R v McFadyen

[1990] TASSC 31

Serial No 25/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v McFadyen [1990] TASSC 31; (1990) Tas R 114; A25/1990

PARTIES:  R
  v
  McFADYEN, James

FILE NO/S:  C53/1990
DELIVERED ON:  30 July 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  A25/1990
Number of paragraphs:  28

Serial No 25/1990
List "A"
File No C 53/1990

R v JAMES McFADYEN

REASONS FOR JUDGMENT  ZEEMAN J

30 JULY 1990

1. The applicant was convicted on his own plea of one count of causing a fire with intent to injure property contrary to s269A of the Criminal Code. The particulars of that crime were stated in the indictment in the following terms:

"JAMES McFADYEN at Hobart in Tasmania on or about the 16th day of December, 1989 unlawfully placed a combustible material, namely paper, in the fuel filler pipe of a motor vehicle for the purpose of causing a fire with intent to injure property namely a Holden Sedan registered number VA–0530 the property of Stuart Preston Wyatt".

1. Upon the applicant having been so convicted, his counsel made an application pursuant to s385A of the Criminal Code for an order that I hear and determine a number of complaints pending in the Court of Petty Sessions at Hobart.

1. Those complaints alleged the following matters against the accused:

Complaint 17899/89

A charge of stealing contrary to s234 of the Criminal Code Act 1924 (sic) the particulars of which were stated as being that the defendant was "charged with on the 25 November 1989 at Sandy Bay in Tasmania stealing Commonwealth Bank Notes to a total value of $115.00 the property of Richard Laughlan".

Complaint 17970/89

A charge of motor vehicle stealing contrary to s37B of the Police Offences Act 1935 which related to the same motor vehicle the subject of the indictment.

Complaint 18127/89

A charge of injuring property contrary to s37(1) of the Police Offences Act 1935 and which was particularised as being an allegation that the applicant "between 25th and 27th November, 1989, at Hobart in Tasmania, unlawfully [injured] property, namely one calculator, one telephone, one window and one pair of overalls the property of J Minty & Sons".

Complaint 18128/89

Two charges of burglary and two of stealing contrary to ss244 and 234 of the Criminal Code Act 1924 (sic) respectively. In each case the burglary alleged was that of the building at 92 Argyle Street the property of J Minty & Sons. The first of those crimes was alleged to have been committed between 25th and 27th November 1989 and the second on or about 13th December 1989. The charges of stealing related to those same dates. The first alleged the stealing of money and property of the approximate value of $60.30, and the other alleged the stealing of $7.00 in money, in each case being the property of J Minty & Sons.

1. The allegations of breaches of the provisions of the Police Offences Act 1935 are triable summarily and the breaches of s234 of the Criminal Code are prima facie triable summarily by virtue of the provisions of s71(1) of the Justices Act 1959. In respect of the alleged breaches of s244 of the Criminal Code, if the magistrate had proceeded under s72(1)(c) of the Justices Act, the applicant could have required those matters to be dealt with in this court. I was not told as to what, if anything, had occurred before the magistrate in respect of s72(1)(c).

1. However, the application proceeded upon the basis that all the matters charged by the various complaints constituted simple offences, as that term is defined by s3(1) of the Justices Act 1959, which definition is imported into s385A of the Criminal Code. In the light of the conclusions which I have reached, I do not pause to consider whether the allegations of burglary fall within that definition in the circumstances of this case.

1. The Crown agreed that the charge of motor vehicle stealing was one appropriate to be dealt with pursuant to s385A. I agreed and dealt with that matter accordingly.

1. I refused the application in so far as it related to the other complaints and indicated that I would publish my reasons at a later stage. The reasons which follow are those reasons.

1. Section 385A(2) is in the following terms:

"Where, in proceedings before a judge, a person is convicted or acquitted of a crime, the judge may, on the application of that person, hear and determine any complaint of a simple offence arising out of facts that are closely related to the facts alleged in the indictment or which are, or form part of a series of, offences of the same or a similar character to that of which the applicant has been convicted or acquitted, as the case may be".

