Police v TCB - [2004] SASC 306

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
POLICE v TCB
Judgment of The Honourable Justice White
29 September 2004
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
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
Police appeal from decision of Magistrate in the Youth Court - Respondent was charged with common assault, assault occasioning actual bodily harm and breach of a bond - Police alleged assault occasioning harm by hitting with bar - Uncertain whether victim's injury was caused by being hit with the bar, or by head hitting the ground during struggle - Magistrate upheld submission of "no case to answer" - Magistrate erred in finding no case to answer - Trial continued for common assault with bar - Respondent acquitted - Error in "no case to answer"ruling therefore of no effect - Impermissible for prosecution to rely on separate assault to which respondent admitted during trial - Verdict not unsafe - Disagreement between police and respondent as to whether a plea was taken to Count 1 - Issue resolved in favour of respondent - Both police and respondent agreed that no plea had been taken to Count 3 (breach of bond) - Magistrate erred in dismissing Count 3 before taking plea - Appeal allowed.
Youth Court Act 1993, s 22; Criminal Law Consolidation Act 1935, s 39, s 40; Young Offenders Act 1993, s 17, s 18, s 26; Summary Procedure Act 1921, s 27C, s 67, s 68, referred to.
Police v Slater (2003) 86 SASR 19; Police v Childs (2000) 76 SASR 425; R v Percali (1986) 42 SASR 46; Coulter v The Queen (1988) 164 CLR 350; Royall v The Queen (1990) 172 CLR 378; S v The Queen (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467, applied.
R v McLaren (1996) 189 LSJS 466; R v Perdikoyanis (2003) 86 SASR 262; Overall v The Queen (1993) 71 A Crim R 170; R v Bloomfield (1998) 44 NSWLR 734, considered.

POLICE v TCB
[2004] SASC 306
Appeal from the Youth Court
WHITE J
Introduction

This is an appeal pursuant to s 22 of the Youth Court Act 1993 from a decision of a Magistrate in the Youth Court, dismissing two counts of assault and one count of failing to comply with a bond.
The respondent was initially charged on an Information alleging one count of assault occasioning actual bodily harm. Following a pre-trial conference before a Judge, the prosecution filed a fresh Information which alleged that the respondent (then aged 15 years) had, on 21 July 2002, at Toorak Gardens:
“1.assaulted [the victim].

Section 39(1) of the Criminal Law Consolidation Act, 1935.
2.assaulted [the victim], a person above the age of 12 years with a metal bar to the head thereby occasioning him actual bodily harm.
Section 40 of the Criminal Law Consolidation Act, 1935.
3.failed to comply with an obligation entered into by him on the 8th day of March 2002 pursuant to Section 26 of the Young Offenders Act 1993.

Section 26 of the Young Offenders Act, 1993.”
The assault occasioning actual bodily harm alleged in Count 2 was said to have been constituted by the hitting of the alleged victim with a metal bar. The bar was identified as having come from a shopping trolley and was thus referred to at the trial as the “trolley bar” or “trolley pole”. It is convenient to refer to it in this judgment as the “trolley bar” and to refer to the victim of the alleged assault simply as “the victim”.
The victim alleged that he had been kicked in the lower back by the respondent as he was getting into his car, when leaving a party. He turned and remonstrated with the respondent. He alleged that he was then struck on his head several times with the trolley bar. He then fell to the ground and was struck again with the trolley bar. The victim denied that he had hit his head on the ground but admitted that he could not positively exclude the possibility of that having occurred. The doctor who treated the victim after the altercation for a laceration to his head said that it was consistent both with having been caused by a blow to the head and with the victim having fallen backwards and striking his head on the ground.
In his evidence at the trial, the respondent admitted to kicking the victim in the back, but denied hitting him with the trolley bar.
At the trial the conduct said to constitute the assault alleged in Count 2 was also relied upon for the offence of common assault. On appeal it was submitted that the kick to the victim’s back could also be relied upon for this purpose, and the Magistrate was in error, it was submitted, in failing to find Count 1 proven by reference to the kick.
The conduct alleged to constitute the breach of an obligation imposed under s 26 of the Young Offenders Act 1993 was the same conduct alleged in Counts 1 and 2.
The Proceedings in the Youth Court
At the trial on 5 January 2004, Ms Shaw QC appeared with Mr Allen for the respondent, and Sgt Lucas, a police prosecutor, appeared for the appellant.
