Reported Decision : 75 NSWLR 453 New South Wales Supreme Court CITATION : Simmons v Director of Public Prosecutions [2009] NSWSC 1062 HEARING DATE(S) : 5 June 2009 JUDGMENT DATE : 7 October 2009 JURISDICTION : Common Law JUDGMENT OF : Rothman J (i) Leave to appeal against the conviction and sentence imposed by the Local Court on Mr Alexander Simmons on 16 February 2009 be granted; (ii) The appeal be upheld; DECISION : (iii) The conviction and sentence imposed by the Local Court on Mr Alexander Simmons on 16 February 2009 be set aside; (iv) The matter of the charge against Mr Alexander Simmons for common assault, in contravention of s 61 of the Crimes Act 1900, be remitted to the Local Court sitting at the Downing Centre for redetermination, in accordance with law; (v) Pursuant to s 70 of the Crimes (Appeal and Review) Act 2001, there be no order for costs. CATCHWORDS : CRIMINAL LAW – appeal – back-up charge before Local Court – defendant unaware that back-up charge to be determined – denial of natural justice – magistrate not informed of understanding of the defendant – misunderstanding – denial of natural justice – conviction quashed Crimes (Appeal and Review) Act 2001 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 CATEGORY : Principal judgment Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 R v Abboud [2005] NSWCCA 251 CASES CITED : R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Alexander Simmons (Plaintiff) PARTIES : Director of Public Prosecutions (First Defendant) Her Honour Magistrate Christine Haskett (Second Defendant) FILE NUMBER(S) : SC 11087/2009 L Nicholls (Plaintiff) COUNSEL : J Dwyer (First Defendant) Submitting appearance (Second Defendant) Shad Partners Solicitors (Plaintiff) SOLICITORS : Office of the Director of Public Prosecutions (First Defendant) Crown Solicitor's Office (Second Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 173/09 LOWER COURT JUDICIAL OFFICER : Haskett LCM LOWER COURT DATE OF DECISION : 16 February 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 7 OCTOBER 2009 11087/2009 Alexander Simmons v Director of Public Prosecutions & Anor JUDGMENT 1 HIS HONOUR: Mr Alexander Simmons appeals the decision of the Local Court convicting him of common assault in contravention of s 61 of the Crimes Act 1900. The Director of Public Prosecutions has been substituted for the originally named defendant, who was the informant, but neither of them was otherwise involved in any of the matters with which this appeal is concerned. The issue involved in the appeal relates to the procedure adopted by the Local Court, in relation to this common assault, which was said to be a "back-up charge". 2 Mr Simmons was originally charged, in his capacity as a trainee security guard, arising from an altercation with a person who was refused entry into premises and restrained on the ground. The police arrived at the scene and were informed that Mr Simmons had kicked the victim in the head a number of times, whilst the victim was lying on the ground. Mr Simmons was arrested and charged with three offences. One of them relates to his security licence, which is irrelevant for current purposes. The other two charges were: assault occasioning actual bodily harm, in contravention of s 59 of the Crimes Act; and, the charge of which he was convicted, namely, common assault, in contravention of s 61 of the Crimes Act. 3 Mr Simmons pleaded not guilty to each of the charges. Originally, he pleaded not guilty before the Registrar and maintained that plea before each magistrate before whom the matter was listed. Eventually, the matter was listed for hearing before the learned Magistrate. A Police Prosecutor (hereinafter "the Prosecutor") represented the Police and counsel represented Mr Simmons. The learned Magistrate dismissed the charge relating to the security licence on the basis of honest and reasonable mistake of fact, namely, that Mr Simmons believed, honestly and reasonably, that he held the appropriate licence at the time of the conduct. As earlier stated, no issue arises before the Court in relation to this charge. The learned Magistrate dismissed the charge of assault occasioning actual bodily harm on the basis that the learned Magistrate was unable to find, to the requisite standard, that Mr Simmons had kicked the victim, as alleged or at all. 4 Her Honour, the learned Magistrate, then proceeded to convict Mr Simmons of the "back-up charge" of common assault. Her Honour found this charge proved on the basis of the evidence of excessive force occasioned by all of the security guards, including Mr Simmons. Mr Simmons was convicted and sentenced, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, to a bond, to be of good behaviour for a period of 12 months. Mr Simmons appeals his conviction alleging, inter alia, that he has been denied natural justice by the process adopted in the proceedings. 5 It is necessary to deal in a more detailed manner with the proceedings before the learned Magistrate. Having dealt with the proceedings in more detail, the Court will consider the effect of the procedure on the capacity of Mr Simmons to know the charge that he was to meet, and the opportunity to prepare and to present his case in relation to those charges, and particularly the back-up charge. Procedure Adopted at Trial 6 As earlier stated, Mr Simmons was charged with three offences and was, for that purpose, served with a Court Attendance Notice (CAN) that had been printed on 12 September 2007. A Facts Sheet (that, it seems, had first been created on or about 28 June 2007 and finalised on or about 3 July 2007) accompanied the CAN. This is a common course, although not universal, that is commendable. The CAN specified all three charges. 