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McKinnon v The Queen [2004] NTCCA 8

PARTIES: MCKINNON, Callum Craig

v

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 21 of 2002 (20114925)

DELIVERED: 12 November 2004

HEARING DATES: 19 October 2004

JUDGMENT OF: MARTIN (BR) CJ, ANGEL and
MILDREN JJ

CATCHWORDS:

CRIMINAL LAW
Practice and procedure – charge to jury – deprivation of liberty – unlawful assault – bases of verdicts – particulars – defendant be fully appraised of the nature of the case advanced against him – whether the trial Judge failed to leave defence to jury – Criminal Code Act (NT), s 27 – duplicity – directions – application of law to the facts – appeal allowed.

Criminal Code Act (NT), s 27, s 310 and s 441(2)(c)

R v Anderson [1996] 2 VR 663, pp 666-668; R v Zorad (1990) 19 NSWLR 91, p 105; Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; R v Morrow and Flynn (1991) 2 Qd R 309, considered.

 

 

REPRESENTATION:

Counsel:
Appellant: I Rowbottam
Respondent: J Adams

Solicitors:
Appellant: Withnall Maley
Respondent: DPP

Judgment category classification: A
Judgment ID Number: Mar0416
Number of pages: 27

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

McKinnon v The Queen [2004] NTCCA 8
No. CA 21 of 2002 (20114925)

BETWEEN:

CALLUM CRAIG MCKINNON
Appellant

AND:

THE QUEEN
Respondent

CORAM: MARTIN (BR) CJ, ANGEL & MILDREN JJ

REASONS FOR JUDGMENT

(Delivered 12 November 2004)

