On the afternoon of day 18 of the hearing, the prosecutor (at Tcpt, 5 November 2018, p 1096(5-6)) sought to tender a document during the examination-in-chief of Noel Robertson, the general manager of Roseville Golf Club. The document is a letter dated 27 November 2014 from Andrew Hyden, who has been identified as an agent of the defendant, to Mr Robertson. The prosecutor also sought to tender Mr Robertson's reply to that letter.
The defendant objected to the tender. I allowed it and deferred the giving of reasons. The prosecutor thereafter tendered another two documents during the examination-in-chief of Mr Robertson: a letter of Mr Hyden to Mr Robertson dated 8 December 2014 attaching a bushfire risk assessment (at Tcpt, 5 November 2018, p 1103(9)); and a letter of Mr Robertson to Mr Hyden (at Tcpt, 5 November 2018, p 1104(16)). The defendant objected to each tender on the same basis.
Each of the documents was admitted into evidence. It is convenient to deal with my reasons for allowing the tender of these documents together.
Mr Steirn, senior counsel for the defendant, objected to the tender of each of the documents on the basis that it was a departure from the prosecution case as opened. He submitted (at Tcpt, 5 November 2018, p 1097(7-14)):
Now, on any fair reading of [the prosecutor's] opening, the Crown hope to make its case by direct evidence coming from Mr Edgar, Mr McKenzie and Mr Draeger, and that's if you like, the whole of that opening is peppered as to what's expected from those witnesses. There's nothing in relation to correspondence between Mr Hyden and the council, there's nothing in relation to correspondence between Mr Hyden and the golf course. We're entitled to rely on the Crown opening as particularised as to how it seeks to make the case.
Mr Howard, senior counsel for the prosecutor, submitted that a submission that the defendant was not on notice in relation to the material sought to be elicited through Mr Robertson could not be maintained in light of the fact that the material had formed part of the prosecution brief from the outset of the case, being served with the affidavit of Wendy Miller, filed on 30 September 2016.
Mr Howard also submitted that the prosecutor had made it clear that it would rely on the material and that the defendant indicated in its notice pursuant to s 247K of the Criminal Procedure Act 1986 (NSW) ('Criminal Procedure Act') that it would object to its tender.
Each of the prosecutor's notice under s 247J of the Criminal Procedure Act and the defendant's notice in reply under s 247K of the Criminal Procedure Act was tendered by the prosecutor on the voir dire.
Mr Steirn submitted that these pre-trial notices are not to the point and that it was at the opening of the prosecution case when the prosecutor was obliged to determine the nature of the case which it wished to put forward. He submitted that the prosecutor should be bound by any forensic decision it made at that time.
The defendant calls in aid R v Mok (1987) 27 A Crim R 438 ('Mok'). In that case, Hunt J, with whom McInerney and Allen JJ agreed, said at 441:
An accused person is entitled to have identified with precision the transaction upon which the Crown relies; he is entitled to be apprised not only of the overt acts alleged but also the legal nature of the charge against him and the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller (1937) 59 CLR 467 at 489, 495, 501-502. A charge of conspiracy does not differ in this respect from any other charge. The accused is unable properly to plead to a charge unless he knows what is the precise case which is the basis for the charge preferred against him: Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 280-281. He can hardly plead to a charge of conspiracy unless he knows precisely with whom it is going to be alleged that he conspired and the scope of the conspiracy alleged.
It has long been considered a cardinal requirement of the criminal law that an accused should be given proper particulars, and the courts possess an inherent authority to require the Crown to furnish particulars of the charge. The authorities are collected in Johnson v Miller at 497 and in Ex parte Graham; Re Dowling at 280. The denial of the defendant's right to particulars in Moss v Brown [1979] 1 NSWLR 114 at 128-130 is limited to the position of a defendant in committal proceedings, where the magistrate in any event has a discretion whether particulars should be ordered: Ex parte Donald; Re McMurray (1969) 89 WN (Pt 1) (NSW) 462 at 470, 472-473…
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 ('Johnson v Miller') concerned an offence of having persons on licensed premises during prohibited hours. In respect of the defendant's complaint that the offence had not been properly particularised, Dixon J said at 489-490:
In my opinion [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. For example, if the court in the present case had proceeded with the hearing of the complaint and, after ascertaining what the defence was, had decided that evidence of similar acts ought not to be admitted, how could it have discovered which was the offence charged and which the similar acts?
