Judges v Stephenson
[2021] TASSC 49
•6 October 2021
[2021] TASSC 49
COURT: SUPREME COURT OF TASMANIA
CITATION: Judges v Stephenson [2021] TASSC 49
PARTIES: JUDGES, Russell
v
STEPHENSON, Leon Ivan
FILE NO: 1857/2020
DELIVERED ON: 6 October 2021
DELIVERED AT: Hobart
HEARING DATE: 30 September 2021
JUDGMENT OF: Pearce J
CATCHWORDS:
Criminal Law – Procedure – Information, indictment or presentment – Joinder – By statute – Same facts or series of offences of same or similar character – Offences not of same or similar character.
De Jesus v The Queen (1986) 68 ALR 1; R v Carr [2003] TASSC 123; Tasmania v Martin (No 2) [2011] TASSC 36, 20 Tas R 445, applied.
Aust Dig Criminal Law [3075]
REPRESENTATION:
Counsel:
Applicant: S Nicholson
Respondent: G A Richardson
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: G A Richardson
Judgment Number: [2021] TASSC 49
Number of paragraphs: 19
Serial No 49/2021
File No 1857/2020
SENIOR SERGEANT RUSSELL JUDGES
v LEON IVAN STEPHENSON
REASONS FOR JUDGMENT PEARCE J
6 October 2021
The respondent was charged on a single complaint with four summary offences. He pleaded not guilty to each count and the complaint came before a magistrate, Mr D R Fairley, for hearing on 30 June 2020. At the commencement of the hearing the respondent submitted that one of the charges should not have been joined in the same complaint with the other three counts. The respondent contended that the charge was not founded on the same facts, or form part of a series of offences or matters of complaint of the same or a similar character, and that the Justices Act 1959, s 29(1)(b)(ii), did not authorise its joinder. After hearing argument the magistrate reserved his decision. On 10 July 2020 his Honour accepted the submission made by the respondent's counsel and ruled that the "prosecutor will be put to his election" pursuant to s 29(5). On 24 May 2021, following a number of other procedural steps, the police prosecutor elected to proceed with only the single count on the complaint which had been the subject of argument. The magistrate "struck out" the remaining three counts: s 29(5)(a). This motion challenges that order on the ground that the learned magistrate "erred in law in determining that the complaint did not comply with s 29(1)(b)(ii)". The proceedings on the surviving count were adjourned to await the outcome of this motion.
For the following reasons, the learned magistrate's ruling and order were correct and the motion will be dismissed.
As it is relevant to this motion, s 29 of the Justices Act provides:
"(1) A complaint shall be for one matter only and not for 2 or more matters, except –
(b) ... if the matters of complaint are –
(i)substantially of the same act or omission on the part of the defendant, although amounting in law to 2 or more offences or 2 or more matters of complaint; or
(ii)founded on the same facts or are, or form part of, a series of offences or matters of complaint of the same or a similar character …".
Each of the charges on the complaint made against the respondent alleged offences under the Police Offences Act 1935:
· by count 1, that the respondent failed to comply with a direction of a police officer, contrary to s 15B(2);
· by count 2, that he resisted a police officer, contrary to s 34B(1)(a)(i);
· by count 3, that he possessed an opened or unsealed container of liquor in public, contrary to s 25(3); and
· by count 4, that he injured property, contrary to s 37(1).
All of the offences were said to have occurred on 31 October 2019 in Devonport. Very few details of the allegations were given to the learned magistrate. What the magistrate was told was supplemented by his Honour's own knowledge of the geography of the area. Doing the best I can to understand what emerged in the course of the various exchanges between the magistrate, the police prosecutor and counsel for the respondent, what was contended was that the injury to property charge concerned a car damaged at the eastern end of Stewart Street, Devonport. Someone who either saw or heard what happened to the car phoned the police. They attended and found the respondent about 200 to 300 metres further west in the same street. He had an open container of alcohol, was directed by the police to leave the area, but then resisted them. The time gap between the damage to the car and the events which led to his arrest was not made clear, but, in his ruling, the magistrate inferred that "there must have been the passage of some time between these events given police were responding to the initial call and the distance [the respondent] had travelled". Nor was it made clear to the magistrate what facts led the police to conclude that the person they found with the open container of alcohol, and who had refused to leave when requested, was the same person who had earlier damaged the car some distance away.
