Police v Caldwell & Wright - [2007] SASC 266

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v CALDWELL & WRIGHT
[2007] SASC 266
Judgment of The Honourable Justice Layton
19 July 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY - DUPLICITY AND UNCERTAINTY - WHAT CONSTITUTES IN PARTICULAR CASES - OTHER CASES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
Appeal against the decision of a magistrate who dismissed an Information on the ground that it was duplicious - Notices of Contention filed by the respondents in relation to the issue of abuse of process and costs - Notices of Contention treated as cross-appeals, save for the contention on costs - consideration of the principles related to duplicity and abuse of process - whether particular acts forming the basis of the the charge of assault occasioning actual bodily harm ("AOABH") should have been separately charged as assaults - whether the appellant's delay in providing full particulars was unfair and amounted to an abuse of process - whether Notices of Contention/cross-appeals were competent.
Held: - The Information did not disclose any latent duplicity - the alleged acts were sufficiently close in time and space to be charged as a single offence - the fact that only one alleged act was particularised as constitututing AOABH and that both respondents were jointly charged did not render the Information duplicious in the circumstances - the Notices of Contention/cross-appeals in relation to abuse of process were incompetent as there was no proper basis for the alternative orders sought - the provision of particulars at a late stage was not manifestly unfair and did not amount to an abuse of process in the circumstances - appeal allowed - Magistrate's dismissal of Information set aside - Information remitted for rehearing - Magistrate's ruling on costs upheld - Notices of Contention/cross-appeals dismissed.
Director of Public Prosecutions v Merrimann [1973] AC 584; Jago v District Court of New South Wales & Ors (1989) 168 CLR 23; Moevao v Department of Labour [1980] 1 NZLR 464; S v The Queen (1989) 168 CLR 266; Walsh v Tattersall (1996) 188 CLR 77; Williams & Ors v Spautz (1992) 174 CLR 509, applied.
Eades (1991) 57 A Crim R 151; Gardner v Caporn [2005] WASCA 153; Gray v Police (2003) 85 SASR 1; Haskett v Police [2005] SASC 174; Khouzame and Saliba (1999) 108 A Crim R 170; The Queen v Chen (Unreported, Queensland Court of Appeal, Davies JA, Shepherdson and White JJ, 21 October 1997); Stratis v Police [1998] SASC 686, discussed.
Brinkworth v Dendy [2007] SASC 120; R v Morrow and Flynn [1991] 2 Qd R 309; R v Giretti (1988) 24 A Crim R 112, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"abuse of process", "duplicity"

POLICE v CALDWELL & WRIGHT
[2007] SASC 266
Magistrates Appeal: Criminal
LAYTON J:
Introduction

This is a Police appeal against an order made by the Deputy Chief Magistrate (“the Magistrate”) on 21 February 2007, dismissing the Information against the respondents on the ground that it was duplicitous. The appellant seeks an order setting aside the Magistrate’s order dismissing the Information and an order remitting the matter to the Magistrate’s Court for rehearing. The appellant also seeks an order that the Magistrate’s order for costs be set aside and substituted with an order for nominal costs against the respondents. In addition, the respondents filed Notices of Contention. At the hearing before me Ms Charlesworth appeared for the appellant and Mr Henchliffe appeared for both respondents. Both counsel agreed that the Notices of Contention should be treated as cross-appeals, save for the contention as to costs. The respondents submit that if the Magistrate had not dismissed the Information for reasons of duplicity, he should have ruled that the prosecution was an abuse of process.
The prosecution case
The respondents were jointly charged on Information with a single count of assault occasioning actual bodily harm (“AOABH”). The charge arose from an alleged attack upon the complainant by the two respondents, in the course of which the complainant was punched and kicked and his ear was bitten. On the prosecution case, the first respondent bit the ear of the complainant, and caused him actual bodily harm.
Chronology of events
In order to properly understand the contentions of both parties in relation to the question of duplicity and abuse of process, I have set out a brief chronology of events.
On 8 April 2006, the respondents were charged on Information as follows:
Caldwell, Wayne Malcolm
Wright, Daniel
On the 4^th 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.
Section 40 of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.
