R v BM; ex parte Attorney-General [2001] QCA 59

Director of Public Prosecutions (Queensland) for the applicant

[1] McMURDO P: I agree with Mackenzie J's reasons for judgment and proposed order.

[2] WILLIAMS JA: Whilst the expression "the first occasion" may well have temporal meaning for the maker of the statement, it will not necessarily convey that (or indeed any) meaning to another person, unless the context in which it is used attributes such meaning to it. Unless the context includes some objective criteria the use of the phrase may well indicate something different according to the knowledge and experience of the person called upon to ascribe meaning or significance to it. Only context would result in the phrase identifying an event.

[3] The question posed for the court to answer requires consideration of the use of the phrase "first occasion" as part of particulars intended to apprise an accused person of the particular act, matter or thing alleged as the foundation of the charge; such particulars are considered necessary in order to give an accused person every fair opportunity of preparing his defence.

[4] As Mackenzie J has pointed out in his reasons, where the events in question occurred many years ago, and more particularly where repeated acts are involved or regular conduct is alleged, the use of the phrase the "first occasion" is not of itself conducive to clearly defining the act, matters or thing in issue. As is evident from the reasoning in Longman v R [1989] HCA 60; (1989) 168 CLR 79, where there has been lengthy delay in bringing a prosecution, the fairness of the trial may be impaired where the acts alleged to constitute the offence are not clearly disclosed to the accused.

[5] But that is not to say, as is demonstrated in the reasons of Mackenzie J, that the phrase may never be capable of identifying with the sufficient particularity the conduct alleged to constitute the offence. In such a case it is the context in which the expression is used that gives it significance.

[6] If a small number of events are alleged to have occurred within a relatively short, recent time frame then it may well be that the events are sufficiently differentiated by describing one as the "first occasion".

[7] The use of the phrase "first occasion" when supplying particulars of alleged criminal conduct will usually give rise to consideration of the problems discussed in cases such as S v The Queen [1989] HCA 66; (1989) 168 CLR 266, R v S [2000] 1 Qd R 445, R v F CA No 439 of 1994, 12 December 1994, R v K [1998] QCA 161, CA No 64 of 1998, 23 June 1998, and R v R CA No 445 of 1997, 6 May 1998. Whether or not the particulars supplied satisfy the text laid down in cases such as Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489-491 will depend on the circumstances of each case.

[8] I agree with all that has been said by Mackenzie J in his reasons and with the way in which he would answer the question posed for the court's consideration.

[9] MACKENZIE J: This matter comes before the court in the form of a reference by the Attorney-General under s 669A(1A) of the Criminal Code which authorises him in certain circumstances to refer, for the court's consideration and opinion, any point of law that has arisen at the trial of a person on indictment.

[10] The indictment contained two counts of indecently dealing with a girl under 12 between 22 March 1968 and 23 March 1970 (counts 1 and 2), one count of rape during the same period (count 3) and one count of indecently dealing with a girl under 17 between 22 March 1968 and 23 March 1973 (count 4). All offences are alleged to have been committed against the same girl. After rulings by the trial judge in the District Court, the Crown Prosecutor entered a nolle prosequi on counts 2 and 3. The trials of counts 1 and 4 were adjourned. Entry of a nolle prosequi is one of the circumstances which enlivens the jurisdiction under s 669A(1A).

[11] The ruling by the District Court Judge was made when the defence submitted, at the end of the prosecution case, that there was no case fit to go to the jury in relation to counts 1, 2 and 3, and especially on counts 2 and 3. It was complained that there was an absence of adequate particularisation. His Honour made the following ruling:

"In relation to counts two and three, the best the Crown can do is to say that this is the first occasion on which intercourse took place. This is not sufficient in the absence of any identifiable objective external fact or event ... . The reference to the accused's room is not enough because the same particular applies to all of the other occasions. ... Against that, the Crown cannot otherwise point to any objective external fact or event which would distinguish the first occasion from all the others which on the Crown case could have occurred at any time in a two year period from when the complainant was eight or nine. ... In the result, in relation to counts two and three, I rule in favour of the application and I invite the Crown to test my ruling in the usual way."

[12] In the course of his ruling he referred to S v The Queen [1989] HCA 66; (1989) 168 CLR 266, R v F CA No 439 of 1994, 12 December 1994, R v R [1998] QCA 83, CA No 445 of 1997 and CA No 17 of 1998, 6 May 1998, R v K [1998] QCA 161, CA No 64 of 1998, 23 June 1998, and DPP v His Honour Judge Lewis [1997] 1 VR 391. The question is asked in the following form:

"Can specifying an alleged act as the 'first occasion' when conduct of a certain type was committed be sufficiently particular to identify the offence charged."

[13] In R v Lewis ex parte Attorney-General [1991] 2 Qd R 293, 300 Macrossan CJ, which whom Kelly SPJ agreed, said the following:

"... s 669A requires the court to express an opinion on a point of law said to be contained in a reference or at least requires the court in expressing its opinion to answer the question said to be raised, only if the point is of the character to which it can be assumed the subsection intends to refer. It is concerned with a point involving principle capable of some general application as opposed to rulings which are dependent upon the manner in which an assessment is made of particular factual situations which are not readily capable of wider application to other situations."

