Continuing Legal Education (CLE)
18
December
2002
PARTICULARS
What are particulars?
A count in an indictment describes the nature of the offence, and must allege each element of the
offence: R v McGoldrick [1995] 1 Qd R 553, per curiam. It does not describe the particular act,
matter or thing alleged as the foundation of the charge. “Particulars” is the term applied to those
details of the offence.
R v Lewis [1994] 1 Qd R 613 per Macrossan CJ at 624:
“… The Code specifically provides for the delivery for particulars in
the discretion of the trial judge: s 573. Particulars when ordered and
delivered will have a force and significance by virtue of the very fact
that our criminal procedure provides for them. Once delivered, they
will have a consequence in the further conduct of the trial.
Obviously they will have to be read with the terms of the indictment
in defining the terms of the charge and the case which the Crown has
to prove.” [writer’s underlining]
Johnson v Miller (1937) 59 CLR 467
Per Dixon J, regarding the statement of the offence, at 486:
“The complainant described it in the words of s 209… But this relates only to the
nature of the offence and does not dispense with the necessity of specifying the time, place
and manner of the defendant’s acts or omissions”
Why are particulars required?
The cases describe a number of reasons why particulars are, or may be, needed.
Smith v Moody [1903] 1 KB 56
Per Lord Alverstone CJ, at 60:
“… the old rule of criminal practice which requires that fair and reasonable particularity as to
the nature of the offence must be given in indictments and convictions.”
Per Wills J at 62:
“ I can well understand the reason of the necessity for holding magistrates and other
tribunals to strictness in this matter of describing the elements in an offence, because, if
laxity is allowed in the statement of the offence in the summons or in the conviction, it is a
great encouragement to those who have to deal with such matters to take refuge in
generalities, and not to apply their minds to the specific question.”
Johnson v Miller (supra)
Per Dixon J at 488:
“…the rule is that a conviction should have as much certainty as an information, not more
certainty.”
Per Evatt J at 497:
Joe Briggs
1
Continuing Legal Education (CLE)
18
December
2002
“It is of the very essence of the administration of criminal justice that a defendant should, at
the very outset of the trial, know what is the specific offence which is being alleged against
him.”
R v Trifyllis CA No 358 of 1998, 11 December 1998 (unreported) per Chesterman J, with whom
the other judges agreed, at 10, paragraph 18:
“The function of particulars is to enable an accused to know the nature of the charge which
he is called on to meet. See R v Juraszko [1967] Qd R 128 at 135 per Stable J (with whom
on this point Gibbs J agreed).”
Dare v. Pulham (1982) 148 CLR 658
Per curiam at 664:
“Pleadings and particulars have a number of functions: they furnish a statement of
the case sufficiently clear to allow the other party a fair opportunity to meet it ...they define
the issues for decision in the litigation and thereby enable the relevance and admissibility of
evidence to be determined at the trial ...and they give a defendant an understanding of a
plaintiff’s claim in aid of the defendant’s right to make a payment into court.”
R v S [2000] 1 Qd R 445, at 452 per Mackenzie J, with whom the other judges agreed:
“There are two aspects of the need for particularity. One is to eliminate the risk of
duplicity. The occasion on which the offence is alleged to have occurred must be
sufficiently identified so that it may be differentiated by the jury as a specific event upon
which they must focus…
The second purpose of particulars is to give the accused person a sufficient
indication of what is alleged against him on the occasion when he is said to have committed
the offence.”
R v Lowrie and Ross [2000] 2 Qd R 529, per McPherson JA, with whom the other judges agreed,
at 536:
“For the purpose, however, of defending a charge against him, the accused or his
counsel may need to know in what character or capacity under s7(1) he is being charged
with having committed the offence. That is a difficulty which ensued in the present case
when an application for such particulars was refused by the trial judge. The problem
remained latent throughout the trial and became more readily apparent once the summing
up was analysed on this appeal.”
Who is entitled to particulars?
The accused, the prosecutor and the Court are so entitled.
Johnson v Miller (supra) per Dixon J at p488:
“A defendant is entitled to be apprised not only of the legal nature of the offence
with which he is charged; but, also of the particular act, matter or thing alleged as the
foundation of the charge. The court hearing a complaint or information for an offence must
have before it a means of identifying with the matter or transaction alleged in the document
the matter or transaction appearing in evidence.”
The prosecutor must know particulars of the case:
Joe Briggs
2
Continuing Legal Education (CLE)
18
December
2002
Johnson v Miller, per Evatt J at 498:
“ ..the fundamental principle is that a specific charge has been stated and is known
to the court, to the defence and to the prosecutor.”
When does the entitlement to particulars arise?
The Accused is entitled to particulars before he is called on to plead to the indictment.
R v Buckett (1995) 79 A Crim R 302, per Hunt CJ at 305, citing Johnson v Miller (supra):
“ An indictment is not invalid because it fails to give all particulars as may be
required to enable the accused to know the case he must meet…but he is of course entitled
to have particulars of the precise case against him before he is required to plead”.
Can particulars be ordered at committal?
It is submitted that, particulars may be ordered at any time after an accused may be called on to
plead to a charge, or elects to plead to a charge - for instance, at a committal hearing. This
submission flows from the principle that particulars are required to allow the accused a fair chance
to plead to the offence, and is supported by authority:
Johnson v Miller (supra) per Evatt J at 497:
“…the entitlement to particulars has been deemed applicable to bodies which are
not strictly judicial in character.”
Stanton v Abernathy 48 A Crim R 16, per Gleeson CJ, with whom the other judges agreed, at 2930:
“The judgment of Dawson J in Grassby (1989) 168 CLR 1; 41 A Crim R 183, with which
Mason CJ, Brennan J and Toohey J agreed, demonstrates that the references by Dixon J
and Evatt J to the inherent power of magistrates must now be regarded, more properly, as
references to implied power, but it does not deny the validity of their observations. Nor, in
my view, does it render those observations, which were made in the context of summary
proceedings, inapplicable to committal proceedings. They are based on general principles
concerning the proper administration of criminal justice, and if they did not apply to
committal proceedings serious injustice would result. Although committal proceedings are
administrative and not judicial, the magistrate dealing with them sits as a court, and it
cannot be the case that such a magistrate is powerless to deal with a prosecutor’s refusal
to make clear the charge against the defendant. The magistrate has a duty to act fairly and
the various procedures identified in Johnson v Miller constitute means by which that duty
can be fulfilled.”
