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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hayes v Kenning

Details

AGLC: Hayes v Kenning [1992] SASC 3616
Case: [1992] SASC 3616
Decision Date: 17 September 1992

CaseChat Overview and Summary

The Supreme Court of South Australia dealt with an appeal by Kenning against his conviction for assaulting a police officer in the execution of his duty. The appeal centred on whether there was a variance between the particulars of the charge provided by the prosecution and the evidence presented at trial, which could have prejudiced the defendant. The appellant argued that the evidence did not support the charge as particularised by the prosecution, as the assault did not occur while the police officer was assisting in the arrest of Eades, as stated in the particulars.

The court considered the role of particulars in summary trials, emphasising their importance in ensuring the accused understands the precise nature of the charges against them. The court noted that while particulars should accurately reflect the prosecution's case, discrepancies between particulars and evidence do not necessarily result in an acquittal. The court must instead assess whether any variance has caused unfairness or prejudice to the defendant, potentially leading to a miscarriage of justice.

In this case, the court found the variance between the particulars and the evidence to be minor. The assault occurred almost immediately after the police officer turned from assisting in the arrest of Eades, and the sequence of events was clear. The court held that the particulars did not mislead the appellant regarding the incident in question, and therefore, the conviction should stand. The appeal was dismissed.

The final orders of the court were to dismiss the appeal against the appellant's conviction for assaulting a police officer in the execution of his duty.

Orders