Carlsen v Wilkie - [2018] TASSC 1

[2018] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: Carlsen v Wilkie [2018] TASSC 1

PARTIES:  CARLSEN, Leon Gene
  v
  WILKIE, Scott (Senior Constable)

FILE NO:  2835/2016
DELIVERED ON:  11 January 2018
DELIVERED AT:  Hobart
HEARING DATE:  30 January 2017
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Hearing – Variance between contents of initiating process and evidence – Generally –Name of victim particularised in charge of assault but not proved – No prejudice caused by departure from particulars – Name of victim not a material particular – Not shown that complaint should have been dismissed.

Justices Act 1959 (Tas), s 31.
Johnson v Miller (1937) 59 CLR 467; Wickham v Cole [1957] Tas SR 111; Riseley v The Queen [1970] Tas SR 41; R v Stringer [2000] NSWCCA 293; 16 A Crim R 198, referred to.
Aust Dig Criminal Law [1165]

REPRESENTATION:

Counsel:
             Applicant  G Barns
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Leonard Fernandez
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 1
Number of paragraphs: 55

Serial No 1/2018
File No 2835/2016

LEON GENE CARLSEN v SENIOR CONSTABLE SCOTT WILKIE

REASONS FOR JUDGMENT WOOD J

11 January 2018

After a hearing in the Magistrates Court before Magistrate G Hay, Leon Carlsen was found guilty of an offence of common assault. The details of the charge are:
"Charge: Common Assault
Breach of: Section 35(1) Police Offences Act, 1935
Particulars: You are charged with on the 4th March, 2015 at Hobart in Tasmania, unlawfully assaulting Scott Lewis Niccolls by punching him to the body and head."
At the hearing there was evidence of an assault upon a male person, but not of the identity of the victim. The charge was found proved on the basis that the court was satisfied beyond reasonable doubt that a male person was assaulted in the way set out in the particulars. It is asserted on review that the identity of the victim was a material particular and that in the absence of proof that the person assaulted was named Scott Lewis Niccolls, the charge should have been dismissed. The sole ground of appeal is in terms that:
"The learned magistrate erred in law, or in fact and law, in finding that the prosecution did not have to prove beyond reasonable doubt, the identity of the alleged victim of the alleged assault."
A co-defendant, Adam Leslie, was jointly charged with the same offence, with the same particulars. He was charged with a second assault on Mr Niccolls by pushing on the back of his head and kicking him to the head, and also an assault upon another person, Stephen George, by punching him to the head. These additional assaults were alleged to have occurred close in time and during the same incident. The applicant faced additional charges which arose from his conduct in driving after he and Mr Leslie left the scene: driving a motor vehicle with a breath alcohol reading of .112 and evading interception by a police officer.