Martin (BR) CJ:
Introduction
[1] The appellant and Mr Ian Spooner were charged with two counts of deprivation of liberty. The alleged victims were Mr Evan Faull and Mr Elliot Wells. The appellant and Mr Spooner were also charged with unlawfully assaulting Mr Wells in circumstances of aggravation.
[2] A jury acquitted Mr Spooner of all charges. The appellant was acquitted of both charges of deprivation of liberty, but convicted of unlawfully assaulting Mr Wells. In connection with the assault the appellant was acquitted of an alleged circumstance of aggravation that Mr Wells suffered bodily harm, but was convicted of a circumstance of aggravation, namely, that Mr Wells was unable to effectively defend himself due to his situation of being handcuffed.
[3] The appellant appealed against the conviction for assault on three grounds. First that the learned trial Judge erred in failing to direct the jury that the evidence of two police witnesses, Constables Raper and Nancarrow, related to matters outside the charge of assault as particularised by the prosecution. Secondly that the learned trial Judge erred in not directing the jury in accordance with the provisions of s 27 of the Criminal Code. Thirdly that the conviction for assault is attended by a “latent duplicity” because numerous acts were left to the jury as capable of amounting to the assault and the basis of the conviction cannot be ascertained.
[4] At the conclusion of the hearing of the appeal, the court allowed the appeal, quashed the finding of guilt and directed that a judgment and verdict of acquittal be entered. The court indicated it would later deliver reasons for its decision.
The Evidence
[5] The relevant events occurred in the early hours of Sunday 26 August 2001. During the evening of Saturday 25 August 2001 Mr Faull and Mr Wells had consumed a quantity of alcohol in the city. There was a dispute as to the extent to which they were affected, but it was common ground that they had consumed a considerable quantity of alcohol and were significantly affected.
[6] Mr Faull and Mr Wells made their way down Mitchell Street. After being asked to move on by a bouncer at Rorke’s Drift, they approached a shop assistant in Major’s on Mitchell. Mr Faull and Mr Wells said in evidence they had no memory of abusing the shop assistant, but the shop assistant and the proprietor of the shop, Mr Trott, gave evidence that the men behaved in a particularly rude and aggressive fashion. Mr Trott asked the men to leave and, as they did so, one of the men picked up a chair and threw it at the shop assistant. Mr Trott said a chair was also thrown at him. As the men left the premises, they kicked chairs and tables.
[7] Mr Faull and Mr Wells walked towards The Rugby Shop. It is common ground that they were swearing and carrying on in a loud fashion. Mr Wells slapped or grabbed a flag which fell to the ground.
[8] The events which were the subject of the charges then occurred in the vicinity of The Rugby Shop. They were observed by a number of persons who gave evidence. There was a considerable variation between the witnesses as to the details of what occurred.
[9] The appellant was employed as a security guard. In substance, it was the Crown case that the appellant and another security guard unlawfully “arrested” Mr Wells by taking hold of him and throwing him to the ground where handcuffs were applied. After Mr Wells was handcuffed the appellant grabbed Mr Wells in a choking type hold and lifted him onto a bench. One of the witnesses described Mr Wells as hanging limply. It was the Crown case that while Mr Wells was sitting limply on the seat, the appellant grabbed him around the throat, lifted him off the chair and threw him into the ground or threw him head first into the pavement. The appellant then put Mr Wells back on the seat.
[10] Mr Trott gave evidence that differed significantly from other Crown witnesses. He said that initially the appellant and the other security guard talked briefly to the young men (Mr Wells and Mr Faull). A very violent confrontation then occurred during which both Mr Wells and Mr Faull threw punches. He saw Mr Wells throw punches following which Mr Wells and the security guards fell to the ground.
[11] Mr Trott described Mr Wells as very violent. He said Mr Wells was lashing out with his fists and feet. He described the security guards as holding Mr Wells on the ground and eventually applying handcuffs. Even after the handcuffs were applied, Mr Wells was lashing out with his feet. He continued to lash out with his feet after being lifted onto the bench.
[12] According to Mr Trott, Mr Wells was not upended. Nor was he pushed head first into the ground. Mr Trott said there was nothing out of the ordinary about the way Mr Wells had been placed on the bench. Mr Trott did not see a choking type hold applied. At no time did the appellant grab Mr Wells around the throat, lift him up and throw him into the ground.
[13] The evidence of Mr Trott was directly at odds with other witnesses who spoke of the appellant spearing Mr Wells head first into the ground on one or two occasions. In particular there was evidence from a bystander, who knew the appellant, that after the appellant had handcuffed Mr Wells he picked Mr Wells up off the seat and threw him headfirst into the pavement.
[14] Constables Raper and Nancarrow were the first police officers on the scene. Constable Raper described the appellant as standing behind a man who was handcuffed and seated on the bench. He said the man tried to stand up from the bench. The appellant grabbed the man around the neck in a choke hold, lifted him up briefly, slammed him back down on the seat and shook him.
[15] Constable Nancarrow gave similar evidence. He said the man on the bench attempted to stand up. The appellant held the man in a headlock, lifted him up and shoved him back on the seat with a reasonable amount of force.
[16] Both officers gave evidence that Constable Nancarrow asked why the two men were handcuffed. The appellant replied, “section 441 of the Criminal Code, mate.” Constable Nancarrow told the appellant to remove the handcuffs.
[17] The evidence of the witnesses also canvassed the conduct of Mr Spooner and Mr Faull. As Mr Spooner was acquitted and the appellant was acquitted of unlawfully depriving Mr Faull of his liberty it is unnecessary to canvas that evidence.
Particulars
[18] Following a request by the appellant and Mr Spooner, the Crown provided particulars of what were described as the “overt acts” that constituted the offences. The particulars were not before the jury. As to the appellant, those particulars were as follows:
“COUNTS 1 AND 2 (McKINNON – DEPRIVATION OF LIBERTY)
Handcuffing Wells.
Holding Wells on the ground whilst he was handcuffed.
Assisting Spooner, who was using a large dog, to guard Wells and Faull whilst both were handcuffed so that they could not leave the area.
Being in the company of others who were all preventing Wells and Faull from leaving the area prior to police attending.

