Wellington v Police - [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

KOURAKIS J: The appellant was charged on information in the Magistrates Court that on 24 June 2008 at Davoren Park she intentionally applied force and thereby caused harm to her five year old son, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (the Act). The offence was alleged to be an aggravated offence both because the victim of the offence was her son and because he was under the age of 12. The Magistrate was satisfied beyond reasonable doubt that the appellant assaulted her son but was not satisfied that she had caused him actual harm. He accordingly amended the information to allege an aggravated assault without harm contrary to s 20(3) of the Act and convicted the appellant of that offence.[1]
[1] The common law would allow a jury to return a verdict on s 20(3) of the Act if the appellant had been tried on indictment for an offence against s 20(4) of the Act. It would be surprising if the Magistrate’s power to amend did not extend to allow a similar result. No issue has been taken before me as to the power of the Magistrate to do so or whether, if he were so empowered, it was appropriate to do so.
The prosecution case was that the assault occurred when the appellant went to her son’s school to pick him up at the end of the school day. The evidence led by the prosecution was that the appellant punched her son in the forehead twice whilst in the schoolyard. The appellant then paced several times between her son and her car which was parked about six metres away. According to the prosecution evidence the appellant then either pushed, dragged or carried her son to the car and forced him into the rear passenger seat where she again punched him.
The Magistrate found that “the evidence of the prosecution witnesses with respect to the incident at the back of the defendant’s motor vehicle falls short of proving any deliberate blow by the defendant to her [son]”.[2] However, the Magistrate was satisfied beyond reasonable doubt that the defendant punched her son “twice to the forehead in the schoolyard between the classroom block and the school boundary fence”.
[2] Reasons of Magistrate Field, 16 April 2009, at [16].
The appellant contends that the prosecution evidence disclosed two offences of assault. The appellant complains that the count with which she was charged therefore suffered from latent duplicity and that the conviction on that count should be set aside.
For reasons which I explain in greater detail below I have come to the following conclusions. First, the appellant’s contention that the prosecution evidence disclosed two offences and that the information and conviction are therefore affected by latent duplicity, or perhaps more accurately, uncertainty, should be accepted.
Secondly, notwithstanding my first conclusion, in the circumstances of this case the appellant was not prejudiced in the conduct of her defence by reason of the latent duplicity; the evidence of both incidents was cross admissible and the close temporal and physical proximity between the incidents was such that the appellant was not embarrassed in the presentation of her defence.
Thirdly, even though the conviction itself leaves uncertain the particular conduct which constitutes the offence in this case, that uncertainty is effectively removed by the reasons of the Magistrate. Therefore, it is necessary only to amend the conviction and information to remove that uncertainty so that the conviction conforms with the reasons of the Magistrate. The amendment I would make is to specify the offence as being the incident in the schoolyard. The appeal against conviction should otherwise be dismissed.
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.
Charges are commonly particularised by reference to the actus res. The particulars give notice of the alleged conduct of the defendant and when and where that conduct took place. In the case of an assault the actus res is the application of force.[6] If a narrow view were taken of the meaning of the words “applies force” then every blow struck would be a separate and discrete offence. However, such an approach is obviously impractical. In Gardener v Caporn,[7] Robert-Smith JA said:
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.[8]
[6] Criminal Law Consolidation Act 1935 s 20.
[7] [2005] WASCA 153.
[8] Gardener v Caporn [2005] WASCA 153 at [105]. See also Haskett v Police [2005] SASC 174 and Police v Caldwell (2007) 172 A Crim R 468.
Nonetheless each count of assault can only charge a single offence. There are necessarily limits to the conduct which can be described as a single application of force and which, for that reason, can be included within a single count. Because the actus reus of assault is the application of force the relevant question is therefore whether the indicia identified by Kirby J in Walsh allow a conclusion that there has been a single application of force, even though many blows were struck. If the question is so framed, the different conclusions reached on the particular facts and circumstances of different cases can be better understood, even if they cannot always be reconciled.
The charge in R v Haskett[9] arose out of a road rage incident in which the defendant hit the occupant of another car with a rock as he bent down to pick up a licence from the ground and then hit and kicked him again as he lay on the ground. It was argued in Haskett that the blows to the head constituted one offence and the kicks another. Doyle CJ held that all of the blows “were part of one course of conduct and constituted what any reasonable person would regard as a single incident”.[10] I would respectfully add that the same conclusion could be expressed, by reference to the relevant element of the offence, as a conclusion that the defendant’s course of conduct could be regarded as a single, although protracted, application of force.
[9] [2005] SASC 174.
[10] Haskett v Police [2005] SASC 174 at [18].