The case of assault

The prosecution case was that there was an altercation in the early hours of 4 March 2015 outside licensed premises, Jack Greene, in Salamanca Place. The co-defendant, Mr Leslie, assaulted a male person by punching him to the head. The prosecutor asserted in his opening address that the male was Mr George but his identity was not proved. It was the prosecution's case that subsequently, Mr Leslie and the applicant approached another male person and together they punched him several times until he fell to the ground. This allegation of violence gave rise to the joint charge of assault which is the charge against the applicant under review. It was said in opening that this male victim was Mr Niccolls but, as noted, the evidence did not establish his identity. It is alleged that the co-defendant, Mr Leslie, then assaulted the same male a second time, by kicking him to the head.
As said, there was no evidence of the identity of the victims. Neither Mr Niccolls nor Mr George, the other male allegedly assaulted, were called as witnesses. The prosecutor stated in his opening address that the victims, Mr George, an Alaskan man, and Mr Niccolls, a South African man, would not be called as witnesses as they were crew members of a cruise ship, the Diamond Princess, diverted to Hobart to stay overnight due to bad weather at sea. Two bartenders working at Jack Greene, Nicholas Clark and Damian Paul, gave evidence of the altercation. The witnesses did not name or identify the complainant as Scott Niccolls; he was described as "the South African", and also the "the tourist man".
The two eye-witnesses referred to the assailants as the shorter one and the taller one. There was no dispute that the shorter male person was the co-defendant, Mr Leslie, and the taller one was the applicant.
Damian Paul gave evidence of his observations as follows.
·     There was an altercation occurring outside Jack Greene at around 2.30am.
·     The taller and shorter gentlemen were being verbally aggressive towards other patrons.
·     They were racially abusing one man; the shorter man was calling him a "nigger". They were also being aggressive towards a couple of women who were present.
·     The shorter of the two men, without warning, went up and punched the man he had just abused in the face directly very hard, and the man went straight to the ground holding his face. Later on in the evening Mr Paul saw the man had a swollen nose/face, and he was given ice and a tea towel to help the swelling.
·     A South African man came in to help, to "kind of defuse the situation". Mr Paul could tell he was South African from his accent. The South African man was saying to the taller and shorter men "just leave, like we don't want any trouble". The South African man got a bit too close and they threw punches at him. They each punched him approximately half a dozen times to his face and head until he went to the ground and they continued to punch him.
Mr Paul went on to state that while the male was on the ground, the shorter male placed his hand on the back of the man's neck, held him down towards the ground, face down, took a step back and "took a big wind up with his right foot and kicked the gentleman directly to the face". Later on, Mr Paul noticed the South African man was groggy and he had what appeared to be a cut lip and a red mark on his face around where the impact took place. He retreated to the bar and the taller and shorter males left in a vehicle, the taller man in the driver's seat.
Unfortunately, the cross-examination of Mr Paul and the entirety of the evidence of Nicholas Clark were not transcribed, and no recording is available. The magistrate's summary of their evidence in his oral decision included references to cross-examination and there is no suggestion that the summary is inaccurate. There were no adverse findings made about any aspect of their evidence and both were described as honest and credible witnesses.
Having reference to the learned magistrate's reasons for decision, it can be seen that Mr Clark gave evidence of a joint assault upon a "male tourist" as follows. Mr Clark had served the two men alcohol a number of times during the night. He described one as tall and the other as the shorter one. At about 2.30am he stopped serving and moved all the patrons outside. A patron alerted him to an incident outside the bar. He saw the two men were between the footpath and the road; one was being abusive to tourists. The shorter one said "fucking bitch" to a woman, and to another person, "what the fuck are you going to do about it".
A male tourist came to Mr Clark's right side and the shorter man punched him; the taller man came in and punched him as well. Mr Clark tried to intervene to assist the tourist, but each time he did the taller man threw punches at him.
The tourist man was on the ground, having been put to the ground by the two men in the altercation. He was punched to the head by both men, but primarily the shorter one. He was attacked by both men, punched to the face by both and when he was on the ground, ended up with a kick to the face. The shorter man hit him in the back of the head and took a step back and kicked him in the face with his right foot. The taller one "lay an occasional one into the back of the man whilst he was on the ground". The man on the ground had a cut lip. The men left in a car, the taller one drove off.
The applicant was interviewed by police. During that interview he gave the following account:
·     There was some animosity between a couple of people in the bar and Adam [Leslie]; some people were having an argument with Adam. Adam had an argument with a dark skinned man. The applicant and Adam left. Adam was yelling abuse out the window of the car as they were driving off. There was a group of people out the front of the pub yelling and screaming at them. The "dark fellow" was one of them. The applicant stopped the car and Adam got out and approached them. The applicant did not want his friend to get into trouble so he got out and followed him, to stop him.
·     There was pushing, shoving and punches being thrown. He saw someone go for Adam, the person had picked up a bar stool and the applicant was "obviously worried". Adam grabbed hold of the person, and held him on the ground for a while, a couple of seconds. Adam was yelling. He did not see Adam punch him.
·     The applicant said that he started swinging at the person with the stool, Adam held him down on the ground then they left. Later, in his interview the applicant stated that he remembered the male coming at him swinging his hands. He thought he was going to be assaulted and he threw one or two punches in self-defence.

