Ford v Tasmania
[2012] TASSC 34
•8 June 2012
[2012] TASSC 34
COURT: SUPREME COURT OF TASMANIA
CITATION: Ford v Tasmania [2012] TASSC 34
PARTIES: FORD, Aaron Mackinlay
v
TASMANIA, STATE OF
FILE NO/S: 331/2012
DELIVERED ON: 8 June 2012
DELIVERED AT: Hobart
HEARING DATE: 31 May 2012
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates - Appeals and review – Tasmania – Motion to review – The hearing – Generally – No substantial miscarriage of justice – Disposition by reference to Justices Act 1959, s110(2)(ab).
Wickham v Cole [1957] Tas SR 111; Canning v Taylor [1967] Tas SR 42, referred to.
Justices Act 1959 (Tas), ss30, 31 and 110(2)(ab).
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: S Brown
Respondent: S Nicholson
Solicitors:
Applicant: wf lester
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASSC 34
Number of paragraphs: 34
Serial No 34/2012
File No 331/2012
AARON MACKINLAY FORD v STATE OF TASMANIA
REASONS FOR JUDGMENT TENNENT J
8 June 2012
On 11 April 2012, the applicant was convicted of three counts of common assault contrary to the Police Offences Act 1935, s35. He was sentenced globally to serve a period of eight month's imprisonment, four of which were suspended. He now seeks a review of the conviction in respect of count 3 and the sentence generally. The grounds of review as pursued at the hearing were as follows:
"1The Learned Magistrate erred in convicting the Applicant on Count 3 of the Complaint.
2The sentence imposed was excessive in that the Learned Magistrate erred in sentencing the Applicant on a factual basis which included the Applicant having deprived the Complainant of her liberty (Count 3) to the extent he found in his decision of 3rd April 2012."
The counts of assault in respect of which the applicant was convicted all appeared on complaint 36022/11. Each count contained an assertion that the applicant was charged with, on 21 November 2011 at Cressy in Tasmania, unlawfully assaulting Jodie Maree Ford. The particulars were however different. As originally framed, they were as follows:
First count
"by grabbing her by the throat and punching her several times to the head".
Second count
"by tackling her to the ground, laying on top of her and dragging her outside and throwing her to the ground".
Third count
"by grabbing her by the wrists and depriving her of her liberty".
The particulars of the first and second counts were amended at the time of the applicant's first appearance before the court. As to the particulars of the first count the word "throat" was deleted and replaced with the word "shoulder". As to the particulars of the second count, the words "to the ground" were deleted and replaced with the words "onto a couch". No amendment was at the time made to count 3.
It is the applicant's position that he should not have been convicted of the third count, and that it followed that the global sentence which encompasses all three counts was excessive.
History
The assaults were alleged to have occurred all on the same day starting at the home the applicant and his wife shared at Cressy. It appears that there had been difficulties in the marriage. On this particular day, the parties argued. The events giving rise to the charges then unfolded. As a consequence of the events, the applicant was arrested by police and interviewed. Prior to his interview police had obtained a statutory declaration from the complainant. In the course of the police interview, the matters contained in the complainant's declaration were put to the applicant. It was clear from the questions directed by police to the applicant and his answers that what the complainant had told police about events that day was markedly different to what the applicant said happened.
The applicant was subsequently charged on complaint 36022/11. He pleaded not guilty to the complaint as amended, and the matter went to hearing on 28 March 2012 before Magistrate Pearce. The learned magistrate reserved his decision because he had not seen the applicant's police interview, which had not been played in court. On the date to which the matter was adjourned, the learned magistrate found all charges proved, and later sentenced the applicant.
The principal witness for the prosecution was the complainant. The applicant did not give evidence. However, his recorded interview with police was put in evidence by the prosecutor, and the applicant called upon his father to give some evidence. When all the evidence was concluded, counsel for the applicant made submissions. In the course of those submissions, he said to the learned magistrate that there was an issue in relation to the second count. He read it, and the learned magistrate said, "There's no evidence of them going outside". Counsel agreed and submitted that, because of that, that charge could not succeed. The learned magistrate then queried in relation to count 1 whether there was any evidence of grabbing by the throat. It can only be assumed that, when his Honour made that enquiry, he had overlooked that he had already amended the complaint to reflect that allegation was not being made. Counsel, in any event, said there was no such evidence. Counsel went on to address matters generally and wound up his submissions with the words, "In addition to that, there's the problems with the evidence that haven't met the charges". He did not however identify precisely what he meant by that.
