Mikic v Local Court of NSW
[2013] NSWSC 334
•05 April 2013
Supreme Court
New South Wales
Medium Neutral Citation: Mikic v Local Court of NSW & Anor [2013] NSWSC 334 Hearing dates: 4 April 2013 Decision date: 05 April 2013 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Summons dismissed with costs.
Catchwords: Particulars - assault occasioning actual bodily harm - necessary to particularise acts causing harm - latent duplicity or ambiguity. Legislation Cited: - Crimes Act 1990 - s 59(1)
- Criminal Procedure Act 1986 - s 175(3)
- Supreme Court Act 1970 - s 69Cases Cited: - B v R [2008] NSWCCA 85, 76 NSWLR 533
- Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373, 165 A Crim R 151
- Johnson v Miller (1947) 59 CLR 467
- Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83, 170 A Crim R 366
- R v Kelly (unrep, Handley JA, Hope JA and Smart J) 18 February 1992
- Stanton v Abernathy (1990) 19 NSWLR 656
- Walsh v Tattersall [1996] HCA 26, 188 CLR 77Category: Interlocutory applications Parties: Milan Mikic (Plaintiff)
Local Court of New South Wales (First Defendant)
Director of Public Prosecutions (Second Defendant)Representation: Counsel:
J. Pappas (Plaintiff)
L.D. Fraser (Sol) (First Defendant)
Ms A. Mitchelmore (Second Defendant)
Solicitors:
Ben Aulich & Assoc (Plaintiff)
Crown Solicitor (First Defendant)
Office of Director of Public Prosecutions (Second Defendant)
File Number(s): 2012/357367
Judgment - EX TEMPORE
On 24 July 2012 the plaintiff, Milan Mikic, was charged with one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900. The hearing of that charge commenced in the Local Court at Bankstown on 12 October 2012 and has been adjourned part-heard.
By his Summons, Mr Mikic invokes this Court's supervisory jurisdiction, continued and confirmed by s 69 of the Supreme Court Act 1970. He seeks an order in the nature of prohibition precluding the further hearing of the charge against him "unless and until particulars of the act or acts constituting the alleged assault which is said to have caused actual bodily harm" are provided to him.
At the hearing of these proceedings, the Local Court of New South Wales was substituted as the First Defendant in place of the presiding Magistrate. The Local Court then submitted to the orders of the Court, save as to costs. The Second Defendant to the proceedings was the Director of Public Prosecutions of New South Wales (the "Director"). The Director was represented by Ms Mitchelmore of Counsel.
Background
The court attendance notice accused Mr Mikic of "between 5 am and 9 am on 14 July 2012 at West Hoxton [of] assault[ing] Diana Falzon thereby occasioning actual bodily harm to her".
At some point a police brief of evidence was served. It included a statement from Ms Falzon. She was a former partner of Mr Mikic and the mother of his children. In that statement she says that between 6 and 7am on 14 July 2012 she attended Mr Mikic's house, apparently in breach of an apprehended violence order that had been made against her. She says she knocked on the door for about an hour and that after this time Mr Mikic opened the door. Her statement continues:
"I said, 'I want to talk to you for five minutes, I think you owe me that'. Milan has then raised his left hand & with a closed fist used force the punch me in the back of my head. After he hit me I moved backwards slightly, as I was in shock Milan has attempted to close the door, so I grabbed the door once I did this he raised both hand & grabbed me around my neck. As he had a hold of my neck I felt pain in my neck & shortness of breath.
He said, 'Are you going to leave', I attempted to nod my head & after he let go of my neck he used force to push me over I fell onto the front stone steps. He pushed me back about ½ metre.
Milan walked out the front door. Once he was over the top of me he hit me with both hands in a closed fist. I can not remember how many times he hit me, but I remember he hit me in the back of my head, side ribs & chest. He also kicked me a unknown amount of times into my body.
I said in a loud voice, 'help, help'. I covered my head & body up to protect myself. This went on for an unknown time. After a short time he walked back inside & left me on the steps and tiles." (sic)
At some point apparently either very close to or on the first day of the hearing, there was served an expert certificate from a doctor who treated Ms Falzon. The doctor described her as having "bruising and tenderness around the [right] ear and mandible" and that she had a slight collapse of the right lung as well as a fractured right posterior tenth rib.
The brief of evidence also included the transcript of an electronically recorded interview with a suspected person ("ERISP"), namely Mr Mikic, conducted on 24 July 2012. In summary, he told the police that he had struck the victim outside his home on the morning of 14 July 2012. However, he says he only did so on three occasions and in the vicinity of her head. He denied punching or kicking her when she was on the ground and said she must have come by her broken ribs and punctured lung when she fell onto the front steps after he had struck her. It also appears that he was conveying that, to the extent he did strike the victim, he did so in defence of himself. At one point of the ERISP he stated that Ms Falzon had attended the premises armed with a tyre lever and that when he opened the door she came at him with the lever. He said the physical confrontation took at most only a couple of minutes.