COUNT 3 (McKINNON ASSAULT ON WELLS)
“Grabbing” Wells by the arm.
“Grabbing” Wells right arm and attempting to “wrench” his arm behind his back.
Causing Wells to become prostrate on the ground.
“Spear tackling” Wells into the ground.
Handcuffing Wells.
“Grabbing” the handcuffed Wells around the throat from behind and pulling him off the ground and into a headlock and continuing this for a period of time.
“Grabbing a seated and handcuffed Wells by the throat again from behind and “reefing” him off the bench and lifting him over headfirst into the ground in a “spear tackle” motion.
“Grabbing” the handcuffed Wells around the throat from behind and pulling him off the ground and into a headlock and continuing this for a period of time.
Then placing himself on top of Wells whilst Wells was on the ground.”
[19] It is readily apparent that the manner in which the Crown presented the case to the jury was attended by considerable ambiguity. As the Crown presented the case, the jury could have convicted the appellant of the two offences charged on the basis of a single act; for example, handcuffing Mr Wells. A perusal of the opening and closing addresses for the Crown demonstrates that, in essence, the Crown presented the entire incident as one continuing incident in which the appellant went too far and from which the jury could pick any one of a number of particular acts as amounting to either or both deprivation of liberty and assault.
Directions – Deprivation of Liberty
[20] The trial Judge first directed the jury as to the legal elements of the charge of unlawful deprivation of liberty. In that context her Honour reminded the jury that when asked by police why Mr Faull and Mr Wells were being held, the appellant had referred to s 441 of the Criminal Code. Her Honour explained to the jury that s 441 provides that a citizen can effect a lawful arrest in certain circumstances. Having made that observation, and having advised the jury that she would only read so much of s 441 as was relevant to their consideration, her Honour gave the following directions:
Now section 441 of the Criminal Code provides that a citizen can effect a lawful arrest in certain circumstances, and I am going to read to you – I am not going to read you all the provisions of section 441, it is quite a lengthy section, I am only going to read such parts of it as are really relevant to your consideration of this matter.
Section 441 of the Criminal Code says:
A person not being a member of the police force may without warrant arrest a person (the offender) where the person (a) finds the offender committing an offence or doing an act or behaving or conducting himself or in such circumstances that the person believes on reasonable grounds that the offender has committed an offence and that the arrest of the offender is necessary (i) to ensure the appearance of the offender before a court of competent jurisdiction, or (ii) to preserve public order or (iii) to prevent the continuation or repetition of the offence or the commission of a further offence or for the safety or welfare of members of the public or of the offender.
Now those are the provisions that are relevant to your consideration. There are quite a number of other provisions in section 441 of the Criminal Code and I say that just in case for any reason you are familiar with that section and you will feel I have not read it all out, I have not.
The one other section that perhaps I should draw your attention to is subsection 4 which says:
As soon as practicable after a person is arrested under subsection (2) the person shall be delivered to a member of the police force and the Police Administration Act shall apply to and in relation to the person and the member as if the arrest had been made under that Act.
The Crown case is that this was an unlawful arrest and that the officers from Guardian Security could have gone about dealing with the incident in a very different way.
I will shortly be summarising all of the evidence to you. You, as members of the jury are, you have to decide as a matter of fact whether you are satisfied beyond reasonable doubt that this was an unlawful arrest. You will do that by deciding what evidence you accept and what evidence you reject and whether on the facts as you find them these facts support a finding of unlawful arrest beyond reasonable doubt. If you are not so satisfied beyond reasonable doubt then you must acquit the accused. In other words, if you are not satisfied beyond reasonable doubt that it was an unlawful arrest, then you must acquit the accused.”
[21] In the context of the directions concerning deprivation of liberty, the trial Judge referred to the requirement that the Crown prove that the appellant acted unlawfully in the sense that he acted without authorisation, justification or excuse. Her Honour said she would later give directions as to self defence which could amount to a justification.