On 31 July 2006, the solicitors for the first respondent (“Caldwell”) sent a letter to the Police Prosecution, requesting the provision of “written particulars of each allegation that you rely upon as the basis for the charge of assault occasioning actual bodily harm”. On 22 December 2006, the Prosecution sent a reply to Caldwell’s solicitors, which set out the particulars as follows:
On the 4th day 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. [emphasis added]
On 5 February 2007, solicitors for the second respondent (“Wright”) also sought written particulars in relation to the charge against him. The following particulars were provided on 14 February 2007:
On 4^th 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. [emphasis added]
It is apparent from these particulars that the prosecution case against Caldwell was that he was guilty of AOABH because he bit the complainant’s ear, and punched him. The prosecution case against Wright was different in that it relied on the doctrine of joint criminal enterprise. The case against Wright was that he was guilty of AOABH because he punched the victim and that he and Caldwell had acted together in a common purpose to assault the complainant, during the course of which Caldwell bit the complainant’s ear. The prosecution also alleged that Wright personally assaulted the complainant by punching him.
On the first day of trial, counsel for both respondents complained that the particulars provided revealed a latent duplicity in the Information. They contended that the particulars identified two separate offences, being common assault by punching, and AOABH by biting the complainant’s ear. It was argued that these two offences needed to be separately charged, to avoid uncertainty as to exactly what allegations the respondents were required to meet. Accordingly, it was argued that the biting of the ear was the only physical act which the charge of AOABH could be based on.
Further, counsel for both respondents argued that the particulars provided by the police prosecutor insufficiently identified the prosecution case. Counsel for Caldwell argued that the particulars provided failed to allege a joint enterprise against his client, and had merely referred to the direct actions alleged against his client. Counsel for both respondents argued that the particulars provided inadequate detail of the nature and scope of any alleged joint enterprise.
Following an adjournment, the police prosecutor provided the following further particulars, which were tendered and marked Exhibit P1:
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’[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 of 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 both respondents again complained that these particulars revealed a latent duplicity on the Information. The Magistrate subsequently ruled that the Information was duplicitous in light of the particulars given. 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 advised the police prosecutor that the trial would not continue unless the Information was amended or substituted for another. His Honour granted an adjournment to the next morning to allow the prosecution to consider its position.
On 21 February 2007, the police prosecutor advised the Court that the prosecution would not amend or replace the Information, but would rely upon it as originally laid. The police prosecutor also tendered a second set of particulars which were admitted as Exhibit P2. These particulars provide as follows:
Prosecution allege that both Defendants, 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 occasioned by a bite to the ear.
Specifically, prosecution allege that each defendant is responsible for each of the others [sic] actions.
It is further alleged that the following occurred, namely,
As to each defendant:
They both 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 the defendant WRIGHT
As to the deft’[sic] – CALDWELL:
As the victim fell onto WRIGHT this defendant jumped on the victim’s back and bit the victim’s ear.
As to the defendant – WRIGHT:
Whilst the deft’[sic] CALDWELL was still on the back of the victim, bitting [sic] his ear, this defendant managed to roll out from underneath the victim, stood up and kicked the victim to his right side.
The defendant CALDWELL was pulled off of the victim and
As to the defendant WRIGHT:
He punched the victim in the face several times.
The victim was then pulled away.
Prosecution Position:
Prosecution allege that each defendant is responsible for the actions of the other in respect to the assault on the victim vide a common purpose. Each had an intention to assault and each assisted each other in assaulting the victim by reason of some tacit understanding. Or alternatively by both assaulting the victim, at the same time, they were aiding and abetting the other.
Prosecution contends that it does not matter which defendants’ [sic] actions led to the infliction of the injury as long as each had the necessary intention to assault the victim.
Counsel for the respondents again asserted that the Information and the particulars were duplicitous. Counsel for Wright also submitted that the inclusion of an allegation of joint enterprise against Caldwell was an abuse of process, as this had not been apparent on the particulars given prior to trial.
The Magistrate again ruled that the Information was duplicitous. He said:
…It has become clear that the incident that caused the actual bodily harm was a bite by Caldwell. To maintain that charge against Wright, it is necessary for the prosecutor to allege a joint enterprise.
This has introduced a complexity, and in my view a fatal problem with the current information, because within the incident complained of there are separate incidents of punching, kicking and a bite and the prosecutor will maintain the position that if the bite cannot be proven, or there is a defence in relation to the bite, then I can still find the lesser charge of assault arising from the kicking and the punching and maybe against each defendant for the other’s activities. To do this he has to maintain that the assault is one transaction. Clearly it is not. There is a series of assaults here. The charge as laid, with the particulars given, is duplicitous and I dismiss the information.
