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

1. 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

1. 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

1. 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.

1. 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.

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

1. 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 body with a pot plant, kicking her about the legs and body and hitting her about the legs and feet with a shopping trolley."

I have underlined the proposed amendments to the original complaints. In regard to the amendments, Underwood J was in error in two respects in his judgment. Firstly he said that the learned magistrate made orders amending the complaints as sought, but such was not the case. The orders for dismissal were made upon the basis that, in the opinion of the learned magistrate, the proposed amendments were not sufficient. Secondly, the form of the complaint against John Wong, which was set out on p2 of his Honour's judgment purportedly in the form into which the prosecutor had sought to have it amended, omitted the insertion of the word "once" after the word "hands".

1. The appellants' solicitors wrote to the police prosecution branch for further particulars of the matters charged. Some further particulars were provided in letters. They were summarised in a document delivered to the appellants' solicitors on 22 February, a copy of which was handed to the learned magistrate on the following day and a copy of which is reproduced below:

"particulars of offence

john wong –    charged on complaint no 1345088 with assault contrary to section 35(1) police offences act 1935.

It will be alleged that about 8.30 pm Saturday 16 April 1988, John wong visited the complainant, Jillian Anne braithwaite, in her reallocated bedroom at eagle hawk inn, hobart. Johnny wong was not present. 'B'

John WONG proceeded to assault the complainant as follows:

(a)       Punched her in the face. 'C' Once '#'

(b)       Squeezed her neck with both hands. 'C' Once '#'

(c)Punched and kicked her about the head and body. 'C' Continuously, exact number of times not known. '#'

John wong then left the room. 'B'

((a), (b) & (c) above represents the order of events '#').

johnny wong –     charged on complaint no. 1344988 with assault contrary to section 35(1) police offences act 1935

It will be alleged that sometime (minutes) after the cessation of the other assault, Johnny wong visited the complainant in that same room. John wong was not present. 'B'

Johnny wong proceeded to assault the complainant as follows:–

(a)Punching about the head. 'C' About four times. 'S'

(b)Hit her about the head and body with a pot plant. 'C' Continually, until it broke, exact number of times not known. 'S'

(c)Kicking her about the legs and body. 'C' Exact number of times not known. 'S'

(d)Hitting her about the legs and feet with a shopping trolley. 'C' Exact number of times not known. 'S'

The assault continued into the corridor. 'B'

–––––––––––––––––––––––––––––––––––––––––––––––––––––

'C' Complaint

'B' Letter dated 20 January 1989

'#' Letter dated 29 November 1988

'S' Letter dated 21 September 1988."

The symbols "C", "B", "#", "S", refer to the documents in which the respective particulars were originally contained. Some further information had also been supplied by the police in a letter dated 20 January, the relevant portion of which stated:

"... I am unable to further particularize the assault in terms of individual blows. It will be alleged that the complainant was injured in the assault, and was at times dazed and concussed, therefore the details which have already been supplied, represent her best recollection of the incident.

The sequence of events is as follows –

About 8.30 pm. on Saturday 16 April 1988 your client John wong visited the complainant in her allocated bedroom whereupon the assault, as described in our letter dated 29 November 1988, occurred. There were no other persons present. John wong then left the room.

Several minutes apparently elapsed, then Johnny WONG visited her in the same room. A further assault took place, as described in our letter dated 29 September 1988 and this assault continued out into the corridor. Again there were no other persons present."

1. In the notice of appeal of John Wong it is claimed that Underwood J was wrong in law in failing to find that insufficient particulars had been provided as to:

"(a)Where the Appellant allegedly punched Jillian Ann Braithwaite in the face, or to otherwise identify the alleged punches to the face.

(b)The number of times that the Appellant allegedly punched Jillian Ann Braithwaite about the head, and where about the head or to otherwise identify the alleged punches to the head.

(c)The number of times that the Appellant allegedly kicked Jillian Ann Braithwaite about the head, and where about the head or to otherwise identify the alleged kicks to the head.

(d)The number of times that the Appellant allegedly punched Jillian Ann Braithwaite about the body and where about the body or to otherwise identify the alleged punches to the body.

(e)The number of times that the Appellant allegedly kicked Jillian Ann Braithwaite about the body, and where about the body or to otherwise identify the alleged kicks to the body."

1. In the notice of appeal of Johnny Wong it is claimed that insufficient particulars were provided as to:

"(a)The number of times that the Appellant allegedly punched Jillian Ann Braithwaite about the head, and where about the head or to otherwise identify the alleged punches to the head.

