Kirkham v Wong
[1989] TASSC 25
•9 May 1989
Serial No 19/1989
List “A”
CITATION: Kirkham v Wong [1989] TASSC 25; A19/1989
PARTIES: KIRKHAM
v
WONG, John
KIRKHAM
v
WONG, Johnny
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 15/1989
LCA 16/1989
DELIVERED ON: 9 May 1989
JUDGMENT OF: Underwood J
Judgment Number: A19/1989
Number of paragraphs: 14
Serial No 19/1989
List "A"
File Nos LCA 15/1989LCA 16/1989
KIRKHAM v JOHN WONG
KIRKHAM v JOHNNY WONG
REASONS FOR JUDGMENT UNDERWOOD J
9 May 1989
By a complaint made on the 15 September 1988 Detective 1C Constable Kirkham alleged that on the 16 April 1988 one Johnny Wong unlawfully assaulted Jillian Ann Braithwaite contrary to the Police Offences Act 1935, s35(1). By a separate complaint made on the same day, the complainant alleged that John Wong (a different defendant) also unlawfully assaulted the same Jillian Ann Braithwaite contrary to the same provision of the Police Offences Act.
When the two matters of complaint came on for hearing in the Court of Petty Sessions, Hobart on the 20 December 1988 counsel for both defendants submitted that each complaint lacked the particularity required by the provisions of the Justices Act 1959, s30(1)(b). The learned magistrate upheld the submission and made an order that no proceedings be had on the complaints until "they are further particularised in compliance with s30 of the Justices Act".
The hearing resumed on the 23 February 1989. On the application of the prosecutor, an order was made amending the particulars in each complaint. Counsel for the defendant submitted that, notwithstanding the amendments, the complaints still lacked the requisite particularity. The learned magistrate upheld the submission, dismissed both complaints and ordered that the complainant pay the defendants' costs.
The applicant seeks a review of the orders of dismissal and for costs relying in each case upon two grounds which together amount to an assertion that the learned magistrate erred in law in holding that the complaints did not comply with the provisions of the Justices Act, s30(1)(b).
As amended, the two complaints read as follows:
"That Johnny Wong of 381 Elizabeth Street North Hobart did, on the 16th day of April 1988 at Hobart in the State of Tasmania, unlawfully assault one Jillian Ann Braithwaite by punching her about the head about four times, hitting her about the head and body with a pot plant, kicking her about the legs and body and hitting her about the legs and feet with a shopping trolley."
"That John Wong of 381 Elizabeth Street North Hobart did, on the 16th day of April, 1988 at Hobart in the State of Tasmania, unlawfully assault one Jillian Ann Braithwaite by punching her in the face once, squeezing her neck with both hands and punching and kicking her about the head and body."
Counsel for the respondents contended that the complaints lacked particularity in three respects namely:
1Except in two instances, they failed to specify the number of times each defendant allegedly kicked, punched and hit Miss Braithwaite.
2They failed to specify the particular part of the body struck.
3They failed to specify the chronology of events.
After the complaints were made there was an exchange of correspondence between the solicitors for the defendants and the prosecutor which was summarised in a document handed to the learned magistrate, a copy of which is reproduced below:
"particulars of offence
john wong – charged on complaint no. 1345088 with assault contrary to section 35(1) police offences act 1935.
It will be alleged that about 8.30 pm on Saturday 16 April 1988, John WONG visited the complainant, Jillian Anne braithwaite, in her reallocated bedroom at eagle hawk inn, hobart. Johnny wong was not present. 'B'
John wong proceeded to assault the complainant as follows:
(a)Punched her in the face. 'C' Once '
(b)Squeezed her neck with both hands. 'C' Once '
(c)Punched and kicked her about the head and body. 'C' Continuously, exact number of times not known. '
John wong then left the room. 'B'
((a), (b) & (c) above represents the order of events).
