Thompson v DUFFIN - [2007] SASC 459

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THOMPSON v DUFFIN
[2007] SASC 459
Reasons for Decision of The Honourable Justice Sulan
21 December 2007
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE
Magistrates appeal on 17 grounds - appellant applied to Court for hearing and determination of one ground separately from and prior to the consideration of the remaining grounds - discussion of principles relating to determination of prelimnary points separately - application refused.
Summary Procedure Act 1921 s 181; Workers Rehabilitation and Compensation Act 1986 s 120(1), referred to.
Rogers v Maillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594; Windsor Refrigerator Co Ltd & Anor v Branch Nominees Pty Ltd (1961) 1 Ch 375, applied.
Johnson v Miller (1937) 59 CLR 467, discussed.
Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421; Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No 2) [2006] SASC 350; Rivers v Rivers (2002) 220 LSJS 74, considered.

THOMPSON v DUFFIN
[2007] SASC 459
Magistrates Appeal

SULAN J: Jeffrey Ian Thompson, the appellant, was charged with 95 offences, all of which were alleged to be breaches of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”). The charges alleged breaches of s 120(1)(c) and s 120(1)(a) of the Act. After a lengthy trial, he was convicted of 16 counts.
It is unnecessary to give particulars of the counts, save to say that each count of which he was convicted and each count of which he was charged, involved dishonest conduct on his part in making claims for benefits, and dishonest conduct on his part in making statements as to his medical condition. The offences were alleged to have been committed between 11 June 2002 and about July 2004.
The appellant has appealed against the convictions. There are 17 grounds of appeal which are particularised in a further Amended Notice of Grounds of Appeal, dated 12 November 2007. Again, it is unnecessary for me to particularise all of the grounds of appeal, other than to observe that many of the grounds raise issues of fact.
Ground 1 is as follows:
The Complaint dated 13 August 2004 was defective, and the defects could not be appropriately cured, and should have been dismissed by the Magistrate pursuant to S. 181(2)(b) of the Summary Procedure Act 1921. The Complaint was defective on the following grounds:-
1.1in respect of many counts (see paragraph 1.3 below) the Complaint did not identify the particular act relied upon for the purpose of the count but instead relied upon several statements or similar statements as the particulars for the offence;
1.2in none of the counts 1 to 69 inclusive was any statement made about how the statement under the heading “Particulars” was a “statement about a claim under this Act knowing the statement is false or misleading” within the meaning of S. 120(1)(c) of the Workers Rehabilitation and Compensation Act 1986 (S.A.) (the Act);
1.3in respect of: Counts 2 to 6 inclusive, Counts 7 to 23 inclusive, Counts 24 and 25, Counts 26 to 33 inclusive, Counts 35 to 48 inclusive, Counts 49 and 50, Counts 51 to 57 inclusive, Counts 58 to 60 inclusive, Counts 61 and 62, Counts 64 to 67 inclusive, and Counts 68 and 69, the same event, namely a consultation with a particular Doctor or other specialist on the one and same date is said to constitute the basis of each of the Counts;
1.4the same facts said to support Counts 1 to 69 inclusive were also said to be the factual basis (particulars) for Counts 74 to 82 inclusive and Counts 87 to 95 inclusive, being offences against S. 120(1)(a) of the Act. The offences created by ss. 120(1)(a) and 120(1)(c) of the Act are alternatives as is shown by the presence of the word “or” and the use of the words “an offence”;
1.5the Magistrate rightly identified that the same facts were said to give rise to two different sorts of offences and that the same was unfair to the Appellant;
1.6in respect to Counts 70 to 73 inclusive, the particulars identified were “the acts referred to in the general particulars of dishonesty paragraph 1 below”. The dates in Counts 70 to 73 inclusive, namely August 2001, November 2001, February 2002 and May 2002 do not correspond to the dates in the particulars in paragraph 1, which are 29 June 2001 and 17 July 2001;
1.7the “General Particulars of Dishonesty” were stated to be “in (sic) additional to the dishonesty alleged in the counts above” but did not identify which specific counts they were said to relate to;
1.8it is not part of the role of the Court to identify which particular piece of evidence is related to a particular Count in a Complaint;
1.9in all of the circumstances, the Appellant could not receive a fair trial because he could not know the case he had to meet in respect of particular counts and has been substantially prejudiced by the defective Complaint. (citations omitted)
Section 181 of the Summary Procedure Act 1921 provides:
181 – Charges
(1)An information or complaint is not invalid because of a defect of substance or of form.
(2)The Court may –
(a)amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b)dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
The appellant has applied for an order that the Court hear and determine the appeal in respect of Ground 1 before embarking upon the hearing of the further 16 grounds of appeal. The respondent does not dispute that the Court has the power to hear and determine one or more grounds of appeal before finally determining other grounds of appeal.
The appellant submits that the appeal is likely to occupy the Court’s time for a number of days because there are complex matters of fact and law which will have to be considered. The evidence is voluminous and the judge hearing the appeal will be required to read the evidence and consider a large number of exhibits if all the grounds of appeal are to be argued. The appellant submits that Ground 1 is within a narrow compass, and it would take approximately half a day to argue that ground. The appellant submits that if the Court determines Ground 1 in favour of the appellant, that would determine the appeal.