The ruling that the particulars should not be amended

At the close of the prosecution case the prosecutor made an application to amend the particulars to delete the name "Scott Lewis Niccolls" and substitute "a person". A similar application was made in respect of the complaints against Mr Leslie.
After hearing submissions and an argument from the defence that the applicant was prejudiced by the making of an application to amend at a late stage, the learned magistrate ruled that the particulars should not be amended. His Honour stated:
"I am mindful that the name of the person said to have been assaulted is not an element of the charge and does not have to be proved by prosecution. Especially in this case where there seems ample evidence to draw an ample inference that the persons said to have been assaulted were not consenting to the actions against them. Had the identity by name of the complainant not been known to the defendant at the time, or subsequently, or the complainant was called John Person or Mickey Mouse, it would have little particular relevance in a case of assault against that person. Whether the person said to have been assaulted can be properly identified as being the one and the same body by all relevant witnesses will depend upon all of the evidence and whether prosecution can rule out such things as self-defence, and that will depend upon all of the evidence that is produced.
In this case, it is certainly unfortunate the prosecutor did not seek to amend the name of the person alleged to have been assaulted at a stage prior to evidence being heard and completed. But I am mindful of the law and that an amendment can be made at the stage where the prosecution's case has been closed, and I am mindful of the words of Cox, J [Malahoff v White A37/1991, [1991] TASSC 60] to ensure that justice is not defeated by technical objections to applications to amend and cure a defective part of the particulars of the complaint.
Mr Justice Porter made a very clear, in Barnes v Hovington [2015] TASSC, he made it very clear, and to quote him:
No injustice is done where the amendment results in a defendant facing a charge which is the same in pith and substance to that originally faced or is a cognate one; that is allied in nature or akin in quality. Injustice or unfairness may nonetheless arise, depending on the stage of the proceedings at which the application to amend is made.
And so, I just emphasise his words there again, by repeating 'depending on the stage of the proceedings at which the application to amend is made'. Had this application to amend been made at some reasonable time prior to the hearing of the evidence, then I could not see any valid objection arising to it on the basis it does not alter the charge, being one of assault. It may have meant an adjournment for defence to consider its position or strategy, given the nature of the change of the identity of the complainant.
However, the Court in this case cannot rule out a specific prejudice to the defendants, given the timing of the application. The Court is not satisfied in the circumstances of this case that it should exercise a discretion to permit the amendment as is sought by the prosecutor."