Can particulars be ordered at committal?
Inherent power
Johnson v Miller (supra) per Dixon J at 488:
“Indeed, the facts both of the present case and of Parker v. Sutherland (1917) 116 L.T. 820;
86 L.J. K.B.1052 fall almost exactly within the following statement of Napier J. in Tucker v.
Joe Briggs
3
Continuing Legal Education (CLE)
18
December
2002
Noblet (1924) S.A.S.R, at p. 340, viz: "It may be possible that a case could occur in which
the complaint is good," that is, I take it, apparently good if read apart from the
circumstances of the case, "but evidence is admitted which gives rise to duplicity or
uncertainty, and where there is some grave embarrassment or prejudice of such a
character that it cannot be fairly met by any adjournment. If that should happen and the
prosecutor should refuse to elect, I think that the court must have some inherent power to
secure a fair trial and to prevent an abuse of its process. If all other means fail, the inherent
power may extend so far as to justify a dismissal of the complaint: O'Flaherty v. McBride
(1920) 28 C.L.R., at p. 288. But that could be only as a last resort, and in a very unusual
case."
Per Evatt J, at 497:
“The court possesses an inherent authority to require that particulars of a charge shall be
furnished.”
See also R. v. Weaver (1931) 45 C.L.R. 321, at 333
Statutory Power
Criminal Code s573:
“The court may, in any case, if it thinks fit, direct particulars to be delivered to the accused
person of any matter alleged in the indictment, and may adjourn the trial for the purpose of
such delivery.”
What level of particularity is required?
The answer depends on the circumstances of the case. Minute detail is not required, but the
essential aspects of the offence must be described.
R v Trifyllis CA No 358 of 1998, 11 December 1998 (unreported) per Chesterman J, with whom
the other judges agreed, at 14, paragraph 26:
“The Crown case was of one assault, one episode in which the complainant was
punched and suffered bodily harm. The episode was sufficiently described as to time, place
and the nature of the assault. The number of blows which landed and the particular pose of
the appellant and his juxtaposition to the complainant at the time of delivering the blows
were evidentiary details which did not affect the essential aspects of the described offence.”
R v Juraszko [1967] Qd R 128 per Stable J, Gibbs J concurring, said at 134:
“ …I do not appreciate that this was a case for the ordering of particulars at all. The appellant’s
course of conduct was described, evidently with some discrepancies and inconsistencies between
witnesses, in the depositions. Those discrepancies and inconsistencies were ammunition for
defence counsel in cross-examination and address…but in this case the elements of time and
space were small. The conduct complained of was essentially a course and manner of travel over
a short distance. The defence had the depositions containing all of what had been said on the
committal proceedings. It was not as if the appellant was an accused person for the first time
facing a tribunal on the charge.”
For many offences, the date of the offence can be accurately stated. However, time is rarely
an element of the offence. Therefore, it is possible to charge an offence as having occurred
Joe Briggs
4
Continuing Legal Education (CLE)
18
December
2002
between certain dates, or within in a described period. This is common in sex cases,
especially old ones.
When the date of an offence cannot be accurately described, it may be essential to
particularise a distinguishing fact, matter or event that happened close to the time of the
alleged offence. Such should enable some clarification of the time when the alleged offence
occurred. This particularising feature is especially important when the alleged offence is
old, and the indictment alleges that the offence occurred within a wide time frame.
The court has sometimes described this particularising feature as an objective external fact
or event. However it is described, it has further significance when there is duplicity.
S v The Queen (1989) 168 CLR 266.
The appellant was charged with three counts of carnal knowledge of his daughter, the first said to
have occurred in the 1980 calendar year, the second in the 1981 calendar year and the third
between 8 November 1981 and 8 November 1982. At the trial the complainant was able to give
evidence of only two specific acts of intercourse, one which may have occurred in 1979 or 1980
and the other identified by the fact that the appellant had, for the first time during such an incident,
worn his wife’s underclothes. There was no evidence as to the date of this event. Apart from this
evidence, the complainant said only that intercourse occurred “every couple of months for a year”,
although this was apparently taken to mean over the whole period alleged in the indictment.
Dawson J said at 275:
“The occasions upon which the offences alleged took place were unidentified and the
applicant was, in effect, reduced to a general denial in pleading his defence. He was
precluded from raising more specific and, therefore, more effective defences, such as the
defence of alibi. Because the occasions on which he was alleged to have committed the
offences charged were unspecified, he was unable to know how he might have answered
them had they been specified. It is not to the point that the prosecution may have found it
difficult or even impossible to make an election because of the generally unsatisfactory
evidence of the complainant. An accused is not to be prejudiced in his defence by the
inability of the prosecution to observe the rules of procedural fairness.”
There were two distinct but related problems in S v The Queen:
(a) The lack of particularity of the allegations in respect of each count; and;
(b) The question of duplicity, where the evidence led identifies two or more apparent offences
satisfying the description of a particular count in the indictment.
Duplicity and particularity?
Prima facie, but one offence can be proved under one charge: see Code s 567.
Duplicity may be patent (obvious on the face of the indictment) or latent
(not demonstrable on the face of the indictment, but clear from the way in which the prosecution
case is conducted) see Walsh v Tattersall (1996) 139 ALR 27 per Kirby J at 43.
A patent duplicity occurs when two offences are charged against one person in the same count.
A latent duplicity occurs when there are more transactions in the evidence fitting the description of
the charged offences than there are charges. There is uncertainty about which transactions the
prosecution has charged.
Latent duplicity is the more common of these anomalies and has received much judicial attention.