The damage to the car was the subject of the injure property charge in count 4. The other three charges concerned what happened further down Stewart Street after the police arrived. Before the magistrate, counsel for the respondent accepted that counts 1, 2 and 3 were properly joined on the same complaint, but contended that count 4 was not. Because each matter of complaint arose from a different act or omission, s 29(1)(b)(i) did not justify their joinder. Counsel for the respondent contended that joinder of the charge of injure property with the other charges was also not justified by the terms of s 29(1)(b)(ii) because they were not "founded on the same facts" and "they were a series of events that were separated in time and place, not by a great amount, but they don't have that same character".
The first matter for the magistrate concerned a question of statutory construction. The police prosecutor contended that s 29(b)(ii) should be read as requiring only that the offences form part of a series of offences. He contended that if the matters of complaint were "matters of complaint of the same or a similar character", then that provided a further, separate, justification for joinder. Counsel for the respondent submitted that s 29(1)(b)(ii) should be interpreted such that two or more matters may be included in the same complaint only if they arose from the same facts, or were a "series of offences or matters of complaint of the same or similar character". That is, that it was not sufficient for the offences to be part of a series of offences unless they were also of the same or similar character. His Honour accepted the respondent's submission, found that the words “‘matters of complaint’ and ‘offences’ were interchangeable for the purposes of the section", and directed himself that the question for determination was whether the charges formed part of a series of events of the same or similar character. His Honour then concluded that there was not a sufficient "nexus" between the matters which were the subject of counts 1, 2 and 3 on the one hand, and count 4 on the other, for those matters to be charged on the same complaint.
Thus, on this motion, the issue of statutory construction, and the matter of the magistrate's assessment of the nexus and similarity, or lack of it, between the offences, both arise.
In this motion the appellant, who is a police officer, contends that learned magistrate was wrong to find that the charges were not properly joined. His first contention was that the damage to property charge was "founded on the same facts" as the remaining charges, the nexus being that they were on the same night and in the same vicinity. It was not a contention made to the magistrate by the police prosecutor, but it must be rejected in any event. Counsel for the appellant properly relied on Collins v The Queen (1994) 76 A Crim R 204, and R v Reid [1999] VSCA 98, 2 VR 605, as authority for the proposition that the terms of the legislation should receive a liberal interpretation and the phrase "founded on the same facts" should not be narrowly construed. Such an approach is aimed at furthering the policy to enable the joinder of charges which may be properly and conveniently dealt with together, thereby fostering efficient use of judicial resources, consistency of verdicts in final and expeditious litigation, and convenience of witnesses. Those propositions may be accepted. However, for charges to be properly joined it is still necessary that they have a common factual origin or be traceable to common events: R v Barrell and Wilson (1979) 69 Cr App R 250. I do not accept that this is the case here, notwithstanding some proximity in time and location. The charges did not involve common issues of fact or law. In my view, the relevant facts are those necessary to establish the offences. The elements of the damage to property charge were quite different to those involved in the other three charges. On the material provided to the magistrate, whether the respondent damaged the car was not probative of the remaining charges, and vice versa. One charge concerned damage to a car, and the others concerned the later possession of alcohol and behaviour towards police. The absence of connection with the damage to property charge is apparent from the charges themselves. When the police found the respondent with an open container of alcohol they directed him to leave the area, a scenario inconsistent with the proposition that he was then identified as the person who had damaged the car. There was a separation both as to time, place and subject matter. Thus, joinder was not permitted by the first limb of that provision.
The question thus becomes whether the damage to property charge and the other charges "form part of a series of offences or matters of complaint of the same or a similar character".
The first argument relevant to s 29(1)(b)(ii) advanced by counsel for the applicant raises the issue of statutory construction. He argues that the second limb of the provision should be interpreted such that joinder of more than one offence is permitted if the offences are, or form part of, a series of offences, but also if the matters of complaint are of the same or similar character. That is, that the second limb provides two justifications for joinder, and not one. The submission should be rejected. Firstly, it is contrary to the ordinary meaning of the words in the provision which, in my view, make clear that the word "series" qualifies both the reference to offence and matter of complaint. Secondly, such an interpretation would alter the long settled interpretation to be applied to such provisions both in Australia and elsewhere. The provision has the same origin as s 311(2) of the Criminal Code (Tas), and many other equivalent provisions in England and in other States of Australia. All have been consistently construed as containing two limbs, and not three: that offences are properly joined if they arise from the same or similar facts; or secondly if they arise from a series of offences of the same or similar character. The Code, s 311(2), is in these terms:
"… charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character. In any other case an indictment shall charge one crime only."