7 The Facts Sheet, to which reference has been made, referred to the time and date of the offence and its location. Most relevantly, for current purposes, it specified the relevant offences, in the following way: "The victim has attempted to gain entry to the premises but has been refused by the host. The Accused and the victim have become involved in a heated argument about entry to the premises and the victim repeatedly saying [sic], 'I'm on the list.' Further discussions have taken place and resulted in a physical wrestle between the victim, [another security guard] and the accused. The wrestle has started on the outer parts of the premises towards the rear near the hot dog stand, further security had been called and assisted. The wrestle had started due to the accused throwing punches at the victim as stated by the victim and surrounding witnesses. The victim has been wrestled to the ground and whilst on the ground the accused has kicked the victim in the face a number of times. This behaviour was seen by a [witness] whom [sic] was a nearby witness and he called police a number of times, also witnessing the incident was [another witness] whom [sic] also tried to call police. Police arrived.... The victim was surrounded by a number of security, police approached the victim and seen [sic] that he had rather bad bruising and abrasions to the left side of his face around the cheek and eye area. ... The [first] witness mentioned that he seen [sic] the accused kick the victim in the head...." 8 On 26 June 2008, the matter came before the Local Court for hearing. It is appropriate to repeat some of the exchanges between the parties and the Local Court. Counsel for Mr Simmons sought to deal with some "housekeeping" matters and addressed the Local Court in the following exchange: "The only other issue is I ask that the prosecutor particularise in respect of sequence 1, or confirm as we've come here today, that the allegation of assault is kick or a kicking to the head of the victim. HER HONOUR: So, sequence 1 is the assault occasioning? [COUNSEL FOR MR SIMMONS]: Yes. And in respect of sequence 2 whether that's a backup, as I understand the matter to be, or whether it is a separate allegation. PROSECUTOR: The kicking element is particularised in sequence 1. HER HONOUR: So a kick to the head for the assault occasioning actual bodily harm? PROSECUTOR: In regards to sequence 2, it is a backup for sequence 1. HER HONOUR: A backup to sequence 1. [COUNSEL]: That greatly assists, your Honour. It may shorten the proceedings." 9 The proceedings continued, it seems, on that basis. During the course of the cross-examination of the victim, the following exchange occurred: "Question: You say you were dragged away from the entrance. Is that right? Answer: Yes. Question: Who was dragging you? Answer: The bouncers. Question: Was Mr Simmons involved in dragging you? Answer: No. Question: Because he was at the front of you, wasn't he? Answer: Yeah, I know he was. Question: Would you accept from me that at that time Mr Simmons was trying to get you in a bear hug? Answer: No, I could see Mr Simmons throwing punches. Question: Just punches? Answer: Yeah, as well as the other bouncer. Question: In any event when you were being dragged backwards was Mr Simmons being dragged backwards with you? Answer: He was in front of me so a year, he was - yeah. Question: So when you were going back he was staying the same distance in front of you being taken back in the same direction as you. Is that right? Answer: I think so, yeah. He's - then again hard to remember, because I was receiving punches from different direction and didn't seem much, but from the beginning I could see Mr Simmons, yeah, and then - yeah. Question: The situation was that you were trying to throw punches at that time as well, weren't you? Answer: Only once. … Question: So when you are being dragged backwards who had hold of your arms? Answer: Bouncers. Question: How many bouncers were there? Answer: Might have been six at least." (See Transcript, 27 June 2008, page 82.) 10 During the cross-examination of Mr Simmons, there was some cross-examination as to punching, but mainly in the context of the total events that were occurring. The questioning of Mr Simmons relating to the punching seems substantially to be confined, and relates, to a suggestion that Mr Simmons "protruded [his] right arm in the direction of [the victim]". On the other hand, there was significant questioning relating to the state of his knowledge of his current licence, if any, and significant questioning relating to the allegation of kicking. While it was put to Mr Simmons that he was not, as he had said, holding the victim's arms and that Mr Simmons was, in fact, kicking him, it was never put to Mr Simmons that, contrary to his evidence, he was engaged in punching the victim: see Transcript, 28 October 2008, pages 12, 14 and 15. 11 During the course of addresses (the Prosecutor's address commenced Transcript, 28 October 2008, page 16), the prosecutor addressed sequence 3 (the licence charge) and sequence 1 (the assault occasioning actual bodily harm), but did not put submissions on sequence 2 (common assault). At the conclusion of the Prosecutor's address, he said: "I ask your Honour to find the matter of the actual bodily harm and the charge of conducting security activity without an authorised licence beyond a reasonable doubt. They are my submissions." (Transcript, 28 October 2008, page 17.) 