In Johnson v Miller, (supra) Johnson was the licensee of a hotel. He was charged with one
offence of breaking the Licensing Act. Particulars provided alleged that over 30 men were seen
exiting or entering the hotel between certain times. The plaintiff refused to supply further
particulars. Dixon J said, at 489:
Joe Briggs
5
Continuing Legal Education (CLE)
18
December
2002
“...the question is whether the prosecutor should be required to identify one of a
number of sets of facts, each amounting to the commission of the same offence as that on
which the charge is based. In my opinion he should be required to identify the transaction
on which he relies and he should be so required as soon as it appears that his complaint, in
spite of its apparent particularity, is equally capable of referring to a number of occurrences
each of which constitutes the offence the legal nature of which is described in the
complaint.”
Are particulars the only remedy for latent duplicity?
Dixon J discussed three remedies for latent duplicity in Johnson v Miller (supra) at 490:
(i)
A direction that particulars be given;
(ii)
Requiring the prosecutor to elect which of the transactions is to be proved and to state
definitely to the court which of then is to be treated as the subject of the offence; or
(iii)
Amending the indictment to indicate one transaction to be proved to the exclusion of the
others.
What is the minimum standard of particularity in cases of latent duplicity?
R v Rogers (supra) at 24 per Dowsett J:
“In general, as a minimum requirement, it is necessary that there be sufficient
particularity in the allegations to demonstrate one identifiable transaction which meets the
description of the offence charged, distinguishable from any other similar incidents
suggested by the evidence. I cannot see how there can be a trial in the absence of that
degree of particularity. Of course, this requirement does not
exclude multiple charges of substantially similar events, provided the evidence
demonstrates separate, identifiable transactions which can be related to counts in the
indictment. I do not imply that this minimal standard will always be sufficient.”
Gaudron and McHugh JJ. in S v The Queen (supra) at 286:
"... the applicant was required to defend himself in respect of each occasion when
an offence might have been committed. Additionally, by reason that the offences were
neither particularised nor identified, the accused was effectively denied an opportunity to
test the credit of the complainant by reference to surrounding circumstances such as would
exist if the acts charged had been identified in relation to some more precise time or by
reference to some other event or surrounding circumstance”.
In R v Fisher CA 439 of 1994, 12 December 1994 (unreported), the term objective was used
explicitly, per curiam at 11:
“The same criticism or complaint may fairly be leveled against the offence
charged in count 1 in the present instance. Its designation as "the first
occasion" did not enable it to be identified by referring to any objective external
fact or event and did nothing to diminish the difficulties apprehended by their
Honours in similar circumstances in S. v. The Queen.”
Joe Briggs
6
Continuing Legal Education (CLE)
18
December
2002
R v Knuth CA 64/1998, 23 June 1998 (unreported). After referring to the competing views of
Fitzgerald P and Dowsett J in Rogers (supra) Lee J, with whom Pincus JA and Ambrose J agreed,
said at 12-13:
“At trial the complainant gave evidence, in respect of count one, that this was the first
occasion that oral sex occurred. It is clear that a designation as ‘the first occasion’ is not
sufficient particularisation because it does not enable the incident to be identified by
referring to any objective external fact or event. However in this case there is a greater
degree of temporal specificity than was present in the case of Rogers (supra) and in the
case of S v The Queen ...
Both the Crown Prosecutor's opening in this case and the evidence of the complainant
fixed the dates of the oral sex, the subject of count one, as two to three weeks after the
appellant's wife left the property. The Crown alleged that the incident occurred in daylight
hours and the complainant gave evidence that her Aunt Josephine was present at the
property at the time. One would expect that the departure of the appellant's wife might have
been of some moment. The appellant's wife gave evidence herself of when she left. Given
the relatively small window of time in which it is alleged that the offence occurred, the
Crown has identified the occasion in a way that ought to have enabled the appellant to
defend himself at the trial against that charge. All that was required of the Crown was to
give reasonable particulars and it seems to me that these particulars were reasonable in
the circumstances.”
See also:
Clark [2000] QCA 145
Kuhn CA 353 of 1996, 26 November 1996 (unreported)
Thurston CA 313 of 1993 10 November 1993 (unreported).
It is submitted that, regarding adequacy of particularity, these are incorrect decisions.
What forensic difficulties ensue from lack of particularity and/or duplicity
R v Rogers CA No 445 of 1997 and No 17 of 1998, 23 March 1998 and 6 May 1998 (unreported)
at 24 per Dowsett J:
“(a) embarrassment to the accused in having to defend himself in relation to an
indeterminate number of alleged offences occurring on unspecified dates;
(b) loss of opportunity for the accused to raise specific and effective defences such as, but
not limited to the defence of alibi, because the absence of specificity may deprive him of his
capacity to know how he may answer such charges;
(c) difficulty in determining the admissibility and/or use of “similar fact” or “propensity”
evidence;
(d) difficulty in ensuring that any verdict is unanimous as to its factual basis;
(f) difficulty in ensuring that any verdict is based upon a particular event and not upon an
inference drawn from a series of events or a perception of general disposition;
(g) difficulty with subsequent pleas of autrefois acquit or autrefois convict, although some
members of the court considered that s.17 of the Western Australian Code (in terms similar
to s.17 of the Queensland Code) would obviate this problem;
(h) difficulty in identifying admissible evidence;
(i) difficulty in instructing the jury as to the law;
(j) difficulty in identifying the appropriate offence for punishment in the event of conviction;
(k) unfairness inherent in requiring the accused to defend himself in respect of any
occasion on which an offence may have been committed;
(l) loss of opportunity for the accused to test the credit of the complainant by reference to
surrounding circumstances such as would exist if the acts charged were identified in
relation to time or by reference to some other event or circumstance.”
Joe Briggs
7
Continuing Legal Education (CLE)
18
December
2002
What are the relevant factors in determining whether the minimum standard of
particularity has been satisfied?
Dowsett J in Rogers (supra):
“The nature of the offences in question and the circumstances of the complainant will be
relevant in determining the extent to which further particulars should be required. In cases
of the present kind it will, for instance, often be difficult for a very young complainant to give
particulars of dates although, as this case demonstrates, particulars of place may not be so
difficult. A specified period may be sufficient, although the longer the period, the less
satisfactory is the degree of particularity so offered. The age of the complainant at the time
of the alleged offence and at the time of trial may affect any decision as to the adequacy of
the particulars. I mean by this only that a court will be more easily convinced that the Crown
cannot further particularize a count where the complainant is a young child than in other
cases. However the ultimate question will be whether the particulars are reasonably
sufficient for the purposes of the administration of justice and for the accused to make a
proper defence. The less satisfactory the particulars, the more important will be an
adequate direction as to the difficulties created for the accused in answering the charges
and the need for care in scrutinizing the Crown case. As with so many other aspects of a
criminal trial, the adequacy of particulars is very much a matter of judgment.”