A broad view was also taken by the West Australian Court of Appeal in Gardner. In that case the defendant fell upon his victim in the passageway of a home and struggled with him from there into a spare bedroom where they struggled against each other and fell in and around the room. In the course of the struggle the defendant punched his victim at every opportunity. Although the defendant may have been charged with assault with respect to any number of individual punches and other conduct, the Court of Criminal Appeal held that there “was a continuous event, albeit comprising a number of different acts” (emphasis added).[11] In my respectful opinion, the time and space over which the attack ranged and the many ways in which the force was applied might well have led to the conclusion that there was more than a single application of force, or single battery, but for the fact that there was no interruption or letup in the defendant’s attack.
[11] Gardener v Caporn [2005] WASCA 153 at [131].
A narrower approach was taken by the Queensland Court of Appeal in R v Xu Dong Chen.[12] In that case the Court found that multiple assaults were committed even though all of the blows were inflicted within a matter of minutes and in the course of a single continuous struggle. The reasons of the Queensland Court of Appeal show that the conclusion in that case was influenced by the different nature of the individual acts which were alleged to constitute the discrete offences and by the fact that some defences were open to some of the acts and arguably not open to others. It was also a feature of that case that the evidence in support of the different acts came from different witnesses. The Court of Appeal quashed the convictions observing that “it was impossible to say what the jury found proven”.
[12] Unreported, Supreme Court of Queensland, Court of Appeal, Davies JA, Shepherdson and White JJ, 21 October 1997.
In Stratis v Police,[13] a summary conviction for assault occasioning actual bodily harm was set aside on appeal to this Court on the ground that the complaint was bad for latent duplicity. In that matter the defendant was found to have punched the victim to the chest and face on several occasions in a nightclub, causing him to collapse to the floor. A friend of the victim intervened and dragged him away to the toilet. Evidence was given that whilst the victim was being carried away he was struck again on the right side of the face. The Magistrate was not satisfied beyond reasonable doubt that it was the defendant who struck the victim on that occasion. Stratis’ counsel at trial had taken objection to the complaint on the ground of duplicity and asked that the Magistrate call upon the prosecution to elect. The Magistrate refused to so order. On appeal Wicks J was satisfied that the count charged on the information was intended to include both the attack which floored the victim and the further blow struck on the way to the toilet. The conviction was set aside because the case was “an instance of latent duplicity”. Wicks J did not identify any relevant prejudice which the appellant had suffered, presumably because he thought it unnecessary to do so. Nor did Wicks J consider whether, having regard to the Magistrate’s finding, the conviction might properly be amended on appeal to remove the ambiguity. In my respectful opinion, without resolving both issues in favour of the appellant, an order quashing the convictions could not properly be made.
[13] [1998] SASC 6886.
It is worthwhile repeating that in considering the authorities to which I have referred, it must be remembered that they decide issues of fact and not questions of law, and that the issue of fact, where an assault is charged, is whether the evidence discloses one or more applications of force.
The connection I have made between the practical judgment that the Court must make about the number of offences comprised in a single count and the construction, and application, of the actus reus of the offence itself can be illustrated by brief references to other offences. I think, for example, that a narrower view must be taken of conduct that can properly be encompassed within a single count of causing harm[14] than has been taken in the cases of simple assaults to which I have referred. I think that that follows because of the additional element of actual harm. It is more difficult to say, for example, that a broken nose caused by a fist is the same harm as a wound to the abdomen caused, even very shortly thereafter, by stabbing with a knife.
[14] Criminal Law Consolidation Act 1935 s 23.
Using another example, in the case of offences of theft or robbery where a number of items of property are unlawfully dealt with, the question is whether it can be said, as a matter of fact, that there was just a single “dealing”, although a number of items of property were unlawfully dealt with at about the same time.[15] So too in Brinkworth v Dendy,[16] this Court held that there was no duplicity on the face of an information that charged unlawful clearing of native vegetation even though the count alleged the removal or destruction of more than one tree; the actus reus of that offence, “clearing”, was capable of referring to the destruction of more than one tree.[17]
[15] Criminal Law Consolidation Act 1935 s 134.
[16] (2007) 97 SASR 416.
[17] Brinkworth v Dendy (2007) 97 SASR 416 at 423-424, [30]-[34].
Application to the evidence of Mrs Hillman
The separation in time, space and circumstances between the force applied in the schoolyard and the force used in the car is in my view too great to permit a finding that there was only one application of force. Applying the indicia identified by Kirby J in Walsh, it can be accepted that there is some connection between the blows alleged in the schoolyard and those in the car. However, they were separated by a not insignificant period of time and they occurred in different, albeit physically close, locations. After the appellant punched her son in the schoolyard, she stopped and paced between the car and her son in apparent despair and indecision about what to do next. Not only was there an interruption in the application of force, the appellant was obviously undecided about what, if anything, to do next. When she returned to her son she either carried or dragged him to the car. It was not suggested that that force was unlawfully applied. In my view the subsequent punches struck in the car, if that evidence were accepted, could not be described as the same application of force that took place in the schoolyard. It is, I think, no accident that the Magistrate referred in his reasons to two incidents, one in the schoolyard and one in the car. It is the most natural way in which to describe the events.