After hearing from counsel for the applicant, the learned magistrate heard submissions from the prosecutor. In relation to count 1, she submitted that the magistrate could amend the particulars because of the lack of evidence about grabbing to the throat. She was either not aware or had overlooked the fact that the complaint had already been amended to delete that assertion. As to count 2, the prosecutor conceded that the complainant had not actually been taken outside, and submitted it was only a small difference, and that the charge was still made out.
As to the third count, a great deal of evidence was led from the complainant about what the applicant had done to effectively deprive her of her liberty following the incidents which gave rise to counts 1 and 2. The applicant, in his interview, had had the matters alleged put to him, and had, in effect, disputed all the material. Counsel for the applicant had cross-examined the complainant about this material as well and, in effect, had put to her that what she alleged simply did not happen. In his closing submissions, the only reference made by counsel for the applicant at all to count 3 was as follows:
"The grabbing by the wrists in relation to the third count, is denied by my client in his statement."
As far as the prosecutor was concerned, in relation to count 3, the following exchange occurred between her and the learned magistrate:
"And in respect of count 3, I seek to address you in regards to the particular of depriving her of her liberty. The scenario that the complaint describes, certainly describes several points in time when she could have been – when her liberty could be said to be deprived, quintessentially be said to be deprived –
HIS HONOUR: Well it's one continuous period isn't it?
MS BARWICK: Yes, where there's – where it's perhaps arguable that at points in time, she – her liberty was not being deprived because she could have escaped if she wanted to, but, in my submission, in the overall circumstances, um, there's – there – it could really be considered one continuous point, or, alternatively, there are particular points in time, such as when it is alleged the defendant activated the central locking and she could not depart the car is another point where her liberty could be said to have been deprived in a different sense, so, in my submission, it's essentially a question of fact. I raise it simply to make the submission that there are – there are – it's a continuous course of activity during which there are many aspects to this deprivation."
After the prosecutor completed her submissions, counsel for the applicant was not invited to reply, and he did not seek to do so. It had to have been quite obvious by this time that the learned magistrate was considering count 3 on the basis of allegations that the applicant had taken a number of steps to deprive the complainant of her liberty, and that it was not simply an assertion of deprivation of liberty by grabbing of the wrists.
The submissions on this review and discussion
After summarising some of the evidence, counsel for the applicant began his submissions by saying that the evidence before the learned magistrate as to deprivation of liberty was extensive, noting that it occurred over quite some time. However, he submitted that regard needed to be had to the wording of count 3 as it appeared on the complaint. The particulars were brief, and in terms of indicating the nature of the charge, it could be fairly categorised as deprivation of liberty by a grabbing of the wrists. The evidence of what was said by the prosecutor to constitute deprivation of liberty was however entirely different from that allegation.
Counsel for the applicant referred to the exchange which occurred between the prosecutor and the learned magistrate, extracted above. He submitted that, at that point, the learned magistrate had to have been aware there was a significant variance between the complaint and the evidence. However nothing was done about it. There was no application to amend by the prosecutor, nor did the learned magistrate seek to utilise the Justices Act 1959 ("the Act"),s31. The Act, s31, relevantly provides:
"31 Irregularities and amendments
(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."
Counsel for the applicant did not suggest that the applicant was taken by surprise by the evidence led. However, he submitted that it was clear from the applicant's counsel's closing submissions that he was proceeding on the basis that this was a case of deprivation of liberty by a grabbing of the wrists, and he was never given an opportunity to address the enlarged case. The learned magistrate did not invite submissions in reply in relation to the issue. The learned magistrate should have, of his own motion, amended the complaint. The only basis upon which he could have done this was to allow the complainant to be recalled for further cross-examination, and to allow counsel for the applicant to make further submissions. None of this was done. As a consequence the applicant was not afforded natural justice, and the learned magistrate should not have proceeded to conviction.
