Wright v Police - [2008] SASC 216

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WRIGHT v POLICE
[2008] SASC 216
Judgment of The Honourable Justice Anderson
7 August 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY
Appeal against conviction - appellant convicted of aggravated assault - appellant also convicted of carrying an offensive weapon - inconsistencies between the prosecution witnesses - whether magistrate erred in finding first count proved beyond reasonable doubt - second charge laid under the wrong section - respondent applied to amend complaint - applicant applied to amend grounds of appeal - whether amendment to the complaint should be allowed - whether second count relates to conduct that is subsumed within the first count - whether double jeopardy.
Held: Although inconsistencies between prosecution witnesses, these were not so significant that magistrate erred in his findings - magistrate had the benefit of seeing and hearing the witnesses - appeal against conviction for first count dismissed - amendment to complaint of second count disallowed - first count covers the same conduct - amendment would amount to double jeopardy - amendment to grounds of appeal allowed - appeal against conviction for second count allowed - penalty upheld.
Criminal Law Consolidation Act 1935 (SA) s 20(1)(b), s 20(3) and s 5AA; Summary Offences Act 1953 (SA) s 15(1)(a) and s 15(1)(ba)(a) and s 15(1bc); Summary Procedure Act 1921 (SA) s 181, referred to.
Robey v SA Police (1993) 18 MVR 121; Ireland v Police [2005] SASC 202; O'Hair v Killian (1971) 1 SASR 1; R v Maggs (2008) 100 SASR 303; DAT v Police [2002] SASC 219; Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502, discussed.

WRIGHT v POLICE
[2008] SASC 216
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal by Mr Wright following a trial before a magistrate in which the appellant was convicted of two counts as follows:
1.Intentionally made physical contact directly with Alicia Frances Lennox; knowing that (she) might reasonably object to the contact in the circumstances; contrary to s 20(1)(b) and s 20(3) of the Criminal Law Consolidation Act; and
2.Without lawful excuse at night carried an offensive weapon, namely, a camping shovel; contrary to s 15(1)(ba)(a) of the Summary Offences Act.
The relevant events occurred late on 24 December 2006 and into the following day near Coonalpyn in the South-East of South Australia. The magistrate convicted the appellant on both counts. Defence counsel had argued that counts 1 and 2 raised a double jeopardy situation but the magistrate held that the charges were of a different character and relied on different elements to prove each. He specifically said at [32] “there is no duplicity”. As I will later find, this was an error by the magistrate.
Prior to the hearing Mr Griffin QC, who appeared for the appellant, sought to amend the grounds of appeal to include a ground that the magistrate had erred in convicting the appellant on count 2 because it had been laid pursuant to s 15(1ba)(a) of the Summary Offences Act 1953. An essential element of that offence was that the offensive weapon be carried in or in the vicinity of licensed premises, and it was conceded that the information had been laid under the wrong section. There were no licensed premises which were relevant in this matter.
As a result of Mr Griffin’s application to amend, the respondent sought to amend count 2 to allege a different section, namely, s 15(1)(a) of the same Act.
Relevant legislation as at 24 December 2006
Criminal Law Consolidation Act 1935
20—Assault
(1)A person commits an assault if the person, without the consent of another person (the victim)—
(a)     …
(b)     intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(2)…
(3)A person who commits an assault is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 2 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
5AA—Aggravated offences
(1)Subject to this section, an aggravated offence is an offence committed in the following circumstances:
(b)     the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence;
Summary Offences Act 1953
15—Offensive weapons etc
15(1)A person who, without lawful excuse –
(a)carries an offensive weapon;
...
is guilty of an offence.
15(1ba)A person who, without lawful excuse, at night, in or in the vicinity of licensed premises-
(a)carries an offensive weapon;
...
is guilty of an offence.
Background
There were four persons travelling in a motor vehicle on a country highway, having left the Coonalpyn Hotel shortly after midnight. The persons in that car were Alicia Lennox (the vehicle’s owner), Joshua Brown, who was driving the vehicle at the time, Maurice Jones and Susan Barwick. I will set out from the reasons of the magistrate the circumstances which led to what turned out to be a confrontation in the middle of the highway. The magistrate says at [8]:
As Brown was driving he and the others in the vehicle became aware of another vehicle approaching from behind. Brown says that vehicle commenced to tailgate them. Brown slowed to allow that vehicle to pass. As it did so Brown, Lennox and Jones recognised the vehicle as the defendant’s. Each of them was familiar with the defendant’s vehicle and with the defendant. There had been some incidents between Maurice Jones and the defendant causing ill-feeling between them. There was no such ill feeling between the defendant and any of Lennox, Brown or Barwick. Ms Barwick was visiting Coonalpyn and was not familiar with the defendant’s vehicle or with the defendant.
