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Supreme Court 17 March 2008

Director of Public Prosecutions (NSW) v Harrison

[2008] NSWSC 349

Assault & violencePublic order & justice offences
CRIMINAL LAW COURT ATTENDANCE NOTICE

Citation: Director of Public Prosecutions (NSW) v Harrison [2008] NSWSC 349
Court: Supreme Court of New South Wales, Common Law Division
Date: 17 March 2008
Judge(s): Price J

Background

A defendant faced two charges arising from an alleged brawl near a surf club in Woonona on the night of 11 November 2006: affray under s 93C(1) of the Crimes Act 1900, and assault of a police officer under s 60(1) of the same Act. Both Court Attendance Notices (CANs) stated that the offences occurred at 10.04pm, a time that corresponded to the first triple-zero call to police about the incident.

The prosecution's evidence, however, came from two police officers who did not arrive at the scene until approximately 10.15pm. At the close of the prosecution case, the defendant's solicitor argued there was no prima facie case because the evidence related to 10.15pm, not 10.04pm as stated in the CANs.

The Local Court Magistrate at Wollongong accepted this argument, characterising the time discrepancy as a vital technical point and dismissing both charges. The Director of Public Prosecutions then appealed to the Supreme Court, arguing the Magistrate had erred in law.

  • Whether a discrepancy between the time stated in a CAN and the time supported by the prosecution's evidence rendered the CAN insufficient and required dismissal of the charges.
  • Whether s 16(1)(g) of the Criminal Procedure Act 1986, which provides that a charge is not defective for wrongly stating the time of an offence (except where time is an essential ingredient), should have been applied by the Magistrate.
  • Whether time was an essential ingredient of the affray or assault police offences in the circumstances of this case.

Decision

Price J held that the Magistrate erred in law by failing to apply s 16(1)(g) of the Criminal Procedure Act 1986. That provision expressly states that a charge is not bad, insufficient, or defective for stating the time of an offence incorrectly, unless time is an essential ingredient of the offence. Under the Criminal Procedure Act, the term "indictment" includes a CAN, so s 16(1)(g) applied directly to the documents in question.

The court reviewed the four situations in which time is regarded as an essential ingredient, as identified in R v Stringer (2000). These are: where an act is criminal only if done within a certain time of another act or event; where certain consequences must follow a particular act within a particular period; where the offence requires the act to have occurred during certain hours; and where a prosecution must be commenced within a fixed period of the alleged offence.

It was common ground that none of those four situations applied to the affray or assault police charges. Nor had time been made a material particular during the conduct of the proceedings. The defendant had been served with police statements showing the events occurred at 10.15pm, had not raised an alibi, and faced no prejudice from the time variance. Price J noted that s 16 had not been drawn to the Magistrate's attention by either party, and expressed confidence that the Magistrate would have applied it had it been raised.

The Magistrate's dismissal orders were set aside and both matters were remitted to the Wollongong Local Court for hearing and determination according to law.

Orders Made

  • Declaration that the Magistrate erred in law by failing to apply s 16(1)(g) of the Criminal Procedure Act 1986 in treating the time discrepancy as rendering the CANs insufficient.
  • The Magistrate's order of 21 September 2007 dismissing the affray charge (s 93C(1), Crimes Act 1900) was set aside.
  • The Magistrate's order of 21 September 2007 dismissing the assault police charge (s 60(1), Crimes Act 1900) was set aside.
  • Both matters remitted to the Local Court at Wollongong to be heard and determined according to law.
  • No order as to costs.

Key Takeaways

  • Under s 16(1)(g) of the Criminal Procedure Act 1986, a charge (including a CAN) is not rendered insufficient merely because the time stated in the document differs from the time supported by the prosecution evidence, unless time is an essential ingredient of the offence charged.
  • The definition of "indictment" in s 15(2) of the Criminal Procedure Act explicitly encompasses Court Attendance Notices, meaning the protections in s 16 apply to summary proceedings as well as to indictable matters.
  • Time is an essential ingredient in only four recognised situations, as set out in R v Stringer (2000): where an act is criminal only within a certain time of another event; where consequences must follow within a certain period; where the offence requires the act to occur during specific hours; and where a prosecution must be commenced within a fixed time.
  • A defendant's lack of prejudice was a relevant factor. The defendant here had received police statements disclosing the 10.15pm timeline before the hearing and did not raise an alibi defence, meaning no unfairness arose from the discrepancy.
  • Where an amendment to a CAN is needed, s 20 of the Criminal Procedure Act permits the prosecutor to seek leave to amend, an avenue that remained available but was not pursued in this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 60(1), 93C(1)
- Criminal Procedure Act 1986 (NSW), ss 15(2), 16, 16(1)(g), 20
- Crimes (Appeal and Review) Act 2001 (NSW), s 59(2)

Cases
- R v Stringer (2000) A Crim R 198
- WGC v The Queen (2007) 82 ALJR 220
- Director of Public Prosecutions (NSW) v Knight (2006) 162 A Crim R 555