johnny wong – charged on complaint no. 1344988 with assault contrary to section 35(1) police offences act 1935
It will be alleged that sometime (minutes) after the cessation of the other assault, Johnny WONG visited the complainant in the same room. John WONG was not present. 'B'
Johnny WONG proceeded to assault the complainant as follows:–
(a)Punching about the head. 'C' About four times. 'S'
(b)Hit her about the head and body with a pot plant. 'C' Continually, until it broke, exact number of times not known. 'S'
(c)Kicking her about the legs and body. 'C' Exact number of times not known. 'S'
(d)Hitting her about the legs and feet with a shopping trolley. 'C' Exact number of times not known. 'S'
The assault continued into the corridor. 'B'
–––––––––––––––––––––––––––––––––––––––––––––––––––––
'C' Complaint
'B' Letter dated 20 January 1989
'#' Letter dated 29 November 1988'S' Letter dated 21 September 1988."
When the hearing resumed the prosecutor referred to the document handed up but expressly confined his application to amend the complaints to specify in each case the number of punches alleged to have been made to the head.
Section 30(3) provides that if a complaint is defective by reason of (inter alia) non–compliance with s30(1)(b) it may be amended. If a complaint does not comply with s30(1) it is defective and should be dismissed. Accordingly, this motion to review falls to be determined without regard to the correspondence exchanged between the prosecutor and the solicitors for the defendants. The statutory requirement is to provide in the complaint "such particulars as will give reasonable information of the nature of the matter complained of". The principle underlying this requirement is reflected in the following passage from the judgment of Evatt J in Johnson v Miller (1937) 59 CLR 467 at p497:
"It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer."
The provisions of s30(1)(b) will not be satisfied if a defendant is not informed of the "full extent of the charge", per Stable J, Davissen v Power [1959] SR (Qd) 21 at p26, or if the acts relied upon as constituting the charged offence are not specified, per Stable J, Barnes v Polito, Ex Parte Polito [1967] Qd R 155 at p157. Particulars assume greater significance in cases such as the present ones where the offence charged arises out of several acts or "conduct which comprises a continuity of action or a series of connected acts", per Asprey JA in Ex Parte Graham; Re Dowling (1968) 88 WN(NSW) Pt1, 270 at p283.
Illustrations of instances in which a court has considered the sufficiency of particulars and referred to by counsel for the respondents are, Lafitte v Samuels (1972) 3 SASR 1; Giles v Samuels ibid, p307; Prowse v Bartlett ibid, 472. In each of these cases the complaints disclosed no more than an allegation that a certain offence had occurred at a particular place and time. No facts relied upon as constituting the offence were pleaded.
In his ex tempore reasons for dismissing the complaints the learned magistrate said in part:
"But it seems to me it's defective in particularity in [not] specifying the parts of the head and body which were hit, the parts of the legs and body which were kicked and in relation to each of those particulars the number of times on which they are alleged, and in relation to particular (c) concerning the number of times on which it is alleged the complainant was hit about the head and body."
Counsel for the respondents submitted that compliance with s30(1)(b) required specification in each instance of the number of blows inflicted and the precise parts of the face or head or body to which they were inflicted. I reject this submission. The particulars are sufficient to identify the acts which it is alleged constituted the offence. The nature, or factual matters, of the offence are delineated by the particulars in sufficient detail to give the respondents reasonable information of the full extent of the charge they are called upon to answer. Had the particulars merely stated that the acts constituted several blows to the face, body and legs there may have been some substance in the respondents' argument. There was no suggestion that the relevant events took place over a prolonged period of time. In two instances the instruments used in the alleged assault are specified and in two cases the precise number of blows are enumerated. Read together, the particulars in each case constitute sufficient detail to disclose the precise nature and ambit of the charge which the respondent is called upon to answer.
The motions to review will be allowed. The order of dismissal and for costs will set be aside and the complaints remitted to another magistrate for determination in accordance with law.
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