Director of Public Prosecutions (NSW) v Harrison

Supreme Court of NSW|2008-03-17|Before: Price J, Mr P

CITATION : Director of Public Prosecutions (NSW) v Harrison [2008] NSWSC 349

DECISION : 1. A declaration that the learned Magistrate erred in law in that he failed to apply s 16(1)(g) of the Criminal Procedure Act in determining that a discrepancy between the evidence and the Court Attendance Notices as to the time at which the offences in question were alleged to have occurred rendered the Court Attendance Notices insufficient and obliged the Court to dismiss the notices. 2. The order made by the learned Magistrate in the Local Court at Wollongong on 21 September 2007 dismissing the proceedings against the defendant for an offence of affray contrary to s 93C (1) of the Crimes Act be set aside. 3. The order made by the learned Magistrate in the Local Court at Wollongong on 21 September 2007, dismissing the proceedings against the defendant for an offence of assault police contrary to s 60(1) of the Crimes Act be set aside. 4. Each matter is to be remitted back to the Local Court at Wollongong to be heard and determined according to law. No order as to costs.

CATCHWORDS : Criminal law - Court Attendance Notice - Time not an essential ingredient of offences

Crimes Act 1900 s 60(1), s 93C(1), LEGISLATION CITED : Criminal Procedure Act 1986 s 15(2), s 16, s 16(1)(g), s 20 Crimes (Appeal and Review) Act 2001 s 59(2)

CASES CITED : R v Stringer (2000) A Crim R 198 WGC v The Queen (2007) 82 ALJR 220

PARTIES : Director of Public Prosecutions (NSW) Dane Harrison

COUNSEL : Ms N Adams Mr P Johnson

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2007/16335 Director of Public Prosecutions (NSW) v Dane HARRISON

JUDGMENT 1 HIS HONOUR: On 25 June 2007, the defendant was charged by Court Attendance Notice (CAN) with, inter alia, one count of affray contrary to s 93C(1) of the Crimes Act 1900 and one count of assault police contrary to s 60(1) of the Crimes Act. 2 The CAN charging the count of affray was in the following terms:

"Crimes Act 1900, Section 93C(1) - T1 Law Part Code 433

At 10.04pm on 11/11/2006 at Woonona Dane Harrison did intentionally use unlawful violence towards Jason Stevenson and Matthew Davidson by conduct such that would cause a person of reasonable firmness if present at the scene would (sic) have feared for their personal safety." 3 The CAN charging the count of assault police was in the following terms:

"Crimes Act 1900, Section 60(1) - T2 Law Part Code 21705

At 10.04pm on 11/11/2006 at Woonona did assault Matthew Davidson, a police officer, whilst the said officer was executing his duty." 4 The defendant pleaded not guilty to each count, which came on for hearing before Walker LCM in the Local Court at Wollongong on 21 September 2007. 5 Shortly stated, the prosecution case was that both Senior Constable Davidson and Sergeant Jason Stevenson were patrolling in Wollongong at about 10.15pm on Saturday, 11 November 2006, when they heard a number of emergency calls concerning an alleged brawl at the Woonona Surf Club. The first triple "0" call to police for help regarding this incident was at 10.04pm. As they drove towards the club they saw a large group of males numbering not less than 50 fighting near the railway tracks. Some of them were armed with bats, hockey sticks and iron bars. Some of the males were lying on the ground curled up and were being kicked, stomped on and struck by the other men. The defendant was observed by the police to be assaulting other men during the melee. This evidence formed the basis of the affray charge. When the defendant was arrested by Senior Constable Davidson, he struggled with him. This evidence formed the basis of the assault charge.

6 At the close of the case for the prosecution the solicitor for the defendant submitted that there was no prima facie case as the prosecution had not called evidence of any assault or affray at 10.04pm, as stated on the CANs, in that the evidence relied upon in support of the charges occurred at 10.15 pm. The Police Prosecutor briefly submitted that "time is not an essential legal ingredient".

7 His Honour delivered a short ex tempore judgment during which he said: "Dealing firstly with the matter of Dane Harrison, it's quite clear that in the indictment it says the affray was at 10.04. It's quite clear that that affray was not going on at 10.04. Well, there's no proof before the Court that it was happening at 10.04, except as the prosecutor points out, that there were some complaints made. There's an allegation of an assault, and I think from the evidence that that assault is based on 10.04 as well and Mr David has correctly pointed out that that was the basis of the indictment before the Court.