His Honour goes on to say at [9]:
The prosecution case is that the defendant was driving his vehicle. Having passed the vehicle Brown was driving, the defendant moved in front of it, slowed his vehicle and stopped on the road causing Brown to also slow and stop. Brown stopped on the road behind the defendant’s vehicle.
After the vehicle stopped there is a divergence in the evidence as to the exact sequence of events. Mr Brown’s version, which is not all that dissimilar from that of the appellant, is that he ran at the appellant, who threw a punch. Mr Brown then apparently responded by punching the appellant, and then Mr Jones joined in, with both Mr Brown and Mr Jones punching and kicking the appellant.
After that it is alleged that when Mr Jones and Mr Brown got back into their vehicle, the appellant went to the rear of his vehicle, removed a collapsible shovel, which was a camping shovel, and then, armed with the shovel, leaned through the open window of the driver’s door and grabbed Ms Lennox by the throat.
After the incident both vehicles eventually arrived back at Ms Lennox’s house, although the versions of how the vehicles travelled are different. The occupants of Ms Lennox’s vehicle contacted the police when they arrived back at her house.
During the time the scuffle took place between Mr Jones, Mr Brown and the appellant, the two women remained in Ms Lennox’s vehicle and she moved into the driver’s seat.
As I have indicated, there is quite a divergence as to the various accounts which were given and I will discuss these in more detail in relation to Mr Griffin’s argument that the prosecution had not proved its case beyond reasonable doubt.
The magistrate’s findings
After hearing evidence from all four occupants of Ms Lennox’s vehicle, the appellant also gave evidence. The magistrate found that Mr Brown, Ms Barwick and Ms Lennox were satisfactory witnesses and that each gave their evidence in a credible and reliable manner. He said at [25]:
There were inconsistencies between their respective evidence but not so many or so great as to cause me to doubt their general account of what occurred.
The magistrate found Mr Jones to be an unsatisfactory witness. He found him to be intoxicated and that his intoxication had affected his ability to recall the details of the incident. The magistrate indicated at [25] that he placed no reliance on Mr Jones’ evidence unless it was corroborated by other evidence.
The magistrate found that the appellant was an unsatisfactory and unimpressive witness. He found inconsistencies in the appellant’s evidence, in particular, inconsistencies between his evidence in court and what he had said in an earlier record of interview with the police. The magistrate rejected the appellant’s evidence wherever it conflicted with that of the witnesses Ms Lennox, Mr Brown and Ms Barwick.
The principal findings made by the magistrate were as follows:
1.I am satisfied and so find the defendant stopped his vehicle on the road in front of Ms Lennox’s vehicle causing Mr Brown to stop behind the defendant. (Paragraph [28].)
2.I am satisfied and so find that there was a fight principally involving the defendant and Mr Jones. That fight came to an end when Mr Brown and Jones returned to their vehicle. (Paragraph [29].)
3.I am satisfied and so find that after Mr Brown and Jones returned to their vehicle the defendant obtained a shovel from the rear of his vehicle. He carried the shovel back to Ms Lennox’s vehicle. He struck the shovel against the side of Ms Lennox’s vehicle. I am satisfied and so find the defendant reached into the vehicle and grabbed Ms Lennox by the throat. That was an unlawful assault upon her. (Paragraph [30].)
On the basis of those findings the magistrate found the first count proved beyond reasonable doubt. As I have indicated, the magistrate also found count 2 proved beyond reasonable doubt. The magistrate was mistaken in that respect, which is conceded by the respondent. There were no relevant licensed premises in the vicinity and the appellant was charged under the wrong section of the Act.
Arguments on appeal in relation to count 1
In relation to count 1, Mr Griffin properly conceded that there was no specific error which could be identified in the reasons which the magistrate gave. He argued, however, that the conclusion of guilt was unsafe and unsatisfactory on the basis of the whole of the evidence. In particular he emphasised inconsistencies between the prosecution witnesses. Mr Griffin also argued that there was a significant absence of corroborative evidence by way of forensic evidence, in particular related to the allegation of the bashing the side of Ms Lennox’s car with the camping shovel.
When the appellant gave evidence he denied making any contact with Ms Lennox and specifically denied grabbing her around the neck.
