Wellington v Police

Case [2009] SASC 294

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

WELLINGTON v POLICE

[2009] SASC 294

Judgment of The Honourable Justice Kourakis

21 September 2009

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTATION - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY

Appeal against conviction - appellant found guilty of aggravated assault without harm - whether prosecution evidence disclosed two offences of assault - whether information and conviction affected by latent duplicity - whether appellant prejudiced in the conduct of her defence by the latent duplicity.

Held:  The prosecution evidence discloses two offences - the information and conviction are affected by latent duplicity and are bad for uncertainty - however, the appellant was not prejudiced by the latent duplicity - to remove the uncertainty in the conviction, it is necessary only to amend the information and conviction so that the conviction conforms with the reasons of the Magistrate - appeal against conviction otherwise dismissed.

CRIMINAL LAW - PROCEDURE - COSTS - POWER TO AWARD

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST DEFENDANT

Appeal against order by Magistrate for appellant to pay costs of prosecution by police prosecutor - costs include the costs of preparing the prosecution.

Held:  There is a power to order a defendant in summary proceedings to pay the informant's costs of preparation for trial by a lay person - that discretion miscarried - Magistrate failed to have regard to the principle that the costs of representation by a lay person should ordinarily be limited to the costs of the person's attendance in court, calculated by reference to the compensation payable to a lay witness for attendance - costs order set aside.

Criminal Law Consolidation Act 1935 s 20(3), s 20(4), sch 3, r 4; Summary Procedure Act 1921 (earlier known as the Justices Act 1921) s 29, s 49, s 51, s 70A, s 77, s 101, s 181, s 182, s 189; Legal Practitioners Act 1981 s 21; Magistrates Court Act 1991 s 49(1)(e); Magistrates Court Rules 1992 r 51, sch 1, referred to.
Walsh v Tattersall (1996) 188 CLR 7; Willing v Hollobone (1972) 3 SASR 532; Kelly v Noumenon Pty Ltd (1988) 47 SASR 182, applied.
Gardener v Caporn [2005] WASCA 153; R v Haskett [2005] SASC 174; R v Xu Dong Chen Unreported, Supreme Court of Queensland, Court of Appeal, Davies JA, Shepherdson and White JJ, 21 October 1997; Stratis v Police [1998] SASC 6886; Brinkworth v Dendy (2007) 97 SASR 416; Johnson v Miller (1937) 59 CLR 467; Tucker v Noblet [1924] SASR 326; Young v Allchurch [1927] SASR 185; S v The Queen (1989) 168 CLR 266; Moore-McQuillan v SA Police (No 2) [2000] SASC 69, discussed.
Romeyko v Samuels (1972) 2 SASR 529; Iannella v French (1968) 119 CLR 84; Brennan v Alexander [1932] SASR 237, considered.

WELLINGTON v POLICE
[2009] SASC 294

  1. KOURAKIS J:      The…

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Wellington v Police [2009] SASC 294
Case
[2009] SASC 294
Decision Date

CaseChat Overview and Summary

The case of Wellington v Police involves an appeal by the appellant against her conviction for aggravated assault without harm. The conviction resulted from an incident where the appellant was accused of assaulting her son, both in a schoolyard and in a car. The appeal raises questions about the nature and number of the offences charged, the clarity and precision of the legal documents, and the fairness of the costs order against the appellant. The court was required to determine whether the prosecution evidence disclosed two separate offences of assault, whether the information and conviction were affected by latent duplicity, and whether the appellant was prejudiced in her defence due to this duplicity.

The court found that the prosecution evidence indeed disclosed two separate offences of assault: one in the schoolyard and another in the car. The court determined that the information and conviction were affected by latent duplicity, which made them uncertain and, therefore, legally insufficient. However, the court also concluded that the appellant was not prejudiced in her defence by the duplicity, as she was able to mount a full defence against both alleged assaults. To address the uncertainty in the conviction, the court decided that it was necessary to amend the information and conviction so that they aligned with the reasons given by the Magistrate. Despite the issues with the conviction, the court dismissed the appeal against it, except for the need to amend the information and conviction as suggested.