12 Counsel for Mr Simmons then addressed the Magistrate. He expressly maintained the same sequence as did the Prosecutor, addressing firstly on the security licence charge and secondly on the assault occasioning actual bodily harm. There were questions from the bench, for example, pointing out that, in relation to the security licence charge, it had not been proved that Mr Simmons was sent anything to let him know that he was no longer licensed or that his licence had been cancelled (see Transcript, 28 October 2008, page 20). 13 During the course of the submissions on the charge relating to assault occasioning actual bodily harm, the learned Magistrate asked questions about a knee injury to the victim, the height of Mr Simmons (relevant to a description that had been given), but no questions relating to the common assault and aspects particularly relevant to that charge. Her Honour reserved judgment and delivered it on 16 February 2009. Prior to delivering judgment on that date, the learned Magistrate asked a question relating, essentially, to the issue of self-defence and/or assault in relation to security guards and whether the law in relation to them was in any way significantly different. During the course of that question and response, her Honour commented: "I think it was canvassed but it's just occurred to me just in terms of that charge if he wasn't the holder of a licence and in terms of the actions or activities that he undertook that night if he was not acting in his capacity as a security guard no submissions were made about any of that in terms of the allegations of assault or common assault. Is that something that perhaps could have been or should have been dealt with given that he was not acting in his capacity as a security guard although he thought he was. That particular offence is one where submissions were made to the effect that there was an honest and reasonable mistake of fact but nothing was put to me in terms of any submissions that he was acting outside the scope of his duty in terms of any allegations of common assault or assault occasioning actual bodily harm." (Transcript, 16 February 2009, page 1.) 14 Understandably perhaps, counsel for Mr Simmons responded: "I think that would be, your Honour, purely and simply because security officers whether they are licensed or not do not have any greater powers in terms of self-defence or protecting property than any other ordinary citizen would have. It doesn't empower them at all in terms of the powers similar to a police officer or a special constable. So I would assume, your Honour, that is why I hadn't canvassed the matter and I expect the learned sergeant wouldn't have addressed in similar terms." The Prosecutor agreed with Counsel for Mr Simmons on that issue, whereupon her Honour delivered judgment. 15 It is unnecessary to repeat large sections of the reasons for judgment of her Honour. The learned Magistrate analysed the evidence and the witnesses who testified. Her Honour, to reiterate, dismissed the charge relating to the security licence, on the basis of honest and reasonable mistake of fact. During the course of the reasons for judgment, her Honour recited some of the evidence that had been given, particularly by the victim. Her Honour dealt at length with the evidence. It is necessary to recite the conclusion, which was in the following terms: "It is clear, as I have said, that [the victim] was agitated and angry, and felt he was being discriminated against. He was mouthing and being very unpleasant and using foul language but, unfortunately, that would not be an unusual circumstance for bouncers at a bar and that indeed is what they are paid to deal with every night of their working lives. As I have said, it is unfortunate that that is the reality of the situation. Clearly, [the victim] suffered some nasty bruising and swelling to the face. His knee required surgery. However, the assault occasioning actual bodily harm charge relates to a kick to the head by the defendant. Given the state of the evidence I cannot be satisfied beyond reasonable doubt it was the defendant kicking [the victim] as it seems number of bouncers were throwing punches and kicks. When the police arrived five or six security guards were at the [premises] and obviously a great number more on duty that night, and no-one else was charged. As I have said despite the difficulties of the evidence... [all the witnesses] say that [the victim] was dragged away and punched and kicked by a number of persons. Clearly, on the evidence, a number of bouncers including the defendant, in my opinion, used excessive force in dealing with [the victim] and he was seriously injured, as I have said, with surgery being required to his knee. Given all of the evidence, I find that there was excessive force used by the defendant and other unnamed bouncers with serious injuries being suffered by [the victim] and I FIND THE COMMON ASSAULT HAS BEEN PROVED BEYOND REASONABLE DOUBT. 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: (i) Leave to appeal against the conviction and sentence imposed by the Local Court on Mr Alexander Simmons on 16 February 2009 be granted; (ii) The appeal be upheld; (iii) The conviction and sentence imposed by the Local Court on Mr Alexander Simmons on 16 February 2009 be set aside; (iv) The matter of the charge against Mr Alexander Simmons for common assault, in contravention of s 61 of the Crimes Act 1900, be remitted to the Local Court sitting at the Downing Centre for redetermination, in accordance with law; (v) Pursuant to s 70 of the Crimes (Appeal and Review) Act 2001, there be no order for costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.