The nature and consequences of duplicity

The basic rule is that a complaint, information or indictment must not be “double”. No single count in a criminal proceeding should charge the defendant with committing two or more separate offences.[18]
[18] Brinkworth v Dendy (2007) 97 SASR 416 at 423, [25].
Section 49 of the Summary Procedure Act 1921 provides that where a person is suspected of having committed a summary offence a complaint may be made in accordance with the rules charging that person with the offence. A complaint includes a charge of a minor indictable offence if heard summarily.[19] Section 101 of the Summary Procedure Act 1921 makes similar provision for informations.
[19] Summary Procedure Act 1921 s 54.
Section 51 of the Summary Procedure Act 1921 provides that a person may be charged with any number of summary offences in the same complaint if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character. Section 101 is the equivalent provision which applies to informations. The third schedule of the Criminal Law Consolidation Act 1935 provides that where more than one offence is charged in an information, they must be set out in separate paragraphs and the paragraphs (counts) numbered consecutively.[20] That rule must also be observed in the framing of complaints and informations in the Magistrates Court.[21]
[20] Criminal Law Consolidation Act 1935 sch 3, rule 4.
[21] Romeyko v Samuels (1972) 2 SASR 529.
A count which expressly alleges the commission of two offences is bad for duplicity. So too is a conviction on such a count. Such a conviction is said to be “double”. A count or conviction which alleges the commission of one or the other of two offences in the alternative, either expressly or by reason of latent duplicity, is bad for uncertainty.[22]
[22] Johnson v Miller (1937) 59 CLR 467 at 488-9 per Dixon J.
In Johnson v Miller,[23] Dixon J said:
What is the consequence of a complainant's declining to indicate which of a plurality of transactions covered by the complaint is that upon which the charge is based or upon which he relies to make out the charge? If in the absence of such an indication, whether it is expressed in an amendment, in particulars, or by election, the actual application of the complaint to the known or the alleged circumstances is so equivocal as to make it impossible to identify the occasion, transaction or occurrence to which it refers and distinguish it from other like occasions, transactions or occurrences indifferently answering the description contained in the complaint, then I think there is a defect in the complaint within the meaning of sec. 182. Although on its face the complaint may have appeared sufficient, yet when applied to the facts it is found to contain a latent ambiguity, and this, in my opinion, is a defect in particularity.
…
I am, therefore, of opinion that the learned magistrate was justified under sec. 182 in the course he took. But there is another reason for the conclusion that a complaint may be dismissed if it covers equally two offences which cannot be distinguished but cannot be heard together. It is that relied upon in Johnson v Needham, namely, that, where a complainant does not pursue one charge as he is entitled to do, but asks for a conviction upon a plurality and will not by election do otherwise, a conviction upon his complaint may be refused. This reasoning applies a fortiori where he persists in a refusal to identify the transaction upon which a conviction is sought.[24]
[23] (1937) 59 CLR 467.
[24] Johnson v Miller (1937) 59 CLR 467 at 491-492.
It follows that the information on which the appellant was charged was defective by reason of the latent duplicity revealed by the evidence.
Section 181 of the Summary Procedure Act 1921 provides that the Court may amend an information or a complaint to cure a defect of substance or form unless the defendant has been substantially prejudiced by that defect. The Court is empowered to dismiss an information or complaint if the defect cannot be cured appropriately by amendment. A similar power to amend orders is given by s 182 of the Summary Procedure Act 1921, which also includes a power to revoke the order if the person subject to the order has been or may be substantially prejudiced by the defect.
It follows that it is now necessary to determine whether the appellant was prejudiced by the latent duplicity revealed by the evidence.
No prejudice
The appellant’s solicitor was provided with statements of the witnesses on which the prosecutor intended to rely before the day of trial. Those statements described the appellant striking her son with a fist as she attempted to place him in the car. They described the appellant hitting her son in the schoolyard but did not expressly allege that she had punched him at that stage. It appears from correspondence received on this appeal and from the submissions I have heard, that the appellant was prepared to meet the allegation of hitting her son in the schoolyard on the basis that she had used no more force than was necessary for appropriate discipline. Only on the day of trial did the appellant’s counsel learn that the nature of the “hitting” alleged in the schoolyard was “punching”.
The late discovery of the allegation of punching obviously rendered any defence of lawful discipline untenable. However, counsel for the appellant did not request an adjournment in order to reconsider the defence case or to undertake further investigations. As has already been observed, the appellant gave evidence denying that she punched her child.
In any event, the appellant has not appealed on the ground that the trial miscarried by reason of the late notice of that part of the prosecution case. Any such complaint could hardly have been sustained given the appellant’s failure to seek an adjournment of the trial. The appeal against conviction is confined to the question of prejudice arising from the latent duplicity itself.
