Hayes v Kenning

[1992] SASC 3616

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - Summary trial - particulars provided by prosecution - variance between particulars and evidence - purpose of particulars discussed - consequence of variance considered - Held minor variance and no miscarriage of justice - appeal dismissed. Johnson v Miller 59 CLR 467, Godbee v Samuels (1973) 5 SASR 236, Heywood-Smith v Huffa 80 LSJS referred to.

HRNG ADELAIDE, 14 September 1992 #DATE 17:9:1992
Counsel for appellant Kenning:    Mr W. Retalic
Solicitors for appellant:         Sykes Bidstrup
Counsel for respondent:         Mr A. Wainwright
Solicitors for respondent:        Director of Public
  Prosecutions

ORDER
Appeal dismissed.

JUDGE1 DUGGAN J The appellant was charged in the Adelaide Magistrates' Court with two offences, namely, hindering a police officer in the execution of his duty and assaulting the same police officer in the execution of his duty. The charges arose out of the same incident, a disturbance in the car park of a suburban hotel. After hearing the evidence the learned magistrate dismissed the charge of hindering, but convicted the appellant on the assault charge. According to the argument presented to this court on behalf of the appellant, there was insufficient evidence to support the latter charge as particularised by the prosecution. 2. The prosecution called two police officers, Constables Leclercq and Batley, in support of its case. Constable Leclercq, who was the officer allegedly assaulted by the appellant, stated in evidence that he and Batley were patrolling in a police vehicle when a car driven by a youth named Chandler came to their attention. They followed the vehicle into the car park of the Tonsley Hotel and approached the occupants who included the appellant and another youth named Eades. An alcotest was administered to Chandler and, when it gave a positive result, the police officers directed him to remain in the car park until the arrival of a breath analysis unit. 3. There was a wait of over two hours for the unit to come and during that time a disturbance arose involving some patrons of the hotel and the three occupants of the vehicle. At all relevant times the two police officers were present in the vicinity of the car park and there is no doubt that they were there in the course of their duties as police officers. 4. At one stage after some other police officers had arrived, Leclercq walked towards Eades in order to advise him to cease loitering. The appellant was standing next to Eades. Leclercq said to Eades "I have reasonable cause to suspect..." and before he could finish the sentence Eades said "I haven't done anything wrong". According to Leclercq the appellant then touched or took hold of his arm and Leclercq pushed the appellant away. At this point other police officers took hold of Eades so as to arrest him. Leclercq helped them to restrain Eades as he was handcuffed. 5. Leclercq said he then turned to walk in the direction of the appellant. He said he noticed the appellant out of the corner of his eye. The appellant was less than a metre away. At this point Leclercq was hit with a punch on the left jaw. He said he lost consciousness for a very short time as he fell to the ground. He then got up and spoke to Constable Batley who told him that it was the appellant who hit him. Leclercq then arrested the appellant. 6. Constable Batley said in evidence that she saw the other officers arresting Eades. At the time she was talking to Chandler. She said Leclercq was one of the officers involved in a struggle with Eades. After observing the struggle she went on talking to Chandler. When she turned back again she saw the appellant hit Leclercq on the jaw. The appellant denied on oath that he struck Leclercq at any time during the incident in the car park. 7. The learned magistrate had this to say in the course of delivering his judgment:
    "There is a fundamental difference between the evidence of
    the defendant, who denies that he hit Constable Leclercq, and
    the evidence of Leclercq and Batley in that respect. The first
    question it seems to me is whether I find it proved beyond a
    reasonable doubt that Constable Leclercq was punched to the jaw
    and knocked to the ground. I have had the opportunity of
    hearing Leclercq's evidence in that respect and I accept his
    evidence was truthfully given. Indeed, I accept that he acted
    quite consistently in that respect by subsequently arresting the
    defendant and also attending at Flinders Medical Centre later
    for treatment for possible injuries to his jaw. I further
    accept that the blow occurred at the time when he had just
    turned from grappling with Eades as part of the arrest process
    of Eades. In my view, the criticism of Mr Retalic, that there
    was no evidence that he was hit whilst assisting in the arrest
    of Eades is a matter of semantics. It seems to me that at the
    time he had simply just turned from that process and I do not
    find that there is any great difference between the evidence and
    the particulars. At the time he turned I accept that he saw
    Kenning out of the corner of his eye. Leclercq impressed me
    with being a truthful witness because he did not purport to say
    that he saw Kenning hit him. He only became aware of being hit
    after someone hit him and he fell to the ground, temporarily
    unconscious, and then got to his feet. I have had the
    opportunity of seeing Constable Batley give evidence. She gave
    her evidence very professionally with short, sharp answers. I
    have no reason to disbelieve her when she said that she saw
    Kenning strike Leclercq. At the time, her duty was to keep an
    eye on Chandler and she was looking around from time to time to
    the scene behind her and saw what occurred. She then looked
    back briefly to check on the whereabouts of Chandler and then
    looked back and identified Kenning next to Leclercq as being the