The prosecution called three witnesses: the alleged victim and two of his acquaintances who claimed to have witnessed the alleged assault with the trolley bar. These witnesses (all teenagers) each gave accounts which differed in some respects of events at the party and of the circumstances of the alleged assault. The prosecution also called the police officer who had interviewed the respondent and tendered some documentary evidence.
At the conclusion of the prosecution case, Ms Shaw QC conceded that there was a case to answer in relation to “common assault” but submitted that there was no case to answer in relation to assault occasioning actual bodily harm. It was submitted that the prosecution could not exclude beyond reasonable doubt the possibility that the laceration (being the bodily harm relied upon) was caused by the victim’s head striking the ground rather than by a blow to the head from the trolley bar. The Magistrate accepted that submission. I will say more about this later. The Magistrate did say that he found a case to answer with respect to “common assault”. It is unclear from the transcript whether the “common assault” to which Ms Shaw referred was the assault alleged in Count 1, or the offence of common assault which was available as an alternative verdict to Count 2[1] or, in effect, to both. It is clear enough, however, that Ms Shaw was referring to an assault with the trolley bar and not assault by kicking.
[1] R v McLaren (1996) 189 LSJS 466 at 468; R v Perdikoyiannis (2003) 86 SASR 262 at 269 [42].
After the Magistrate’s rulings, Ms Shaw called the respondent and his brother to give evidence. The Magistrate reserved his decision.
The Magistrate delivered his judgment on 30 April 2004. He referred to a number of inconsistencies and conflicts in the evidence, and to the absence of any aspect of the demeanour of any of the witnesses which would cause him to doubt their veracity, and concluded that, as he could not be satisfied who, of the victim and the respondent, had wielded the trolley bar first, the prosecution had not proved beyond reasonable doubt “the charge of assault or assault occasioning actual bodily harm”.
When the judgment was delivered, some discussion occurred as to the conduct of the respondent in kicking the victim, which had been admitted by him. This led the Magistrate to publish some supplementary reasons, and it is convenient to quote them in full:
“After delivering judgment in this matter the prosecutor asked why I did not find [the defendant] guilty of common assault by kicking [the victim] in the back given that the defendant clearly admitted this during his testimony.
It was never my view that the prosecution charge of common assault related to the “kick”. The prosecutor did not refer to that in her opening, in fact at all times it was clear that the common assault related to the alleged striking with a trolley pole as an alternative charge to assault occasioning actual bodily harm.
The Court having found no case to answer on count two and the trial continuing on the common assault alone, the whole thrust of the prosecution’s cross-examination and later submissions related solely to whether or not the defendant struck [the victim] with the pole. Having failed to prove the common assault with respect to that event it is not open to the prosecution to point to another act of the defendant to satisfy the charge.”
The Magistrate then proceeded to dismiss counts 1 and 3.
The Appeal
The notice of appeal contains three grounds of appeal:
“1.That the learned Magistrate erred in proceeding to dismiss counts 1 and 3 on the Information without having complied with ss 67 and 68 of the Summary Procedure Act …
2.That the learned Magistrate erred in dismissing count 2 as charged in that he erred in finding no case to answer in relation to count 2 on the Information
3.In any event, that the learned Magistrate erred in proceeding to dismiss counts 1 and 3 on the Information in that the purported verdicts were unsafe, unsatisfactory and against the weight of the evidence.”
I will address each of these grounds in turn.
Sections 67 and 68 of the Summary Procedure Act
Section 17(1) of the Young Offenders Act provides, subject to some qualifications which are not presently relevant, that the Youth Court is to deal with a charge in the same way as the Magistrates Court deals with a charge of a summary offence. Section 18 of the same Act 1921 provides:
“The procedure to be followed by and the powers of the Court on a trial of an offence are, subject to this Act, to be the same as for the trial of a summary offence in the Magistrates Court.”
Sections 17 and 18 therefore require compliance by the Youth Court with ss 67 and 68 of the Summary Procedure Act. Those sections provide:
“67. (1) When the defendant is present at the hearing the substance of the complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him (as the case may be).
(2) If the defendant admits the truth of the complaint, and shows no sufficient cause why he should not be convicted, or why an order should not be made against him, the court shall convict him or make an order against him accordingly.
68. (1) If the defendant does not admit the truth of the complaint the court shall proceed to hear—
(a)the complainant and his witnesses and any other evidence which he adduces in support of his complaint; and
(b)the defendant and his witnesses and any other evidence which he adduces in his defence; and
(c)any evidence which the complainant adduces in reply if the defendant adduces any evidence other than as to his, the defendant's, general character.