[22] The trial Judge then explained that in order to prove the offence of deprivation of liberty, the Crown had to satisfy the jury beyond reasonable doubt that the security officers did not have a reasonable belief that the persons they were detaining or depriving of personal liberty needed to be confined for their own protection or benefit. This was a reference to the provisions of s 196(3) of the Criminal Code.
[23] The subsequent directions as to self defence were given during her Honour’s summary of the evidence of the shop proprietor, Mr Trott. The directions as to self defence were introduced by the following remarks:
“If you accept the evidence of Mr Trott, and if in particular you accept the part of the evidence that I have just read to you then the issue of self-defence has been raised. If you consider self-defence is raised because you accept Mr Trott’s evidence, the onus is not on the defence to prove they acted in self-defence. The law is that the Crown must negate self-defence beyond reasonable doubt.”
[24] No complaint was made about that direction. Nor is it the subject of a ground of appeal. Obviously, it was correct to direct that the Crown was required to negate self-defence beyond reasonable doubt. However, it was a misdirection to instruct the jury that the issue of self-defence could only be considered if the jury accepted the evidence of Mr Trott. On the assumption that the evidence of Mr Trott was the only evidence that could give rise to a claim of self-defence, it was only if the jury rejected the version given by Mr Trott as a reasonable possibility that the jury was not required to consider the question of self-defence. The jury should have been directed that if it was reasonably possible that the events occurred as described by Mr Trott, and in particular if it was reasonably possible that Mr Wells was lashing out with his fists or feet as described by Mr Trott, the jury was required to consider whether the Crown had disproved self-defence as a justification for the appellant’s conduct.
[25] The trial Judge gave the following directions as to self-defence:
“Self-defence as provided by section 29 of the Criminal Code – and I will read the relevant parts of section 29 to you. It is headed “29 Defensive Conduct Justified”.
‘Defensive conduct is justified and a person who does, makes or causes an act, omission or event by engaging in defensive conduct is not criminally responsible for the act, omission or event. A person engages in defensive conduct only if the person believes that the conduct is necessary to defend himself or herself or another person.’
There are other provisions but I think that is the one relevant for these proceedings. Then I will read from (2)(b):
‘The conduct is a reasonable response in the circumstances as the person reasonably perceives them.’
Now the offence is proved if the Crown established that the accused had no belief that it was necessary in self-defence to commit the acts or that there was no reasonable ground for such a belief. The Crown must prove that of course beyond reasonable doubt.
The Crown must establish that the force in fact used by the accused was out of all proportion to any attack which the accused could reasonably have believed was threatened by the victim. You should bear in mind that if a person defending himself cannot weigh precisely the exact action which should be taken to avoid a threat which he reasonably believed he faced at the time, you must consider the whole of the circumstances, the degree of force used being only part of the whole picture.”
Directions - Assault
[26] Following directions as to the legal elements of the offence of deprivation of liberty, the trial Judge provided the jury with an aide memoir which set the fundamental legal elements of each offence charged in the indictment. Having taken the jury through those parts of the aide memoir which related to the charges of unlawful deprivation of liberty, and still referring to the aide memoir, her Honour said:
“I have also given you the definition in the Criminal Code of assault and that definition of course is referrable to the next two counts that I will be reading to you. Assault means the direct or indirect application of force to a person without his consent.”
[27] The trial Judge then read a passage from the aide memoir related to count 3 which concerned the charge of assaulting Mr Wells. Immediately before the passage which her Honour read, the following appeared in the aide memoir:
“Definitions: Criminal Code”
“unlawful” or “unlawfully” means “without authorisation, justification or excuse.”
“assault” means “the direct or indirect application of force to a person without his consent.”
[28] The trial Judge then gave directions concerning the charge of unlawful assault upon Mr Wells by reading from the aide memoir. Her Honour also added a short direction independent of the aide memoir. The following is taken directly from the aide memoir and the few words of independent direction are italicised:
“In order for you to find Callum Craig McKinnon guilty of unlawful assault upon Elliot Gene Wells the Crown must prove each of the following elements beyond reasonable doubt.
1) On or about the 26th of August 2001, at Darwin in the Northern Territory, the accused, Callum Craig McKinnon
2) unlawfully, that is without authorisation, justification or excuse
3) applied force to Elliot Gene Wells
4) without his consent.
With respect to count 3, I give the following direction:
you must be satisfied beyond reasonable doubt that, Callum Craig McKinnon intended to assault Elliot Gene Wells.
If you are not satisfied that each element is proven beyond reasonable doubt, the verdict will be NOT GUILTY of unlawful assault and no further deliberation is necessary.
If you are satisfied that each element is proven beyond reasonable doubt, the verdict will be GUILTY of unlawful assault, and you are required to consider the following aggravating circumstances.
Aggravating Circumstances
(i) Are you satisfied beyond reasonable doubt that Elliot Gene Wells suffered bodily harm?
Now the definition in the Criminal Code of bodily harm is any physical injury that interferes with health. And the second aggravating circumstance is:
Are you satisfied beyond reasonable doubt that Elliot Gene Wells was unable to effectively defend himself due to his situation, namely, being handcuffed?”
[29] After referring to the next count which concerned the charge against Mr Spooner that he assaulted Mr Wells, the trial Judge then gave the following directions about the meaning of “unlawfully”:
“I have said quite a lot about “unlawfully” meaning without authorisation, justification or excuse. That term is very relevant with respect to all of the charges against each of the accused because in this case there have been three matters that have been raised which would fall within the term “justification or excuse”.
I will not repeat those to you again, I did give you some directions earlier relating to section 441 of the Criminal Code which enables a citizen to effect an arrest and also to the issue of self-defence which I will be directing you upon later and also to the provisions of section 196(3) of the Criminal Code, which I have just read to you.”
[30] Following those directions the trial Judge commenced her summary of the evidence of each witness. Shortly after commencing the summary of the first witness, Mr Faull, the luncheon adjournment was taken. Upon resumption, at the request of counsel for Mr Spooner, her Honour added the following direction concerning s 441:
“Mr Foreman, Ladies and Gentlemen, just before I resume the summary of the evidence I am going to return to section 441 and I’m going to read you one other section which I should have included as relevant to these proceedings and that is section 441(2)(c) and to read that in full it reads:
“A person who not being a member of the police force may without warrant arrest a person, the offender, where the person believes on reasonable grounds that the offender is escaping from legal custody or aiding or abetting another person to escape from legal custody or avoiding apprehension by some person having authority to apprehend the offender in the circumstances of the case.””
[31] The trial Judge then continued with her summary of the evidence of each witness. As mentioned, when she came to the evidence of Mr Trott, having read the essential parts of his evidence, her Honour gave the directions concerning self-defence. She then continued with a summary of the evidence of other witnesses.
[32] At the conclusion of the summary of the evidence, the trial Judge gave brief directions concerning intention and the good character of Mr Spooner. The jury was then discharged and asked to return the following day. A discussion followed concerning the failure of the Crown to call a witness and further evidence given by Mr Trott which the trial Judge had not mentioned to the jury.
[33] Upon resumption of directions the following morning, her Honour read a further passage from the evidence of Mr Trott which she advised the jury was relevant to the direction on self-defence. That was followed by a direction that the jury had not heard from a particular witness and were entitled to infer that the evidence of that witness would not have assisted the Crown case. Finally her Honour summarised the submissions of counsel.
[34] There were no requests by counsel for any further directions. During retirement the jury requested assistance in the following terms:
“We require the transcripts of Kwist and Callicazaros from the beginning of their evidence up until, and including the initial contact with the accused (sic) victims. Also Trott’s evidence from the arrival of Guardian Security, up until and including the initial contact with the alleged victim. Also Raper and Nancarrow’s evidence in relation to the treatment of Mr Wells during such time as they were present.” (my emphasis).