The Magistrate also indicated that he rejected the argument regarding abuse of process.
Finally, the Magistrate delivered a ruling on costs, in which he made the following comments:
In the circumstances here, we spent two days and it has been my finding that the information and particulars could not work. I note that there is a background of particulars being given that were inconsistent between the two defendants and, until the present prosecutor came on the scene, prosecution seem never to have come to grips with the complexity of the prosecution position in relation to the joint charge of assault occasioning actual bodily harm.
Duplicity
The rule against duplicity dictates that no one count in an indictment should charge a defendant with having committed two or more separate offences. This rule rests upon “basic considerations of fairness, namely that an accused should know what case he or she has to meet”.[1] This is necessary to allow the defendant to decide how to plead to the charges, to consider the availability of any defences, and to clarify questions of admissibility of evidence. The rule also rests on considerations of the orderly administration of justice, which, as Gaudron and McHugh JJ noted in S v The Queen,[2] include the following:
A court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of a conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.
[1] S v The Queen (1989) 168 CLR 266, 284 per Gaudron and McHugh JJ.
[2] Ibid, 285.
Not only may an indictment be duplicitous on its face, but it may suffer from a “latent duplicity” where the prosecution case reveals that more than one alleged offence is relied upon to support one count in the Information or complaint. In determining whether a charge is duplicitous, the approach is that set out in the judgment of Lord Diplock in Director of Public Prosecutions v Merriman [1973] AC 584, where His Lordship said at 607:
The rule against duplicity … has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.
Further, in Walsh v Tattersall[3] Kirby J articulated the following indicia, which may assist a court in determining whether a charge is duplicitous:
Ultimately, what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. [footnotes omitted]
[3] (1996) 188 CLR 77, 108.
Submissions of Counsel
In this case, the acts alleged against the respondents included a push to the floor, punches to the face, a jump on the back, a bite to the ear, kicks to the right side, and more punches to the face. Ms Charlesworth argued that while these various physical acts could have each been charged separately as assaults, this does not of itself render the Information duplicitous. She submitted that the question of whether a series of blows should be regarded as a single assault or a series of separate assaults is a matter of fact and degree, to be determined by having regard to the circumstances and in particular the proximity of the blows in time and space.[4] Ms Charlesworth suggested that the blows in this case were so close in time that they were almost overlapping, and all occurred in the same location, so that the acts could be considered a single criminal transaction and charged as a single assault.
[4] Brinkworth v Dendy [2007] SASC 120.
In support of her argument, Ms Charlesworth referred to the case of Haskett v Police,[5] in which the defendant was also charged with one count of AOABH. In Haskett, the victim’s evidence was that the defendant had hit him on the head several times with a rock, and that he fell to the ground which caused his head to bleed. The victim said the defendant then hit or kicked him while he was lying on the ground. In finding the defendant guilty of AOABH, the Magistrate found that the defendant had kicked the victim in the head while he was lying on the ground, but was not satisfied that he had struck him on the head with a rock.
[5] [2005] SASC 174.
On appeal, Doyle CJ rejected the suggestion of latent duplicity, and said that:[6]
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 two 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 separate kick as a separate assault. It would be equally artificial to separate the blows from the kicks. In deciding whether a charge based on several acts occurring in the course of a single incident does give rise to latent duplicity, judgments of degree must be made. It is also relevant to consider whether the approach taken by the Prosecution is likely to be productive of unfairness or uncertainty at the trial. After considering all of these matters, and the relevant principles, I am satisfied that the Prosecutor was entitled to proceed as the Prosecutor proposed. This was, in substance, a single assault. [emphasis added]
[6] Haskett v Police [2005] SASC 174 [18].

However, as the Magistrate had not made a finding that the victim’s injuries were caused by the assault as proved, the Chief Justice allowed the appeal and substituted a conviction for the lesser offence of common assault. Ms Charlesworth pointed to this substitution as demonstrative of the ability to “fall back on” the uncharged offence of common assault where the harm element of AOABH is not proved.