(2) Subject to the provisions of section 12 of the Evidence Act 1929 every witness shall be examined upon oath.
(3) The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the court in reply, or otherwise, shall be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action.”
This Court has held that the effect of ss 67 and 68 is that, absent a successful objection to the form of the complaint and absent consent, it is not open to the Magistrates Court to dismiss a complaint before a plea is taken.[2]
[2] Police v Slater (2003) 86 SASR 189; Police v Childs (2000) 76 SASR 425.
The effect of these provisions is that the Youth Court is not entitled, in the circumstance of cases such as the present, to dismiss any of the counts on the information without having taken a plea. Ms Nelson QC, who appeared for the respondent on the appeal, sought to avoid that conclusion by reference to ss 27C and 62 of the Summary Procedure Act. Section 27C is concerned with the defendant who has been served with a summons and who neither appears nor makes use of the procedure which enables a plea of guilty to be entered without appearance in court. Section 62 of that Act specifies the Court’s powers where a defendant fails to appear in obedience to a summons, and includes the power, in some circumstances, to proceed ex parte.
In my opinion, neither of those provisions is applicable in the present case.
In this case, the respondent did appear and was represented by counsel. There was accordingly no occasion for the application of ss 27C or 62. Further, neither ss 27C nor 62 has the effect of qualifying the operation of ss 67 and 68, nor do they undermine the correctness of the decision in Police v Slater. Section 67 has application, as it says, when the defendant is present at the hearing. Section 68 operates together with s 67. These two sections are to be read together, specifying steps to be followed in sequence when a defendant appears at the hearing.
I conclude therefore that the Magistrate was not entitled, in this case, to dismiss any count without having taken a plea.[3]
[3]It was not submitted that the agreement that the fate of Count 3 depended upon the fate of Grounds 1 and 2 constituted a consent to Count 3 being dismissed once Counts 1 and 2 had been dismissed.
A Plea to Count 1
The Youth Court file records that on 5 January 2004, a plea of not guilty was entered to all counts. The reasons of the Magistrate published on 30 April 2004 record the same fact.
However, in an affidavit sworn 29 June 2004, which I received on the hearing of the appeal, Sgt Lucas deposes to a plea having been entered on Count 2. The implication from her affidavit is that pleas were not taken on Counts 1 and 3. Mr Allen has deposed in his affidavit sworn 20 July 2004 that the respondent did not enter a plea to Count 3 as that matter was not listed to proceed to trial on 5 January 2004. The implication from his affidavit is that a plea was entered to each of Counts 1 and 2. Somewhat curiously, neither deponent deposes directly to the topic of whether a plea was taken to Count 1, notwithstanding that that was a critical issue in relation to Ground 1 on the appeal.
In summary, the Magistrate believed that a plea of not guilty had been entered to Count 1. Mr Allen appears to confirm that fact whereas Sgt Lucas contradicts it. Both Sgt Lucas and Mr Allen believe that the Magistrate is incorrect in stating that pleas were taken to all three counts.
The reliability of the Magistrates Court file as a contemporaneous record is undermined by the fact that the notation that the plea of not guilty related to all counts was written in a different colour from the original notation of the entry of the plea of not guilty, thereby suggesting that it was made at a later time. Although the proceedings were taped, the tape of the commencement of the hearing on 5 January 2004 is not available. I was not asked to receive any oral or other evidence to assist in resolving the conflict in the evidence as to whether a plea to Count 1 was taken.
In the absence of agreement, it is the appellant who must establish the fact necessary for Ground 1 to be made out, viz., that there was no plea taken to Count 1. The conflict in the respective affidavits as to what happened at the trial cannot be resolved on the papers. In the circumstance that both the Magistrate and Mr Allen believe that a plea was taken, I cannot be satisfied that Sgt Lucas is correct in what she says on this topic. The fact that the trial proceeded with respect to common assault after it was found that there was no case to answer on the count alleging assault occasioning actual bodily harm lends some support to that conclusion. I add that my conclusion on this topic is not to be understood as indicating any doubt on my part as to the honesty or sincerity of Sgt Lucas’ statement of her belief as to what occurred.
Insofar as it relates to Count 1, Ground 1 of the Notice of Appeal is not made out. I accept however that Ground 1 is made out in relation to Count 3. In the light of the agreement of Sgt Lucas and Mr Allen that no plea was taken in relation to Count 3, the Magistrate must be mistaken in his understanding that a plea was taken in relation to all counts, including Count 3.