The court also examined the appellant's appeal against the order that she pay the costs of her prosecution. The Magistrate had ordered the appellant to pay the costs of the prosecution, which included the costs of preparing the case by a police prosecutor. The court considered whether there was a power to order a defendant in summary proceedings to pay such costs and concluded that, while such a power might exist, the exercise of this discretion in this case had miscarried. The court found that the Magistrate had not properly considered the principle that the costs of representation by a lay person should ordinarily be limited to the costs of that person's attendance in court. The court also noted other circumstances that made the award of costs unreasonable. Consequently, the court set aside the order for costs and declined to make any alternative order for costs in place of the one that it set aside.

The final orders of the court were to allow the appeal to make the necessary amendment to the information and conviction, to set aside the order for costs, and to dismiss the appeal against conviction otherwise.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant also appeals the order of the Magistrate that she pay the costs of her prosecution by a police prosecutor. Those costs appear to include the costs of preparing the prosecution case. I would set aside the order for costs. I am prepared to assume that there is a power to order a defendant in summary proceedings to pay the informant’s costs of preparation for trial by a lay person. On the assumption that there is such a power, I have concluded that the exercise of that discretion has nonetheless miscarried. The Magistrate failed to have regard to the principle, which remains sound notwithstanding the rules of court made under the Magistrates Act 1983, that the costs of representation by a lay person should ordinarily be limited to the costs of that person’s attendance in court calculated by reference to the compensation payable to a lay witness for his or her attendance. I have also concluded that there are other circumstances which render the award of costs in this case unreasonable. I explain my reasons further below.The evidence The evidence of the prosecution witness Mrs Hillman who saw the appellant’s conduct both in the schoolyard and at her car is summarised in the following paragraph of the Magistrate’s Reasons:The first witness called by the prosecution was Mrs Hillman. She was parked in her car in the street adjacent to the concrete paved area between the classroom block and the cyclone mesh fence erected along the school boundary. She had a clear view of the child and the defendant from the time that they came around the corner of the school building. She was attracted by the loud voices of the unhappy child and the angry mother. She saw the defendant hit the child at least twice with closed fist to the upper part of his head – the forehead area. She noticed that the defendant was holding the child’s clothing at the shoulder with one hand whilst she punched him with the other. She was swearing at him at the time. She noticed a child crouching in apparent fear while the mother held the child by the shoulder with the left hand and hit with the other. The defendant left the child there and walked to her car. She returned and remonstrated with the child. She told him he could stay there. She walked to the car again and returned again. She grabbed hold of him and dragged him about 6 metres. She then saw the defendant push the child into the rear passenger side door of a car which was parked a short distance away in the school car park. She saw the defendant punching at the child while standing beside the door of the car. She was not 100 per cent sure that the blows connected but thought that a couple of blows did connect. … [3][3] Reasons of Magistrate Field, 16 April 2009, at [5]. The appellant gave evidence and denied that she had punched her son in the schoolyard or in the car.One assault or two? The question whether the evidence discloses one or two offences necessarily involves matters of fact and degree.[4] In Walsh v Tattersall,[5] after surveying a number of authorities, Kirby J enumerated the following indicia of a single offence: the connection of the events in point in time; the similarity of the acts; the physical proximity of the place where the events happen; and the intention of the accused throughout the conduct. The application of those indicia to the facts of any particular case requires a practical judgment to be made.[4] Brinkworth v Dendy (2007) 97 SASR 416 at 422, [23] per Doyle CJ; Walsh v Tattersall (1996) 188 CLR 77 at 108 per Kirby J; Haskett v Police [2005] SASC 174 at [18].[5] (1996) 188 CLR 77.

Decision

Reasons for decision

It is on the basis of that last mentioned consideration that I would decline to make any order for costs in place of the order which I hereby set aside.Conclusion I allow the appeal only to make the amendment to the information and conviction referred to in [51] and to set aside the order for costs.

Ratio Decidendi

Legal Principle Established

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