The ruling that there was a case to answer and the charge was proved

The hearing was adjourned and counsel for both the applicant and Mr Leslie were given an opportunity to make written submissions in support of an argument that there was no case to answer in relation to the charges of assault, including, relevantly for the purposes of this review, the joint charge of assault. Counsel indicated that if the ruling was that there was a case to answer then the applicant elected to not give and not adduce any evidence. At a later date, the learned magistrate ruled that there was a case to answer. His Honour explained the approach to be taken when a no case to answer submission is made: "assuming all of the evidence is accurate and on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the defendant".
His Honour's reasons for rejecting the no case to answer ruling with respect to the charges of assault, encompassing the charge under review, include the following:
"I turn now to the two complaints alleging assaults. In my view there is ample evidence of the following to place both defendants at the Jack Greene Bar at all relevant times. Further, that they were both heavily intoxicated, further that each of them had little memory of the events that occurred outside the bar at around 2:30 am and further that based upon the essentially uncontested evidence of the two employees of the bar, whom I infer were sober and reliable witnesses, that the two defendants were the aggressors, and further that prosecution have satisfied its burden of ruling out any so-called defence – self-defence.
The evidence of the two employees was corroborative and strong and they gave no evidence about the use of a stool by any victim or any other person, including either of the two defendants. The use of a stool arises only briefly in each record of interview of each of the two defendants and without any real specification or particularisation. None of the prosecution witnesses were cross-examined about the use of a stool by any other person, there was no other corroboration about it. There is clear evidence from prosecution witnesses and also the defendants, especially Carlsen, that they were driving off and that there were words by Leslie to a group outside the bar. As a result Carlsen stopped his motor vehicle, Leslie got out of the motor vehicle and approached the group and the altercation commenced from there, and Carlsen also got out and became involved, either as a protector of Leslie or directly involved himself. On all of the acceptable evidence they were the aggressors and self-defence has been ruled out by the totality of the prosecution evidence in my view. Further, taken at its highest the evidence is capable of establishing that the defendants committed an assault on two persons by striking them in the manner alleged in the charges in the complaints. This was conceded by each defendant in their no case submissions, and finally there is no evidence which has proved the identity of the persons struck or from which inferences of identity could be inferred."
His Honour then went on to consider two questions pertinent to the review:
"Does the inability to prove a material particular that the assaults were occasioned to the victims named in the complaint mean that there is no case for the defendants to answer because there is a variance between the complaint and the evidence in support thereof whereby each defendant is prejudiced by that variance? … should the complaints be dismissed because to do otherwise would impermissibly expose each of the defendants to a risk of double jeopardy and prevent them from invoking any future autrefois convict or otherwise lead to an absurdity?"
The learned magistrate ruled that there was not any real or substantial prejudice to the defendants:
"It is submitted by both defendants that there would be a significant prejudice to them to permit the charges to proceed further in that the evidence is not capable of distinguishing the victim of each assault from any other person who might have been present on the same night at or around the same time and they may be subjected to fresh proceedings by other unknown persons who may or may not be the same persons said to have been assaulted in this case. In support of that submission, and as best I understand it, the probability of each of the defendants having to defend themselves against other persons or allegations could arise from the following circumstances. Firstly, the offences were committed at a busy bar, it was submitted, however I note that the offences were outside the bar, almost on the road surface, at 2:30 am on a Tuesday night/Wednesday morning. It is the evidence the evidence of the bar employees that the bar was closed to drinks and was being tidied for closure, all patrons had been ushered outside and apart from the two defendants there were about five others outside, two males and three females, and that evidence was not contradicted. It was also quiet enough for there to be no security on duty at the bar and the doors were still open but not locked – sorry, the doors were closed but not locked.
The second reason that is proffered is that it was a busy area, it was Salamanca Place. Now in my view it's well known that generally that place is busy, but the evidence here does not support that at this time on this night and in this vicinity that it was in fact busy, it was sufficiently quiet for Carlsen to stop his car in the middle of the road with both doors open and engage with others for a not insignificant time without any evidence of disruption to other road users.
The third reason that is put forward is that when other people – that there were other people present in the area, including passengers and crew of a passenger ship, however again there is insufficient evidence to support that at that point in time or from which an inference might be reasonably drawn.
The fourth reason is that it was a particularly busy night according to the evidence of Damien Paul, and it was the evidence of Damien Paul that it was a particularly busy night, however in my view that evidence must only have referred to earlier in the night because his evidence at the time of closing was in my view to the contrary.
Finally, it is submitted that there were multiple tourist groups present or had been present on that night. Again at the time of this altercation, and there's no evidence of any other altercation, there was a limited number of persons about according to the witness Paul, and that is two males and three females.
In all of those circumstances I'm not satisfied there is displayed any real or substantial prejudice to the defendants. It is not suggested there were any other fights or assaults in the near vicinity and any future allegation by the only other identified persons in the vicinity, namely three females, is hardly likely to give rise to a double jeopardy given the gender difference in relation to identity. I am not satisfied that in the circumstances of this case that the naming of the two victims is a material particular whereby the failure to prove those names related to the two persons the subject of the assaults is a fatal flaw to the charges in the complaints. The particulars of each charge provided reasonable information of the nature of the matter or matters complained of. I find there is a case for each of the defendants to answer on the charges relating to assaults."

His Honour went on to consider whether the charges, including the charge under review, were proved beyond reasonable doubt. He concluded that he was so satisfied and gave reasons for his conclusion.