As I have stated, the hearing of the charge commenced 12 October 2012. The informant was called and cross-examined. At the conclusion of his evidence, Counsel for Mr Mikic raised an issue containing particulars. He sought "some proper understanding of what act or acts caused the injuries complained of" and stated, "we are simply asking the prosecution to tell us what it is that was done by this man that resulted in those injuries". In response, the police prosecutor advised the Court:
"The prosecution will - do not particularise one single action in our case in which we say these injuries were occasioned, rather, it is a continuing course of conduct that is alleged, and that course of conduct is as provided by Ms Falzon in the statement which was served in the police brief of evidence."
The reference to a "continuing course of conduct" is to the confrontation described by Ms Falzon in that part of her statement that I have already set out.
The presiding Magistrate refused to require the provision of further particulars. In the course of an exchange concerning that ruling, her Honour stated:
"All the prosecution had to do is particularise the time, date and location, which they have done. There is no obligation, as I understand it, for them to particularise other than what they have done, anything other than what they have in the indictment."
After this ruling, and further debate concerning logistical matters in relation to the hearing, the proceedings were adjourned part-heard until 7 December 2012. At that time they were further adjourned pending the outcome of these proceedings.
Consideration
As I have stated, Mr Mikic seeks relief "in the nature of prohibition". Counsel, for Mr Mikic, Mr Pappas, argued that the absence of proper particulars meant that the Local Court proceedings were being conducted in breach of the requirements of procedural fairness, and this meant that the Local Court was threatening to act in excess of its jurisdiction, thus justifying relief in the nature of prohibition. Mr Pappas pointed to the passage from the judgment of Evatt J in Johnson v Miller (1947) 59 CLR 467 at 498 to the effect that, in circumstances where a defendant does not know the case against them, either by reason of a duplicitous charge or the absence of particulars "[n]o plea can be taken, no evidence can be admitted, nothing can be done, and an adjournment will be useless if a prosecutor is set upon a refusal to particularize".
This passage was not directed to considering the jurisdiction of a court to continue in the absence of particularisation but was instead confirming that in those circumstances the relevant court could and should dismiss the charge. In fact there is reason to doubt the contention that, in the absence of proper particulars concerning a potentially latent ambiguity, the relevant court is deprived of jurisdiction to continue with the hearing (see Stanton v Abernathy (1990) 19 NSWLR 656 at 666 per Gleeson CJ and B v R [2008] NSWCCA 85, 76 NSWLR 533 at [59] per Spigelman CJ).
It is unnecessary to consider this further because, if Mr Mikic's complaint of inadequate particularisation was made good, then no doubt some form of relief would be available to him, such as declarations as to his entitlement to obtain further particulars in a specified form. (see Stanton at 672 to 673). Ms Mitchelmore did not submit otherwise, nor did she contend that there was any discretionary reason to refuse relief in this case. Instead she submitted that there was no proper basis for finding that there was any requirement upon the prosecution to further particularise the charge.
Mr Pappas relies on the well-known passage from the judgment of Dixon J in Johnson v Miller at 489 concerning the circumstances in which the prosecution has available to it a "number or set of facts each amounting to a commission of the same offence", in which case the prosecutor:
"... should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence."
In the passage from the exchange of the hearing on 12 October 2012 that I have set out, the prosecutor identified the "assault" element of the charge as being the totality of the blows Ms Falzon said Mr Mikic inflicted upon her in the confrontation that occurred on the morning of 14 July 2012, that is, punches to the head, grabbing around the neck, pushing, further punches and kicks. Each individual blow could constitute an assault. However, that does not preclude them from all forming one assault. Many cases since Johnson v Miller have recognised that in some, perhaps limited, circumstances repeated acts which, strictly speaking, constitute a separate offence can also form part of the one charge without there being any latent duplicity or ambiguity. It is not necessary to address all the various formulations of when that is permissible. One of the strictest statements of the relevant principle was set out by Kirby J in Walsh v Tattersall [1996] HCA 26, 188 CLR 77 at 112:
"This Court should adhere to its long-standing insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges."
In this case the version of events recounted by Ms Falzon, if accepted, clearly reveals a series of blows that on any view were "so closely related that they amount to the one activity". Thus, no question of so-called "latent duplicity" (cf Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373, 165 A Crim R 151 at [4] to [10] per Basten JA) can arise in relation to the identification of the assault element of the charge as contained in Ms Falzon's statement of what occurred during the confrontation. In this respect, this aspect of the case is similar to a case cited by Ms Mitchelmore, namely R v Kelly (unrep) 18 February 1992, Handley JA, Hope JA and Smart J. In that case, Smart J (with whom Handley and Hope JJA agreed) described the obligation of the Crown to provide particulars in an assault arising out of a street brawl as follows:
"In an hotel and street brawl it would be quite unrealistic, for example, to expect the Crown to provide particulars almost akin to a schedule of punches and to accurately pinpoint where the brawl began and ended. ... From an early stage the judge correctly perceived that the Court was dealing with one incident which took place around the hotel, and not several discrete instances."