I accept that the Code provision contains no reference to "matters of complaint". In the normal course, meaning should be attributed to words when used in a statute. The terms "matters complained of", "matter of complaint" or "matters of complaint" also appear on multiple occasions elsewhere in s 29, and in other sections in the Justices Act, ss 26, 30, 31 and 113B. Sometimes the terms are used in conjunction with the term "offence" or "offences" and sometimes they are not. When the provisions to which I have referred are read together, it is clear that the learned magistrate was correct to conclude that the terms are used interchangeably and do not have an independent separate meaning or operation, at least to justify the interpretation of s 29(1)(b)(ii) contended for by the appellant. In my view, the reference to "matters of complaint", when used in s 29(1), do not alter the commonly accepted meaning of the provision. The context in which they are used in this statute indicates that the words refer only to factual matters which may form the basis of an offence or charge. The result is that s 29 of the Justices Act should, in my view, be interpreted in the same manner as the Code, s 311(2).
The result is that the primary issue in this motion distils to whether the learned magistrate made an error or mistake on a matter or question of fact or law or both in ruling, as he did, that the charge of destroy property did not form part of a series of offences of the same or similar character: Justices Act, s 107(4)(a).
In Ludlow v Metropolitan Police Commissioner [1971] AC 29, Lord Pearson expressed his agreement with the decision of the Court of Appeal of England and Wales in Kray [1970] 1 QB 125 and stated that in determining whether offences form or are part of a series of the same or a similar character, both the law and the facts are to be taken into account. His Lordship continued, at 39:
"… when regard is had to the requirement of a series of similar offences it is right to look for a nexus. Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series."
In De Jesus v The Queen (1986) 68 ALR 1, the majority of the High Court determined that two charges of rape were not properly joined within the terms of s 585 of the Criminal Code (WA). In that case there were some similarities and some dissimilarities between the two alleged rapes, although the crimes were of the same legal character. It was agreed that evidence on one count was not admissible in the other. Dawson J said, at 15:
"Similarity may also indicate a nexus, but similarity of that kind relates to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. The distinction may not be one which can be maintained with total precision, but it is useful because otherwise the expression used in s 585 – 'a series of offences of the same or a similar character' – is somewhat tautological, since similarity is itself one of the hallmarks of a series. Thus it was that Lord Pearson remarked in Ludlow at 39 that: 'Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series'. Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a 'series' without straining the word beyond the meaning which it is reasonably capable of bearing."
R v Carr [2003] TASSC 123 concerned the joinder of a count of stealing in the form of shoplifting, with seven counts of burglary and stealing involving domestic premises, mostly in urban areas but with one incident occurring in the country. Crawford J (as he then was) found that the charges were not properly joined. At [6] his Honour stated:
"In Packett v R (1937) 58 CLR 190 at 207, Dixon J said that the concept of crimes constituting a series 'connotes some connection between the crimes'. For crimes to be of a similar character and for them to constitute a series for this purpose, there must be a sufficient nexus between the charges. Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 39; De Jesus v R (1986) 68 ALR 1 at 15; R v McDonald (1979) 21 SASR 198 at 200; R v Killick (1980) 24 SASR 137 at 141; R v Burrows [2001] TASSC 90 at par10. 'Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.' Ludlow v Metropolitan Police Commissioner at 39. 'Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a "series" without straining the word beyond the meaning which it is reasonably capable of bearing.' De Jesus v R at 15."
Crawford J applied the passage in R v Cranston [1988] 1 Qd R 159 at 164, which explained that consideration of whether charges entail a series of offences of the same or similar character "call[s] for the administration of a test in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present".
In this case, I doubt that the proximity in terms of time and location was sufficient to establish that the damage to property charge formed part of a series, when there was otherwise no connection between the offending. However, even if there were a sufficient nexus or connection between the offences on the complaint to establish a series, the offence of damage to property with which the respondent was charged was not of the same legal character, or even of similar legal character, to the other offences. In De Jesus, Dawson J explained that the requirement that offences must be of the same or a similar character "refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance". See also the discussion by Porter J in Tasmania v Martin (No 2) [2011] TASSC 36, 20 Tas R 445 at [20]-[26]. The learned magistrate was correct to find that count 4 on the complaint was not properly joined with the remaining counts on the complaint and to proceed as he did.
The motion to review is dismissed.
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