The arguments on review

It was argued for the applicant that the learned magistrate erred in his ruling with respect to the no case to answer submission in concluding that the identity of the persons struck was, in the circumstances of the case, not a material particular. It was submitted to be material, given the applicant had raised self-defence, and because the applicant is exposed to the risk of double jeopardy or prevented from invoking a plea of autrefois convict. It was argued that the prejudice of double jeopardy or autrefois convict was a relevant factor having regard to the nature of the prosecution case involving two alleged victims, and that the applicant was charged with punching one of the alleged victims. It was submitted that, given the failure to prove the identity of that person, the applicant is at risk of being charged with an assault upon the other alleged victim.
The applicant's arguments drew some support from the learned magistrate's ruling in refusing the application to amend, and his reasons that he could not rule out a "specific prejudice to the defendants", having regard to the timing of the application.
The respondent argued that there was no identifiable prejudice having regard to the following considerations:
"aThere was an acceptance by the applicant that he had assaulted someone in the altercation, but claimed he was acting in self-defence;
bThe learned Magistrate was able to find the identities of the applicant and Mr Leslie through the evidence of those at the scene;
cHe accepted the evidence of other witnesses over the evidence (in records of interviews) of the applicant and Mr Leslie, for reasons he articulated;
dHe found that, based on the evidence, the applicant and Mr Leslie were the aggressors, and rejected that the applicant was acting in self-defence (a finding completely open to him); and
eAlso found that, whilst the identity of the person assaulted could not be concluded, a finding of an assault against 'a person' was open and did not infringe principles of autrefoir [sic] convict, for the reasons he articulated. Moreover, there was no real prejudice identifiable."