It's a technical point but nevertheless it's a vital point and there's been law in regard to this, that cases where these indictments are insufficient, that the Court should dismiss those charges. In regard to the affrays, in regard to Dane Harrison, I have to therefore dismiss the riot and affray that are before the Court and the assault the officer in the execution of his duty." 8 It is evident that his Honour dismissed the charges on the basis that there was no evidence that the defendant was involved in either an affray or an assault at 10.04pm as stated in the CANs.

9 The Director of Public Prosecutions, the plaintiff, by a summons filed on 18 December 2007, seeks an order pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 setting aside the Magistrate's order dismissing each of the charges. The plaintiff also seeks a declaration that the Magistrate erred in law and an order that the proceedings be remitted to the Wollongong Local Court to be heard and determined according to law.

10 The plaintiff contends that his Honour erred in law in that he failed to apply s 16(1)(g) of the Criminal Procedure Act 1986 and should have simply treated the time as a variance pursuant to that subsection. Alternatively, given that there was no prejudice to the defendant, the CAN could have been amended under s 20 of the Criminal Procedure Act.

11 Section 16 of the Criminal Procedure Act relevantly provides: "(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: … (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly; (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of

… (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant". 12 "Indictment" as defined in s 15(2) of the Criminal Procedure Act "includes a court attendance notice or any other process or document by which criminal proceedings are commenced". Section 20 of the Criminal Procedure Act provides that an indictment can be amended by the prosecutor "with the leave of the court or with the consent of the accused". It is regrettable in the present proceedings that neither the prosecutor nor the defendant's legal representative brought s 16 of the Criminal Procedure Act to his Honour's attention. The prosecutor, furthermore, did not seek leave to amend the CANs.

13 Section 16(1)(g) provides that time can be treated as a variance "except where time is an essential ingredient". In R v Stringer (2000) A Crim R 198, the question of when time was an essential ingredient was considered. Grove J observed at [20] that "time has been stated to be of the essence in four situations, namely: (i) when an act is criminal only when done within a certain time of some other act or event; (ii) when it is an essential ingredient of a particular offence that certain consequences should follow a particular act; (iii) when it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night; and (iv) when the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged." 14 See also Director of Public Prosecutions (NSW) v Knight (2006) 162 A Crim R 555.

15 Crennan J in WGC v The Queen (2007) 82 ALJR 220 observed at [156]-[157]: " However, the general rule is that the date of an offence is not a material particular and need not be proven, unless a date is 'an essential part of the alleged offence'. The terms of s 49 were consistent with the general rule.

Exceptions to the general rule occur when the conduct of a trial has the effect of rendering a date a material particular or vital as, for example, when an alibi is raised by the defence in respect of a particular date. Equally, the defence, or both the prosecution and the defence, may conduct a trial by treating the date of an offence as not material." 16 It is common ground in the present proceedings that the time of the alleged offences stated in each CAN did not fall within the four situations identified by Grove J in Stringer. Furthermore, it is not suggested that time had been made of the essence in this prosecution. The defendant was served with a brief that contained the statements of the police officers Stevenson and Davidson. These statements showed that the case relied upon the evidence of these police officers who did not arrive at the scene until 10.15pm. The defendant did not rely upon an alibi defence.

17 The CANs were not insufficient as his Honour found. His Honour erred in law in failing to apply s 16(1)(g) of the Criminal Procedure Act and, as is contended by the plaintiff, should have treated the time as a variance pursuant to that subsection. I am confident his Honour would have done so if s 16 had been brought to his attention.

18 Error having been established, I make the following orders: 1. A declaration that the learned Magistrate erred in law in that he failed to apply s 16(1)(g) of the Criminal Procedure Act in determining that a discrepancy between the evidence and the Court Attendance Notices as to the time at which the offences in question were alleged to have occurred rendered the Court Attendance Notices insufficient and obliged the Court to dismiss the notices. 2. The order made by the learned Magistrate in the Local Court at Wollongong on 21 September 2007 dismissing the proceedings against the defendant for an offence of affray contrary to s 93C (1) of the Crimes Act be set aside. 3. The order made by the learned Magistrate in the Local Court at Wollongong on 21 September 2007, dismissing the proceedings against the defendant for an offence of assault police contrary to s 60(1) of the Crimes Act be set aside. 4. Each matter is to be remitted back to the Local Court at Wollongong to be heard and determined according to law. I make no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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