(b)The number of times that the Appellant allegedly hit Jillian Ann Braithwaite about the head with a pot plant, and where about the head or to otherwise identify the alleged hits to the head with the pot plant.

(c)The number of times that the Appellant allegedly hit Jillian Ann Braithwaite about the body with a      pot plant, and where about the body or to otherwise identify the alleged hits to the body with the pot plant.

(d)The number of times that the appellant allegedly kicked Jillian Ann Braithwaite about the legs, and where about the legs or to otherwise identify the alleged kicks to the legs.

(e)The number of times that the Appellant allegedly kicked Jillian Ann Braithwaite about the body, and where about the body or to otherwise identify the alleged kicks to the body.

(f)The number of times that the Appellant allegedly hit Jillian Ann Braithwaite about the legs with a shopping trolley, and where about the legs or to otherwise identify the alleged hits to the legs with the shopping trolley.

(g)The number of times that the Appellant allegedly hit Jillian Ann Braithwaite about the feet with a shopping trolley, and where about the feet or to otherwise identify the alleged hits to the feet with the shopping trolley."

1. Provision is made in the Justices Act 1959 for particulars in the complaint. Section 30(1) provides:

"30–(1)   Any complaint, summons, warrant, or other document that is laid, issued, or made for the purpose of, or in connection with, proceedings before justices shall be sufficient if it –

(a)  describes the matter of complaint with which the defendant is charged or of which he is convicted in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the matter of complaint; and

(b)  contains such particulars as will give reasonable information of the nature of the matter complained of."

1. By s31(2)(b) it is provided that if a defendant appears to have been prejudiced by any defect or variance in the complaint in substance or in form "the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint". By subs(3) a power to amend a defective complaint is given.

1. There are a number of authorities to the effect that apart from statute, a court possesses an inherent authority to require that particulars of a charge shall be furnished and to dismiss the complaint if they are not. Johnson v Miller (1937) 59 CLR 467 per Evatt J at p497 and per Dixon J at p490; Wickham v Cole [1957] Tas SR 111 at p116; Ex parte Graham; Re Dowling [1969] 1 NSWR 231 per Asprey JA. at p240; Marchesi v Barnes & Keogh [1970] VR 434 at p439; Barnes v Polito; Ex parte Polito [1967] Qd R 155 per Hart J at pp160 and 161; Canning v Taylor [1967] Tas SR 42 per Burbury C.J. at p46; Ex parte O'Sullivan; Re Craig (1944) 44 SR (NSW) 291 at pp299 and 300; Smith v Moody [1903] 1 KB 56 at pp60, 61 and 63; Davissen v Power [1959] Qd R 21 at pp27 and 28. In his reasons for judgment Underwood J restricted his consideration to the provisions of s30(1)(b) and held that the motion to review fell to be determined without regard to the correspondence exchanged between the prosecutor and the solicitors for the appellants. He referred to the statutory requirement in s30(1)(b) to provide in the complaint "such particulars as will give reasonable information of the nature of the matter complained of". However, on the basis of the above authorities, I hold that the Court of Petty Sessions does have an inherent power, bestowed by the common law, to order particulars in addition to the power to amend contained in s31(3). Further support for the existence of such a power can be derived from s4A which provides:

"4A      A justice may exercise all the powers conferred on a justice by this Act ... or by the common law ...".

(In relation to this see the comments of Crawford J in Canning v Taylor (supra) at p53 who thought that the retention of common law powers did not include duties, so that any duty which justices had at common law was not preserved, at least where it was contrary to a duty expressly imposed by the existing statute).

1. That such an inherent power exists is of some practical importance to those who appear in the Courts of Petty Sessions in this State. If a complaint does not comply with s30(1)(b) then under s31 it would appear that the only way of remedying the defect is to amend the complaint. However the exercise of the inherent authority to order the delivery of particulars, which might not be required by s30(1)(b), would not necessarily result in the complaint having to be amended. The particulars could be provided by a letter or some other document. It is common to those practising in the Courts of Petty Sessions for particulars to be sought by letter and to be provided by letter, and in many cases it is not necessary that they be embodied in the complaint, nor is it desirable from any aspect of procedural efficacy.