The law

The Justices Act 1959, s 31(2), provides for a power to dismiss complaints in certain circumstances. The parts of the section relevant for present purposes are:
"31(1)   An objection shall not be taken or allowed to a complaint in respect of —
(a)an alleged defect therein, in substance or in form; or
(b)a variance between it and the evidence in support thereof.
(2)     Notwithstanding the provisions of subsection (1), where —
(a)a complaint fails to disclose an offence or matter of complaint; or
(b)the defendant appears to have been prejudiced by any defect or variance referred to in that subsection —
the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint.
(3)     If it appears to the justices that the complaint —
(a)fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b)ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect —
the justices may amend the complaint upon such terms as may be just.
(4)     An objection shall not be taken or allowed to a warrant or summons in respect of —
(a)an alleged defect therein, in substance or in form; or
(b)a variance between it and the evidence in support of the complaint in connection with which it is issued —
but the justices may adjourn the hearing if it appears to them that the defendant has been prejudiced by the defect or variance."
The failure to prove a particular may amount to a "variance" for the purpose of s 31(2), meaning a variance between particulars and evidence: see R v Kringle [1953] Tas SR 52; Malahoff v White [1991] TASSC 60 at [6]. The expression "otherwise defective" in s 31(3)(a) includes a case of variance: Canning v Taylor [1967] Tas SR 42.
The purpose of s 31 is to avoid justice being defeated and to enable amendments to be made to avoid the need to dismiss charges because of unmeritorious technical objections to the form of charges: Wickham v Cole [1957] Tas SR 111, Burbury CJ at 115-116. The overriding question in applying s 31 is whether amendment of the kind contemplated by the section can be made without injustice to the defendant; if it can be the general intent of the section is that it should be: Breen v Gibson serial number A59/1979, per Neasey J. In light of the purpose of s 31, it is only sensible to conclude that the type of prejudice that is recognised by the section involves more than not being successful in advancing a technical and unmeritorious objection, and must mean real or unfair prejudice.
The discretion to amend must be exercised judicially. An amendment of substance could not be allowed without giving a defendant a full opportunity to answer the newly framed charge, and a fundamental amendment should be made at the commencement of proceedings: Wickham v Cole at 118.
It is contended for the applicant that under s 31(2), the court had power to dismiss the complaint and ought to have done so because the failure to prove the identity of the complainant as particularised, resulted in prejudice to the applicant. It is uncontentious that the court's power to dismiss is enlivened if a particular which amounts to a material particular is not proved. Further, it is uncontentious that there is a general principle that a failure to prove a particular of a complaint giving rise to real or substantive prejudice would warrant the dismissal of the complaint. Before turning to whether the failure to prove the name of the complainant was a material particular, and whether the failure resulted in prejudice, I will consider some of the applicable legal principles and statutory provisions.
A convenient starting point is to consider what particulars are essential or necessary. Section 30(1) of the Justices Act provides a "complaint shall be sufficient if it contains such particulars as will give reasonable information of the nature of the matter complained of". The common law requires that a defendant is entitled to be informed 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; the particulars must specify the "time, place and manner of the defendant's acts or omissions": Johnson v Miller (1937) 59 CLR 467, per Dixon J at 486, 489; Kirk v Industrial Court of NSW [2010] HCA 1, 239 CLR 531 [26]. The court must also have the means of identifying the offence charged and distinguishing it from any similar acts: Johnson v Miller, per Dixon J at 486, 489.
In R v S [1998] QCA 271, (2000) 102 A Crim R 418, Mackenzie J at 421 stated that there are two aspects of the need for particularity. One is the need to eliminate the risk of duplicity. The occasion on which the offence is alleged to have occurred must be sufficiently identified so that it may be differentiated as the specific event upon which to focus. The second purpose is to give the accused person sufficient indication of what is alleged against him on the occasion he is said to have committed the offence.
Generally a failure by the prosecution to prove a particular, as opposed to the elements of an offence, is not fatal to the prosecution case: Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 484.
Under usual circumstances the identity of the complainant need not be proved. A complaint could be particularised in terms that a defendant assaulted a person, whose name was unknown. The identity of a victim is not an element of an offence contrary to s 35(1) of the Police Offences Act. The relevant element is that "another person" was assaulted. The state of the law is reflected in s 323 of the Criminal Code which allows that the correct name of a person need not necessarily be stated in an indictment, providing the description and designation of the person is such as is reasonably sufficient to identify him.
It can be seen from authorities which have given consideration to the date of the alleged offence as a particular, that generally the date or time period of alleged offending is not a material matter but may become material if:
·     The particular of the time or a time period is an essential part of the alleged offence.
·     If the nature of the prosecution case is that the offence happened on the date particularised and no other and departure from the particulars would give rise to prejudice to the defendant.
·     The way the defence case was run would give rise to prejudice if there was departure from the particulars.
In R v Kringle (above) at 53 per Crisp J, the charge to the jury addressed the failure of the prosecution to prove the precise date particularised. It was acknowledged that this may be fatal where the prosecution's case is that it happened on the date particularised and no other, and the defence advanced an alibi relating to that particular date. The defendant may be prejudiced if deprived of an opportunity of proving an alibi for another date. See also R v Dean [1932] NZLR 753; R v Pfitzner (1976) 15 SASR 171, per Bray CJ at 185.
There would be prejudice to a defendant if the defence put forward related to the date as charged: Riseley v The Queen [1970] Tas SR 41 at 52. Prejudice to a defendant would also arise if there were a number of occasions equally referable to the charge as laid, and the defence was in difficulty or doubt to know to which they should apply: Riseley at 53. For discussion about prejudice associated with latent ambiguity in a charge see S v The Queen (1989) 168 CLR 266 per Dawson J at 272-276, and Gaudron and McHugh JJ at 286-288.
The date may be vital if it enables identification of the particular occasion with which an accused is charged, and it is needed to distinguish it from another occasion or occasions.
The applicant's submissions relied on a case of R v Stringer [2000] NSWCCA 293, 116 A Crim R 198, which dealt with the question of whether the particular of the date was material or "of the essence". The submissions relied heavily on the dissenting judgment of Adams J in Stringer which set out relevant principles that are uncontentious. Adams J referred to VHP (unreported, Court of Criminal Appeal, NSW, No 60733 of 1996, 7 July 1997), in which it was said by Gleeson CJ at 15 that:
"As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable."
It can be seen that "in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars".
Another consideration relevant to the determination of this motion to review is the ramifications of a variance between the complaint and the evidence on the trial. Section 31 of the Justices Act provides that there can be a variance, providing the defendant does not appear to have been prejudiced by any variance. A non-material variance cannot be the subject of objection: s 31(1). The section provides a power to amend particulars for a material variance: subs (3). In the case of a prejudicial variance, s 31(2) provides that the complaint shall be dismissed unless it is amended.
An aspect of the applicant's argument is that there is a need for certainty as to the particular offence of which the applicant is charged, and hence, the identity of the complainant, because of principles of double jeopardy. Proof of identity of the alleged victim was material, and if not proved the applicant may be prejudiced by being prevented from invoking a plea of autrefois convict. Autrefois convict is a special plea in bar to a criminal prosecution. By this plea a defendant asserts that he has already been tried for the same offence before a court of competent jurisdiction and convicted (or acquitted in the case of the plea in bar of autrefois acquit). This plea is a safeguard to prevent a person being tried for the same offence, i.e. the elements of which are the same or are included in the elements of the offence for which an accused has been tried to conviction or acquittal: Pearce v The Queen [1998] HCA 57; 194 CLR 610.
Pleas of autrefois convict and autrefois acquit may be strictly inapplicable to summary proceedings: Canning v Taylor (above), per Gibson J at 51. However, the principle of double jeopardy also takes form in a wider power to prevent double punishment available to all courts. Courts may decline to record a conviction after two or more offences are proved in the case of the same or substantially the same set of facts: R v O'Loughlin Ex Parte Ralphs (1971) 1 SASR 219; Wood v Major (1992) 3 Tas R 249; Pearce v The Queen per McHugh, Hayne and Callinan JJ at [9]. In invoking this power, a defendant would rely upon the particulars of the charges in order to show that he was in jeopardy of double punishment. The essence of the point made by the applicant about prejudice still stands regardless of the availability of the plea of autrefois convict. Prejudice may occur if a defendant would be prevented from invoking a court's power to dismiss proceedings as a response to double jeopardy, whether the power arises at pre-hearing stage or at conviction stage.

