James v Prider No. Scgrg-98-1634 Judgment No. S136

JAMES v PRIDER
[1999] SASC 136

Magistrates Appeal

LANDER J. The respondent was charged that on 13 January 1997 at Largs Bay he operated a motor vessel without due care for the safety of others contrary to s69(2) of the Harbors and Navigation Act 1993.
The precise charge as amended was:
“On 13th January 1997 at Largs Bay in the state (sic) of South Australia on waters within the jurisdiction of the Harbors and Navigation Act 1993 operated a motor vessel without due care for the safety of other persons or property, contrary to Section 69(2) of the Harbors and Navigation Act, 1993.”
Prior to the matter coming on for trial another count in the complaint, changing the respondent with failing to maintain a proper lookout, was withdrawn.
The matter came before Mr Eardley SM in the Magistrates Court at Port Adelaide and on 6 November 1998, his Honour dismissed the complaint following argument concerning the sufficiency of particulars. No evidence was taken.
In dismissing the complaint, his Honour held:
“The state of the particulars in the complaint before this Court is such that they are insufficient to apprise the defendant of the case which he has to meet with respect to the charge made against him. The failure of the prosecutor to supply sufficient particulars has left the defendant in uncertainty and difficulty.”
He went on to say:
“Clearly the defendant has suffered substantial prejudice in the preparation of his defence. The defendant is not in a position to properly conduct his defence against the charge. He has been deprived of an essential step in criminal procedure. This has resulted in unfairness to him in the preparation of his defence.”
I think although the learned Magistrate did not say so directly, he dismissed the complaint because of two defects in the particulars. First because they were not adequate. Secondly, because in their form the particulars were duplicitous.
The appellant appeals against the dismissal of the complaint. The ground of appeal is simply that the learned Magistrate erred in dismissing the complaint against the respondent. In all fairness to the appellant, at the time that the notice of appeal was filed and served, the learned Magistrate had not given reasons.
It is clear from the exhibits which were before the learned Magistrate that the question of particulars has been an important issue, at least from the respondent’s point of view, ever since the complaint was served.
On 10 June 1997, the respondent requested further and better particulars of the charge. No particulars were given and on 18 June 1997, the respondent applied for an order of the court for further and better particulars of the complaint.
The appellant provided some particulars on 30 July 1997.
On 4 May 1998, some further particulars were supplied, although not in the usual form of particulars. On 8 July 1998, the Crown Solicitor advised that he would provide further particulars in due course.
Eventually, shortly before trial, the appellant provided further particulars which, after some argument, were amended.
The particulars, in their final form, were as follows:
“1..... On the 13th day of January 1997 at Largs Bay, Ian Michael Prider (the defendant) operated a motor vessel - registration number HO113S (the vessel) - in that he had exclusive control of its speed, steering and navigation.
2.The vessel is a Bayliner, 26 feet in length of fibreglass construction.
3...... The vessel was powered by a 230 horsepower inboard stern drive motor.
4.At about 11.30 pm on the 13th day of January 1997 the vessel collided with the southern aspect of the southern revertment mound at Outer Harbor.
5...... Immediately prior to the collision the vessel was travelling at a speed which was excessive in the circumstances and prevailing conditions, namely about 30 mph.
6....
7...... The defendant failed to alter course and reduce speed in time to avoid collision with the said southern revertment mound.
8.The complainant alleges that there were Navigational Aids and other visible lighting and landmarks which if property interpreted would have alerted the Defendant to the need to alter course.
9...... The Defendant operated the vessel without due care in that he navigated the vessel in a manner and at a speed that led it to come into a collision with the southern revertment mound.”
The Prosecutor advised the learned Magistrate that he did not intend to supply any further particulars apart from the particulars mentioned above. If those particulars were not adequate then he accepted that the complaint would need to be dismissed.
He argued, however, that the particulars were adequate.
There is no doubt that the respondent was entitled to particulars; Johnson v Miller (1937) 59 CLR 457. A failure to give particulars or adequate particulars which gives rise to prejudice to the defendant will ordinarily lead to a dismissal of the complaint. A person charged on complaint is entitled to know exactly what charge he or she is alleged to have committed and is entitled to have particulars of how it is said that the offence has been committed; Lafitte v Samuels (1972) 3 SASR 1.
The obligation to give particulars is also imposed on a complainant by s22A of the Summary Procedure Act. It provides:
“22A(1)... Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary of giving reasonable information as to the nature of the charge.
(2)The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
(3)... After the statement of the offence, necessary particulars in the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.”
When the respondent first sought particulars in this matter there were two charges alleged against him. The nature of the charges was such that it was necessary that the appellant give particulars so as to precisely identify the acts and circumstances relied upon for each of the counts alleged against the respondent in the complaint.
Even after the appellant abandoned the first count in the complaint the prosecutor was under a continuing obligation to give particulars of the facts and circumstances alleged against the respondent which the prosecutor claimed showed that the respondent had operated a motor vessel without due care for the safety of others.
The first question for the determination of the Magistrate was whether these particulars, as finally framed, were adequate to advise the respondent of the facts and circumstances relied upon for the allegation of due care.
An allegation that the respondent had operated the vessel without due care is in effect an allegation that the respondent operated the motor vessel negligently. In those circumstances, the respondent was entitled to know the facts and circumstances which were said to give rise to the claim that the operation of the vessel was without due care.
In other words he was entitled to be advised of the particulars of the conduct which showed that the operation of the motor vessel was conducted without due care.
If appropriate particulars have been given by the appellant then they must be contained, in my opinion, within paragraphs 5, 7, 8 and 9.
