Police v Caldwell & Wright
[2007] SASC 414
•23 November 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
POLICE v CALDWELL & WRIGHT
[2007] SASC 414
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Sulan)
23 November 2007
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL
Application to Full Court for permission to appeal in private - permission refused.
Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Supreme Court Civil Rules 2006 r 291(3)(b), referred to.
POLICE v CALDWELL & WRIGHT
[2007] SASC 414Application for permission to appeal
FULL COURT: Duggan, Bleby and Sulan JJ
THE COURT: This is an application for permission to appeal to the Full Court.
The decision the subject of the application was made by a judge on an appeal from the Magistrates Court. An appeal to the Full Court in these circumstances lies only with the permission of the court (Supreme Court Act 1935 (SA) s 50(4)(a)(ii)).
The Full Court has determined to decide the application without hearing oral argument: r 291(3)(b) Supreme Court Civil Rules 2006.
The court has considered the summaries of argument and supporting affidavits filed on behalf of the applicant and the respondent and the reasons of the single judge for allowing the appeal.
The applicants were charged with assault occasioning actual bodily harm. The information alleged that they:
On the 4th day of December 2005, at Hallett Cove, in the said State, assaulted Mark William Keam, a person of or above the age of 12 years, thereby occasioning him actual bodily harm.
The charge arose out of an incident which took place at an entertainment venue. The alleged victim was on duty as a crowd controller. He refused the applicants entry into a particular part of the premises. According to the victim, the applicants reacted by wrestling him to the floor. As he was being pulled to the floor, both applicants punched him on a number of occasions to the face and head. He fell face first onto the floor and, as he did so, he fell on the applicant Wright. The applicant Caldwell then jumped onto the victim’s back and bit his left ear. As Caldwell jumped on the victim’s back, Wright rolled out from under the victim, stood up and kicked the victim twice in the ribs. As the victim was being kicked by Wright, Caldwell was still in the process of biting his ear. The victim then felt Caldwell being lifted off him. While this was happening Wright continued to punch him in the face.
On 22 December 2006 the prosecution provided the following particulars in answer to a request by Caldwell’s solicitors:
On the 4th of December 2005 at Hallett Cove, Caldwell assaulted the victim Mark Keam by punching him, and biting the his (sic) left ear causing an injury (actual bodily harm) to that ear.
The solicitors for Wright also asked for particulars and received the following reply:
On 4th December 2005 at Hallett Cove, you [sic] client assaulted Mark Keam by punching him as described in Keam and Couzners statements. Although he did not directly inflict the injury to the victim’s ear, he was an active participant in the assault and was acting with co-accused Wayne CALDWELL in a common purpose (that of assaulting the victim). At an unknown time prior to CALDWELL and WRIGHT jointly assaulting the victim. (sic)
The matter came on for trial on 20 February 2007. The applicants complained that the particulars revealed a latent duplicity in the charge. It was argued that the particulars identified two separate offences, namely, common assault by punching and assault occasioning actual bodily harm by biting.
The police prosecutor then gave the court a summary of the facts along the lines of the summary set out above.
At this point, there could have been no doubt about the factual basis relied upon by the prosecution.
As to the argument about duplicity, the prosecution made it perfectly clear that the case against Caldwell was that he had bitten the victim on the ear thus inflicting actual bodily harm.
The particulars referred to “punching him” and biting his left ear, but there was no suggestion by the prosecutor that, if the biting was not established, the punching or other violence would be relied upon as constituting the assault charged. The prosecutor made the point that the various blows amounted to “a continuation”.
As for Wright, it was stated in the particulars and in the submissions of the prosecutor on the first day that this applicant took part in an assault and that, although he did not bite the victim’s ear, he was responsible for that action because he was acting with Caldwell as part of a joint enterprise or in accordance with a common purpose. Again, there was no suggestion that the prosecution would be relying on a particular act of Wright to establish a path to conviction on a basis other than the biting of the ear.
