THE OTHER TWO CHARGES ARE TO BE DISMISSED." (Transcript, 16 February 2009, page 15).
Consideration
16 Essentially, Mr Simmons submits that the charge of common assault was not before the learned Magistrate at the time, and that the learned Magistrate was not entitled to convict. The submission asserts that the back-up charge was to have been dealt with after the conclusion of the other two matters and that Mr Simmons did not address on the question and was not given an adequate opportunity to present his case in relation to the common assault.
17 There is no doubt that, during the proceedings before the learned Magistrate, counsel for Mr Simmons did not address the issues raised by the charge of common assault. Nor did the Prosecutor.
18 The rules of procedural fairness require, in relation to a criminal offence or penalty, that a party be on notice as to the charge that must be met and be given an adequate opportunity to prepare and to present that party's case. Mr Simmons was given notice of the charge against him, including the charge of common assault. Further, he was given a Facts Sheet that set out the case that the Prosecutor sought to make. At that level, at least, Mr Simmons was aware of the charge against him and the facts said to support it, such that, without more, he would have had an opportunity to prepare and to meet that case, to the extent of his ability. It is also clear that Mr Simmons did not present the case that sought to answer that charge. Should he have? Or, more accurately, was he on notice that the learned Magistrate would or could decide the charge?
19 Procedural fairness is not decided in the abstract. As the High Court has commented, it is essentially practical and is concerned with the avoidance of practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]. Moreover, the content of the rules of procedural fairness varies depending upon the circumstances in which those rules are to apply: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [62].
20 The term "back-up charge" is not always used in the same sense and, therefore, has an inherent ambiguity. Further, the manner in which the court deals with a back-up charge also varies. There are very different kinds of "back-up charges".
21 It has been used to describe an alternative lesser charge that may be proved with the same elements, with the exception of one or two, but usually within the same factual matrix. However, alternative verdicts in a range of matters are now subject to statutory regulation and authority. There is much less formality in a summary proceeding before a magistrate than on indictment.
22 There are other kinds of "back-up charges". For example, possession of stolen goods may be used as a "back-up" to receiving stolen goods or even to one of the numerous offences relating to robbery. The method by which such back-up charges are heard and determined may be a matter of understanding between the parties and the court. Often, if the charges were to be heard separately, the back-up charge may be the subject of a guilty plea. Indeed, the guilty plea may be indicated (but not accepted) prior to the trial on the primary charge. Any one of these procedures may be acceptable and may be agreed between the parties and the court.
23 The difficulty in this case is that one party seems to have assumed (on a reasonable basis) that the primary charge was to be dealt with to finality before the back-up charge was to be dealt with at all, or that the back-up charge would rely solely on the facts particularised in relation to the primary charge. The Local Court, on the other hand, was never made a party to that understanding and proceeded on the basis that all of the charges were before it.
24 The assumption, by counsel appearing for Mr Simmons, that the back-up charge, except to the extent that it relied on "kicking to the head", would not be dealt with until the primary charge had been completed, was reasonably based because of the reference to it as a "back-up charge" at the outset, the particularising only of the facts relied upon in the primary charge, the absence of significant cross examination on the general (non-kicking) violence associated with only the back-up charge (including the failure to put to Mr Simmons the factual assertions of the Prosecutor), and the failure of both the Prosecutor and Counsel for Mr Simmons to address on the question of guilt in relation to the common assault. If the violent conduct, upon which the Local Court had relied for the common assault conviction, was the same as that particularised for the primary charge, no complaint could be sustained.
25 On the other hand, the learned Magistrate had before her all three charges, the evidence allowed a finding to the requisite standard on the common assault charge and neither party had bothered to inform her Honour, prior to judgment, that she ought not deal with the charge of common assault. (The foregoing should not be taken as a comment, one way or the other, as to the correctness of the analysis of the elements of common assault, undertaken by her Honour, which analysis was not the subject of submissions.)
26 There is no required approach to a back-up charge, or the proper procedure in hearing and determining it. In this case, either approach could have been correct. Ultimately, a practical approach must be taken, that ensures that a defendant to a criminal charge has an appropriate opportunity to prepare and to present a defence. If, as I consider to be the approach here, through no fault of the court or the Prosecutor, the defendant, or his legal representatives, have reasonably misunderstood the procedure being adopted, the defendant has been denied an appropriate opportunity to prepare and to present his defence (or plea) to the charge of common assault.
27 In those circumstances, taking a practical approach that ensures procedural fairness, the Local Court, in the absence of submissions on the charge of common assault, and in circumstances where different conduct constituted the assault, should have ensured, either at the outset or at some appropriate time, that the charge was being dealt with in the same set of hearings, or otherwise given an opportunity to Mr Simmons to deal with that charge. Absent that opportunity, Mr Simmons has been denied procedural fairness and the conviction for common assault should be quashed.
28 There are further aspects, which deserve some comment. Firstly, there is no reason why the same judicial officer ought not be able to hear evidence and submissions that relate particularly to the charge of common assault and to determine whether the charge has been proved to the requisite standard. However, only if the matter were to recommence, without regard to the evidence already adduced, may there be issues raised relating to apprehended bias. In that latter circumstance, if the relevant application were made, it would need to be determined by the judicial officer and it is inappropriate for this Court to comment on its reasonableness. Further, the most likely event is that the charge of common assault may be the subject of some arrangement, including a plea, as to the manner in which it may be determined, using evidence that had already been adduced. Remitting the matter to the same judicial officer would facilitate that latter course. In the circumstances, the Court will not impose a restriction on the judicial officer, to whom the matter may be remitted, for the purposes of determination in accordance with law. If an application for disqualification were presented, it is a matter for the judicial officer to determine.
29 Secondly, the learned Magistrate, in commenting on the sentence, precluded a sentence under s 10 of the Crimes (Sentencing Procedure) Act, and commented that "given the nature of the injuries ... when you are acting as a security guard... [her Honour] will place [Mr Simmons] on a bond pursuant to s 9". If her Honour was there saying that the nature of the injuries precluded a course of action that resulted in a conviction not being recorded, her Honour was taking into account an irrelevant consideration, namely, the extent of injuries occasioned, when the charge was common assault (i.e. a contravention of s 61 of the Crimes Act). Section 61 of the Crimes Act is in the following terms:
"Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years."
30 As is clear from the terms of the statute, common assault (as it is mostly called) involves an assault "not occasioning actual bodily harm". The seriousness of the offence is discerned from the circumstances of the offence, not the occasioning of harm or damage. The occasioning of harm or damage would result in an offence of a different kind: R v Abboud [2005] NSWCCA 251 at [18]-[19]. Circumstances of aggravation may not be relied upon for the purpose of sentencing, if those circumstances could have been made the subject of a distinct charge: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. If damage were to have been occasioned by the assault, then that could have been made the subject of a distinct charge under s 59 of the Crimes Act, namely, assault occasioning actual bodily harm.
31 Lastly, the Court should comment on the right to appeal. The parties to the appeal have assumed that there was a right of appeal. The right of appeal against conviction, granted by s 52 of the Crimes (Appeal and Review) Act 2001, relates to an appeal involving "a question of law alone". While the denial of procedural fairness may be jurisdictional, it involves an assessment of the circumstances of the proceedings and is not a question of law alone: Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 and the cases cited therein. In those circumstances the right to appeal is granted by s 53 of that Act and only with the leave of the Court. For obvious reasons, leave will be granted.
32 The Court issues the following orders: