Johnson v Miller [1937] HCA 77

Johnson v Miller [1937] HCA 77 - HCA 1937 case summary — Zoe

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dismissed before any evidence was taken, and therefore it is not Tre necessary to consider any question of variance between the complaint jatham cw. and the evidence. There is no defect either in substance or in form in the complaint. It has been argued that further particulars should be given of the complaint. but the complaint itself satisfies the requirements of the statute to which I have hitherto referred. Sec. 182 contains a proviso in the following terms : - '' Provided that the justice or the court shall dismiss the information or complaint, unless it is amended as provided by sec. 183, if it appears to him or to it - (a) that the defendant has been prejudiced by such defect or variance ; or (b) that the information or complaint fails to disclose any offence or matter of complaint." It is not contended that the complaint does not disclose any offence. As already stated, there is no question of variance between the complaint and any evidence, and there is no defect in the substance or in the form of the com- plaint. Therefore the proviso has no application in this case, and the magistrate was not entitled to dismiss the complaint by reason of the proviso. Further, the proviso operates only in cases where the complaint is not " amended as provided by sec. 183." Sec. 183 is as follows : - * If it appears to the justice, or to the court before whom any defendant comes or is brought to answer any information or complaint that the information or complaint - (a) fails to disclose any offence or matter of complaint or is otherwise defective : and (b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure such defect - the justice or the court may amend the information or complaint upon such terms as may be just." This section applies only if the complaint does not disclose any offence or matter of complaint or is otherwise defective. But the complaint in this case does disclose an offence under sec. 209 of the Licensing Act and is not defective. Accordingly, the provisions of sec. 183 are not applicable. The magistrate was not entitled to insist upon an amendment under sec. 183, and therefore, for this further reason, the proviso of sec. 182 (which applies only where an

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But I have not up to the present referred in any detail to the special facts upon which the defendant relies upon this appeal. The complaint in its original form, as I have already said, referred to "certain persons " who were seen coming out of the hotel. The defendant asked for particulars " identifying the person or persons alleged to have been seen coming off the premises and stating the time or approximate time at which such person or persons is or are alleged to have come off the premises." In response to this request the prosecutor, in a letter dated 9th February 1937, gave particulars stating the names of three persons in full and referring also to another man, named "Tom," who was said to conduct a barber's shop in Waymouth Street. and to divers persons "whose names are at present unknown but can be described." The prosecutor also gave a list of times or approximate times when the persons were alleged to have entered or to have come off the premises. He specified thirty times, beginning at 8.50 a.m. and ending at 10.42 a.m. The complaint in this form, and with these particulars, came before the magistrate on 10th February 1937, and an objection was taken that the complaint as it then stood disclosed at least thirty offences. The court agreed that more than one offence was alleged and ordered that better particulars should be supplied. On 17th February the letter containing the original particulars was " withdrawn," and new particulars were furnished in the form already stated, namely, "that some person whose name is unknown to the police was seen coming out of the premises in question at a time between 9 a.m. and 10.45 a.m. on the date charged." On the case coming on for hearing again upon 22nd February, the complaint was amended and "a certain person" was substituted for "certain persons." Thus, in its final form, and in the only form in which it was dealt with by the magistrate, the complaint was confined to the exit of one person unknown to the police within the period between 9 a.m. and 10.45 a.m. on the date charged.

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defendant is not fairly informed of the charge against him. and it also illustrates the application of the legislative provision that a charge in the words of a statute creating an offence is sufficient in

law. These authorities really go no further, so far as the present case is concerned, than to support the proposition that a defendant is entitled to know what the offence is with which he is charged. The complaint must show upon its face that what is charged is an offence according to law, and it is sufficient if it sets forth the acts which are relied upon as constituting the offence with such a reference to time and place as identifies those acts. The only point upon which, in my opinion, it may be suggested that the circumstances surrounding the complaint (as distinct from the substance or form of the complaint itself) show that this complaint, though apparently sufficient, is really insufficient, is to be found in the fact that the prosecutor has specified a period of nearly two hours (between 9 a.m. and 10.45 a.m.) on a specified date. The letter of 9th February giving the original particulars undoubtedly suggests very strongly that it would be possible for the prosecutor to select one of the thirty names mentioned in those particulars so as to confine the charge to the case of a person who left the hotel at a particular time. Such selection, made before the hearing, might prevent a possible adjourn- ment of the hearing, but it would not really assist the defendant in his defence. If he has no evidence of the identity of the persons who left at precise times, the specification of precise times by the prosecutor would not help him in his defence. If he has such evidence, he can adduce it as soon as he hears the police evidence

cither at once, or, if he desires an adjournment, after an adjourn- ment. But the test of the sufficiency of a complaint is not to be found in the convenience of the defendant. It is to be found in the terms of the relevant sections of the Justices Act. There is no provision in that Act which compels the degree of particularity for which the defendant contends. The offence is clearly charged. and the defendant must be prepared to meet it. Tf the case had proceeded to trial, as I think it ought to have proceeded, no practical difficulty would, I think, have arisen. Either the prosecutor would have given no evidence at all, in which case

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sec. 209 (1) provides that a licensee shall be guilty of the offence if, within the hours in question, any person is found on his licensed premises or is seen coming out of them, unless the licensee proves to the satisfaction of the court hearing the case that at least one of three conditions was fulfilled. The first condition is that the person was not on the premises for any purpose contrary to the provisions of the Licensing Act. The second condition is that he was on the premises against the will of the licensee, or his representative for the time being, who took all reasonable precautions to pre- vent his entering the premises and to remove him. The third alternative condition is that the person was there without the knowledge of the licensee, or his representative, who exercised all practicable diligence to prevent his entering or being on the premises. The provision appears to me to impose upon the licensee for each person found upon or seen leaving the premises a distinct liability as for a separate offence. Perhaps the generality of this statement needs qualifying by one exception. For, possibly, if a number of persons is found upon or coming out of the premises at one time and they are acting in combination, their presence does not constitute more than one offence. As they are jointly there, they may be regarded as together satisfying the condition which constitutes that particular element in the offence and not as providing separate instances of that element. But I am unable to agree in the view that the presence on the premises, or the departure from the premises, on distinct occasions however close in point of time of several persons acting independently may be treated as constituting or evidencing but one offence. They are repetitions, not continuations, of the state of facts which exposes the licensee to penal liability if he fails to prove one or other of the three matters of exculpation. Each of these matters of excuse depends upon something which is or may be peculiar to the person found in or seen leaving the premises. His purpose must have been one consistent with the provisions of the Act, or his entrance must have been against the will of the licensee and in defiance of his precautions, or the person's presence must have been without the licensee's privity and in spite of his care to prevent it. No licensee could succeed in bringing the case within any of these grounds of excuse unless the presence or departure of

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solicitors for the two parties, the respondent furnished the following particulars of the complaint: That some person whose name is unknown to the police was seen coming out of the premises in question at a time between 9 a.m. and 10.45 a.m. on the date charged. But in the course of the same letters it appeared that the respondent alleged and proposed to prove that about thirty men were seen coming in or out of the premises between the times stated. The respondent was in a position to give the exact times when each was seen, times the intervals between which varied between half a minute and twenty minutes. But he could not prove the identity of more than four ofthe men. At the hearing of the complaint these letters were placed before the learned special magistrate constituting the court of summary jurisdiction. At the instance of the respondent, an amendment was made in the complaint so that it should allege, not that certain persons were seen coming out of the appellant's licensed premises. but that one such person was so seen. For the appellant it was contended that the respondent should supply further particulars showing which of the thirty men was the man whose emergence from the hotel was the subject of the complaint. This the respondent refused to do. The learned special magistrate agreed in the appel- lant's contention, and, upon the respondent's persisting in his refusal, dismissed the complaint on the ground that it was defective in substance and that the defendant (the now appellant) was prejudiced by the defect. Dismissal of a complaint for such a reason is authorized by a proviso to sec. 182 of the Justices Act 1921-1936 (S.A.). See. 181 of that Act provides that it shall be sufficient in any com- plaint if it gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged. Sec. 182 then provides that no objection shall be taken or allowed to any complaint in respect of any alleged defect therein in substance or in form or any variance between it and the evidence. So far, the legislation follows the provision in Jervis' Act 1848 (11 & 12 Vict. ce. 43, sec. 1). That provision, however, goes on to enact that the justices may adjourn the case to some future day if there be a variance such that the defendant has been deceived or misled. The South-Australian sec. 182 ends with a proviso which gives, not a

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is the foundation for the contention, which the magistrate upheld, that there was a defect in the complaint by which the defendant, the now appellant, had been prejudiced. The respondent, however, took the ground that on its face the complaint gave sufficient particulars and that he was entitled to support the charge by any instance he was able to prove falling within the times specified. In a sense this may be correct, but not in the sense intended. If the respondent had been content to confine his evidence in support of his complaint to one person who was seen coming out of the licensed premises between the times stated, the complaint might be regarded as having given the appellant sufficient information to meet the case made. But the real claim of the respondent is to prove that all thirty men entered or issued from the hotel one after another without tying himself down to any one of them as the man to whom the complaint refers. Prima facie, but one offence can be proved under one charge. For, except to prove intent or system and to exclude accident or mistake, evidence that accused persons committed other like offences is seldom relevant to the issue of guilt. But, if the present case fell within the prima-facie rule, plainly to admit evidence of thirty distinct offences would be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a rule. It happens that, unless the appellant abandoned all reliance upon the matters of excuse available to him, issues might arise to which the proof of system or intent and the rebuttal of accident or mistake would possibly be relevant. But the respondent's claim that in proof of the charge he may rely indifferently on each of the thirty persons alleged to have entered or left the hotel cannot depend on this. accidental feature of the case. If it be true that. although it appears that a number of offences is said to have been committed at the place and on the date stated in the complaint, the prosecutor cannot be compelled to specify which of them is the subject of the charge, it must follow that he can prove all or any of them in support of his complaint, which ex hypothesi is capable of applying to each of them indifferently, and he must be at liberty to do so whether the case otherwise is or is not one for the admission of evidence of similar acts.

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exactly which of the matters he relies upon as the commission of the offence. In this case, however, the complainant, being desirous of reviewing the learned magistrate's ruling before the Supreme Court, took the course of refusing to comply with the direction. By doing so he necessarily raised the question, 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 amend- ment, 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. This view, as I understand his Honour's reasons, was that of Murray C.J. For he says that it is obvious that the time when the person referred to in the complaint came out of the premises could be better defined than by a period of an hour and three quarters and as there was a number of such persons the defendant might easily be misled as to the particular one for whom he had to answer, and his Honour said that he agreed that the complaint was defective. But he considered that under sec. 182 the magistrate struck too soon, because that section authorizes the court to dismiss the information if it appears that the defendant "has been prejudiced" by the defect, words which show, his Honour thought, that the hearing must go on and that the power of dismissal could only be exercised if, after all the evidence on both sides had been taken, it then appeared that the defendant had been prejudiced. I think this view places too great a burden on the words "has been." They come from sec. 1 of 11 & 12 Vict. c. 43 (Jervis' Act), where they state the condition upon which the power to adjourn arises, a power exercisable from the

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tion at a time between 9 a.m. and 10.45 a.m. on the date charged." Tf the letter had stopped there, it would have been quite clear that the matter of complaint was that one person, and only one, whose name was unknown to the police, was seen coming out of the premises during the interval of time mentioned in the particulars, and it would have been equally clear that the appellant had been given a reasonably clear and intelligible statement of the offence or matter with which he was charged. The requirements of sec. 181 of the Justices Act 1921-1936 would have been perfectly satisfied, and there would have been no ground for saying that the complaint was defective in substance or in form. The difficulty in the case arises from what is said in the remaining part of the Crown Solicitor's letter. It continues : " With the above particulars and the informa~ tion contained in the police prosecutor's letter of 9th inst. your client is perfectly well aware of the occasion on which the offence is alleged to have occurred, and with the details of the evidence which will be led to prove that offence. It is no answer that such evidence will disclose a number of acts any one of which may be sufficient to establish the charges (Stokes v. Grant (1) ). There is no prejudice or embarrassment to the defendant in this case any more than in Stokes v. Grant and the following passage at p. 398 seems particularly appropriate." After making the quotation, the letter concludes: " The above particulars furnish all that Stokes v. Grant requires to be furnished, viz., a ' reasonable period within which ' the offence is alleged to have been committed, so that the defendant can identify such occasion." The letter has very clearly said that the par- ticulars formerly supplied, stating that the complaint on which the respondent was then intending to proceed comprehended a number of occasions, were withdrawn, and the new particulars furnished indi- cated that the egress of one person only was all that was comprehended inthe amended complaint. But the Crown Solicitor's letter also makes it apparent that, in seeking to prove that matter of complaint, evi- dence would be led to show that a number of persons, whose names were presumably all unknown to the police, were seen coming out of

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the premises, each on a distinct occasion, during the interval men- tioned in the new particulars, and the onus would therefore rest on the appellant to prove the matter of excuse mentioned in the section in the case of each person in order to escape conviction. Although the complaint itself disclosed one offence only, the result is that the letter could not but put the appellant in doubt as to the person whose egress from the premises was being charged as the incriminat- ing matter which the appellant would be bound to explain in order to exculpate himself. The letter read as a whole informed the appellant that such person is any one of a number of people to whom the description, "a person whose name is unknown to the police," would apply and who were seen leaving the premises during the period mentioned in the new particulars. When read with the letter the complaint cannot be understood as referring to one par- ticular person, but to any one of a number of persons. For this reason it fails to comply with the standard imposed by the well- established rule of practice in criminal proceedings now embodied in sec. 181 of the Justices Act, which requires that fair information and reasonable particularity as to the nature of the offence charged must be given to the defendant (See Smith v. Moody (1) ). In the present case, when the complaint came on to be heard the magistrate directed the respondent to give what have been described as better particulars, which would remove the ambiguity in the complaint and give the appellant a clear and intelligible account of the offence with which he was charged. It was within the discretion of the magistrate at that time to give such a direction as a convenient means of making it sufficiently clear what was the matter of the offence (R. v. Hush; Ex parte Devanny (2); Davies v. Ryan (3); Stokes v. Grant (4); and cf. R. v. Weaver (5); Frazer v. Barclay (6); R. v. Partridge (7) )._ If the respondent had complied with the direction, the objection to the complaint might have disappeared, because, as explained by fuller particulars, it might have become sufficiently certain to what person it applied. But, as the respondent refused to give any further particulars, the complaint remains as one which

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Judgment (154 paragraphs)