In Rogers (supra) Fitzgerald P took a stricter approach to this question. At 44:
“Particulars must allow an accused, who is presumed to be innocent, to identify the
occasion to which a count relates. Details which assume guilt do not perform that function.
It does not assist an accused person who denies guilt to be informed that a count relates to
the first occasion when he or she allegedly committed an offence of the nature stated in the
count; he or she denies that such an offence ever occurred. The position is unchanged by
adding contentious circumstances, such as the room in which an alleged offence occurred
and/or that it occurred during the day or at night when the accused cannot identify the
occasion because the circumstances again assume the guilt which he or she denies.
Further, circumstances might be so commonplace as to fail entirely to provide any useful,
distinguishing information. In my opinion, the adequacy of particulars cannot be divorced
from the evidence which provides the context for the supposedly differentiating details.”
Fitzgerald P. pointedly disagreed with Dowsett J. about the effect of the complainant’s age on the
level of particularity required. At 44:
“Before departing from this topic, I should note my disagreement with Dowsett J.’s
statement that the “age of the complainant at the time of the alleged offence and at the time
of trial will affect any decision as to the adequacy of the particulars”. In my opinion, the only
matter for consideration for that purpose is what is necessary for an accused’s fair trial.”
Subjective [ie covert] events do not particularise.
See:
Fisher (supra)
Rogers (supra) per Fitzgerald P. at 44
R v Baker; ex parte Attorney-General [2001] QCA 59, per MacKenzie J at 6:
“In the present case it was alleged that the first offence was the occasion upon
which the complainant lost her virginity. It was submitted that this was a distinguishing
Joe Briggs
8
Continuing Legal Education (CLE)
18
December
2002
feature of the offence. Attempting to lay down rules of general application in cases of this
kind is fraught with difficulty. In individual cases there may be particular circumstances
which falsify any attempt to state a general proposition. However, as a general rule, in the
absence of any evidence that a consequence of an offence was overt at about the time of
the offence, describing the offence as the "first occasion" in combination with a
consequence which was personal to the complainant but not overt does not in my view
advance the matter of adequate particularisation”. [writer’s underlining]
R v Smith ex parte AG CA No 171 of 2000, 25 October 2000 (unreported).
Smith was charged with two counts in identical terms. They were that on a
date unknown between 20 January 1969 and 20 December 1969 at Brisbane he unlawfully and
indecently dealt with a girl under the age of 12. He pleaded not guilty on both counts. Those
counts, it was contended by the prosecution, were two of a number of occasions on which the
respondent, who was then a teacher, indecently dealt with the child who was then a seven-year-old
pupil in the respondent's school class. The only particulars which the respondent could give of
count 1 was that it occurred on an occasion on which the complainant had new and tighter
underpants than on
previous occasions consequently causing the respondent presumably greater difficulty to get his
fingers inside the underpants as he did.
The only particulars which were given of count 2 were that after the offence occurred and the
complainant returned to her seat in the class she wet her pants. There was nothing in the
particulars which fixed the alleged incident in time, other than within the 1969 school year.
Davies JA held at 3:
“It was not asserted that either of the particulars alleged, the wearing of new tighter
underpants or the complainant wetting herself after she returned to her seat in class either
would have been or perhaps even could reasonably have been known to the respondent. It
is possible that the second of these could have been asserted in respect of the first of those
particulars but in any event that would only be so on the assumption that the respondent
was guilty.” [writer’s underlining]
The indictment was stayed. Note, there were other grounds which, together with this one, justified
the stay. Davies JA said he would not have upheld the stay on the ground of inparticularity alone.
Can specifying an act as the first occasion [or the last occasion] when conduct of a
certain type was committed sufficiently particularise the alleged offence?
The answer depends on the circumstances of the case. If the context provides sufficient
information to identify the first [or the last] occasion, allegations may be made in this way. It is
insufficient to baldly particularise a transaction as the first occasion when an offence happened.
R v S (supra) per Mackenzie J at 453:
“For my part I doubt whether it is possible or helpful to attempt to lay down absolute rules in this
area. Once the sufficiency of particulars falls to be decided in the context of the particular
circumstances of the individual case, each case must be decided on its merits. Cases which are
insufficiently particularised may have common characteristics. So may sufficiently particularised
cases. However, in the end, it may be a matter of judgment and impression whether a case falls on
one side of the line or the other, given the wide variety of circumstances which may exist. The
importance of the factual context as a whole in deciding the sufficiency of particulars is illustrated
by R v Knuth (CA No.64 of 1998, 23 June 1998).”
Joe Briggs
9
Continuing Legal Education (CLE)
18
December
2002
In R v S (supra) it was held that particularisation of an offence as having occurred within a six
week period and having been the first occasion of interference, along with detail of the manner of
the interference and that it occurred in a particular house, was sufficient.
It is submitted that the absence of a distinguishing fact, matter or event attaching to the transaction
[ie offence] should have resulted in a finding of insufficient particularity on this count in R v S.
In R v. Fisher (C.A. No.439 of 1994, 12 December 1994) the Crown elected to proceed on the
“first and last” occasions when the complainant alleged she had been indecently dealt with. She
alleged that she had been dealt on a number of occasions. A two-count indictment was presented.
The “last occasion” was particularised as about 3 weeks before the interview with the police when
the appellant, who was a house painter, was not working because it was raining. In the recorded
interview with the police she had said that the first offence occurred “after her birthday”. At trial she
was unable to say whether the first act was before or after her birthday. That was the date chosen
as the beginning of the period alleged in the indictment in respect of that offence. With respect to
the last offence, she could not remember any particular day upon which it had happened. The
effect was that, considering only the complainant’s evidence at the trial, the Crown failed to prove
that the appellant had indecently dealt with her on either the first occasion or the last occasion
particularised.