Ms Charlesworth also distinguished the facts of the present case from those in Stratis v Police,[7] which counsel for the respondents relied on before the Magistrate. That case involved a single charge of AOABH arising from an incident in a nightclub. The defendant was alleged to have struck the victim a number of times whilst standing next to the bar, and then again while the victim was being carried to the bathroom. The evidence led made it clear that each of these blows was intended to be covered by the one charge. On appeal, Wicks J held that while the pushing and the punching of the victim at the bar should be treated as a single act of assault, the blow delivered whilst the victim was being carried away was sufficiently removed from the other acts to be regarded as a separate incident and should have been the subject of a separate count.
[7] [1998] SASC 686
Ms Charlesworth submitted that Stratis demonstrates that a plurality and a variety of blows does not automatically render a charge duplicitous, and that such blows may be considered a single assault unless sufficiently separated in time and place. She argued that it was contrary to logic to distinguish between the nature of the blows in this case, albeit that one blow could be identified as causing the harm. In this respect, Ms Charlesworth relied upon the judgment of Roberts-Smith JA in Gardner v Caporn,[8] with whom Steytler P and Wheeler JA agreed. In that case, the defendant was charged with AOABH, following an incident during which he was alleged to have pushed the victim, punched him three times, then punched or kicked him further while the victim was cowering under a window. One punch was alleged to have struck the victim between the eyes and caused his nose to bleed, another was alleged to have caused bruising to the left cheek. Various defences were raised on behalf of the defendant.
[8] [2005] WASCA 153.
In considering the appeal, Roberts-Smith JA said at [101]:
It cannot be the law that every single blow (or series of blows) in a continuous assault must be charged as a separate assault. That conclusion does not change because each blow causes a different injury to the victim. It may be that in a particular case, the first blow (which perhaps causes a disabling injury) is justified as being in self-defence or provocation but immediately succeeding blows causing further injuries are not. That possible outcome does not dictate the charging of them as separate assaults.
The Court held that the charge was not duplicitous. It found that there was one continuous assault, with no separation of time or intervening event. The Court also held that there was no uncertainty of conviction or injustice or unfairness to the appellant.
Mr Henchliffe argued that each of the cases referred to by Ms Charlesworth are distinguishable, because in none of those cases was the prosecution able to identify the individual act which caused the bodily harm. Mr Henchliffe submitted that, in fact, the issue in the present case did not arise in the authorities referred to because, in all but one of those cases, the prosecution was unable to particularise what act or acts caused the bodily harm. Mr Henchliffe says that the fact that the prosecution could and did particularise the act of biting which caused the harm, distinguishes this case from those relied upon by the appellant.
In support of these submissions, Mr Henchliffe relied on the decisions of The Queen v Chen[9] and Khouzame and Saliba.[10]
[9] (Unreported, Queensland Court of Appeal, Davies JA, Sheperdson and White JJ, 21 October 1997.)
[10] (1999) 108 A Crim R 170.
In Khouzame and Saliba two appellants were jointly charged with a single count of rape. The complainant gave evidence of three individual acts of penetration naming each appellant, save for the third act in which she could not identify a particular appellant. The appellants contended that there was latent duplicity within the indictment which, by the end of the prosecution case, was patent.
Kirby J wrote the lead decision, with whom the other members of the Court concurred. His Honour relied predominantly upon his own reasoning in Walsh v Tattersall.[11] In Walsh v Tattersall,[12] Kirby J indicated the ambit of the rule against duplicity:
…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 the separate charges.
[11] (1996) 188 CLR 77.
[12] (1996) 188 CLR 77, 112.
In applying that rule in the factual circumstances in Khouzame and Saliba[13] Kirby J decided that:
… the acts of “sexual intercourse” (as defined) by each accused were separate and distinct. They each had a beginning, and an end. There were differences between the various acts of penetration (penetration by means of the bottle, the insertion of the penis in the complainant’s mouth and penile penetration of her vagina).
[13] (1999) 108 A Crim R 170, 184.
In so concluding, Kirby J referred to a number of cases, including one which stated that individual penetrations may not necessarily be regarded as separate offences. His Honour also endorsed the approach taken in Eades[14] and stated that “[u]ltimately, what is presented is a question of fact and degree for decision in each case”.
[14] (1991) 57 A Crim R 151, 156.