Did prejudice arise from the conduct of the case and the evidence led?

As noted, it was submitted that prejudice arose because the identity of the complainant was material, given the raising of self-defence.
It is uncontentious that a court's power to dismiss is enlivened if a material particular is not proved. It was argued on the applicant's behalf by analogy with the reasoning of Adams J in Stringer, and in the cases of VHP and R v S, that the identity of the complainant was an essential particular and was required in order to identify the particular act which constituted the offence the subject of the charge and to distinguish it from other occasions on which similar acts may have occurred.
Focussing on the nature of the prosecution case, I cannot see that the assertion of prejudice is borne out. While there was no evidence of the name of the alleged victim assaulted by the applicant, the evidence distinguished him from all others present during the incident, and in that sense he was identified. According to the prosecution evidence, the alleged victim assaulted by the defendant was the South African man, also described as the "tourist man". There was evidence of the course of events, including the actions of the victim, the South African man, in becoming involved in the altercation, words used by him, the conduct of the applicant in assaulting him, the victim going to the ground and being assaulted on the ground by both the applicant and his co-defendant. As I have said, the evidence had the effect of identifying the victim. There is no suggestion, according to the evidence, that the applicant assaulted any other person that night. There is no risk, according to the evidence, that the prosecution witnesses may have confused the victim with another, or that the incident may have been confused with another incident.
The other question is whether any prejudice arises from the nature of the defence case and the raising of self-defence. The police questioning which gave rise to the assertions of self-defence was couched in terms of general allegations. It was said to the applicant that there were allegations that a person identified as Adam had punched and kicked at least two people, and there was an allegation that the applicant was throwing punches as well. The police did not refer to the complainant by name. The applicant was given the opportunity to say what happened, and spoke about an incident that occurred after there was yelling and he and Adam got out of the car. The applicant said he went over to help Adam, and when he went over to him someone tried to attack him as well, and he defended himself. Adam held that person down and the applicant and Adam left. The incident described by the applicant was a discrete incident which arose between the applicant getting out of the car and returning to it. It is apparently the same discrete incident as described by the prosecution witnesses. According to the applicant there is no suggestion of any other incident. Admittedly the incident described by the applicant is unlike that described by the prosecution witnesses who did not refer to anyone, let alone the complainant, picking up or swinging a bar stool. Of course, there may be any number of explanations for that disparity in accounts other than it was a different incident, such as the fact that the applicant was intoxicated, as found by the learned magistrate.
In arguments on review, the applicant relies on the fact that there were two individuals who were assaulted during the incident. I have considered the risk that the person the applicant admitted he struck was the other individual who was assaulted, and not the person described by the prosecution witnesses. There would be a potential prejudice if the applicant's admission related to another individual and yet was treated as an admission to the assault the subject of the charge. I do not regard that as realistic, given the course of events described by the prosecution witnesses, and the applicant in his interview. The evidence was that the other person was assaulted by only one person, the shorter one, the applicant's co-defendant, before the applicant became involved. In any event, it is apparent from the learned magistrate's reasons that the admissions made by the applicant of striking a person were not critical to the learned magistrate's conclusion. The learned magistrate accepted the account given by the prosecution witnesses and essentially rejected the applicant's account that he was acting in self-defence. When considering whether the charge was proved beyond reasonable doubt he stated:
"I find that there is sufficient objective evidence to support that the defendants were the aggressors and that they punched and kicked the two victims without their consent and maintained that attack to the extent where the victims were rendered defenceless."
The learned magistrate went on to note that he accepted the evidence of witnesses Mr Paul and Mr Clark, and found the applicant's memory was severely affected by the consumption of alcohol, and he could not put any reliance on the applicant's interview where it was in conflict with the prosecution witnesses' evidence.
I cannot see that there is any prejudice in particularising but not proving the name of the complainant, due either to the nature of the prosecution case or arising from the conduct of the defence case.