I have concluded that the appellant has not been prejudiced by the latent duplicity in the information revealed by the evidence of Mrs Hillman. The evidence of each assault was admissible to prove the other. Even if the prosecution had been forced to elect between the punches alleged to have been inflicted in the schoolyard and those alleged to have been inflicted in the car, the same evidence would have been adduced. Counsel for the appellant did not complain at trial about the duplicity revealed by the evidence of the two discrete assaults and did not ask that the prosecution elect between them. The failure to do so confirms my assessment that the appellant was not embarrassed in the conduct of her defence by the admission of the evidence of both incidents.
It should not be assumed that if the duplicity point had been taken at trial the prosecution would have been required to elect one of the alleged assaults to prosecute. It would seem to me that it may have been within the power of the Magistrate to allow an amendment of the information to charge both assaults but in separate counts.
Conviction must be amended
Even though there has been no miscarriage of justice in the conduct of the trial, the fact remains that the resulting conviction is uncertain.
A power to include charges for more than one offence in a single complaint was introduced by an amendment to the Summary Procedure 1921 (then known as the Justices Act 1921) in 1943. At the same time summary courts, in such cases, were empowered to convict the defendant of such one or more of those offences as they found proved and to include any number of offences in a minute or memorandum of conviction.[25]
[25] Summary Procedure Act 1921 s 70A.
In Iannella v French,[26] Barwick CJ said of the amendment:
But the section does not authorize the entry of a conviction in the alternative nor displace the fundamental rule that the conviction itself shall not be double. In this case the conviction of the applicant by the primary judge was for ‘wilfully demanding or wilfully recovering’ the irrecoverable amount of the rent. That course was, in my opinion, clearly not authorized by the Justices Act and was in breach of the fundamental rule to which I have referred. Indeed, it is not possible to determine from that conviction whether or not the applicant was convicted of either of the separate and distinct offences of wilfully demanding or wilfully recovering. Consequently, the convictions ought to be quashed for duplicity.[27]
[26] (1968) 119 CLR 84.
[27] Iannella v French (1968) 119 CLR 84 at 91 per Barwick CJ. See also at 102 per Taylor J.
It remains to be determined what, if anything, can or should be done to deal with the uncertainty in this case where the conduct of which the appellant was convicted can be identified.
In Tucker v Noblet,[28] the defendant was convicted of a single count of keeping a bar room door open in a case where the evidence showed two such occasions. Murray CJ said:
Supposing, now a case in which two offences are alleged, but no prejudice has been caused to the defendant, what are the justices to do at the close of the hearing? If they find that only one offence has been committed, there is no difficulty. But if they find that more than one has been committed, they must bear in mind that the conviction can be for one offence only. They may then, I think, properly ask the complainant for which offence he wishes the conviction to be drawn up, but, if he refuses to say, they must decide the matter for themselves. The question was recently considered by Mr Justice Poole in relation to sec 80 of the Lottery and Gaming Act 1917, which authorizes the inclusion of any number of offences not exceeding three in the same information, but restricts the conviction to one offence, and what I have said conforms, I believe with his opinion (Allchurch v Tasker, [1922] SASR 336).[29]
[28] [1924] SASR 326.
[29] Tucker v Noblet [1924] SASR 326 at 334.
In applying the above passage it must be remembered that it is now permissible to charge more than one offence in a single complaint and that courts hearing summary prosecutions can, on such a complaint, convict of multiple offences and that in addition they have an express power to amend a complaint. As I have suggested above it may therefore be possible, subject to considerations of fairness, to amend a complaint to plead a further count and by so doing obviate any need for an election.
In Young v Allchurch,[30] Napier J approached the question of uncertainty following a conviction on a complaint which was affected by latent duplicity in this way:
If the matter were res integra, I should have thought that any uncertainty in this respect might have been left to operate for the benefit of the convicted person in this way, that if proceedings should subsequently be instituted in respect of any transaction answering the description given in the conviction, the appellant might be considered to have made out his plea of autrefois convict by producing this conviction, and that the prosecutor might then be required to shew that the subsequent charge related to a matter of complaint other than that of which he has now been convicted.
But however that may be, it is certainly desirable that there should be no uncertainty as to the offence of which an accused person is convicted, and the cases seem to establish that, under these circumstances, a conviction is bad if it fails to distinguish the particular transaction to which it relates. …[31]
[30] [1927] SASR 185.
[31] Young v Allchurch [1927] SASR 185 at 187.
