Wong v Kirkham - [1989] TASSC 56

Serial No 55/1989
List "A"

CITATION: Wong v Kirkham [1989] TASSC 56; (1989) Tas R 225; A55/1989

PARTIES:  WONG
  v
  KIRKHAM

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 58/1989

FCA 59/1989

DELIVERED ON:  18 October 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Neasey, Cox and Crawford JJ

Judgment Number: A55/1989
Number of paragraphs: 19

Serial No 55/1989
List "A"
File Nos FCA 58/1989
FCA 59/1989

WONG v KIRKHAM
WONG v KIRKHAM

REASONS FOR JUDGMENT FULL COURT

NEASEY J
COX J
CRAWFORD J
18 October 1989

Order of the Court

Applications to review dismissed.

Serial No 55/1989
List "A"
File Nos FCA 58/1989
FCA 59/1989

WONG v KIRKHAM
WONG v KIRKHAM

REASONS FOR JUDGMENT FULL COURT

NEASEY J
18 October 1989

I agree with the reasons for judgment given by Crawford J
File Nos FCA 58/1989
FCA 59/1989

WONG v KIRKHAM
WONG v KIRKHAM

REASONS FOR JUDGMENT FULL COURT

COX J
18 October 1989

I have read the reasons for judgment of Crawford J and agree with them.
File Nos FCA 58/1989
FCA 59/1989

WONG v KIRKHAM
WONG v KIRKHAM

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
18 October 1989

Two appeals were heard together. One by John Wong and the other by Johnny Wong (a different person). They concerned what particulars should have been provided by the prosecution to the appellants who were charged with assault on separate complaints, in the Court of Petty Sessions. The prosecutor declared that the complainant (the same person in each complaint) would not supply further particulars than had already been supplied, and the magistrate dismissed both complaints, because he considered that the particulars were insufficient.

The complainant moved for a review of the orders of dismissal and on 9 May 1979, Underwood J held that the particulars provided in each case were sufficient. The motions to review were allowed, the orders of dismissal were set aside and the complaints were remitted for determination in accordance with law by another magistrate.

These appeals were then instituted. On 23 August this Court dismissed them with costs, for reasons to be published later.

At the outset of the hearing before the learned magistrate on 23 February 1989, the day on which the orders of dismissal were made, the prosecutor applied to amend the complaints so that the one against John Wong would read:

"That John Wong of 381 Elizabeth Street North Hobart did, on the 16th day of April, 1988 at Hobart in the State of Tasmania, unlawfully assault one Jillian Ann Braithwaite by punching her in the face once, squeezing her neck with both hands once and punching and kicking her about the head and body."

The complaint against Johnny Wong would have read:
"That Johnny Wong of 381 Elizabeth Street North Hobart did, on the 16th day of April 1988 at Hobart in the State of Tasmania, unlawfully assault one Jillian Ann Braithwaite by punching her about the head about four times, hitting her about the head and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wong v Kirkham

Details

AGLC: Wong v Kirkham [1989] TASSC 56
Case: [1989] TASSC 56
Decision Date: 18 October 1989

CaseChat Overview and Summary

Wong v Kirkham is an appeal heard by the Supreme Court of Tasmania's Full Court, involving two appellants, John Wong and Johnny Wong, who were charged with assault in the Court of Petty Sessions. Both appellants were charged in relation to separate incidents involving the same complainant, Jillian Ann Braithwaite. The core issue in this appeal was whether the particulars provided by the prosecution were sufficient to enable the appellants to adequately prepare their defence. The appellants argued that the particulars were insufficient as they did not provide specific details such as the number of times the complainant was allegedly punched or kicked, or the locations of the alleged assaults.

The court considered the legal principles governing the sufficiency of particulars in criminal charges. It was established that, in addition to the statutory requirements, courts possess an inherent common law authority to order particulars to ensure that a defendant has reasonable notice of the charges against them. The court also examined the authorities supporting this inherent power and determined that the particulars provided, along with additional information obtained through correspondence between the prosecutor and the appellants' solicitors, were sufficient to inform the appellants of the nature of the charges and enable them to prepare their defence.

The Full Court concluded that the particulars provided were adequate and dismissed the appeals. The reasoning was that the particulars, both in the complaints and through correspondence, were sufficient to delineate the nature of the alleged offences, allowing the appellants to understand the charges against them and make informed decisions about their pleas. The court also noted that there was no reasonable possibility of prejudice to the appellants due to the sufficiency of the particulars provided.

Orders