1. At first blush it might be difficult to see as to how the matters charged by the complaints the subject of the application, to the extent that it was contested, fall within the ambit of this provision. However, counsel for the applicant submitted that they did.

1. As a starting point I need to consider the evidentiary material placed before me. I observe that the statutory requirements before the jurisdiction may be exercised must be satisfied by evidentiary material before the court. It is conceivable that the particulars of what has been charged may provide sufficient evidentiary basis upon which the Court could conclude that the discretion conferred by s385A(2) arises, but that is not necessarily so. Certainly in the present case those particulars standing by themselves are clearly insufficient. In any event, such particulars are always relevant.

1. The particulars may be supplemented by uncontroverted statements made by counsel from the Bar table andor other evidentiary material. In the present case, I was given certain factual information by counsel for the applicant, without objection from the Crown, in that I was told that the offence charged by Complaint 18127/89 was committed in the course of "one of the burglaries". I can infer from the particulars that the allegation is that it was committed in the course of the first matter charged by Complaint 18128/89. I was told nothing further by way of factual information.

1. It follows that the application falls to be decided upon the basis of the contents of the indictment, the contents of the complaints and what I was told by counsel.

1. As I understood the submissions of counsel for the applicant, he sought to establish a link between all matters by the following process:

1The crime charged in the indictment is in the nature of an unlawful injury to property.

2The offence charged by Complaint 18127/89 is a charge of unlawfully injuring property contrary to the provisions of the Police Offences Act 1935.

3That crime and that offence are therefore of similar character.

4The offence under the Police Offences Act was committed at the same time as the first two crimes charged by Complaint 18128/89, namely burglary and stealing, and in fact in the course of that burglary.

5That offence and those two crimes are therefore part of a series of offences.

6The other two crimes charged by Complaint 18128/89 are of a character similar to that of the first two and part of the same series.

7Complaint 17970/89 (with which I agreed to deal) charges the applicant with motor vehicle stealing and therefore is of a similar character to the crimes of stealing charged by Complaint 18128/89.

1. In this way, by using various of the provisions of s385A(2), counsel sought to link all the matters referred to in the complaints either directly or indirectly to the crime charged by the indictment. He submitted that it followed that there was a series within the meaning of s385A.

1. A complaint may be the subject of an order under s385A if it is a complaint of a simple offence arising out of:

(1)facts that are closely related to the facts alleged in the indictment; or

(2)facts which are a series of offences of the same or similar character to that of which the applicant has been convicted; or

(3)facts which form part of a series of offences of the same or similar character to that of which the applicant has been convicted.

1. Neither counsel referred me to any authority to assist in the construction of s385A(2), although in fairness to him, it might be observed that counsel for the Crown may not have had any adequate notice of this application. Neither counsel embarked upon any analysis of the provisions of the subsection. It may be thought that the subsection is rather inelegantly worded and mixes concepts when it talks about a simple offence arising out of facts which are, or which form part of, a series of offences.

1. Counsel for the applicant did not submit that any of the offences charged in any of the complaints arose out of facts closely related to the facts alleged in the indictment. He relied upon the alternative bases for jurisdiction under the subsection. Counsel for the Crown has submitted that the offences charged by the complaints were neither of the same or similar character nor did they constitute or form part of a series of offences.

1. To some extent, there is an over–lapping between the question as to whether or not offences are of the same or similar character and the question as to whether or not offences constitute or form part of a series.

1. In Ludlow v Metropolitan Police Commissioner [1971] AC 29 the House of Lords was concerned with r3 of Schedule 1 to the Indictments Act 1915 which was in the following terms:

"Charges for any offences ..... may be joined in the same indictment if those charges ..... form or are a part of a series of offences of the same or a similar character."