[14] A wide variety of factual situations may be presented for consideration when it is alleged that sexual offences have been committed. The offences may have occurred many years ago, as in the present case, or quite recently. The offences may be numerous or few in number. They may extend over a long period, or be confined to a short timespan. For this reason a range of circumstances individual to the particular case may need to be taken into account in deciding whether the accused person's right to be apprised of a particular act, matter or thing alleged as the foundation of the charge has been satisfied. Where there are allegations of multiple acts, all of which are capable of satisfying the definition of the offence, the particular occasion alleged to constitute the offence referred to in a specified count must be adequately identified so that the accused person knows against what he must defend himself and so that jurors all focus on the same event in coming to a verdict.

[15] A preliminary point was taken that the court should decline to answer the question because of delay in instituting the reference and because of the intention of the Director of Public Prosecutions to proceed again on counts 2 and 3, notwithstanding the nolle prosequi, in the event of a favourable answer to the question. The nolle prosequi was entered on 17 December 1999. The reference was not filed until 13 September 2000.

[16] In explaining the delay the Director, who appeared in person, informed the court that another similar prosecution had subsequently failed due to a similar ruling and that it had been decided to bring the reference in the present matter because it was considered a more suitable vehicle for arguing the point. There is no time limit for referring a question under s 669A, but where it is intended to proceed again, notwithstanding a nolle prosequi, if the question is answered in a way which calls the original ruling into question it is obviously desirable that it be brought promptly. Having regard to the view of the law in these reasons it is not critical to decide finally the question of what remedy, if any, is available in the event of undue delay which may work an unfairness on an accused person.

[17] Whether the requirement that an act charged be sufficiently particularised can be satisfied by defining a count as "the first occasion" when a series of essentially identical acts have occurred will depend on the circumstances. For example, if a complainant alleged that two offences occurred in a similar way in the same room of a house during a recent period while the complainant was staying with relatives for a short holiday, but was unable to identify specific dates, it could hardly be correct to deny that identification of one of the alleged acts as the first and one as the last provided sufficient particularisation.

[18] In that example, the circumstance that the offences were recent minimises the risk that an accused person will have lost the means of testing the complainant's allegations adequately. On the other hand, where there has been a long delay, the period in which the particular offence is alleged to have occurred is lengthy and there are insufficient features in the evidence which would enable an accused person to identify a particular occasion upon which the act is alleged to have occurred an accused person will have no real means of testing the complainant's allegations.

[19] Where there has been lengthy delay in bringing the prosecution, Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 requires that a warning be given in the summing up concerning the loss of those means of testing the complainant's allegations which would have been open to the accused had there been no such delay, even in a case where particularisation is adequate.

[20] In R v S [2000] 1 Qd R 445, the earlier Court of Appeal decisions in R v F (supra), R v R (supra) and R v K (supra) were analysed with the focus on demonstrating that the factual context as a whole is important in deciding the sufficiency of particulars. It was doubted whether it is possible or helpful to attempt to lay down absolute rules in this area. The conclusions in R v S were expressed in the following paragraphs:

"Once the sufficiency of particulars falls to be decided in the context of the particular circumstances of the individual case, each case must be decided on its merits. Cases which are insufficiently particularised may have common characteristics. So may sufficiently particularised cases. However, in the end, it may be a matter of judgment and impression whether a case falls on one side of the line or the other, given the wide variety of circumstances which may exist."

"It is a question of judgment as to which side of the threshold the matter falls. In many situations, it will be apparent that particularising a count as the first or last in a series of indistinguishable events will not provide a sufficient indication to an accused person of the case he must meet, thereby embarrassing him in his defence. However, in the present case, the other factors ... provide a context which ... was sufficient to allow the accused person to adequately make his defence."

[21] In the case upon which the reference is based, the offences are alleged to have occurred many years ago over a span of years. In such a case, the absence of objective external facts, events or circumstances which differentiate a particular count from other alleged offences of the same kind committed within the same period will ordinarily make it insufficient for the offence to be described as the "first occasion".

[22] In the present case it was alleged that the first offence was the occasion upon which the complainant lost her virginity. It was submitted that this was a distinguishing feature of the offence.

[23] Attempting to lay down rules of general application in cases of this kind is fraught with difficulty. In individual cases there may be particular circumstances which falsify any attempt to state a general proposition. However, as a general rule, in the absence of any evidence that a consequence of an offence was overt at about the time of the offence, describing the offence as the "first occasion" in combination with a consequence which was personal to the complainant but not overt does not in my view advance the matter of adequate particularisation. The problem that led the High Court to express concern in S v The Queen that an accused would be effectively denied an opportunity to test the evidence against him by reference to objective surrounding circumstances would remain in such a case.

[24] The question referred by the Attorney-General is incapable of being answered with an unequivocal or unqualified "yes" or "no". The applicable principles are discussed in general terms in the preceding paragraphs. An accused person is entitled to be sufficiently apprised of the particular occasion referred to in a charge against him. When it is alleged that a series of acts of a similar character was committed, it is necessary to have regard to all relevant circumstances in deciding whether the accused person's right to be adequately apprised of the occasion to which the count relates has been satisfied. The utility of describing a charged act as the "first occasion", when such particularisation is given as a step towards attempting to ensure that the accused's rights have been accorded to him, will depend on the particular circumstances of the case. In the absence of any objective fact or event to which the charged event can be related, reliance only on that identifying feature in a case where the offence was one of a number which allegedly occurred in the distant past and the period in which it was alleged to have occurred is lengthy, will ordinarily mean that there is insufficient compliance with what is required for the purposes of proper administration of justice.

[25] I would answer the Attorney-General's question in accordance with the sentences in bold type in the preceding paragraph.