of what he characterised as a 'vicious, cowardly, unprovoked attack', and with the devastating effect of the attack upon the complainant.

121 The magistrate then observed that the maximum penalty which could be imposed for the offence of unlawful wounding by a court of summary jurisdiction was 2 years imprisonment and a fine of $24,000. In that context, he observed:

Within these parameters, judicial officers must exercise their discretion, but this discretion has to be exercised in accordance with community expectations. I appreciate that community expectations are not always easy to determine, but one very clear community expectation is that if someone smashes a glass or bottle into another person's face and causes disfiguring injuries, then that person must be dealt by way of a prison sentence and that anything less would be so lenient as to shock the public conscience.

Sentences have dual functions, a specific deterrence and a general deterrence. This specific deterrence is of course directed at the individual offender. The general deterrence is directed at the community in general, so that the general community is aware that if a person smashes a glass or bottle into another person's face and causes disfiguring injuries, then that person will be sent to gaol. Judicial officers don't have the discretion outside the scope of community expectations and if they do venture outside their scope, then it is the appellate court's duty to amend the penalty back into the scope of community expectations.

Even appellate courts have the obligation to be guided by community expectations.

122 The magistrate went on to consider the range of penalties available, and concluded that the offence was too serious to be dealt with by way of a fine or a community-based order. In that context he referred to general deterrence, and made the following observations:

One only needs to sit in this courtroom to appreciate the frequency with which people are being hit in the face with bottles or glasses, and I feel that the only appropriate sentence is one of imprisonment ...

123 The magistrate expressed the view that the seriousness of the offence meant that the starting point for a consideration of the term of imprisonment appropriately imposed was that of 2 years as the case was 'a most serious example of such a case that can be dealt with summarily'. He noted that no discount was available for a plea of guilty. However, he concluded that the mitigating circumstances of Ms Scolaro's personal circumstances and good antecedents should result in a reduction from 2 years to 18 months. In that context he observed:

I'm satisfied that the community expectations [sic] is that a prison sentence is the only appropriate sentence and that a non-custodial sentence would be so lenient as to shock the public conscience.

124 He justified that conclusion by reference to specific circumstances of the attack which he enunciated, being the 'cowardly nature' of the attack given that 'the video reveals that [the complainant] was walking away from Ms Scolaro and does have her back to Ms Scolaro and was totally unaware of the pending attack when Ms Scolaro tipped her drink down [the complainant's] back ...' The magistrate also relied upon the fact that a weapon was used and the nature of the weapon, and that sufficient force was used to cause the glass to break and disfigure the complainant's face, and cause enduring physical and psychological injuries. For those reasons, the magistrate concluded that a sentence of 18 months imprisonment was appropriate.

125 The magistrate then went on to consider, afresh, whether the various matters to which he had referred justified an order suspending the period of imprisonment to be imposed. In that context, he reiterated conclusions he had expressed in relation to the culpability of Ms Scolaro's conduct, characterising her offence as a 'vicious, cowardly, unprovoked attack on an attractive young lady', which resulted in 'gouges, cuts and abrasions to her face' and enduring physical and psychological damage. In that context, the magistrate observed:

An attractive young lady who was severely disfigured by Ms Scolaro's deliberate action deserves, requires and demands a prison sentence. It is what the community expects.

126 In the result, the magistrate sentenced Ms Scolaro to 18 months imprisonment to be immediately served. He made an order for parole eligibility.

127 The appeal against sentence has three grounds. The first concerns the allegation that the magistrate erred in law by acting on a wrong principle, in that he erroneously concluded that his sentencing discretion was limited by the scope of community expectations. The second ground of appeal asserts that the sentence of 18 months imprisonment to be immediately served was manifestly excessive. In the course of argument during the appeal, counsel for the appellant clarified that this ground was brought not only upon the basis of the magistrate's failure to suspend the term of imprisonment which he imposed, but also upon the basis of the length of the term of imprisonment imposed. The third ground was added by leave at the resumed hearing of the appeal, and asserts that the magistrate erred by finding that Ms Scolaro's attack was unprovoked.

Ground 1 - the role of community expectations in the sentencing process

128 Ground 1 of the appeal against sentence asserts that the magistrate erred by considering that his discretion in respect of sentence was constrained by community expectations as to the sentence properly imposed. I have set out above the portions of the magistrate's sentencing remarks in which he referred to community expectations, and will address the proper construction and effect of those remarks after considering the legal principles relating to the role of community expectations in the sentencing process.

SCOLARO -v- SHEPHARD [No 2] [2010] WASC 271 (8 October 2010)

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SCOLARO -v- SHEPHARD [No 2] [2010] WASC 271 (8 October 2010)