Contrary to Mr Henchliffe’s submission, Khouzame and Saliba is not authority for the proposition that the mere presence of separate acts which may amount to an offence, one of which may be different in nature, and that act can be ascribed to a particular accused, requires that the acts be separately charged. The factual circumstances in Khouzame and Saliba are distinguishable from the circumstances in the present case. In this case the particulars of the offence identify actions which appear to be closely linked by time, place and are almost overlapping. Acts of penetration amounting to rape, are often interrupted in time,[15] or as Kirby J says, they have “a beginning and an end”.[16] It is all a matter of fact and degree.
[15] DPP v Merriman [1973] AC 584, 592, per Lord Morris of Borth-y-Gest.
[16] Khouzame and Saliba (1999) 108 A Crim R 170, 184.
I turn now to the case of The Queen v Chen.[17] In that case the accused was charged with assaulting two police officers. The assault of each officer was laid as a separate charge. With respect to one of the police officers it was alleged that the accused had pushed her in the chest, hit her on the nose and spat in her face. With respect to the second police officer the accused was alleged to have grabbed his genitals, spat on his face and spat on his hip. Save for the alleged spitting by the accused on the second officer which occurred whilst the accused was being taken to a police car, the other five acts of assault occurred inside the same room within a very short space of time.
[17] (Unreported, Queensland Court of Appeal, Davies JA, Shepherdson and White JJ, 21 October 1997.)
In deciding that there was latent duplicity, the Queensland Court of Appeal noted that although the actions which took place in a short period of time were of different kinds, no particulars were given. The Court considered other cases,[18] which held that actions constituted by continuing conduct or examples of acts such as a flurry of blows, may be regarded as one offence on the basis that there was “little practical advantage in separating them and no loss of fairness to an accused person in failing to do so”.[19] The Court of Appeal decided that the various alleged assaults differed in their kind, their quantity and quality and also different defences may be open to some but not others. Again it was repeated that:
Courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide in cases such as this and the question will always be one of fact and degree for decision in each case. [footnotes omitted]
[18] See Director of Public Prosecutions v Merriman [1973] AC 584, 592; R v Morrow and Flynn [1991] 2 Qd R 309, 312; R v Giretti (1988) 24 A Crim R 112.
[19] The Queen v Chen (Unreported, Queensland Court of Appeal, Davies JA, Shepherdson and White JJ, 21 October 1997).
Chen is not authority for the proposition that simply because offences are of a different kind, even though they may occur within a short period of time in the same locality, must necessarily be charged separately. Once again, it is a matter of fact and degree.
Turning now to the alleged conduct in this case.
The alleged conduct which the prosecution says constitutes the charge of AOABH appears sufficiently close in time and space, so as to be regarded as a single criminal transaction and therefore be charged as a single assault. Whilst it may be the case that only one of the alleged acts, namely the biting of the ear, could be identified as the act comprising the harm element of the charge of AOABH, I do not consider that this factor in of itself renders the charge duplicitous. As the decisions of Haskett and Gardner demonstrate, if the Magistrate in this case is not satisfied that the harm element of AOABH is proved, for example as a consequence of a lack of evidence or through the operation of a defence such as provocation or self-defence, then this would not prevent the Magistrate from finding the uncharged alternative offence of common assault proved.
Similarly, the fact that both respondents were jointly charged does not, in my view, cause a “fatal problem with the current information” as the Magistrate concludes. As Ms Charlesworth submitted, whether Wright is liable for the AOABH, depends on whether or not it can be established that there was a common purpose, or that he aided and abetted Caldwell. However, this would not automatically lead to an acquittal because he may still be liable as principal offender for the lesser alternative offence of common assault. In my view, this does not involve duplicity, because the prosecution is not seeking to rely upon a separate uncharged incident, but is rather using an alterative means of legal liability through the operation of the common law. Ultimately these are matters for the trial Magistrate based on all of the evidence.
In summary, given the absence of any finding by the Magistrate of any intervening circumstances, or interruption of time or space, as well as the apparent absence of any evidence or submissions on that point, I consider that the Magistrate’s finding that the actions did not amount to one transaction, is an error in characterisation.
I will now consider the second aspect relevant to the issue of duplicity, namely the question of fairness. As I mentioned earlier, the rule against duplicity also relies upon considerations of fairness, namely that a defendant is entitled to know what case he or she has to meet.[20]
[20] S v The Queen (1989) 168 CLR 266, 285.