In my view it follows that no further particularisation of the assault element of the charge was required in order for Mr Mikic to meet the prosecution case.
The other element of the offence was that the assault occasioned actual bodily harm. Mr Pappas accepted that the extracts of the doctor's certificate that I have referred to above provided sufficient particulars of the actual bodily harm element of the charge, namely, bruising and a broken rib.
Mr Pappas' principal submission was that the prosecution was also required to particularise which of the alleged "acts" of his client, that is blows, were said to have occasioned actual bodily harm to Ms Falzon. He submitted the prosecution should not be able to "pick and choose at the end of the evidence which act or acts are said to have resulted in actual bodily harm". He submitted that its failure to particularise has caused unfairness to his client in that his client's defence of the charge has the potential to be significantly different depending upon which act or acts are said to have occasioned actual bodily harm. Thus he submitted his client would or could deny that any kicking occurred, would or could assert that other blows were inflicted in self-defence and otherwise would or could contend that such blows as he did inflict and which were not lawful did not of themselves occasion the identified actual bodily harm. Mr Pappas also submitted that, if the act or acts of his client said to have caused actual bodily harm were not particularised, then evidence of other aspects of the confrontation which were not said to have caused actual bodily harm may in fact be irrelevant, however that could not be determined when the precise case to be met was not known.
I do not agree. In my view the particulars that have been provided are more than sufficient for Mr Mikic to know the case he has to meet. That case is one that contends that he committed the violent acts claimed by Ms Falzon and thereby caused her bruising and a broken rib. His case, so far as it is known, is that he denies kicking her, admits that he punched her but only did so in self-defence, and says that such of his actions that might constitute an assault cannot be shown to have occasioned actual bodily harm to Ms Falzon.
The submission that, absent particularisation, the Crown will obtain a forensic advantage that allows it to pick and choose which act or acts of Mr Mikic occasioned actual bodily harm, does not withstand scrutiny. This submission seems to be directed to a circumstance in which the presiding Magistrate might determine that only some but not all of the blows against Ms Falzon constituted an unlawful assault, and that either the balance she claimed to have occurred did not in fact occur or, if they did, they were not shown to be unlawful. If that situation were to transpire, then the Crown would still not be in the position to be able to "pick and choose" what blows it could rely on. Instead it would then be in the potentially difficult position of having to demonstrate beyond reasonable doubt that the aspects of Mr Mikic's violent conduct that were found to be unlawful occasioned Ms Falzon's actual bodily harm. Depending on the evidence the prosecution leads, that may or may not be difficult to establish. This outcome reflects the burden placed on the Crown in cases such as this, and some of the difficulties it can encounter when it pursues a charge of assault occasioning actual bodily harm in such a case, as opposed to one of common assault.
As I have explained, in this case it is open to particularise the assault as all the blows Ms Falzon said Mr Mikic inflicted. To impose a requirement that the prosecution confine itself to particularising and then proving beyond reasonable doubt that a particular blow was inflicted, and caused actual bodily harm would, in my view, unduly fetter the presentation of the prosecution case. The metes and bounds of the prosecution case are clear. It is possible to envisage a scenario whereby Mr Mikic could be convicted, even if not all of the aspects of Ms Falzon's evidence were accepted. However, in this case the manner in which the Crown has identified its case has the necessary result that in meeting that wider case Mr Mikic will also necessarily address any narrower basis upon which he could be convicted.
Otherwise, the suggestion that identification of the precise blows said to have occasioned actual bodily harm would assist in the determination of what evidence is relevant, in my view has no substance. Even if the particulars sought were ordered and then forthcoming, I see no real prospect of there being an exclusion of any part of the evidence concerning the confrontation that occurred.
I note one further matter. I have extracted the comments made by the presiding Magistrate when refusing to order particulars. One construction of those comments is that in all cases the prosecution is only required to particularise the date, time and location of an offence, and that her Honour felt she could not order that further particulars be provided. If that is what her Honour meant, then, with respect, that is not the case. Her Honour's description of the requirements of particularisation imposed upon the Crown appears to be a reference to the requirements of s 175(3) of the Criminal Procedure Act 1986 concerning what should be included in a court attendance notice (see Knaggs v DPP [2007] NSWCA 83, 170 A Crim R 366). That is a different matter to the issue under present consideration.
There is no doubt that her Honour has the power to require the provision of such particulars as are necessary to ensure a fair trial. This includes the power to require the provision of such particulars as are necessary to remove any latent ambiguity or duplicity which may have arisen (see B v R supra). However, it follows from the findings that I have made, that no occasion or obligation to exercise that power has been established in this case.
Accordingly, I will order that the Summons be dismissed.
[After hearing from the parties, his Honour ordered the plaintiff to pay costs.]
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Decision last updated: 15 April 2013