To similar effect, Evatt J said at 495:
It may be that the prosecutor has been placed in some difficulty because he could only prove the fact that thirty persons emerged from the licensed premises during the course of the two hours here in question, so that, if, in advance of the evidence, the prosecutor selected one person only, his case might break down so soon as convincing matter of exculpation was proved by the defendant in relation to the particular person selected. It is for this reason that the apparent recalcitrance of the prosecutor in declining to provide better particulars is readily explained. Probably he was not in a position to be reasonably sure that the single instance he might select would not be satisfactorily accounted for by the defendant. The prosecutor wished (the Crown Solicitor's letter makes this clear) to place the defendant in the position of having to exculpate himself in reference to thirty separate charges, so that, at the end of all, the prosecutor could "elect" or "select" the charge where the defendant's answer had turned out to be the weakest.
In my opinion, the course of action proposed by the prosecutor is contrary to recognized principles of law, and, so long as a defendant insists from the outset on being informed of the specific offence with which he is charged, so transparent a device will be defeated. In substance, the prosecutor was trying to convert the court exercising a strictly judicial function - that of determining guilt or innocence of a single offence - into an administrative commission of inquiry into the question whether, in respect of the Sunday morning mentioned, when there were thirty possible occasions when an offence might have been committed, the defendant could exculpate himself in respect of all thirty occasions.
At 498, Evatt J said pithily:
No plea can be taken, no evidence can be admitted, nothing can be done, an adjournment will be useless, if a prosecutor is set upon a refusal to particularise.
The defendant also directed the Court to King v The Queen (1986) 161 CLR 423; [1986] HCA 59 ('King') and in particular to the following passage of Murphy J at 825:
It is the right of every accused person to know, with particularity, the case which the prosecution wishes to prove at trial. As a direct consequence of this right, a prosecutor "clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge": Johnson v Miller per Dixon J (citation omitted).
I accept that it is a fundamental principle of criminal law that the prosecutor must particularise an offence so that the defendant is made aware of the charge he or she is called to answer. However, I am not of the view that the principle has been traversed by adducing the evidence about which the defendant complains. My reasons may be shortly stated.
First, it is not claimed in the present case, nor could it be, that the defendant is unaware of the nature of the charge he is called upon to answer in the sense considered in Mok, Johnson v Miller, and King. The claimed failure on the part of the prosecutor to particularise relates only to whether certain documents now attempted to be adduced were referred to in the prosecutor's opening. I am not convinced that a duty exists to particularise at such a granular level.
Secondly, the defendant cannot claim to be surprised by the documents given that they were filed and served on 30 September 2016 and each of the s 247J notice and s 247K notice refers to them. I consider that, in those circumstances, the defendant is not unfairly prejudiced by their tender.
Thirdly, even if I were to accept the defendant's proposition that notice of the prosecutor's intention to adduce these documents was required in its opening, I consider that adequate notice was provided. During his opening, Mr Howard said (at Tcpt, 16 April 2018, p 9(2-4)):
It's anticipated that Mr Robertson will give evidence that the Roseville Golf Club did not consent to the cutting down of trees on the Roseville Golf Course land.
It was submitted by the prosecutor that this circumscribed the purpose for which Mr Robertson was called to give evidence. However, I accept the position of the prosecutor that this must be read together with the further comments of Mr Howard (at Tcpt, 16 April 2018, p 10(28-38)):
And the third one is a man by the name of Andrew Hyden. Your Honour, if I could divide those three people into two categories, the first of them being Mr Hyden. We do not intend to call Mr Hyden and I've made that clear as far as I could to our friends. We rely on some written statements made by Mr Hyden in correspondence with the council, we rely on them as admissions under s 87 of the Evidence Act being an exclusion to, they're an exception to the hearsay rule. We will be relying in that regard on a document which your Honour will have, at least on any voir dire, which is a letter signed by the defendant appointing Mr Hyden as his agent, and so we will be relying on written statements that are of some relevance made by Mr Hyden as admissions under s 87.
As I apprehend the matter, the documents sought to be adduced now through Mr Robertson are documents adduced for the purpose alluded to by Mr Howard during his opening. The prosecutor confirmed (at Tcpt, 5 November 2018, p 1106(27-30)) that it was content for the letters of Mr Robertson to be admitted solely for the purpose of providing context for the letters and responses of Mr Hyden.
In the above circumstances and for the above reasons, I determined to allow the documents into evidence.
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Decision last updated: 19 November 2018