Count 2: The Finding of No Case to Answer
As noted above, the Magistrate found that there was no case to answer on the charge of assault occasioning actual bodily harm because, on the prosecution evidence, the possibility that the injury to the victim’s head was a result of his head striking the ground could not be excluded.
In my opinion, the Magistrate’s conclusion in this respect was reached erroneously, but as will be seen below, it is an error which does not have a practical consequence.
To make out the offence of assault occasioning actual bodily harm, the prosecution had to prove an intention by the respondent to apply unlawful force to the victim, ie, to commit an assault, the application of such force, and that actual bodily harm resulted from the assault.[4] It was not necessary to establish an intention to cause bodily harm itself, let alone the bodily harm actually suffered.[5] The test as to whether bodily harm has been occasioned by the assault is entirely objective.[6]
[4]        R v Percali (1986) 42 SASR 46.
[5]        Coulter v The Queen (1988) 164 CLR 350.
[6]        R v Percali (1986) 42 SASR 46 at 47.
On the prosecution case, the fall of the victim to the ground was a consequence of blows from the respondent. There was evidence to support that conclusion. That is to say, it would have been open to a trier of fact to conclude that it was the blows to the head, and action taken by the victim to avoid them, which caused his fall rather than the fall being caused by an unrelated event. It did not matter therefore, in my opinion, whether the wound suffered by the victim was caused directly by one of the blows, or by his head striking the ground when he fell. Both the fall, and the hitting of the head on the ground, were natural consequences of the assault.[7] The assault constituted by the blows to the victim’s head, if established, could be said, in these circumstances, to have “occasioned” the actual harm in fact suffered. Thus, in my opinion, even if the wound was caused by the victim’s head striking the ground the prosecution evidence still established a case to answer.
[7]Royall v The Queen (1990) 172 CLR 378. See also Overall v The Queen (1993) 71 A Crim R 170; R v Bloomfield (1998) 44 NSWLR 734.
It was not argued before the Magistrate, or on appeal, that Count 2 would have been bad for duplicity if the actual bodily harm alleged could have been caused either by a direct blow to the head, or the head striking the ground following a fall, caused by the blow to the head. I doubt that the charge would have been defective in this way. The blows to the head, and the fall to the ground, all occurred as part of the one incident. The issue was whether, as a matter of objective fact, harm had been caused by the assault alleged. However, it is unnecessary to express a concluded view.
There may be a further question as to whether the possibility of the harm having been caused by the head striking the ground was outside the particulars alleged in the opening of the prosecution case. This was not canvassed before me either.

Even though I consider that the Magistrate was in error in finding that there was no case to answer on Count 2, I consider that that error is of no practical significance given the events that have happened. Having held that there was no case to answer in relation to Count 2, the Magistrate proceeded to hear the defendant’s evidence in relation to common assault. It is plain from the evidence led, the prosecution’s cross-examination and the final submissions of the parties that the action of the respondent said to constitute the common assault was the striking of the victim by the respondent with the trolley bar. Having heard all the evidence, the Magistrate was not satisfied that the respondent had assaulted the victim in this way. Accordingly, even if the Magistrate had not accepted the submission of no case to answer, it is inevitable on his findings that he could not have been satisfied that the charge of assault occasioning actual bodily harm was proven. In fact, as noted above, the Magistrate found, “I am not satisfied beyond reasonable doubt that the prosecutor has proved the charge of assault or assault occasioning actual bodily harm. I am not able to reach a conclusion as to who wielded the pole first, that is, whether [the respondent] struck [the victim] with it or [the victim] attempted to strike [the respondent].” Given the finding of no case to answer on Count 2, the Magistrate’s statement of conclusion with respect to the charge of assault occasioning actual bodily harm was superfluous, but it does illustrate that even absent that finding, Count 2 would, in any event, have been dismissed.
Accordingly, although I think the Magistrate made the error alleged by the appellant in Ground 2, I do not think that the appeal should be allowed on that account.
Ground 3: Unsafe and Unsatisfactory Verdicts
Ground 3 alleges that the verdicts of the Magistrate dismissing Counts 1 and 3 were “unsafe, unsatisfactory and against the weight of the evidence”. An appeal by the prosecution against an acquittal on the ground that the verdict was “unsafe and unsatisfactory” is remarkable.