In considering whether there has been or is a lack of fairness by reason of the respondents not knowing what case they have to meet, I consider that any lack of clarity has been rectified by the particulars set out in P2. Up until that articulation of particulars, there was a lack of clarity about the respondents respective cases on the topic of joint criminal enterprise. There is now no relevant lack of fairness. For all these reasons, I consider that the Information and the particulars in P2 do not disclose any latent duplicity and the Magistrate erred in finding otherwise.
Notices of Contention/Cross-appeal
Prior to the hearing of the appeal, Notices of Contention were filed on behalf of both respondents. As I indicated above, during the hearing before me it was submitted by Ms Charlesworth, and accepted by Mr Henchliffe, that the Notices of Contention are in fact cross-appeals, save for the contention as to costs. In each Notice, the respondents contended that the Magistrate should have ruled that the prosecution was an abuse of process, and either:
·refused to allow the prosecution to amend and/or proceed on the basis of particulars in P1 or P2, and instead ordered that the prosecution proceed on the particulars supplied prior to trial; or
·ordered that the prosecution be stayed until the prosecution agreed to proceed on the particulars provided prior to trial.
The Notices further contended that if the Magistrate did not have the power to make either of these orders, he should have ordered that the prosecution be permanently stayed. Finally, the Notices contended that the Magistrate should have awarded costs to the respondents because of the abuse of process.
Procedural matters
The Notices of Contention each state that they are “the alternative grounds the Respondent asserts the decision should be upheld on”. This is, of course, an appropriate terminology to use for a Notice of Contention. However, in this case the respondents seek additional remedies based on an alleged abuse of process by the appellant in the event that the appeal is allowed. Specifically, an order is sought that the Information proceed on the basis of particulars supplied prior to trial, rather than the amended particulars. Alternatively, the respondents seek an order that there be a permanent stay of the proceedings.
Overtly, these are not appropriate matters for a Notice of Contention, but they could potentially be the subject matter of a cross-appeal. The parties agreed that I could treat the Notices of Contention as cross-appeals. I consider this is an appropriate practical approach, and I will therefore treat the Notices of Contention as cross-appeals, save for one aspect of their content.
The current Notices of Contention submit an alternative basis upon which the Magistrate could have ordered costs on 21 February 2007, namely an abuse of process. This is in fact a supportive argument for the order for costs made by the Magistrate and is appropriately the subject matter of a Notice of Contention.
As a matter of practicality, I will treat each of the Notices of Contention as being a cross-appeal, rather than split the subject matter within the documents.
I now turn to whether the subject matter of the alternative orders sought can properly be the subject of appeal.
Ms Charlesworth submitted that neither of the two orders sought were appropriate grounds for a cross-appeal. In relation to the first order, it was submitted that there was no appealable judgment or order of the Magistrate, but instead at best, an interlocutory ruling which permitted the prosecution to further particularise as contained in P2. In relation to the second order, Ms Charlesworth submitted that the respondents had not previously requested a permanent stay of the proceedings and the Magistrate had not addressed that issue, nor made an order, or given any judgment which could be the subject of appeal.
Having perused the transcript, it seems that although the issue of abuse of process was raised, it was somewhat oblique and only in a context of the respondents’ arguments about particulars, and whether the prosecution should be permitted to proceed on P2. The Magistrate’s statement that “[h]e’s not getting up on the abuse of process argument, don’t waste effort on that”, cannot amount to a judgment or order which could give rise to an appeal. I agree with Ms Charlesworth’s submission that at best, this is an interlocutory ruling which is not appealable.
As to the second order sought, no application was made to the Magistrate in respect of a stay, and no order or judgment was given on this topic. In my view, there is no appealable order or judgment to found the cross-appeal on a permanent stay. However, rather than simply deal with the procedural matters relevant to the competency of the Notices of Contention, I will also consider the merits, as this is relevant to support an alternative basis for the costs order.
Abuse of process – relevant principles
On numerous occasions the High Court has articulated the guiding principles in relation to the exercise of a court’s power to prevent an abuse of process.[21] Frequently cited is the decision of the New Zealand Court of Appeal in Moevao v Department of Labour[22] where Richardson J said:
The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court. [emphasis added]
[21] See Jago v The District Court of New South Wales& Ors (1989) 168 CLR 23; Williams & Ors v Spautz (1992) 174 CLR 509.
[22] [1980] 1 NZLR 464.