    person who hit him. Indeed, I accept that that occurred because
    it was actually the reason why Leclercq did eventually arrest
    Kenning. He did not know otherwise apart from the
    identification by Batley, who his assailant was. I might say
    that the motive for the assault was quite clear. The defendant
    admitted in evidence that he was upset by the rough treatment
    that Eades was receiving from the police. I find that his
    perception of that treatment was the reason which led him to hit
    the police officer. I accept that he has denied it, but I have
    cogent evidence which I accept which shows that he did in fact
    commit the assault. Chandler gave evidence, but he did not add
    all that much to the case." 8. According to the argument advanced by Mr Retalic for the appellant it was not open to the learned magistrate to convict on the charge of assaulting the police officer in the execution of his duty because of a variance between the particulars of the charge supplied to the appellant upon his request prior to trial and the evidence led by the prosecution. In response to the request by the solicitors for the appellant, the prosecutor gave the following particulars of the assault charge: "It is alleged that your client hit (Constable Leclercq) to the left side of the jaw whilst he was assisting other police in the arrest of Eades." 9. Mr Retalic argued that any assistance given to other police officers by Leclercq had been completed by the time of the assault alleged so that this could not have been the duty engaged upon by the police officer at the relevant time. 10. Before dealing with this submission it is necessary to say something about the giving of particulars. Except in conspiracy cases it is usually unnecessary for particulars in addition to the short statement of the facts in the charge itself to be provided after committal and before trial in the Supreme or District Court. In most cases the nature of the Crown case will be apparent from the material presented at the preliminary examination. However different considerations apply to summary trials. It is essential that an accused person should understand the precise nature of the charge against him as well as any particular act or acts alleged as the foundation of the charge. (Johnson v Miller 59 CLR 467 at 489.) The prosecution is under a duty to provide those particulars when requested. (Romeyko v Samuels (1972) 2 SASR
599; Lafitte v Samuels (1972) 3 SASR 1.) 11. The importance of the particulars in defining the issues and contributing to the fairness of the proceedings continues throughout the trial. As Mitchell J said in Godbee v Samuels ((1973) 5 SASR 236 at 239): "If there is any variance between the matters alleged in the particulars and the evidence tendered, the Special Magistrate should at the time that evidence is tendered consider any prejudice which the defendant may suffer and should also have regard to such variance in considering his verdict." 12. And on appeal similar considerations will be taken into account in deciding whether justice has miscarried. 13. However particulars of the type supplied by the prosecution in this matter cannot be elevated to the status of elements of the offence. To say that the prosecution is to be held to the case disclosed by its particulars is not to say that in every case where there is a discrepancy between the particulars and the evidence there must be an acquittal. If a material averment in the complaint itself has not been proved then the prosecution must fail. But where particulars which are supplied in addition to the facts contained in the statement of the charge are at variance with the facts relied upon by the prosecution at trial and there is a conviction on that evidence, an appellate court will be required to determine whether there was any unfairness to the person convicted giving rise to the possibility of a miscarriage of justice. 14. In the present case it is not in dispute that Constable Leclercq was acting in the execution of his duty at all material times, including the time of the assault found proved by the magistrate. The only real issue is whether the particulars given prior to trial have operated so as to cause unfairness or prejudice to the appellant. 15. The only way in which prejudice might have arisen in this case would have been if the particulars misled the appellant as to the incident relied upon to support the charge. In many cases particularisation is necessary so as to identify one of a number of incidents in the course of a series of events as being the incident which forms the basis of the offence charged. However there was no ambiguity or vagueness as to the incident relied upon in this case. There was only one punching incident involving this police officer and its place in the sequence of events was not open to doubt on the prosecution case. (cf. Heywood-Smith v Huffa 80 LSJS 35 at 43.) 16. The variance alleged by the appellant was quite minor in that if the police officer was not engaged in assisting with Eades' arrest at the relevant time, the punching incident was nevertheless closely related in time and place to the arrest. Leclercq turned from the incident involving Eades and walked only a few paces before he was hit. The appellant stated in evidence that he approached the police officers while they were arresting Eades. He alleged that they were treating Eades roughly and that he did not like seeing his friends being hurt. The learned magistrate found that the appellant's attitude to the police action in arresting Eades was the reason he hit the police officer. These circumstances closely identify the punching incident with the arrest of Eades and to hold that the particulars required the prosecution to prove that the assault took place within the time span of the events necessary in law to constitute an arrest would be to introduce an unjustified level of technicality. 17. For these reasons the appeal must be dismissed.