The Court said:“Considered in the abstract, it would seldom be helpful to identify an act or event simply as the first
or the last in a series. To an accused person who is innocent (as some are, and all are presumed
to be), the first occasion or the last occasion would be meaningless. In the present case, however,
the identifying particulars given by the prosecution were not provided in such an abstract a form.”
Count one was alleged to have occurred on a date unknown between 3 April 1993 and 31
December 1993. During that time the complainant said she was indecently dealt with at least five
times. None of those five occasions was identified by a distinguishing fact, matter or event.
At 10, the Court said:
“Its [Count 1's] designation as “the first occasion” did not enable it to be identified by referring to
any objective external fact or event and did nothing to diminish the difficulties apprehended by their
Honours in similar circumstances in S. v. The Queen.”
However, the second count was held sufficiently particularised.
Count two was alleged to have occurred on a date unknown between 1 January 1994 and 21
March 1994. It was confined by the evidence to within a comparatively recent off-work period for
the Accused, during January or February, 1994, about three weeks prior to a s 93A [Evidence Act
1977, as amended] interview.
R v Knuth CA No.64 of 1998, 23 June 1998 (unreported) per Lee J, with whom Pincus JA and
Ambrose J agreed, at 12:
“At trial the complainant gave evidence, in respect of count one, that this was the first occasion that
oral sex occurred. It is clear that a designation as “the first occasion” is not sufficient
particularisation because it does not enable the incident to be identified by referring to any
objective external fact or event. However in this case there is a greater degree of temporal
specificity than was present in the case of Rogers (supra) and in the case of S v The Queen ...
Both the Crown Prosecutor’s opening in this case and the evidence of the complainant fixed the
dates of the oral sex, the subject of count one, as two to three weeks after the appellant’s wife left
the property. The Crown alleged that the incident occurred in daylight hours and the complainant
gave evidence that her Aunt Josephine was present at the property at the time. One would expect
that the departure of the appellant’s wife might have been of some moment. The appellant’s wife
Joe Briggs
10
Continuing Legal Education (CLE)
18
December
2002
gave evidence herself of when she left. Given the relatively small window of time in which it is
alleged that the offence occurred, the Crown has identified the occasion in a way that ought to
have enabled the appellant to defend himself at the trial against that charge.”
At page 13, particulars for count four were recited and analysed:
The year - 1979;
The fact that there were two sisters of the appellant’s wife present; Aunt Josephine who was living
with the children, and her Aunt Caroline was also visiting; and
The family were out on a walk; and
The complainant was at home with her father.
“Whilst the incident should ideally be fixed more precisely in time, the accused had the opportunity
to test the credit of the witness Josephine by reference to the surrounding circumstances.
Furthermore, this is not a case where the appellant was required to defend himself in respect of an
occasion when an offence might have been committed. The surrounding circumstances, whilst not
fixed accurately in time, are precisely detailed.”
It is submitted that the particulars for count four were insufficient. Temporal specificity is absent;
the other features are not truly distinguishing.
Lee J noted at 14:
“Before moving to the next issue, it should be noted that a very large percentage of these types of
cases i.e. where a complainant alleges unlawful sexual acts many years after the acts in question
occur, are stamped with the problem of lack of particularity. It is very common for the complainant’s
evidence to be quite vague, and given the passage of time in some cases, memory loss is hardly
surprising. To require precise particulars of specific dates or occasions would often result in
offences of this type going unprosecuted…
“I respectfully adopt the comments of Fitzgerald P. in R v. Rogers (supra) at p.4 where it is
suggested that if the rules relating to particularity are to be modified, that step should be taken only
by the Parliament and then only after proper enquiry and consideration of all factors, including
safeguarding the rights of the accused. The reason for this is that complainants’ evidence in many
of these cases will inevitably be vague as to temporal identification. These offences are so often
committed against young children who often undergo a program of suppression by the offender,
and who understandably try to forget their occurrence. There is obviously a very fine line between
ensuring that the older offences are capable of resulting in a conviction and the need to protect the
right of the accused to know sufficient particulars of the allegations.”
DPP v Judge Lewis [1997] 1 VR 391
The alleged sexual abuse occurred in the early-mid 1970’s. The defence did not challenge all of
the allegations as being insufficiently particularised.
The challenged counts were particularised as “the first occasion” of a series of interference of a
certain type; eg sexual intercourse by penetration. The offences were alleged to have occurred
over a relatively short period of time in most cases.
The prosecution elected to proceed on some events and not others, obliging the principle
explained by Dixon J in Johnson v Miller (supra) more than the prosecution had in S v The
Queen (supra). This removed latent ambiguity.
It is submitted that DPP v Lewis holds that latent ambiguity may be thus corrected. However, the
case is not authority that a designated act charged as a criminal offence will always be sufficiently
particularised if described as the first in a series of such acts committed by the accused between
specified dates.
As Mackensie J said in R v S (supra) at 456:
Joe Briggs
11
Continuing Legal Education (CLE)
18
December
2002
“The respondent relied on DPP v His Honour Judge Lewis [1997] 1 VR 391 in support of the
proposition that particularisation of the offence as the first of a series of indistinguishable offences
was sufficient. That authority is unusual in that it involved an application for declaratory relief in
respect of a ruling by a County Court judge that latent ambiguity was not removed by such
particularisation. It is in my view not decisive of the wider question of embarrassment of the
accused in his defence if allegations in a particular count lack sufficient specificity.” [writer’s
underlining]
In R v Baker ex parte AG [2001] QCA 59, the AG reference question was, “Can specifying an
alleged act as the first occasion when conduct of a certain type was committed be sufficiently
particular to identify the offence charged?”
Williams J said at 2:
“Whilst the expression “the first occasion” may well have temporal meaning for the maker of the
statement, it will not necessarily convey that (or indeed any) meaning to another person, unless the
context in which it is used attributes such meaning to it. Unless the context includes some objective
criteria the use of the phrase may well indicate something different according to the knowledge and
experience of the person called upon to ascribe meaning or significance to it. Only context would
result in the phrase identifying an event.” [writer’s underlining]
Williams J at 3:
“But that is not to say, as is demonstrated in the reasons of Mackenzie J, that the phrase may
never be capable of identifying with the sufficient particularity the conduct alleged to constitute the
offence. In such a case it is the context in which the expression is used that gives it significance.