Essentially, the question whether criminal proceedings should be permanently stayed on the ground of abuse of process should be determined by a weighing process involving a balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of a crime, and the need to maintain public confidence in the administration of justice. At the same time, the focus is on whether there is any misuse of court processes or employment of court processes for ulterior purposes. A stay is an extraordinary power and it should therefore be exercised cautiously. As Mason CJ said in Jago:[23]
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.
[23] (1989) 168 CLR 23, 34.
The above principles relating to the Court’s power to grant a stay for an abuse of process were cited with approval in Gray v Police.[24]In that case this Court held that a magistrate possesses the power to permanently stay proceedings. The Court concluded:[25]
The conclusion to be drawn from these statements of principle is that the Magistrates Court in South Australia has the power to permanently stay proceedings where the prosecution of a criminal proceedings will result in a trial that is unfair and an abuse of the processes of the court. The cases suggest that this power will only exercised sparingly where good reason exists.
[24] (2003) 85 SASR 1.
[25] Gray v Police (2003) 85 SASR 1, 7 [16].
Mr Henchliffe submitted that the above chronology demonstrates that the prosecution against Caldwell amounted to an abuse of process. In particular, Mr Henchliffe referred to the manner in which the prosecution failed to adequately particularise its case against Caldwell, then confusingly substituted particulars with lack of clarity as to whether joint enterprise was alleged against Caldwell. The prosecution finally “nailed its colours to the mast” on the tender of P2 on the second morning of the opening of the trial, being the third attempt at particularisation. It was submitted that the particulars provided in P2 represented a fundamentally different case to that initially presented. It was submitted that such a fundamental shift in the case against Caldwell was an abuse of process in the circumstances because he was not afforded proper notice of such a change, and had prepared his defence on the basis of the earlier particulars, namely those provided on 22 December 2006.

For similar reasons, Mr Henchliffe argued that the prosecution case against Wright amounted to an abuse of process. In particular, it was submitted that the prosecution’s failure to particularise its case against Wright on the basis of joint criminal enterprise, until six days before the trial, and aiding and abetting until after the trial had commenced, disclosed a manifest unfairness. Mr Henchliffe submitted that, like Caldwell, there was an abuse of process in the circumstances. It was suggested that the prosecution fundamentally altered its case against Wright, without notice at the start of the trial, when it had earlier provided written particulars of its case on 14 February 2007, and Wright had prepared his defence on the basis of these particulars.
In response, Ms Charlesworth argued that the case against the respondents was clear to them from both the particulars and the witness statements provided to them. She submitted that the content of these documents clearly outlined the prosecution case against the respondents, and that counsel for both respondents should have had no difficulty in understanding what case each of their clients had to meet. As a consequence, Ms Charlesworth submitted that no unfairness arose as a result of any uncertainty as to the prosecution case and, accordingly, the respondents had failed to demonstrate any fundamental defect going to the right of the trial which would justify the orders sought.
In my view, Ms Charlesworth’s submissions are correct. There were clumsy attempts by the prosecution to particularise its case, most probably due to the pressure of their workload. Although clarity was not achieved until a late stage, the factual basis of the alleged offence was disclosed at an earlier stage through the provision of the Information, the witness statements and later, the depositions. The factual basis disclosed in those documents remained largely unchanged, save for the additional fact of a kick alleged against Wright. This is not the case where a material fact has been omitted, or a new material fact has been added at a late stage, which could amount to unfairness, warranting a stay of proceedings. In the course of a criminal trial, experience suggests that the legal bases of an alleged offence may change from time to time. In the circumstances of this case, I do not consider that there has been an abuse of process and that the Magistrate should have ordered a stay.
Costs
In relation to costs, the Magistrate has made an order awarding both respondents the sum of $6,500. The basis of this order, as disclosed in His Honour’s ruling, relates to the circumstances and background in which the particulars were given. I do not consider that this order should be disturbed. Having regard to the unnecessary work undertaken by those representing the respondents as a consequence of the particulars process, I consider that the order was appropriate. I stress, however, that the costs order should be upheld on this basis alone, and not on any abuse of process argument.
Orders
For the aforementioned reasons, I make the following orders:
1. Appeal allowed.
2.The order of the Magistrate given on 21 February 2007 dismissing the Information is set aside.
3.The Information is to be remitted for hearing in the Magistrates Court before another magistrate on the particulars given in P2.
4.The Notices of Contention are dismissed.
5.In all other respects, the orders of the Magistrate are confirmed.