After referring to the passage I have just cited from Tucker, Napier J continued:
… This means that it is the duty of the court to declare the effect of the evidence. It cannot convict of more than one offence, and it is entitled to hear what the complainant may have to say upon the matter but the responsibility for the determination rests upon the Court, and is not dependent upon any theory of election upon the part of the complainant. In this case, I think that the Special Magistrate should have specified, in some way, the particular transaction upon which the conviction has passed. I have followed the course which was taken by the Full Court in Pierce v Kennedy, [1923] SASR 476, and Mr Hannan has suggested that the conviction should be amended to shew that it relates to the last of the three transactions. This can be done by inserting after ‘liquor’, ‘to wit, four bottles of beer’. Subject to this amendment, the conviction will be affirmed.[32]
[32] Young v Allchurch [1927] SASR 185 at 187-188.
It follows then that in the Magistrates Court where a count is affected by duplicity one would expect that, in the ordinary course, the reasons of the Court will show the precise conduct which has been found proved beyond reasonable doubt. Where the finding is that conduct which constitutes separate offending has been proved beyond reasonable doubt then an election of the type discussed in Allchurch, or an amendment to include a further count, may be necessary. Where only one offence is proved beyond reasonable doubt then all that is necessary is to ensure that the conviction is particularised properly.
The opportunity to amend an information or to modify the terms of a conviction to accord with the reasons of a Magistrate or a Judge, or the making of an election, should not be regarded as a reason to take a looser approach to criminal pleadings.For a number of reasons it remains undesirable to charge more than one offence in one count and care should be taken to avoid charges that are bad for either latent or patent duplicity. First, there are those cases in which the defendant will be embarrassed or prejudiced in the conduct of his or her defence.
Secondly, imprecision in the expression of the charge may lead to similar uncertainty in the decision. Ambiguity in the charge and reasons will render the determination of the propriety of subsequent prosecutions on similar facts problematic. It is true that an examination of the evidence is permissible to determine the precise conduct of which a defendant has been convicted,[33] however, the evidence itself might fail to satisfactorily resolve the question in the absence of particularisation in the charge or reasons.
[33] Connelly v Director of Public Prosecutions [1964] AC 1254; Mraz v The Queen (No 2) (1956) 96 CLR 62.
The respondent initially contended that the judgment of Gaudron and McHugh JJ in S v The Queen[34] is authority for the proposition that concerns about the potential difficulties in pleading autrefois convict or autrefois acquit are of no, or very little, concern. Gaudron and McHugh JJ said:
… However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: 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 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. …
The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. …
The matters which go to the orderly administration of justice are not unrelated to the consideration that a duplicitous count may be productive of prejudice. If the matter proceeds to trial, there is the possibility that evidence will be wrongly admitted or that incorrect directions will be given to the jury. There is also the possibility that a jury, no matter how carefully directed, may reason from the number of offences charged that the accused must be guilty of at least one. However, it may be going too far to equate prejudice with the difficulty of raising a defence of autrefois acquit or autrefois convict, and, in any event, such problems as there are in that area may be of less significance in those jurisdictions where the criminal law is codified than in common law jurisdictions. …
The problems which attend duplicitous counts also attend proceedings in which the prosecution seeks to lead evidence of multiple offences answering the description of the offence or offences charged.[35] (footnotes omitted)
[34] (1989) 168 CLR 266.
[35] S v The Queen (1989) 168 CLR 266 at 284-6.
In my respectful opinion, Gaudron and McHugh JJ were not suggesting in those passages that the difficulty of raising a defence of autrefois acquit or autrefois convict was no longer a reason for requiring that only one offence be dealt with by each count on an information. Rather they were simply making the point that the difficulties caused in raising those pleas related more to the administration of justice than to the prejudice of a defendant at trial.
The importance of ensuring that each count charged a single offence was explained by Dawson J in S v The Queen as follows:
Moreover, the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit.[36]
[36] S v The Queen (1989) 168 CLR 266 at 276.
Thirdly, if the precise conduct of which the defendant is convicted is not made clear in the reasons of the trial Magistrate, nor in the sentencing remarks, any subsequent appeal against the sentence may be compromised. True it is that a defendant may in such a case contend that the reasons are inadequate and that therefore there has been an error of law. However, clarity and precision in the pleading of criminal offences is calculated to avoid the making of such an error in the first place.
Finally, there should not be a difference in approach in the pleading of offences heard summarily and those heard on indictment. A jury verdict is inscrutable. Difficulties of the sort to which I have already referred in pleading autrefois convict or autrefois acquit are more likely to arise in the case of a jury verdict if the evidence discloses a latent duplicity. Moreover, a sentencing Judge faced with a guilty verdict on a count which is affected by latent duplicity is in a particularly difficult position. It is unsatisfactory to suggest that the sentencing Judge might decide for himself or herself whether the jury were satisfied that all of the conduct, which on this hypothesis constitutes two discrete offences, was committed. If the sentencing Judge were to sentence on the basis that both offences were committed, the defendant may be sentenced for conduct that the jury did not find proved beyond reasonable doubt. No person should be sentenced for an offence unless he or she has been convicted on a charge alleging that very offence. Furthermore, to proceed on that basis would be to sentence on a conviction which was necessarily double. Nor is it satisfactory for a trial Judge to sentence on the basis that just one of the offences was committed because the offence on which the Judge chooses to sentence might not be the offence which the jury found proved beyond reasonable doubt.