If a small number of events are alleged to have occurred within a relatively short, recent time frame
then it may well be that the events are sufficiently differentiated by describing one as the “first
occasion”. [writer’s underlining]
Mackenzie J said at 5:
“Whether the requirement that an act charged be sufficiently particularised can be satisfied by
defining a count as "the first occasion" when a series of essentially identical acts have occurred will
depend on the circumstances. For example, if a complainant alleged that two offences occurred in
a similar way in the same room of a house during a recent period while the complainant was
staying with relatives for a short holiday, but was unable to identify specific dates, it could hardly be
correct to deny that identification of one of the alleged acts as the first and one as the last provided
sufficient particularisation”.
“In that example, the circumstance that the offences were recent minimises the risk that an
accused person will have lost the means of testing the complainant's allegations adequately. On
the other hand, where there has been a long delay, the period in which the particular offence is
alleged to have occurred is lengthy and there are insufficient features in the evidence which would
enable an accused person to identify a particular occasion upon which the act is alleged to have
occurred an accused person will have no real means of testing the complainant's allegations.”
[Writer’s note – see the judgement of Jacobs J in Mackay v The Queen [1976 –77] 136 CLR 465,
at 470 –472]
Both McMurdo P and Williams J agreed with Mackensie J’s answer to the reference question,
which was, at 6:
“The question referred by the Attorney-General is incapable of being answered with an
unequivocal or unqualified "yes" or "no". The applicable principles are discussed in general terms
in the preceding paragraphs. An accused person is entitled to be sufficiently apprised of the
Joe Briggs
12
Continuing Legal Education (CLE)
18
December
2002
particular occasion referred to in a charge against him. When it is alleged that a series of acts of a
similar character was committed, it is necessary to have regard to all relevant circumstances in
deciding whether the accused person's right to be adequately apprised of the occasion to which
the count relates has been satisfied. The utility of describing a charged act as the "first occasion",
when such particularisation is given as a step towards attempting to ensure that the accused's
rights have been accorded to him, will depend on the particular circumstances of the case. In the
absence of any objective fact or event to which the charged event can be related, reliance only on
that identifying feature in a case where the offence was one of a number which allegedly occurred
in the distant past and the period in which it was alleged to have occurred is lengthy, will ordinarily
mean that there is insufficient compliance with what is required for the purposes of proper
administration of justice.”
What are the consequences of particularity?
If the evidence about the distinguishing fact, matter or event allegedly particularising the charged
transaction is shown to be mistaken or false, the evidence of the offence itself is “seriously
compromised”. A no case submission should be made.
R v M [2001] QCA 458, per McPherson JA, with whom the other judges agreed, at 6:
“In the present case, it seems to me that the surrounding contextual detail in the
complainant’s evidence with respect to count 3 was a sufficiently vital or substantial
element in her account of that incident to justify using the approach adopted by Spigelman
CJ…In my opinion, for the reasons given earlier, the complainant must have been mistaken
about the place, date and occasion on which that incident took place if it happened at all.
The demonstrated deficiencies or inadequacies in her evidence are such as to displace the
advantage which the jury enjoyed (and we do not) from having seen and heard the witness
give her evidence at the trial: M v The Queen (1994) 181 CLR 487, 494-495. That being so,
I have reached the conclusion that the jury ought to have entertained a reasonable doubt
about the fact that the appellant committed that offence. The verdict on count must be set
aside.”
What are the procedural consequences of inparticularity?
• Inadequate particulars create unfairness.
In Jago v District Court (NSW (1989) 168 CLR 23, Deane J said at 59:
“ …default of impropriety on the part of the prosecution in pre-trial procedures can,
depending on the circumstances, be so prejudicial to an accused that the trial itself is made
an unfair one. One example is where particulars supplied to an accused have been so
inadequate and misleading that an accused has been denied a proper opportunity of
preparing his defence.”
•
Particulars should be requested by the defence, or ordered by the trial judge.
•
It is insufficient for the prosecutor to rely upon the totality of the transcript for
particulars: See Stanton v Abernathy (supra) per Gleeson CJ at 30, with whom the other
judges agreed:
“It is simply not good enough for the prosecution to rely upon the totality of the transcript, observing
that it contains contradictions and inconsistencies. Nor, in the circumstances of the present case is
it enough for the prosecution simply to point to various answers and to assert that they are
untruthful. This is because of the qualified form in which a number of the answers were expressed.
Proper particulars in the present case would involve formulating the substance of the false
Joe Briggs
13
Continuing Legal Education (CLE)
18
December
2002
evidence which the appellant is alleged to have given in the course of the examination. This is not
a case where all the evidence is alleged to have been false.”
•
If there is a latent ambiguity, Dixon J proposed one or more of these remedies in
Johnson v Miller (supra) at 490.
(i)
A direction that particulars be given;
(ii)
Requiring the prosecutor to elect which of the transactions is proposed to be proved and to
state definitely to the court which of then is to be treated as the subject of the offence; or
(iii)
Amending the indictment to indicate one transaction to be proved to the exclusion of the
others.
•
If the offence is particularised prior to arraignment, but there is a material disconformity
between the offence indicted and particularised and the evidence led, the defence
should object to the new evidence: see R v Trifyllis (supra) at 14, paragraph 25, per
Chesterman J:
“ Counsel for the defence did not object to any of the evidence on the basis that it fell
outside the particulars.”
•
After the prosecution closes its case, if there is a material disconformity between the
particulars and the preponderance of the evidence, a “no case to answer” submission
should be made.
The success of the submission will depend upon whether the defence can demonstrate that:
1. The evidence did not disclose the offence indicted: or
2. That the inparticularity created unfairness for the defence. The unfairness would consist in the
accused having conducted a defence on the basis of inaccurate particulars, and, that if
particulars had been accurate, the defence case would have been conducted otherwise.
In Tryfyllis, Defence counsel did not justify his request for particulars on the basis that the
appellant did not appreciate the case alleged against him. He sought only “that there be something
formally on the record as particulars relied upon in respect of the bodily harm”.