[35] Counsel discussed with the Judge the appropriate passages of evidence to be read to the jury. In the course of that discussion, counsel for the appellant advanced the submission that, according to the Crown particulars, it was not part of the prosecution case that the treatment of Mr Wells by the appellant as seen by Constables Raper and Nancarrow could be the basis of a conviction for assault. Counsel submitted that the evidence of Constables Raper and Nancarrow should not be read to the jury and that the jury should be advised that the Crown was not advancing the treatment of Mr Wells as observed by those officers as part of its case of assault.
[36] In response, the prosecutor submitted that although the act of banging Mr Wells back into the seat was not specifically addressed in the particulars, that event was part of the incident “where he grabbed him from behind by the throat, lifted him up and held him there for a period of time”.
[37] The prosecutor continued:
It’s so close to the particulars, that it matters not. It’s not a new item, it’s just slightly different. But it’s not a new item, it’s nothing that I’ve added to my case or taken the defence by surprise.”
[38] Counsel for the appellant maintained that the particulars to which the prosecutor had referred were different from the evidence of the police officers that the appellant had grabbed Mr Wells while he was seated and handcuffed, lifted him up and bashed him back down onto the seat. He submitted that the Crown case was concerned with a transaction that had ended prior to the arrival of the police. A discussion followed as to why there was not an objection to the police evidence.
[39] The trial Judge determined that the evidence of the police officers should be read and that no qualification by way of direction should be given. Subsequently extracts of the evidence of Constables Raper and Nancarrow were read to the jury which included their evidence that the appellant lifted Mr Wells from the seat and banged him back down onto the seat.
[40] The evidence was read to the jury between 5.33pm and 6.35pm. The jury returned to deliver the verdicts at 8.25pm.
Bases of Verdicts
[41] Against the background of the evidence and directions, it is appropriate to consider the possible bases of the verdicts. As to the charge of unlawfully depriving Mr Wells of his liberty, there was no doubt that the appellant deprived Mr Wells of his liberty. The issue was whether that deprivation was unlawful.
[42] In view of the directions given by the trial Judge, in theory it was open to the jury to acquit the appellant on the basis that the Crown had not negated self-defence. In my opinion, however, bearing in mind the totality of the evidence, it is highly unlikely that the jury acquitted by reason of self-defence. In “arresting” Mr Wells it could not realistically be said that the appellant was acting in self-defence.
[43] In theory, the jury could also have acquitted on the basis that it was reasonably possible that the appellant possessed a reasonable belief that Mr Wells needed to be confined for his own protection or benefit. In my view it is also highly unlikely that the jury acted on this basis.
[44] Bearing in mind the totality of the evidence, and in particular the uncontested evidence that when asked by Constable Nancarrow why Mr Wells was restrained the appellant referred to s 441 of the Criminal Code, the obvious basis of the acquittal was that the jury was not satisfied that the Crown had negatived lawful arrest. There was ample evidence that Mr Wells and Mr Faull were behaving in a drunken and aggressive manner. They had been physically violent at Major’s on Mitchell and had followed that violence by the slapping or pulling of the flag which ended up on the ground. It is not surprising that the jury should have taken the view that the Crown had not proved that the detention amounted to an unlawful arrest.
[45] As to the conviction for assault, bearing in mind that the jury convicted the appellant of the aggravating circumstance that Mr Wells was unable to effectively defend himself due to his situation of being handcuffed, the jury must have convicted the appellant on the basis of an act that occurred at a time when Mr Wells was handcuffed. On the basis of the directions given by the trial Judge, there were a number of acts that occurred while Mr Wells was handcuffed upon which the jury could have relied in convicting the appellant. Those acts included the acts observed by the police officers of lifting Mr Wells from the seat in a choking hold and pushing him forcefully back down onto the seat.
Police Evidence
[46] The first ground of appeal complains that the learned trial Judge erred in failing to direct the jury that the evidence of Constables Raper and Nancarrow “was as to matters outside the charge of assault as particularised by the prosecution.” In substance, this is a complaint that the learned trial Judge erred in leaving the acts of the appellant as described by the police officers in lifting Mr Wells from the seat in a choking hold and pushing him forcefully back down onto the seat as acts capable in themselves of supporting the conviction for assault.