It follows that the uncertainty arising from the failure to properly identify only one offence of assault in the single count of the information brought against the appellant should now be corrected. In the circumstances of this case I would allow the appeal but only for the purposes of adding the words “in a schoolyard” after the words “Davoren Park” and the words “by punching” after the word “force” in both the information and the conviction.

That leaves open the difficulty and possible prejudice to the applicant that there is no order of the Court reflecting the fact that she was put in jeopardy of conviction on the count relating to the punches in the car and that she was not convicted of that conduct because the allegation was not proved beyond reasonable doubt. There is no plea of autrefois acquit available to the appellant because that conduct was not made the subject of a separate charge. However, there is little doubt that it would be an abuse of process to again charge the appellant with assault based on that conduct. The reasons for the decision of the Magistrate would be available and admissible on any application to stay any proceedings that might be brought alleging that conduct.[37]
[37] See Rogers v The Queen (1994) 181 CLR 251; Mraz v The Queen (No 2) (1956) 96 CLR 62.
A court would not allow a subsequent prosecution, based on the conduct alleged to have occurred in the car to proceed. The prosecution would be stayed or dismissed, not because the appellant was convicted of that conduct, but because she was put in jeopardy of a conviction based on that conduct in circumstances in which she was not actually convicted of it because it was not proved beyond reasonable doubt. Nor would the plea of autrefois acquit be available because the conduct in the car was not the subject of a separate count. However, the very fact that those pleas would not be available, because the conduct was encompassed within a single count which was bad for duplicity, would render any subsequent prosecution an abuse of process.
Costs
Section 29 of the Summary Procedure Act 1921 provides that a party to proceedings before the Magistrates Court may be represented by counsel. Notwithstanding the use of the word “may”, where a party chooses to be represented by counsel, other than in the most exceptional of circumstances, a court is bound to allow a defendant to be so represented.
It is well established that courts of summary jurisdiction may also permit police to act as prosecutors in summary matters.[38] In Brennan v Alexander,[39] Angas Parsons J took the view that s 29 of the then Justices Act 1921 (now the Summary Procedure Act 1921) gave a party to summary proceedings the right to conduct his or her case by counsel or solicitor. Prior to the enactment of s 29, it was within the discretion of courts of summary jurisdiction to allow or refuse representation by counsel. That discretion stood in contrast with the position in Superior Courts where “by ancient usage, persons of a particular class are allowed to practise as advocates and they could not lawfully be prevented…”.[40] After the enactment of s 29 of the Justices Act 1921, it remained within the discretion of courts exercising summary jurisdiction to permit others to appear as advocates.
[38] Brennan v Alexander [1932] SASR 237; O’Toole v Scott (1965) 65 SR (NSW) 113; [1965] AC 939.
[39] [1932] SASR 237.
[40] Collier v Hicks (1831) 2 B & Ad 663 at 672; 109 ER 1290 at 1293 per Parke J; cited in Brennan v Alexander [1932] SASR 237 at 239.
The giving of permission to appear does not entail an entitlement to an award of costs. The fourth edition of Hannan’s Summary Procedure of Justices, in a commentary to s 29 of the Justices Act 1921-1972, noted that “a person appearing for a party by permission of the Court is not entitled to make a charge for his services to the party whom he represents, nor is that party, if successful entitled to claim any solicitors costs or counsel fee from the unsuccessful party under s 77”.[41] The editor referred in support to the prohibition in the Legal Practitioners Act 1936-1969 against conducting an action or proceeding in a court for fee or reward without being entitled to practise under that Act.
[41] L. McLean Wright (ed), Hannan’s Summary Procedure of Justices in South Australia (4^th ed, 1975) at 30.
In Willing v Hollobone,[42] the Full Court considered a claim for costs by an unrepresented defendant where the complaint was withdrawn. The claim was made pursuant to s 77(2) of the Justices Act 1921, which provided that a court exercising summary jurisdiction could, in its discretion, on granting an indulgence make an order for payment of such costs as it thinks just and reasonable. Bray CJ said:
But a party not a legal practitioner taking his own case and succeeding has never been allowed compensation for his loss of time spent in preparing the case for trial, although if he had employed a solicitor he would have been allowed the solicitor’s costs for doing the same thing. This may appear unjust and anomalous to the applicant, but if it is an anomaly it is not the only one in the law and we are powerless to change the law in this respect. The applicant repeatedly and loudly called on us to observe the law and we do so in following the rules established by the authorities and, notably in recent times, by the Court of Appeal in 1970 in Buckland v Watts, were the same point was under consideration. In effect, this is an attempt to charge for time spent on doing what is really skilled legal work without being a legal practitioner, as it was in Buckland v Watts (see per Dandkwerts LJ at P.35, per Sir Gordon Wilma at PP.37-38). The applicant does not seem to realise that the law is established by precedent subject, of course, to the overriding provisions of any relevant act of Parliament.[43]
[42] (1972) 3 SASR 532.