This ground of appeal was argued in two ways. First, it was submitted that I should conclude, on a review of all the evidence regarding the incident involving the trolley bar, that the only reasonable conclusion open to the Magistrate was that the charge had been proved beyond all reasonable doubt. I propose to deal with this submission quite shortly. In my opinion it is unsustainable. The Magistrate had differing accounts of relevant events from several witnesses, each of whom he regarded as credible. Despite the prosecution criticisms of the evidence of the respondent and his brother, it cannot be said that their evidence had to be rejected. Their accounts were consistent with the respondent’s innocence. In those circumstances it cannot be held, on appeal, that the verdict was unsafe or unsatisfactory.
It was not submitted that the Magistrate had failed to carry out his task as a trier of fact in an appropriate way.
The appellant submitted, in the alternative, that the Magistrate was in error in not finding Count 1 proved beyond all reasonable doubt in view of the admission by the respondent that he had kicked the victim in the back.
In my view, the submission should be rejected.
In his supplementary reasons quoted above, the Magistrate recorded that the prosecution opening had made clear that the conduct relied upon as constituting “the common assault” was the alleged striking of the victim with the trolley bar. This was confirmed by Mr Allen in his affidavit and was not contradicted by Sgt Lucas in her affidavit. Given that the Information contained only one count of common assault, the Magistrate’s reference to what was said in the opening about “the common assault” should be understood as a reference to Count 1. As pointed out by the Magistrate in his supplementary reasons, following his conclusion that there was no case to answer on Count 2, the trial proceeded on the charge of common assault. It is apparent from the cross-examination of the defence witnesses, and from the transcript of the prosecution’s submissions, that it was the striking with the trolley bar which was relied upon for the offence of common assault. Further, the parties’ submissions to the Magistrate make it plain that neither understood that the kick was the conduct relied upon by the prosecution to make out Count 1. The incident involving the kick to the victim by the respondent was mentioned in only an incidental way. No submission was made to the effect that the elements required to make out Count 1 were established by the admission by the respondent of his kick to the victim.
In other words, the charge of common assault contained in Count 1 was an alternative to the charge of assault occasioning actual bodily harm alleged in Count 2. The conduct said to constitute the assault in each case was the same.
Where there are two or more separate acts capable of constituting the offence charged, the prosecution ought to particularise the specific act relied upon to make out the charge.[8] If the prosecution does not do this, the charge will be uncertain or duplicitous. Where, as in this case, the prosecution has particularised the conduct relied upon as constituting the charge, it is not open to the Court to find the charge proved by reference to different conduct.
[8] S v The Queen (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467.
In the present case, in my opinion, the conduct of the respondent in kicking the victim was separate and distinct from his conduct in striking him with the trolley bar. It occurred at a different time, being the incident which precipitated the altercation; it was a different physical act; it was delivered to a different part of the victim’s body; and it was the only act of its kind. It could not reasonably be regarded, in my opinion, as coming within the case which had been particularised in the prosecution opening.
Sgt Lucas referred, in her affidavit, to a belief that the respondent was intending to plead guilty to an assault constituted by the kicking. It appears that there may have been some informal discussions to that effect before the trial. But even if the respondent had indicated such a willingness, that did not permit a finding of guilt on the charge of common assault to be entered after the Magistrate had found that charge not made out on the allegations particularised by the prosecution.
If it was the act of kicking which was relied upon by the prosecution for the charge of common assault, the trial would have proceeded quite differently. For example, if the defendant was willing to plead guilty to the charge of common assault because of the kick, and that was the conduct relied upon by the prosecution, there would have been no need for the detailed evidence led by the defence after the finding of no case to answer on Count 2. The respondent’s plea to Count 1 could then have been dealt with straightaway, as could Count 3. Having chosen to seek to make out the charge of common assault by relying on the blows with the trolley bar, and failed, it was not open to the prosecution to rely, in the alternative, on a different set of facts to make out the same charge.
Accordingly, the Magistrate was correct, in my opinion, in rejecting the submission of the prosecution that a finding of guilty should be entered against the respondent on Count 1 in respect of the act of kicking the victim.
Ground 3 is not made out.
Conclusion
This means that the appeal succeeds on one point only, namely, that the Magistrate erred in dismissing Count 3 without a plea having been taken. Ordinarily the appellant’s success on that point would require the order dismissing Count 3 to be quashed and the matter to be remitted to the Youth Court. However, there does not appear to be much point to such an order given the agreement of the parties that the fate of Count 3 depended upon the fate of Counts 1 and 2.
Accordingly, I will hear the parties as to the appropriate order for the disposition of the appeal.