R v Chen [1997] QCA 355

1. that the learned trial Judge erred in law in refusing to allow the defence of provocation to be considered by the jury; and

2. that the learned trial Judge erred in law in failing to direct the jury that the onus of proof rested with the prosecution to disprove the defence of self-defence beyond a reasonable doubt, and if the jury were left with reasonable doubt as to whether the appellant was acting in self-defence, then the prosecution had not proved its case to the standard required and they should acquit.

However at the commencement of the hearing of this appeal the appellant sought and was granted leave to add a further ground as follows:

Each ground of which the appellant was convicted was (latently) duplicitous in that it charged the appellant with committing more than one offence, and the appellant was deprived of a fair trial.

In the event this proved to be the main ground of appeal. In order to explain why that is so it will be necessary to set out the facts in more detail. For reasons which will appear it is convenient to set them out, in the first place, in the way which most favoured the prosecution.

The initial discussion between the police on the one hand and the appellant on the other, which started calmly, became louder and the appellant, and perhaps also the police officers, became angry. The police officers were, in effect, asking the appellant to leave and he was refusing to do so. It seems likely that each of Constable Quig and the appellant said "Shut up" to the other and the appellant pushed Constable Quig in the chest or breast area forcing her backwards. This was plainly an assault.

Constable Smith then moved in to grab the appellant telling him that he was under arrest, this being apparently not for assault but for tearing a shirt. Constable Quig tried to assist him but the appellant evaded them. Constable Smith then engaged in a struggle with the appellant during the course of which the appellant grabbed his genitals. This also plainly constituted an assault.

Constable Smith then tried to place handcuffs on the appellant. He was not sure whether he had placed one handcuff on him or whether the appellant simply seized the handcuffs but in any event the appellant swung the handcuffs around. They collided with the bridge of Constable Quig's nose. This then constituted a further assault.

Then the appellant, according to the police officer, spat at him, his saliva landing on the left side of Constable Smith's cheek. The saliva had blood on it. There was some evidence that, by this time, the police officer had hammered the appellant's face into a table several times; hence the source of the blood. But the spit constituted a further assault.

A few seconds later, again according to the police, the appellant spat on Constable Quig also in her face. This constituted yet another assault.

Finally with the assistance of another man, Mr. Bartlett, a chiropractor practising next door, the police placed handcuffs on the appellant, took him down the stairs of the premises and placed him in the police car. Whilst being placed in the police car the appellant spat again, this time his spittle landing on Constable Smith's right hip. This constituted yet another assault.

Thus, during the course of one incident taking place mainly inside the premises but also on the way to or in the police car six assaults by the appellant can be identified, three on Constable Quig, being the first, the third and the fifth in sequence, and three on Constable Smith being the second, fourth and sixth in sequence. And though it may be accepted that the whole incident took minutes rather than hours they were separated in time and were of different kinds.

As already appears, the appellant was charged with only two assaults, one on Constable Quig and one on Constable Smith. No particulars of either assault were sought and none were given. We were provided with a copy of an earlier indictment which had charged eight assaults, four on Constable Quig and four on Constable Smith but again without any particularity.

The appellant says then that this was a case of latent duplicity; that is that, though on their face the indictments were not duplicitous, when they are looked at in the light of the prosecution case they are, there being, in each case, three alleged assaults to which each charge could relate. To this the respondent says that the events related to one activity and that it was therefore appropriate, or at least legitimate to bring a single charge in respect of the assaults on each police officer.[1]

There are no doubt cases in which, notwithstanding that offences could be charged separately, it is nevertheless permissible and even appropriate to prefer only one charge. One obvious class of such cases is that where the offence may be constituted by continuing conduct.[2] But also where one act constitutes a number of offences (stealing a number of articles at one time) or where there are a number of similar acts, each constituting a separate offence, but in a short space of time - a flurry of blows, whether with or without a weapon or a succession of shots[3] - there is, in most cases, little practical advantage in separating them and no loss of fairness to an accused in failing to do so.[4]

However in the present case, though the various alleged assaults occurred within a short space of time and were part of a connected series of events they were of different kinds, the evidence with respect to them differed both in quantity and quality and there were defences open to some which arguably were not open to others. That they were of different kinds appears from the descriptions above: three were of spitting, one was a push, one was striking with handcuffs and one involved grabbing Constable Smith's genitals.

The evidence with respect to them differed because Ms. Kryvenko was coming in and out of the room, Mr. Bartlett did not arrive until a struggle between the police and the appellant had commenced and Mr. Zhang did not arrive until the struggle between the police and the appellant was well advanced. Moreover a jury may have had greater doubt about the two alleged spitting incidents in the premises than in respect of other alleged assaults because Constable Smith did not record these in his notebook in which he recorded other relevant events and Mr. Bartlett's evidence about these differed at trial from that which he had apparently given at the committal hearing.

Self-defence was arguably open in respect of each of the assaults other than those constituted by spitting. In respect of the first of them it depended on accepting the appellant's evidence that the police were the initial aggressors. Provocation was arguably open in respect of all of the alleged offences but the evidence supporting this defence may be stronger in some cases than others; for example the evidence of both Mr. Bartlett and Mr. Zhang supported the appellant's evidence that his spitting on Constable Smith's thigh at the car was in response to being kicked several times in the leg by Constable Smith.

It is impossible to say what the jury found proven in convicting the appellant of assault on Constable Quig; was it pushing her in the chest or striking her on the nose with the handcuffs or spitting in her face? Similarly with respect to the assault found proven on Constable Smith; was it grabbing him by the genitals, spitting in his face or spitting on his hip? It then becomes impossible to determine the proper basis upon which the appellant should have been sentenced.

Courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide in cases such as this and the question will always be one of fact and degree for decision in each case.[5] Unlike those cases where events are so close in time and place that they can be viewed as one composite activity, the latent duplicity here, once exposed, left the appellant without knowledge of the particular act alleged as the foundation of the charge[6] resulting thereby in a substantial miscarriage. It is true that these questions should have been raised at the trial. But the failure to raise them then is not fatal.[7] The appropriate course in the present case then is to quash both convictions.

[1] The respondent relied for this submission principally on Director of Public Prosecutions v. Merriman [1973] A.C. 584 at 592 and R. v. Morrow and Flynn [1991] 2 Qd.R. 309 at 312.

[2] For example trafficking (R. v. Giretti (1988) 24 A.Crim.R. 112) or even supply (R. v. Locchi (1991) 22 N.S.W.L.R. 309).

[3] See fn.1. See also S. v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266 at 270 per Brennan J. (diss.).

[4] See also Biddle v. Dimmock C.A. No. 136 of 1992, delivered 21 August 1992.

[5] Stanton v. Abernathy (1990) 19 N.S.W.L.R. 656 at 666; Walsh v. Tattersall [1996] HCA 26; (1996) 139 A.L.R. 27 at 49.

[6] Johnson v. Miller [1937] HCA 77; (1937) 59 C.L.R. 467 at 489.