As I put to the appellant in argument, proper particulars of a charge of this kind would resemble particulars of negligence in a motor vehicle collision case. In this situation one would expect to see particulars of each of the elements contained in the offence. First there would be particulars of the date and time of the alleged offence. Secondly, particulars would be given of the waters within the jurisdiction of the Harbors and Navigation Act where it is alleged that the offence occurred. Thirdly, particulars would be given of the motor vessel which was said to have been operated. Fourthly, particulars would then be given of the lack of care on the part of the operator. Those particulars might include (1) a failure to keep a proper look out; (2) operating a motor vessel at excessive speed in the circumstances; identifying the circumstances; (3) a failure to stop, slow, swerve or otherwise manoeuvre the motor vessel so as to avoid a collision. I will address the issue of duplicity below.
There may be other particulars of lack of care in the operation of the motor vessel.
Lastly, particulars would need to be given whether persons, and if so whom, or property, and if so which, were compromised by the operation of the motor vessel without due care.
These particulars do provide particulars of the motor vessel. Paragraphs 1, 2 and 3 provided the respondent with information as to the particular motor vessel which was said to be operated without due care. Those particulars also provided information as to the size and engine configuration of that motor vessel.
No particulars, however, are given of the place and, in particular the waters, in which it was said that the motor vessel was operated without due care, except to the extent that it is claimed that the motor vessel collided with the southern aspect of the southern revertment mound at Outer Harbor. In the end that may be sufficient particularity of the place at which the operation was performed without due care. It is also probable, because there was a collision, that the place where the collision occurred identifies the time at which it is said the operation occurred. However, I must say the particulars, although adequate, are somewhat clumsy in that respect.
I think the particulars do identify the property compromised if one can infer that the property which was compromised was the southern revertment mound at Outer Harbor. It must be assumed in the absence of particulars that the safety of persons was not compromised.
That leaves for determination whether the particulars in paragraphs 5, 7 8 and 9 are sufficient to give the respondent adequate notice of the facts and circumstances which amount to the operation without due care.
Particular 5 alleges a speed which was excessive in the circumstances. I think that is a proper particular. I think, however, the addition of the words ‘and prevailing conditions’ necessitated particulars of those conditions. The respondent cannot be left to guess how it is alleged the prevailing conditions made the speed of 30 mph excessive. I do not believe that the particular as expressed is adequate to give the defendant fair notice of the case against him in respect of the allegation of speed.
Paragraphs 7, 8 and 9 do, on the other hand, give adequate notice of facts and circumstances supporting the allegation of due care. Paragraph 8 asserts that the respondent failed to keep a proper lookout in failing to have appropriate regard to navigational aids, visible lighting and landworks. Paragraphs 7 and 9 are, although expressed in other words, a particular of a failure to stop, slow, swerve or otherwise manoeuvre so as to avoid a collision.
I think therefore the particulars apart from particular 5, were adequate to inform the respondent of the charge against him and how it said that the offence was committed. I do not agree with the learned Magistrate except in one respect that the particulars are insufficient.
I do not think that particular 5 is sufficient. In a sense it is a particular of a failure to exercise due care but it is expressed in such a way as to introduce the further concept of ‘prevailing conditions’ without particularising the conditions. The prevailing conditions could not be the matters in particulars 1, 2 and 3; ie the capabilities and structure of the vessel. I do not think it can be said the particular means excessive speed having regard to the vessel. If that was intended it could have been said. It must be some other concept not otherwise identified. I am not prepared to speculate and nor should the respondent be required to speculate. I will strike out particular 5 for uncertainty.
It was said by the respondent that the particulars in paragraphs 7 and 9 give rise to duplicity. The appellant argued that an allegation of operating without due care had been made and in particular at a speed which was excessive in the circumstances. Therefore, it was argued, any further allegations of any other facts and circumstances which might serve to indicate that the operation had been without due care rendered the complaint duplicitous.
I do not agree with that submission. It seems to me that operating a motor vessel without due care can be caused by a single act. However, the particulars giving rise to the conclusion that the operation was without due care might contain a number of alleged departures from a duty to operate with due care. As I have already indicated those departures might include speed, lookout and reaction. I do not agree that the particulars in paragraphs 7, 8 and 9 render the particulars duplicitous.
The particulars do not raise more than one offence. There is only one charge of operating the motor vessel without due care. When the lack of care is particularised as including more than one departure from the duty to take care the complaint is not bad for duplicity. If either of the particulars supports a finding of a lack of due care the respondent will be convicted of that offence. If on the other hand both particulars are made out the respondent will still only be liable to one conviction. That is in respect of the operation of the motor vessel leading up to and at the point of collision with the southern aspect of the southern revertment mound at Outer Harbor. A complaint is not necessarily bad for duplicity because it is alleged that a number of facts and circumstances either taken alone or jointly are alleged to constitute the one offence: Montgomery v Stewart (1967) 116 CLR 220, R v Traino (1987) 45 SASR 473.
As I said during the hearing of this appeal, in my opinion, the particulars as framed are inelegant. That, however, is not a test of whether the particulars are adequate or whether the particulars as framed make the complaint duplicitous.
In my opinion this appeal should be allowed and the order of the learned Magistrate dismissing the complaint should be set aside. The matter should be remitted to the learned Magistrate for hearing. Of course the matter will be determined without reference to particular 5 which must be struck out as uncertain.
I will hear the parties as to costs.

[1999] SASC 136

13 April 1999