Counsel for the applicant submitted further that the learned magistrate should have dismissed the complaint pursuant to the Act, s31(2), because of prejudice to the applicant.
Counsel for the applicant referred to the decision of this Court in Wickham v Cole [1957] Tas SR 111 which dealt with the Justices Procedure Act 1919, s27, which to all intents and purposes was in the same terms as s31. In that case, the allegation before the court was that the defendant had used indecent language in a public place, namely a laneway off Paterson Street in Launceston. There was no evidence that the laneway in question was a public place, and, in any event, the evidence disclosed the relevant language had been used in Paterson Street and not the laneway. No application was made to amend the complaint. Though the defendant's solicitor submitted that there was no evidence the language was used in the laneway or that the laneway was a public place, the justices convicted the defendant. The matter came before Burbury CJ by way of a motion by the defendant to review his conviction. His Honour quashed the conviction. Counsel for the applicant relied on statements made by Burbury CJ at 115, 116 and 118 where his Honour said:
"But these procedural amendments clearly cannot be construed so as to justify any departure from what is a fundamental rule of the administration of criminal justice; that a man may only be convicted if the evidence establishes beyond reasonable doubt that he is guilty of the specific charge laid against him. He cannot be convicted upon some other charge which may be proved by the evidence. The charge against him must clearly inform him of the legal nature of the offence and the facts basic to it. He goes to court prepared to meet that charge as so pleaded. An amendment may only be granted so long as he is given adequate opportunity to meet the new material. And at the close of the whole case he may only be convicted upon the charge as originally framed subject to such amendments as may properly have been made and which he has had an opportunity to meet.
I again respectfully adopt what Napier CJ said in Reedy v O'Sullivan:-
'In these days the courts are given ample powers of amendment, but subject thereto, I think that it is still the law that the defendant can be convicted only of the charge in the information, and that the function of the evidence is to prove the charge, and not to supply defects in the information (see R v Hughes).'
…
But of course the discretion to amend must be exercised judicially. An amendment of substance either to the legal nature of the offence or to the material facts relied upon as the foundation to the charge could not properly be allowed without giving the defendant full opportunity to answer the newly framed charge. … A prosecutor must be alert to apply for an amendment as soon as variation between the evidence and the charge as laid appears. He should ordinarily be aware of such a variation and apply to amend the complaint at the commencement of the proceedings."
What should be kept in mind when considering this case is that the elements of the offence alleged were that indecent language was used in a public place. It was clear from the evidence that the elements of the charge could not be made out. The offence actually committed, with which the defendant had not been charged, was an offence of using indecent language in a public place, namely Paterson Street. The actual decision of the Court in that case appears at 112 where the Court held:
"Held, that –
(a)Section 24A does not relieve the complainant of the responsibility of stating clearly the offence and the material facts relied on as constituting it;
(b)only where it is plain to all from the complaint that the defendant would have to meet the charge proved do ss 24A and 27 prevent technical objections; and
(c)while an amendment could be made under s27 to charge the offence proved, it should have been asked for as soon as it appeared that the language complained of was used in Paterson Street and would not be allowed at such a late stage."
His Honour also said at 114:
"So long as it clearly appears from the complaint, as a matter of substance and ordinary language with what offence the defendant is charged and he is given proper particulars of the facts constituting the foundation of the charge the complaint will not be bad because of some minor omission or misstatement not capable of misleading a defendant as to the offence with which he is charged or otherwise prejudicing him in his defence. Section 24A and s 27(3) (giving power to justices to amend the complaint even if it fails to disclose an offence) are designed to ensure that a charge will not be dismissed because it may be logically argued that due to some slip or clumsiness in drafting the complaint no offence in its entirety has been pleaded although it may be quite plain to everyone what offence is intended to be charged."
What is further apparent was that Burbury CJ was dealing with a complaint which did not set out the offence of which the defendant was convicted. He was not dealing with, nor did he comment upon, a situation where the complaint set out an offence and the defendant, as in this case, was convicted of the offence charged.