[47] On the appeal, counsel for the prosecution acknowledged that the acts described by the police officers were not included in the particulars provided by the Crown to the appellant and his co-accused of the overt acts upon which the Crown relied as constituting the offence of assault. The Crown presented the case as one in which the appellant unlawfully arrested Mr Wells and applied unnecessary force to him. The Crown did not specifically refer to the acts described by the police officers as acts which were capable in themselves of constituting the assault.
[48] Against that background, it appears that counsel for the appellant did not anticipate that the acts observed by the police officers might be left to the jury as a basis for conviction of assault. Counsel did not address any remarks to the jury designed to persuade the jury that the police evidence was unreliable or that these particular acts did not amount to an assault. The first occasion on which counsel adverted to the possible use of the police evidence as the basis for conviction of assault was after the jury had requested that the evidence of the police officers “in relation to the treatment of Mr Wells” be read to the jury. It was then that counsel complained that these acts were outside the Crown particulars.
[49] It is a fundamental requirement of a fair trial that an accused be fully appraised of the nature of the case advanced against the accused, including the act or acts which are said by the Crown to constitute the offence charged. A considerable body of case law has developed in this regard since the decision of the High Court in Johnson v Miller (1937) 59 CLR 467.
[50] In some circumstances, allowing the Crown to rely on an act or acts not identified in particulars provided to an accused might not result in unfairness to the accused. Each case must be determined according to its particular circumstances. In the matter under consideration, the accused having been specifically advised of the acts which were said to be capable of constituting the offence of assault, which acts did not include the acts observed by the police officers, the trial was conducted on the basis that the acts observed by the police officers were not capable in themselves of constituting the offence charged. Against that background, the appellant through his counsel did not address the reliability of the police observations which were contradicted by the evidence of other witnesses. Nor did counsel address the question as to whether there was a reasonable possibility that such acts were justified in law.
[51] The issues having been brought to the attention of the trial Judge, in my opinion her Honour should have directed the jury that the acts observed by the police officers were not relied upon by the Crown as amounting to the assault charged and could not, therefore, be used by the jury as a basis for convicting the appellant of assault. The jury should have been directed that the acts observed by the police officers, if they were satisfied those acts took place, were no more than part of the total context in which the relevant events occurred.
[52] In the particular circumstances under consideration, in my view significant unfairness was caused to the appellant by leaving to the jury the possibility of convicting the appellant of assault on the basis of the acts observed by the police officers. By reason of the particulars and the conduct of the Crown case, the appellant was misled as to the basis upon which the jury might convict the appellant. As a consequence, the appellant did not address this issue and there exists, therefore, the real possibility that the jury convicted on the basis of acts described by the police officers to which the appellant addressed no submissions. In my opinion, a miscarriage of justice occurred.
Ground Two – Section 27 of the Criminal Code
[53] Ground two is a complaint that the learned trial Judge erred in not addressing the provisions of s 27 of the Criminal Code. In substance this is a complaint that the trial Judge failed to leave to the jury a defence that was reasonably open on the evidence.
[54] Section 27 provides that the application of force not intended and not such as is likely to cause death or grievous harm is justified if it is not unnecessary force and if it is applied for purposes specified in s 27. The relevant purposes specified in s 27 are as follows:
“(a) to lawfully execute any sentence, process or warrant or make any arrest;
(b) to prevent a person who is being or who has been lawfully arrested from escaping or from being rescued;
(c) to prevent the continuance of a breach of the peace or a renewal of it and to detain any person who is committing or about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give him into the custody of a police officer;