[43] Willing v Hollobone (1972) 3 SASR 532 at 534-5.
In Kelly v Noumenon Pty Ltd,[44] a small variation was made to the principle enunciated in Willing. King CJ said:
The rule that a party is not compensated for time spent in connection with the litigation applies even where the party conducts his own case. … It would seem, however that some modest relaxation of the application of the rule to a litigant conducting his own case is now called for. … It seems to me that a fee analogous to a witness fee ought to be allowed to a litigant in person for the time occupied while the Court is sitting, at least where it is shown that he has thereby lost income. How are these principles to be applied to the questions raised by the case stated? The Corporate Affairs Commission, for the purpose of costs, is to be treated as the real complainant in the present proceedings. The Magistrate was within his powers in permitting officers of the Commission who are not legal practitioners to appear to conduct the prosecution for the Commission; Brennan v Alexander [1932] SASR 237. I think that it follows that were a legally unqualified officer of the Commission is permitted to prosecute the question of costs is to be approached as though the matter was conducted by the complainant in person notwithstanding that the prosecuting officer is not the complainant on the records. The Commission should be entitled to recover such costs as, but no further costs than, would be recoverable by any legally unqualified complainant appearing in person.[45]
[44] (1988) 47 SASR 182.
[45] Kelly v Noumenon Pty Ltd (1988) 47 SASR 182 at 185.
After referring to the arguments put by the Corporate Affairs Commission in support of its claim of costs which included work done in issuing the summons and preparatory work thereafter, King CJ said:
Willing v Hollobone (supra) is clear authority for the proposition that the costs recoverable by a legally unqualified party to a prosecution appearing in person are limited to:
‘his out-of-pocket expenses including, besides any disbursements by him, his travelling expenses to get to and from the court on the occasion of any necessary appearances before the court and the cost of sustenance if he is forced to stay away from home to attend the court and also some allowance for the time actually occupied in appearing before the court while it is sitting.’
It is also express authority for the proposition that they do not include ‘time spent in preparing the case for trial’. The rationale of the last-mentioned proposition may not be entirely satisfactory but the principle is firmly embedded in the law. The rationale was expressed by Bowen LJ in London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 at 876-877 in these words:
‘Professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual. Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs.’
I think that the result of the established principles is quite clear. The Commission is entitled to recover as costs its out-of-pocket expenses including the cost to it of the attendance at court of its officer for the hearing of the complaint and any adjournments thereof. It is not entitled to any other costs.[46]
[46] Kelly v Noumenon Pty Ltd (1988) 47 SASR 182 at 187-8.
I start by observing that the decisions in both Willing and Noumenon appear to proceed on the basis that the claims made in those cases fell within the connotation of the word “costs” as used in the applicable statutory provisions, but that as a matter of principle no costs other than the time spent in attendance at court would be allowed where a party was represented by a non-lawyer.
For the reasons given in the following two paragraphs it is my view there is good reason to maintain that principle and in particular the rule that costs should not be awarded for time spent by a lay person on preparing for a hearing. Moreover, in my view, the quantum of costs awarded for the attendance in court of a lay person should not include any amount in recognition of the specialist nature of the activity in which he or she is engaged.
Section 21 of the Legal Practitioners Act 1981 prohibits a person practising the profession of the law unless he or she is a legal practitioner. Section 21(2) of the Legal Practitioners Act 1981 includes the representation of any party to proceedings in a court or tribunal within the concept of practising the profession of the law. Section 21(3) of the Legal Practitioners Act 1981 exempts the conduct of an unqualified person who represents a party to proceedings in a court or tribunal for fee or reward from the operation of s 21 where that person is authorised by or under the Act by which the Court or Tribunal is constituted to do so.
It follows that a person who is given leave to appear before the Magistrates Court is not subject to the prohibition against legal practice by unqualified persons enacted by s 21 of the Legal Practitioners Act 1981. However, the discretion to allow lay persons to represent others must be exercised judicially and with a keen appreciation of the special responsibilities of those who assist in the administration of justice. Unless there is good reason to do so, having regard to the objects and purposes of the Legal Practitioners Act 1981, the discretion should not be exercised in a way which encourages representation by persons who are neither legally trained nor subject to the professional ethics and discipline of legal practitioners. Moreover it is one thing to authorise lay persons to appear and thereby give them a right to charge the party who engages them for the legal work they perform. It is quite another thing to order the opposing party who has not engaged the lay advocate to pay the costs of the legal work the lay advocate has performed.