1. At p39 Lord Pearson said:

"In my opinion, however, it is important to notice that there has to be a series of offences of a similar character. For this purpose, there has to be some nexus between the offences. Counsel criticised the wording of passages in judgments appearing to say that there cannot be similarity of character without a nexus. But I think this criticism, if it has any validity, applies only to the wording, and not to the substance, because when regard is had to the requirements of a series of similar offences it is right to look for a nexus. Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series."

1. In R v Kray [1970] 1 QB 125, at 130, after holding that for the purposes of r3 of Schedule 1 to the Indictments Act 1915 two crimes might constitute a series, the court said:

"On the other hand, offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases."

1. The court then referred to Rv Clayton–Wright [1948] 2 All ER 763 where the accused was convicted upon an indictment charging four counts namely arson of a vessel, arson of the same vessel with intent to prejudice the insurer thereof, attempting to obtain money by false pretences from that insurer under a policy on the vessel and attempting to obtain money by false pretences from an insurer by falsely pretending that a mink coat had been stolen from his motor car.

1. In that case Lord Goddard CJ said, at p765,

"One test which the learned judge applied was to consider whether or not the evidence with regard to the mink coat could be given in evidence on the other charges. He came to the conclusion that it could, and in the opinion of the court he came to a right conclusion..... That was one ground, but the main ground on which the court holds that there was no misjoinder is the following. The charge contained in the first three counts, although the first count simply charges arson and not the attempting to get money, in substance was that the appellant fired the yacht with the idea of swindling underwriters. The charge with regard to the mink coat was a similar charge of swindling underwriters, and, therefore, one gets what I may call the nexus of insurance, the nexus of fraudulent acts to the prejudice of the underwriters going through counts 2, 3 and 4, and, in the opinion of the court, that is sufficient to uphold this indictment because it comes within the words of r.3,....."

1. R v Hatfield Justices, ex parte Castle [1981] 1 WLR 217 was a case dealing with a statutory provision more akin in purpose to s385A(2). It concerned s23 of the Criminal Law Act 1977, subs.(1) of which dealt with certain offences made triable summarily if the amount involved was small. Subsection 7 of that section was in the following terms:

"Subsection (1) above shall not apply where the offence charged –

(a)is one of two or more offences with which the accused is charged on the same occasion and which appear to the court to constitute or form part of a series of two or more offences of the same or a similar character....."

1. Waller LJ expressed the view that "Both of those requirements" (ie similarity in law and fact) "have to be present" before the subsection applied. Reference might also be made to the judgment of Ormerod LJ in re Prescott (1979) 70 Cr App R 244, at 245 (note)."

1. In my view, s385A(2) does not permit the creation of a series in the way counsel for the applicant submitted. Leaving aside the case of a simple offence which arises out of facts closely related to the facts alleged in the indictment, I conclude that a simple offence may not be dealt with by a judge under the subsection as forming part of a series unless the following requirements are satisfied:

1There must be identified a series of offences of the same or similar character.

2The crime of which the applicant has been convicted or acquitted on indictment must form part of that series.

3Each simple offence charged by complaint must also form part of that same series.

4For offences to be of the same character, they must be constituted by the same legal ingredients and be of the same character in fact.

5For offences to be of similar character, they must bear substantially the same character in law and real similarity in fact.

6Two or more offences may constitute a series, but before two or more offences can constitute a series for the purposes of the subsection, there must be present a nexus between those offences which in all the circumstances of the case enables the offences to be described as a series, such nexus certainly being established if the offences are so connected that evidence of one would be admissible on the trial of the other, although that is not the only basis upon which there may be a nexus.

1. For the reasons I have given, it is plain that none of the matters charged can attract the provisions of s385A(2). None bear the requisite degree of similarity. The offence of motor vehicle stealing does not have the legal ingredients of the crime of stealing. Whilst some of the matters charged may form part of a series, the crime charged by the indictment does not form part of such a series.

1. It was for these reasons that I dismissed the application to the extent that it was contested.