(e) to prevent the commission of an offence;”
[55] The application of s 27 was not mentioned at the trial. Plainly, this was an oversight. The case for the appellant was that the “arrest” was lawful. Should the jury have been of the view that the Crown had failed to prove that the “arrest” was unlawful (as was the case), the jury was required to consider whether the force applied by the appellant to Mr Wells after the “arrest” was justified or amounted to the assault charged. The provisions of s 27 to which I have referred were directly relevant to the question of justification. To put it another way, the provisions of s 27 provided a defence of direct relevance and in respect of which there was ample evidence which required that the defence be left to the jury.
[56] In a valiant attempt to avoid the inevitable consequence of a failure to leave a defence, counsel for the Crown reminded the court that the trial Judge read s 441(2)(c) of the Crimes Act to the jury. That direction is set out in para [30] of these reasons. Counsel submitted, somewhat faintly, that there is no significant difference between s 441(2)(c) and the relevant provisions of s 27.
[57] It is unnecessary to dissect each of the sections. It is readily apparent that there are significant differences. In addition, s 441(2)(c) is not applicable to the circumstances of the appellant. Section 441(2)(c) authorises an arrest in defined circumstances. Mr Wells had been arrested. Section 441(2)(c) was not applicable to the application of force to Mr Wells after his arrest and for the purpose of preventing his escape. Section 27 was applicable to the circumstances of the appellant both at the time of and after the “arrest” of Mr Wells.
[58] The failure to leave a relevant defence as found in s 27 was a fundamental flaw in the trial. A miscarriage of justice occurred.
Ground Three - Duplicity
[59] The final ground of appeal was added by leave at the hearing of the appeal. It is a complaint that the conviction for assault is attended by duplicity because a number of offences of assault are encompassed within the one count.
[60] There is little doubt that the Crown case was beset with significant and undesirable ambiguity. In substance, the Crown relied upon any application of force by the appellant to Mr Wells from the first moment that the appellant came into contact with Mr Wells until the police took over. The evidence suggests that the incident lasted for approximately fifteen to twenty minutes and involved a number of distinct applications of force by the appellant to Mr Wells.
[61] In contrast to a straightforward case where, for example, the Crown relies upon a few punches thrown within a short space of time as the basis of an assault, the applications of force by the appellant to Mr Wells over the period of fifteen to twenty minutes involved different legal considerations at different stages of the incident. For example, the legal principles governing the power to effect an arrest were directly relevant to the force applied for the purposes of effecting the “arrest” of Mr Wells. At the latest the arrest was completed when Mr Wells was handcuffed. Thereafter, s 441 was of no relevance. In addition, the principles of justification embodied in s 27(a) were relevant to the “arrest” of Mr Wells. Those principles found in s 27(b) were only of relevance if the jury was of the view that it was reasonably possible that Mr Wells had been lawfully arrested. Section 27(c) applied throughout the events.
[62] The interaction between the legal principles and the facts at various stages of the incident required that the trial Judge provide assistance to the jury in applying the law to the facts at the different stages. The duty of the trial Judge in this regard is set out in R v Anderson [1996] 2 VR 663 at 666 – 668 and R v Zorad (1990) 19 NSWLR 91 at 105.
[63] No complaint was made at trial about the adequacy of the directions. Nor is this issue a ground of appeal. In my opinion, however, the jury should have been given more assistance. The absence of any directions to the jury as to how to apply the law to the facts at different stages or to individual applications of force described by the witnesses exacerbated the difficulties caused by the inherent ambiguity in the Crown case. The absence of such directions also provides the context in which the complaint in ground three is to be considered.
[64] Section 310(1) of the Criminal Code authorises the charging of one offence of assault in circumstances where the act or acts relied upon would amount to more than one offence of assault. That section is in the following terms:
“310 Circumstances where more than one offence may be charged as one offence
(1) In an indictment against a person for an assault the accused person may be charged and proceeded against notwithstanding that such assault is alleged to be constituted by a number of assaults provided they were committed on the same person in the prosecution of a single purpose or at about the same time.”
[65] In view of s 310, it is unnecessary to embark upon a discussion of the principles relating to duplicity. Section 310 is designed to overcome, in appropriate circumstances, the practical difficulties associated with the strict application of the rule against duplicity. It applies to the circumstances under consideration. The assault charged was alleged to have been constituted by a number of assaults committed on the same person. Those assaults were also committed “in the prosecution of a single purpose”, namely, the “arrest” and detention of Mr Wells.
[66] Counsel for the appellant submitted that the number of assaults relied upon to constitute the single charge of assault were not committed “at about the same time”. Counsel referred to the evidence that the entire incident lasted for about fifteen to twenty minutes and could be separated into various stages.
[67] Section 310 contemplates a single charge arising out of a number of assaults committed over a period of time. Although the incident during which the assaults occurred was spread over a period of fifteen to twenty minutes, it can reasonably be described as one continuous incident. It involved the initial and continuing restraint of both Mr Wells and Mr Faull. Although one of the police officers described the appellant as standing behind Mr Wells and not applying any force to him at the time the police arrived, a number of witnesses described the appellant as holding Mr Wells in one form or another throughout the entire incident. None of the witnesses describe any occasion or period of time which might reasonably be said to have brought about such a break in the events as to mean that not all of the assaults occurred “at about the same time”.
[68] For these reasons, in my opinion the complaint based upon the proposition that the count charging assault was bad for duplicity can not be sustained. However, against the background to which I have referred, including the way in which the case was left to the jury, there is considerable force in the view that this is a case in which there was such latent ambiguity that the appellant was deprived of a fair trial: Johnson v Miller; S v The Queen (1989) 168 CLR 266; R v Morrow and Flynn (1991) 2 Qd R 309.
Conclusion
[69] For these reasons I was of the view that a miscarriage of justice had occurred. As to the question of whether a retrial should be ordered, in substance counsel for the Crown acknowledged that this was an appropriate case in which to decline to order a retrial and to enter a verdict of acquittal. That concession was properly made. A retrial would have to proceed on the basis that the appellant lawfully arrested Mr Wells and that the appellant was entitled to use some degree of force to detain Mr Wells until the police arrived. Against that background, and in the light of the conflicting evidence concerning the applications of force by the appellant to Mr Wells, it was not appropriate to require that the appellant undergo a further trial.
Angel J:
[70] I concur with the Chief Justice.
Mildren J:
[71] I have had the advantage of reading in draft the judgment of the Chief Justice. I concur, and have nothing to add.
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