Prejudice because of risk of double jeopardy

It was argued that the prejudice of double jeopardy was a relevant factor, having regard to the nature of the prosecution case involving two alleged victims, and that the applicant was charged with punching one of the alleged victims. It was submitted that, given the failure to prove the identity of that person, the applicant is at risk of being charged with an assault on the other alleged victim.

The evidence before the Court does not suggest a prospect that the applicant will be charged with an assault on the other victim or, indeed, anyone else arising from the incident. As noted, the evidence was that the other complainant was assaulted by one person and that person was not the applicant; it was the "shorter man". It is accepted that if the applicant was to be charged with assault arising from the events of the evening, there is a potential prejudice because the particular of the identity of Mr Niccolls was not proved, and as an unproved particular it may be wrong. In that hypothetical scenario the particular naming the person assaulted as Scott Niccolls would be misleading. I note that this potential prejudice would be avoided by amendment to the particulars as was sought by the prosecution at the hearing. It is noteworthy that the applicant opposed an application to amend the particulars; undoubtedly a forensic choice was made to do so.
The prejudice identified is no more than theoretical. As noted, there is no suggestion that the applicant was involved in another assault arising from the incident.
In conclusion, the variance between one of the particulars relating to the name of the applicant and what was found proved by the court is not one which should have led to the complaint being dismissed. There was no prejudice to the applicant.
However, it is accepted that particulars provide an important record of the offence found proved and what a defendant has done and have an important role in enabling the court to detect the injustice of a person being on trial for the same offence of which they have been acquitted or convicted or the injustice of being doubly punished. It is desirable that the particulars correctly reflect those that are found proved. I consider the particulars should be correct according to the evidence found proved, even allowing for the fact that the prospect of the applicant invoking the principles of double jeopardy is remote. Section 31(5) of the Justices Act provides that a conviction or order made by justices may be amended "according to the evidence" (ie the findings upon the evidence): Canning v Taylor per Gibson J at 51. As noted by Gibson J the same result may be achieved by amending the complaint to accord with the evidence. I shall give the parties an opportunity to be heard about whether this course should be taken.

Disposition

The ground of appeal has not been made out and an order will be made dismissing the motion to review.