Mr Griffin analysed the events of the evening in detail. He analysed what was said by each of the witnesses called by the prosecution. He pointed to the different accounts which were given in relation to the initial pulling-over of Ms Lennox’s car. He similarly pointed to differences between the witnesses relating to the details of the fight between the appellant and Mr Jones and Mr Brown. He then went on to analyse further discrepancies in the evidence as to the actual assault on Ms Lennox and finally he analysed discrepancies in the evidence of the occupants of Ms Lennox’s car relating to the drive back to her house following the incident.
There are certainly quite a few discrepancies in the evidence, and Mr Griffin argued that the magistrate was wrong in dismissing those inconsistencies in the way he did. Mr Griffin submitted that this was not simply a case of minor discrepancies in the evidence but discrepancies on major issues.
I do not agree with this submission. Although Mr Griffin’s analysis shows that different descriptions were given as to how, for instance, the appellant’s car pulled in front of Ms Lennox’s car, it is to be expected that witnesses will give their own versions of how they saw matters, and it is notorious that such versions will vary.
Likewise as to the sequence of events in relation to the initial fight between the appellant and Mr Jones and Mr Brown, there were many inconsistencies in the evidence. It must be remembered that two of the witnesses, Ms Barwick and Ms Lennox, remained in the car throughout. Mr Jones’ version of events was affected by his consumption of alcohol, whereas I have indicated that, by and large, the general sequence of events given by both the appellant and Mr Brown were not all that different.
In relation to the actual assault on Ms Lennox, it seems to me that Mr Griffin has considerable difficulty in overcoming the finding made by the magistrate. Mr Brown said that the appellant grabbed Ms Lennox around the throat. Ms Barwick said that the appellant tried to strangle Ms Lennox with his hand. Ms Lennox said that the appellant reached through the open window and grabbed her around the throat, and finally Mr Jones said that the appellant grabbed Ms Lennox around the throat.
These are the crucial parts of the evidence which went to the proof of the assault in count 1. There was evidence which the magistrate was entitled to accept, and it is not to the point that there was also evidence from the appellant pointing to a different conclusion.
Allied with this, of course, was the fact that the magistrate found the defendant to be an unsatisfactory and unimpressive witness. This does not, of course, have any impact on the result if the magistrate has erred in his finding that the prosecution case was proved beyond reasonable doubt. On that scenario it would not matter whether the defendant was an unsatisfactory and unimpressive witness. However, it is my view that the magistrate was entitled to make the findings he did. That is not to say that he could not have made other findings in favour of the appellant. In my view, it is not possible to say that the magistrate has erred. Despite the inconsistencies between the evidence of the occupants of Ms Lennox’s vehicle, the factor which stands out is that there was evidence from the four occupants as to the alleged assault and the magistrate accepted that evidence. He found three of the witnesses who gave that evidence to be satisfactory, and specifically found that they gave their evidence in a credible and reliable manner.
For those reasons, therefore, I would dismiss the appeal on the basis of the argument put forward on count 1.
Argument on appeal in relation to count 2
In relation to count 2, the appellant was charged under the wrong section. The appellant was charged under s 15(1ba) of the Summary Offences Act 1953, however, the correct section should have been s 15(1)(a). The Crown is seeking to amend count 2. There are essentially two questions that need to be answered. First, is it possible to amend count 2 at the appeal stage? Secondly, should the amendment be allowed?
In relation to the first question, s 181 Summary Procedure Act 1921, provides the answer.
181 – Charges
(1)An information or complaint is not invalid because of a defect of substance or of form.
(2)The Court may-
(a) amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b) dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
There is a power to make amendment on appeal under s 181 against conviction where there is no prejudice to the defendant: Robey v SA Police (1993) 18 MVR 121 at 123 and Ireland v Police [2005] SASC 202 per Gray J at [13] and [23]. An amendment will not be allowed on appeal where the case as presented at trial was not directed to the issues raised by the proposed amendment: O’Hair v Killian (1971) 1 SASR 1.
The second question, as to whether the amendment should be allowed, is more difficult to answer. The Crown concedes that the magistrate was wrong in his conclusion that count 2 was proved beyond reasonable doubt. The Crown submits that it would be possible for this Court to simply find, in the same way the magistrate could have found, the appellant guilty of an offence against s 15(1)(a) of the Summary Offences Act 1953. At trial the court had the power, pursuant to s 15(1bc) of that Act, to find the appellant guilty of an offence against s 15(1) if it was not satisfied that the appellant was guilty of an offence against subsection (1ba). However, I do not think that it is appropriate in this instance.