The appellant submits that Ground 1 is limited to the question of whether the Magistrate should have dismissed the complaint because it was defective in that it contravened the principles enunciated in Johnson v Miller.[1] The complaint of the appellant is that each charge did not sufficiently particularise or identify the transaction upon which the complainant relied.
[1] (1937) 59 CLR 467.
Counsel for the appellant submits that the complaints, on their face, are defective and cannot be cured by amendment, even at a very late stage of the proceedings. The complaint should have been dismissed at the outset or, at the very latest, at the end of the proceedings.
In Johnson v Miller, Dixon J said that a complainant:[2]
… should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised, not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.
[2] Ibid 489-90.
In considering the complaint, Evatt J said:[3]
… it charged a single offence in circumstances where it was impossible for the defendant to know what was the particular offence he was called upon to answer. Under sec. 181 what is a “reasonably clear and intelligible” statement of the offence depends upon the circumstances. In some cases what is a “reasonably clear” statement may depend on what action the prosecutor has already taken in relation to the prosecution. In the present case it is plain that the complaint was designedly left obscure, lest the defendant should obtain the very information which sec. 181 postulates as necessary.
[3] Ibid 496.
In considering the inherent power of the Court to dismiss the complaint, Evatt J said:[4]
It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him.
[4] Ibid 497.
The appellant submits that if the appeal is decided in favour of the appellant on Ground 1, then much time will be saved, as the Court will not be required to consider the other grounds, many of which allege factual errors on the part of the Magistrate.
The respondent submits that, in considering Ground 1, the Court will be required to consider and review the evidence. It is submitted that s 181(1) of the Act specifically provides that a complaint is not invalid because of a defect in substance or in form. In order to determine whether the complaint is defective and, if so, whether the defect is one of substance or merely one of form, it is submitted that the Court is required to have regard to the evidence. If the complaint is defective, the Court has power to amend the complaint if it considers that the defendant has not been substantially prejudiced by the defect. In order to determine that question, it is submitted that the Court is required to have regard to the evidence and the proceedings at trial.
If the Court to decided that there was a defect in the complaint, then the Court will be required to determine whether that defect can be cured by amendment and, if so, whether the appellant will suffer injustice if the complaint is amended. The appellant submits that, in order to determine that question, the Court will be required to review the trial evidence. It is submitted that it is not practical or in the interests of justice for the Court to consider the question separate from a consideration of the other grounds of appeal.
The principles
The Court has an inherent power to determine actions in stages.[5] The usual practice of the Court is to hear and determine all issues raised in an appeal at one hearing. It is only in exceptional cases that the Court will hear and determine one ground of appeal without finally determining all the grounds. A difficulty which arises if the procedure suggested by the appellant were followed, is that if the appellant were to be successful and the respondent was to appeal, a question may well arise in the appellate court whether the judge had finally determined the appeal. It is likely that the appellate court would refer the matter back to the judge for determination of all grounds of appeal.
[5] Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421.
The principles relating to applications for the determination of preliminary issues which raise questions of law only have been discussed in a number of decisions of this Court.[6] Although those decisions related to trials at first instance, it is clear that the procedure should not be adopted if there are outstanding questions of fact or factual disputes which need to be resolved.
[6] See Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594; Rivers v Rivers (2002) 220 LSJS 74; and Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No 2) [2006] SASC 350.
The preliminary point needs to be clearly defined. One of the factors to which the Court will have regard is whether the determination of the preliminary question will finally dispose of the proceedings. In Rogers’ case,[7] Walters J agreed with the observations of Lord Evershed MR in Windsor Refrigerator Co Ltd & Anor v Branch Nominees Ltd & Ors:[8]
I repeat what I said at the beginning, that the course which this matter has taken emphasises, as clearly as any case in my experience has emphasised, the extreme unwisdom – save in very exceptional cases – of adopting this procedure of preliminary issues. My experience has taught me (and this case emphasises the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round.
[7] Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594, 600.
[8] (1961) 1 Ch 375, 396.
Those observations are apposite in this case.
This case has had a lengthy and chequered history. I am not satisfied that, if I were to determine Ground 1, that would bring the proceedings to a satisfactory conclusion. Nor am I satisfied that Ground 1 can be determined without consideration of the underlying facts, some of which are the subject of dispute in the appeal. I am not satisfied that, if I were to order that Ground 1 be heard as a preliminary question that would ultimately result in any saving of time or costs.
The application is refused.