At 11, Chesterman J cited R v Saffron (1989) 17 NSWLR 395 at 445-9:
“Where a party seeks to lead evidence in support of his pleaded case which is
outside the particulars which have been supplied in support of that case, it is for the trial
judge to consider whether such evidence unfairly amounts to a case of which the other
party has had insufficient warning ... It is a matter within the discretion of the trial judge
whether to permit the evidence ... or to hold the party whose particulars were deficient to
the issues of fact to be investigated as limited by those particulars…The exercise of that
discretion must necessarily depend upon many things, including the amount of warning
which the other party has had that such evidence was to be led. The relief which is granted
to a party at the trial must in the end be founded on the pleadings and not upon any
particulars which have been given of the matters alleged in those pleadings…”.
At 13-14, Chesterman J said:
“Defence counsel did not justify his request for particulars on the basis that the appellant
did not appreciate the case alleged against him. He sought only “that there be something
formally on the record as particulars relied upon in respect of the bodily harm”. He
specifically eschewed any complaint that the opening was insufficient. His only concern
was to ensure “that there be something on the record”. The prosecutor then gave the
particulars which I have set out. The trial proceeded, with the Crown calling evidence the
gist of which I have reproduced. Counsel for the defence did not object to any of the
Joe Briggs
14
Continuing Legal Education (CLE)
18
December
2002
evidence on the basis that it fell outside the particulars. The Crown case was not one of a
series of violent acts one or more of which might have caused the bodily harm specified.
The Crown case was of one assault, one episode in which the complainant was punched
and suffered bodily harm. The episode was sufficiently described as to time, place and the
nature of the assault. The number of blows which landed and the particular pose of the
appellant and his juxtaposition to the complainant at the time of delivering the blows were
evidentiary details which did not affect the essential aspects of the described offence.
There is no material disconformity between the offence alleged and particularised and that
proved.”
Chesterman J noted Criminal Code s 572:
“The court may order an indictment to be amended where there appears a variance
between the indictment and the evidence if the variance is not material to the merits of the
case and the accused will not be prejudiced. Amendment may occur after verdict where the
court is satisfied that no injustice will be done.”
Mindful of this section, Chesterman J considered whether there was unfairness to the accused in
this case. At 14:
“Even if this be wrong [ie material disconformity between the offence alleged and
particularised and that proved] the consequence is not that the conviction should be
quashed. If there be a disconformity between the particulars and the preponderance of the
evidence it is a case in which, applying the applicable principles, there is no injustice or
unfairness to the accused in allowing the verdict to stand. The case proved by the Crown
was that alleged in the indictment. Assuming the assault occasioning bodily harm was not
exactly that which Mrs Gilby described, the appellant had notice of the Crown case in its
entirety from the depositions, the committal proceedings and the Crown’s opening at the
trial. The particulars in this case were not to inform the appellant of the case against him.
He knew that before the particulars were requested. Moreover the particulars were not
really apposite to give that notice. They amounted to no more than part of one witness’s
account.”
• The Court of Appeal may overturn a verdict tainted by inparticularity.
R v. Chen CA 129 of 1997, 21 October 1997 (unreported). The appellant was charged on two
indictments, each alleging one count of assault against a police officer. The occasion in question
was shown by the evidence to involve six separate identifiable assaults on the officers. The
indictments did not describe with any particularity which assault was charged. No particulars were
provided. The evidence with respect to the assaults differed both in quantity and quality and there
were defences open to some which were not open to others. It was impossible to say what the jury
had found proved in convicting and it was likewise impossible to know on what basis the appellant
should have been sentenced. The convictions were overturned.
Croft v Blair CA 275 of 1989, 15 December 1989 (unreported).
An accused was summarily convicted of assault. The basis of the charge (particularised by the
prosecutor) was that the accused took a dog named “Boss” to the complainant’s house, and in the
course of an altercation “sooled” the dog onto the complainant, saying, “Boss, go get him, sic him,
kill him.” The dog attacked the complainant. It was further alleged that the complainant “beat the
dog off”. The complainant did not give evidence in chief suggesting that the dog attacked him. After
some unwise cross-examination [during which the complainant said that the dog had attacked him]
and some evidentiary gymnastics by the Magistrate [adopting as the assault a push that the
accused admitted delivering to the complainant in the police interview] the accused was convicted.
Overturning the conviction, Thomas J, with whom the other judges agreed, observed at 5:
Joe Briggs
15
Continuing Legal Education (CLE)
18
December
2002
“ The conviction could not safely be sustained on the basis that the appellant
pushed the complainant. Such an allegation was not litigated. The case was conducted on
the particulars provided by the prosecution. Had the push been fairly in issue, there were
potential defences to be considered, and the course of the case may well have been
different.”
In an attempt to support a conviction arguably tainted by latent ambiguity the prosecution
may argue that the case was a “continuing offence”, or one in which the acts were so
closely related that they amounted to the one activity, such that separate offences need not
have been charged.
Kirby J, in Walsh v Tattersall (1996) 139 ALR 27, at 52-53:
“This court should adhere to its longstanding insistence that, save for statutory warrant and
for the exceptional cases of continuing offences or facts so closely related that they amount
to the one activity, separate offences should be subject of separate charges.”
The respondent/prosecution in Chen (supra) argued 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.
At 4, the court held that:
“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. 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 - there is, in most cases, little practical
advantage in separating them and no loss of fairness to an accused in failing to do so.
“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.”
•
For an example of a transaction involving a number of very similar acts, each technically
capable of constituting a separate offence, but in a short space of time: see Biddle v
Dimmock CA 136 of 1992, 21 August 1992 (unreported)
The appellant had sworn at trial that the complainant threw two slight blows, one of which glanced
off his left ear and the other of which landed in the middle of his chest. Thereupon, "in the next five
or six seconds, I probably swung five or six punches at him most of which landed in his face".
Elsewhere he said that he probably struck the complainant four direct punches to the face, one
glancing blow to the head, and that his last punch
was controlled so that it stopped about two inches from the complainant's face, being delivered as
a warning gesture. When asked why he stopped he said "it became evident to me that he was
becoming defensive" and "no longer a threat to me".