The argument as to duplicity roamed far and wide and it is unfortunate that the magistrate did not bring the focus back to the uncomplicated situation summarised above. Instead there was an adjournment and the police provided further particulars as follows:
Daniel WRIGHT Wayne CALDWELL (Both defendants) – wrestled the victim KEAM to the floor. As the victim was getting pulled to the floor both deft’s [sic] were punching the victim to the face and head an unknown number of times.
The victim fell onto one deft’s [sic] – Daniel WRIGHT and at about the same time Wayne CALDWELL jumped on the victim’s back and bit the victims [sic] ear.
As the bite was occurring WRIGHT rolled out from underneath the victim, stood up and kicked the victim to his right side.
CALDWELL was pulled off the victim and WRIGHT punched the victim in the face several times.
PARTICULARS:
Daniel WRIGHT and Wayne CALDWELL acted in concert or aided and abetted the actions of each other in furtherance of the common purpose namely the assault of Mark William KEAM. In the process of the assault Mark William KEAM was occasioned actual bodily harm in that he received an injury to his ear which required suturing.
It is further alleged that the injury was a bite to the ear.
Counsel for the applicants maintained the submission that the particulars revealed a latent duplicity and the magistrate upheld the objection. In doing so he said:
In trying to bundle the whole lot together and call it all one assault, they are papering over the truth that in fact there are several different assaults alleged here and if I allow the prosecution to proceed with the charge as presently laid, it is just going to be a mess at the end, particularly in relation to Wright. There also is a latent duplicity for Caldwell, because by trying to get there through joint enterprise/common purpose, Caldwell does not know exactly which kicks punches and other matters as well as the bite he is here to defend.
So my view is that it cannot sensibly go on with the present charge and the present particulars. That is not to say the matter is beyond remedy, just that if we proceed as presently charged then the whole thing will come horribly unhinged by the end.
The magistrate indicated that he would not allow the trial to continue unless the charge was amended or substituted for another.
The prosecutor declined to lay another charge but provided further particulars which alleged that the applicants acted in concert or as aiders and abettors in assaulting the victim. Further details were also given of the facts on which the prosecution relied.
After further argument the magistrate ruled that the information was duplicitous and the charge was dismissed.
The police appealed against this decision to a single judge. The appeal was allowed and the information was remitted to the Magistrates Court for hearing.
The single judge expressed the view that the incident was to be regarded as a single transaction which was capable of being charged as a single assault. She said that whilst only one of the alleged acts, namely the biting of the ear, could be identified as the act comprising the bodily harm, she did not consider that this factor, of itself, rendered the charge duplicitous.
In our view, the single judge was clearly right in reaching this conclusion. As she pointed out, the issue is one of fact and degree for decision in each case. However, the facts of the present case justify the incident being treated as a single continuous offence. The single judge placed justified reliance on the discussion by the Chief Justice in Haskett v Police[1] where he said:
On the evidence all of the alleged blows were struck by Mr Haskett within the space of a few seconds, perhaps within no more than ten seconds. All of them were part of one course of conduct and constituted what any reasonable person would regard as a single incident. It would be artificial to treat each separate blow and each kick as a separate assault.
[1] [2005] SASC 174.
If the court finds that the applicants embarked on the alleged course of conduct with the common purpose of assaulting the victim each would be guilty of the offence of assault. No further intention would be required in relation to the aggravating feature of causing actual bodily harm. If that was a consequence of the assault both could be found guilty of the offence charged in the information. But the assault alleged would be constituted by the series of acts which, in the circumstances, were part of the same transaction.
Considered in this way there would be no room for alternative paths to conviction based on acts of violence other than the alleged act of biting.
In our view it is not reasonably arguable that the charge would give rise to either duplicity or unfairness. Furthermore, there is no basis for the applicants’ further argument that the charge should be dismissed as an abuse of the process of the court.
Permission to appeal is refused.
The respondent has applied for permission to cross-appeal on the issue of costs. However, it is stated in the respondent’s summary of argument that the respondent will withdraw its application for permission to cross-appeal if permission to appeal is not granted to the appellant. Accordingly, there is no need to deal with the respondent’s application in these reasons.