1. The requirement for particulars, based on common law, was expressed by Evatt J in Johnson v Miller (supra) at pp497 and 498 as follows:

"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. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. I think that the observations of Napier J in Tucker v Noblet (1924) SASR, at p340 support the view that, at the outset of the hearing, the prosecutor may be called upon to select his charge and particularize his complaint, and that in the absence of the necessary information, and, as a last resort, the court has inherent power to dismiss the complaint."

1. The particulars should be sufficient to enable the defendant to prepare his defence. Particulars will nearly always be necessary in a case where it is not a single act that is in dispute, but a course of behaviour, or conduct which comprises a continuity of action or a series of connected acts: Lafitte v Samuels (1972) 3 SASR 1 at p16. If there is a reasonable possibility of prejudice to the defendant, further particulars should be required. Lafitte v Samuels at pp8 and 9. It is sufficient in this case to conclude references to the authorities by citing from Ex parte Graham; Re Dowling (supra) at p240:

"There is abundant authority for the proposition that an accused person must have precise notice of what he is accused. He must have full opportunity of being heard and such an opportunity is denied to him if he is left in doubt in regard to that of which he is accused. It is undoubted that in the administration of criminal law all courts possess an inherent power to order particulars of charges made against accused persons so that they will have an opportunity of preparing their case, objecting to evidence in the case for the prosecution and of endeavouring by the evidence of themselves and their witnesses to refute the case made against them or, in the alternative, of pleading guilty to the charge against them. This is a long established principle (R. v Kenrick, [1843] 5 QB 49, per Lord Denman, at p61; 114 ER 1166, at pp1170–1), and it is recognized in our own courts (see Johnson v Miller (supra) at pp490, 497; Ex parte Lovell; Re Buckley (1938), 38 SR (NSW) 153, at pp169–70; Ex parte O'Sullivan; Re Craig, supra; Ex parte Grinham; Re Sneddon (1961), 61 SR (NSW) 862 per Herron, J (as he then was), at p865)."

1. In the case of both appellants the particulars contained in the complaints, with the further particulars sought to be added by amendment, and supplemented by the particulars provided by correspondence, are clearly sufficient. The question of relevance of evidence will be determinable. A decision whether to plead guilty or not guilty can be made with an understanding of what is alleged. There can be no doubt in regard to what is in fact alleged. As was said by Underwood J:

"The particulars are sufficient to identify the acts which it is alleged constituted the offence. The nature, or factual matters, of the offence are delineated by the particulars in sufficient detail to give the respondents reasonable information of the full extent of the charge they are called upon to answer. Had the particulars merely stated that the acts constituted several blows to the face, body and legs there may have been some substance in the respondents' argument. There was no suggestion that the relevant events took place over a prolonged period of time. In two instances the instruments used in the alleged assault are specified and in two cases the precise number of blows are enumerated. Read together, the particulars in each case constitute sufficient detail to disclose the precise nature and ambit of the charge which the respondent is called upon to answer."

1. Each case must depend on its own circumstances. In this case the particulars contained in the complaints, in the form into which the applications to amend were made, satisfied s30(1)(b) of the Justices Act 1959. In so far as the appellants may have been entitled to particulars in addition to those required by the section, the additional particulars contained in the correspondence satisfied any such entitlement. The appellants can be expected to be able to provide adequate instructions to their solicitors concerning whether they did or did not commit the acts alleged and if they did, whether they did so in self defence or in circumstances giving rise to some other defence. There is no reasonable possibility of prejudice occurring in this case.

1. One further ground of appeal should be mentioned. It was that the complaints contravened s29(2) of the Justices Act 1959. That subsection provides that where several matters of complaint are joined in the one complaint pursuant to subs(1), each matter of complaint shall be set out in a separate numbered paragraph. I did not understand counsel for the appellants to actively pursue this ground, except in a roundabout way as an argument in support of his clients' entitlement to particulars. His argument was that if a number of individual assaults can be included in one count, that is only because of a rule of convenience and it cannot be used to deprive a defendant of an entitlement to separate particulars in relation to each individual blow. There is no merit in this argument, which was not supported by authority. It is clearly acceptable to include in one count a series of acts which in reality occur as part of a single transaction. The basis for this was explained by Lord Diplock in Reg. v Merriman [1973] AC 584 at p607 as follows:

   "The rule against duplicity, viz that only one offence should be charged in any count of an indictment, which is now incorporated in rule 4(1) of schedule 1 to the Indictments Act 1915, has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."

1. Of course the need for particulars will usually be greater when a series of acts are included in the one count. But for the reasons I have already expressed, the particulars which were provided by the prosecution in this case were sufficient.