The power to award costs is now found in s 189 of the Summary Procedure Act 1921, which provides that the Court may award such costs for or against a party to proceedings as the Court thinks fit. The principle stated in Kelly and Willing has been, with respect properly, applied to s 189 of the Summary Procedure Act 1921.
In Moore-McQuillan v SA Police (No 2),[47] Debelle J said:
It is well established that, where a prosecution is conducted on behalf of the prosecuting authority by a legally unqualified officer of that authority, the authority through its officer is entitled to recover only the costs which would be recoverable by any legally unqualified complainant appearing in person: Kelly v Noumenon Pty Ltd (1988) 47 SASR 182. Those costs are limited to out-of-pocket expenses including disbursements, travelling expenses to and from the court on the occasion of necessary appearances, the cost of sustenance if the witness is forced to stay away from home, and some allowance for the time actually occupied in appearing before the court while it is sitting: Willing v Hollobone (1972) 3 SASR 532; Kelly v Noumenon at 187 - 188. Those expenses do not include time spent in preparing the case for trial but the prosecuting authority is entitled to recover the costs incurred in the attendance of the prosecutor at court, the cost of that time to have regard to other matters on which the prosecutor attends: Kelly v Noumenon at 188.[48]
[47] [2000] SASC 69.
[48] Moore-McQuillan v SA Police (No 2) [2000] SASC 69 at [9]. See also Walsh v Tattersall (1996) 188 CLR 77.
Before me the Crown Solicitor contended that the Magistrates Court Rules 1992 had effectively abrogated this principle. I do not accept that submission.
The rule making power of the Magistrates Court extends to rules of court “regulating costs”.[49] Rule 51 of the Magistrates Court Rules 1992 provides that, subject to any order of the Court to the contrary, the scale of costs set out in the schedule to the Rules applies. The first schedule refers to preparation costs including the proofing of witnesses and the provision of advice on evidence and law and the delivery of brief to counsel. A total of $900 for a lawyer and $225 for a non-legally qualified person is allowed for that work. A fee on brief of $800 for a lawyer, and $200 for a non-lawyer, is allowed. The costs of daily representation thereafter, by a non-legally qualified person, is fixed at $300 for each day. A witness fee of $600 for experts and $300 for other adults is allowed. The Magistrate’s award of costs in this case appears to have been based on this scale.
[49] Magistrates Court Act 1991 s 49(1)(e).
In determining the scope of the rule making power to regulate costs conferred by s 49(1)(e) of the Magistrates Court Act 1991 it is necessary to read it together with the power to award costs in civil matters by s 37 of that Act and the power to award costs in summary matters conferred by s 189 of the Summary Procedure Act 1921. The former is expressly made subject to the rules of the Magistrates Court; the latter is not. It is, I think, arguable that the rule making power to regulate costs is limited to civil costs. However, on the assumption that the rules can regulate costs in summary matters, I have concluded that in its application to those matters the power to make rules regulating costs extends only to the regulation of the quantum of costs chargeable for such items as are properly the subject of a costs order. The items that are appropriately covered by a costs order must be controlled by the text and context of the provision conferring the power to award costs and the nature and subject matter of the litigation. It is very unlikely that the legislature intended by the conferral of the power in s 49(1)(e) of the Magistrates Court Act 1991 to delegate to the Magistrates Court the legislative power to override the considerations affecting the exercise of the power in s 189 of the Summary Procedure Act 1921 when those considerations are derived, by necessary implication, from the latter Act itself.
In any event, r 51 and the first schedule to the Magistrates Court Rules 1992 do not purport to change the principles which govern the exercise of that discretion. Both refer only to the scale, that is the quantum of the costs that should be awarded for an item. The scale so determined can only apply if the costs discretion, properly exercised, results in an award of costs for that item. The rule obviously enough contemplates that the discretion may, on occasion, be properly exercised to award costs for legal work performed by a lay person because it fixes a scale for that item. However, the rule does not purport to abrogate the general principle which the case law has identified as governing the exercise of the discretion conferred by s 189 of the Summary Procedure Act 1921 where a party is represented by a lay person.
There was no reason in this case to depart from the principle stated in Willing and applied in Moore-McQuillan that costs should be awarded only for the attendance of the non-lawyer in court and for no more. It follows that the discretion to award costs has miscarried by reason of the inclusion of an amount for the performance of preparatory legal work and must therefore be set aside.
There is further reason to set the costs order aside. The Magistrate appears to have applied the rule that costs follow the event without having regard to a powerful countervailing consideration applicable to this case. That consideration is the impecuniosity of the appellant and the relative merits of requiring a woman in her circumstances to pay the State for its prosecution of her for an offence which the Magistrate himself observed, was as a sad incident.
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.