Reference was also made to the matter of Canning v Taylor [1967] Tas SR 42, another case in which the issue of an amendment to a complaint was discussed. The passage referred to appeared at 48 and related to the proper time at which any application to amend should be made.
The starting point should perhaps be the Act, s30. It relevantly provides that:
"30 Statement of offences, &c
(1) Any complaint, summons, warrant, or other document that is laid, issued, or made for the purpose of, or in connection with, proceedings before justices shall be sufficient if it –
(a) describes the matter of complaint with which the defendant is charged or of which he is convicted in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the matter of complaint; and
(b) contains such particulars as will give reasonable information of the nature of the matter complained of."
The Act, s31, then deals with, as it says, irregularities and amendments. The submissions by counsel for the applicant were predicated upon what he asserted was the variance between the case as pleaded against the applicant in the complaint, and the case as proceeded with by reference to the evidence. No reliance was placed on any assertion that there might have been a defect in the complaint. The starting point in s31 is that no objection can be taken where there is a variance between the complaint and the evidence. However, s31(2) goes on to provide that where a defendant appears to be prejudiced by any such variance, the magistrate shall dismiss the complaint if it is not amended pursuant to subs(3). It should be noted that while subss(1) and (2) refer to variances between the evidence and the complaint, subs(3) does not do so.
It follows that, in the absence of any amendment, the learned magistrate was only obliged to dismiss the complaint if it appeared to him that the applicant might be prejudiced. Absent the possibility of prejudice, the learned magistrate was not obliged to dismiss the complaint. No suggestion at all was made at any time during the hearing of the complaint that there was or may have been any prejudice to the applicant.
There can be no dispute that, save for the reference in count 3 to a grabbing by the wrists, there could not be said to have been any particulars in the complaint itself to indicate the basis for the asserted deprivation of liberty. To the extent that what underpinned the asserted deprivation of liberty was disclosed by the evidence, there was a variance between the complaint and the evidence. The situation is however complicated by the wording of count 3. While counsel for the applicant categorised the particulars as fairly disclosing a case that the asserted deprivation of liberty was by grabbing of the wrists, it is clear that there is an alternative categorisation. That is, that count 3 in fact incorporated two allegations of assault, one by grabbing of the wrists and one by deprivation of liberty. That is certainly how the learned magistrate construed the count. That much is apparent from his finding that he could not be satisfied that there had been a grabbing of wrists sufficient to support a charge of assault. Had the learned magistrate been approaching the matter on the basis of the applicant's present counsel's categorisation, it would have to have followed from his finding about the grabbing of wrists, that count 3 should be dismissed. It seems clear from the learned magistrate's approach that he did not view the grabbing of the wrists as a particular of the asserted deprivation of liberty.
On this alternative interpretation, it must be accepted that there were no particulars or material facts pleaded in the complaint to indicate what it was asserted underpinned the deprivation of liberty. There could be no doubt however that the complaint as drawn identified the offence of assault by deprivation of liberty and the date and place it was said to have been committed.
It seems clear that the learned magistrate did not understand the case to be as asserted now by the applicant. With respect, I cannot accept that what the applicant thought he was to face was an allegation of deprivation of liberty by one act, being that of grabbing of the wrists. I say that because:
·I can infer from current disclosure procedures the applicant had, prior to the hearing, details of what his wife had alleged in the form of her statutory declaration.
·Those details were put to the applicant in his police interview in November 2011.
·I can infer, again from disclosure procedures, that the applicant had access to a copy of his police interview.
·A significant portion of the allegations of the complainant put by police to the applicant at interview related to actions of the applicant said to have occurred after the punching and the throwing on the couch, which could only have been relevant to an argument about deprivation of liberty.
·A significant portion of the evidence led by the prosecutor related to matters clearly relevant to assertions the applicant had deprived the complainant of her liberty.
·Counsel for the applicant at the hearing cross-examined the complainant about that evidence.
While it is accepted that counsel for the applicant made limited submissions about the deprivation of liberty count, with respect, if he was not alert to the issue by the time he made those submissions, he must have been by the time the prosecution had a subsequent discussion with the learned magistrate. While I appreciate he was not invited to respond, if the problem was as great as it is now suggested to be, he should have sought to raise the matter, with or without invitation.