There is no prejudice to the appellant if the count were to be amended, as the evidence that was before the court is the same evidence as would be necessary to prove the amended charge, the penalty is less, and in any event, the magistrate could have found the appellant guilty without any amendment of the s 15(1) offence by virtue of s 15(1bc).
As I have previously indicated, defence counsel argued that count 2 as charged, although it was based on the wrong section, raised a double jeopardy situation. Mr Griffin argued that if the prosecution were permitted to amend count 2 of the information to allege the offence of carrying an offensive weapon, this would also place the appellant in jeopardy of being convicted twice for the same conduct. Mr Griffin submits that count 1, namely aggravated assault, had already dealt with the conduct of carrying an offensive weapon.
In R v Maggs (2008) 100 SASR 303 at [33], Doyle CJ notes that the principle of double jeopardy is not a precise one. His Honour states, at [7]:
The principle of double jeopardy (in one of its manifestations) may be used to determine whether a charge is open to objection, or should be stayed, because in the circumstances it charges the same offence that has been the subject of an earlier conviction or acquittal of the accused, or because it is the subject … of a concurrent charge (see Pearce v The Queen (1998) 194 CLR 610 and Island Maritime Limited v Filipowski [2006] HCA 30; (2006) 226 CLR 328).
In DAT v Police [2002] SASC 219 Doyle CJ, at [22], referred to the decision of Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502, in which Gleeson CJ stated, at 507:
Both the proposition that a person cannot be punished twice for the same offence, and the related proposition that where one offence is an element of a more serious offence (or, to put it another way, where the second offence charged is merely an aggravated form of the first offence) a person cannot be convicted of both, are well‑established. R v Dodd (1991) 56 A Crim R 451 provides a recent example, in this jurisdiction, of the latter. As was pointed out in that case however (at 457), it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct. The precise meaning of the last‑mentioned proposition itself requires elucidation.
It is necessary to analyse whether or not the elements of one offence are identical to the elements of the other and whether those elements are necessarily wholly included in that other offence. The mere fact that there is overlap between the two offences does not automatically lead to the conclusion that there is a double jeopardy. The essential elements of each offence must be examined.

The overlapping element in this case is the aggravating feature of the assault because the appellant was in possession of an offensive weapon. The aggravating element of count 1 is that at the time of the offence the appellant used or threatened to use an offensive weapon, namely the shovel, to commit the offence. The Crown submitted that this does not necessarily require the possession of a weapon as possession is not an essential element of the aggravated charge. The Crown further submitted that the two offences are characterised as being related to different conduct and different criminality. The aggravated offence requires use of, or a threat to use, an offensive weapon, whilst the lesser offence merely requires possession. I do not agree with these submissions. Were it not for the shovel, the first offence charged would not be aggravated. It was aggravated because of the shovel. Therefore count 2 is unnecessary.
The appellant submitted that the s 15(1) offence is a secondary offence completely subsumed within the primary offence of aggravated assault, since the second count covers the same conduct. I agree with this submission. In my view, allowing the amendment would place the appellant in jeopardy of being convicted twice for the same conduct, namely, carrying the shovel.
In the circumstances, I would therefore not be prepared to allow the Crown to amend count 2. I would allow Mr Griffin’s amendment to the appellant’s grounds of appeal and uphold his appeal against the appellant’s conviction for count 2. The appellant has been tried and convicted of a charge which was wrongly laid. I would therefore quash the appellant’s conviction for count 2.
This leads to the question of whether the penalty imposed for both counts will be affected. Although the magistrate imposed one penalty for both convictions, in my opinion, it is entirely appropriate to leave the penalty as it stands. The substantial incident, that is, the aggravated assault, is the count demanding the penalty, whilst the other count would not attract an additional penalty. Both parties agreed that the penalty imposed would not be manifestly excessive for count 1.
The appellant also argued that the order of the magistrate that he pay the costs of the prosecution and the transport costs of the witnesses Mr Brown and Ms Barwick be quashed. Those witnesses were an important part of the prosecution case and I can see no reason to interfere with the magistrate’s decision to make the order.
Conclusion
To summarise:
1.I dismiss the applicant’s appeal against conviction for count 1.
2.I reject the Crown’s application to amend count 2.
3.I allow the applicant’s amendment to the grounds of appeal and would allow the appeal against conviction for count 2.
4.I uphold the penalty imposed by the magistrate.