Conclusion
In summary, as to ground 1, the submissions by counsel for the applicant were that the learned magistrate should not have proceeded to conviction on count 3 on the complaint because:
·the applicant was denied natural justice because the learned magistrate, having become aware of a significant variance between the pleaded particulars and the evidence, should have amended the complaint on terms and did not, and/or
·the applicant suffered prejudice as a result of the manner in which the hearing was conducted by reason of a lack of detailed cross-examination and submissions as to deprivation of liberty on a basis other than simply grabbing by the wrists. The learned magistrate, on the basis of that prejudice, should have dismissed the charge by reference to the Act, s31(2)(b).
Counsel's submissions are really two aspects of the same complaint. The Act, s31(2)(b), only requires a magistrate to dismiss a charge in the absence of an amendment to deal with any variance, where it appears that the accused person is prejudiced by such variance. In effect, it is counsel's submission that the applicant was prejudiced because the case as presented by the evidence was dramatically different from that which was pleaded, and that the applicant thought he had to meet. There was also prejudice arising from the applicant's then counsel's dealings with the evidence and submissions on a limited basis. While I accept the case as founded in the evidence was not formally pleaded in the complaint, the offence with which the applicant was charged, and that in respect of which he was found guilty, was disclosed. As to the facts which underpinned the deprivation of liberty asserted, there is no suggestion that they were not fully disclosed to the applicant prior to the hearing, or that he was taken by surprise in any way. The complainant was cross-examined about the allegations.
The applicant's case at the hearing was that what the complainant alleged simply did not happen. With respect, it is not clear what more counsel for the applicant at the hearing could have said. He could perhaps, by way of submission, have said that his client denied all allegations relating to deprivation of liberty. However, I am sure the learned magistrate was aware of that from the cross-examination which did take place.
The Act, s30, does not require that it is the complaint which necessarily "contains such particulars as will give reasonable information of the nature of the matter complained of". It provides that such material is sufficient if it is contained in "Any complaint, summons, warrant, or other document that is laid, issued, or made for the purpose of, or in connection with, proceedings before justices…". As counsel for the applicant said, it is no longer the case that a defendant appearing in court to face a complaint does so potentially without any detailed knowledge of the evidence which will be presented against him. Prosecuting authorities are to all intents and purposes required to disclose any statements and other material they have. In this case, that would have included the statutory declaration of the complainant and the police interview.
It follows that, prior to the commencement of the hearing, the applicant would have had all the factual material upon which the prosecution case was based. I am satisfied the applicant, armed with all those facts, would have known that it was not simply the allegation of grabbing by the wrists which underpinned the allegation of deprivation of liberty. What, I infer, he did not have was some document from the prosecutor which set out that the deprivation of liberty asserted by the prosecution was constituted by certain acts which were identified. Ideally, he should have had that, and the learned magistrate should perhaps have been alert to the shortcomings in the way in which the prosecutor presented the case.
I am not satisfied however that, having regard to all the circumstances, the applicant was either denied natural justice or suffered prejudice such that the conviction in respect of count 3 should be set aside. Ground 1 of the notice to review should therefore fail. As to ground 2 of the notice to review, this was predicated upon count 1 succeeding. There was no submission that the global sentence imposed in respect of all three counts for the behaviour identified by the learned magistrate was excessive. Ground 2 should therefore also fail.
I should say however, that if I am wrong in relation to my conclusion in respect of ground 1, this is clearly a case which should be dealt with by reference to the Act, s110(2)(ab). I am not satisfied that any substantial miscarriage of justice has occurred. The learned magistrate accepted the evidence of the complainant as to what occurred, and did not accept the denials contained in the record of interview conducted by police with the applicant. The applicant was aware of the factual material to be led from the complainant and his counsel had the capacity to cross-examine. The evidence clearly supported the findings the learned magistrate made, and a finding that the applicant committed an assault by deprivation of liberty. I am not satisfied given the cross-examination of the complainant that the applicant would have run his case any differently than the way he did.
In all the circumstances, the notice to review filed by the applicant is dismissed.
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