The court held at 6:
“In some cases it is possible to break up a fight into particular blows, and different
consequences may follow according to the consequences shown to follow from different
parts of an ongoing encounter (see for example R. v. Prow 1990 1 Qd. R. 64; and
Lergesner v. Carroll 1991 1 Qd. R. 206). In the present case however the response of the
appellant cannot realistically be subdivided into five assaults, and it is difficult to view the
Joe Briggs
16
Continuing Legal Education (CLE)
18
December
2002
appellant's response as anything other than a single incident. The description of the event
comes from the appellant himself, who presented it as a single reaction. He was not asked
to designate which blow caused which damage, and plainly he could not be expected to do
so.”
In such cases, the courts appear willing “to take a broad commonsense view of an event. They do
not support the needless subdivision of something that can reasonably be viewed as a single
transaction”: Biddle v Dimmock (supra) at 8. Biddle v Dimmock clearly involved nothing more
than a single response in which one person rained five uninterrupted blows upon another’s face.
There was no practical advantage in separating the assault into five, an no loss of fairness to
Biddle in not doing so.
Are particulars necessary in cases of “continuing conduct”?
Yes, they are required, subject to statutory modification. See a summary of the relevant cases on
this point in R v Thompson CA 116 of 1996, 22 November 1996 (unreported) from 6-23.
At 6:
“In our opinion, it is necessary that three different situations be distinguished. The first
concerns an offence which is constituted by a single occurrence when a number of relevant
occurrences are alleged; the majority held that Walsh was such a case. Another concerns
offences defined in terms of a course of conduct; the distinction was recognised in Walsh in
the joint judgment of Dawson and Toohey JJ.,3 and by Gaudron and Gummow JJ.4 who,
with Kirby J., comprised the majority. Section 229B provides for an offence of an
intermediate character, the definition of which refers to a specified number (three) individual
occurrences.”
Drug trafficking is an example of an offence that may be constituted by continuing conduct: see R v
Giretti (1988) 24 A Crim R 112. Arguably, due to its very extended definition, so may supplying
drugs: see R v Locchi (1991) 22 NSWLR 309.
Are particulars necessary in s229B Code cases?
Yes, although the offence is not one of continuing conduct, and despite s229B (2) see R v
Thompson (supra) per curiam at 6-7:
“…there is no reason why orthodox principles, including those relating to evidence
and particularity, should not apply in relation to [s229B offences]”.
At 23:
“The authorities to which we have referred persuade us that the appellant was entitled to
particulars of the offence against sub-s. 229B(1) of the Code with which he was charged,
although, having regard to sub-s. 229B(1A), he was not entitled to specific dates or the
“exact circumstances” of each “act defined to constitute an offence of a sexual nature” in
relation to the complainant. Although s. 229B of the Code was undoubtedly intended to
avoid the degree of specificity which might otherwise have been required, necessitating a
number of separate, fully detailed allegations, it stops short of authorising trials conducted
as a contest between generalised assertions which can only be met by generalised
denials.”
See also KBT v R (1997) 2149 ALR 693.
Even if the accused has no merits except the legal merit resulting from inparticularity, a
court should not be deterred from applying the principles.
Joe Briggs
17
Continuing Legal Education (CLE)
18
December
2002
Johnson v Miller (supra) per Dixon J, at 488-489:
“Indeed, the facts both of the present case and of Parker v. Sutherland (1917) 116 L.T. 820;
86 L.J. K.B.1052 fall almost exactly within the following statement of Napier J. in Tucker v.
Noblet (1924) S.A.S.R, at p. 340, viz: "It may be possible that a case could occur in which
the complaint is good," that is, I take it, apparently good if read apart from the
circumstances of the case, "but evidence is admitted which gives rise to duplicity or
uncertainty, and where there is some grave embarrassment or prejudice of such a
character that it cannot be fairly met by any adjournment. If that should happen and the
prosecutor should refuse to elect, I think that the court must have some inherent power to
secure a fair trial and to prevent an abuse of its process. If all other means fail, the inherent
power may extend so far as to justify a dismissal of the complaint: O'Flaherty v. McBride
(1920) 28 C.L.R., at p. 288. But that could be only as a last resort, and in a very unusual
case."
Per Evatt J at 498:
“I think that the observations of Napier J. in Tucker v. Noblet (1924) S.A.S.R., at p. 340
support the view that, at the outset of the hearing, the prosecutor may be called upon to
select his charge and particularize his complaint, and that in the absence of the necessary
information, and, as a last resort, the court has inherent power to dismiss the complaint. Of
course, if the relevant statute takes away such power from the courts of summary
jurisdiction, it will have to be obeyed. But, in the absence of such a statute, the ultimate
sanction is, and must be, dismissal of the complaint. No plea can be taken, no evidence
can be admitted, nothing can be done, an adjournment will be useless, if a prosecutor is set
upon a refusal to particularize.”
Smith v Moody (supra) per Lord Alverstone CJ at 60:
“ I have come to this conclusion with some reluctance, because I have very little doubt that
actual injury to the respondent’s property was proved; but in giving our decision we have to
consider how far it may have a bearing on other proceedings.”
Can a complaint be dismissed at a committal hearing for want of particularity?
Yes. An inherent power warranting an order for particulars, and to dismiss a complaint for want of
particularity, reposes in courts of summary jurisdiction: see Johnson v Miller (supra) per Dixon J
at 488-9, and Evatt J at 497-8. Such was described as an implied power by Gleeson CJ, in
Stanton v Abernathy (supra) at 29, and was held applicable to committal hearings. At 30,
Gleeson CJ contemplated dismissal of the complaint at a committal hearing in the absence of
particulars being provided, pursuant to the principles explained by Dawson J in Johnson v Miller
(supra):
“The judgment of Dawson J in Grassby (1989) 168 CLR 1; 41 A Crim R 183, with which
Mason CJ, Brennan J and Toohey J agreed, demonstrates that the references by Dixon J
and Evatt J to the inherent power of magistrates must now be regarded, more properly, as
references to implied power, but it does not deny the validity of their observations. Nor, in
my view, does it render those observations, which were made in the context of summary
proceedings, inapplicable to committal proceedings. They are based on general principles
concerning the proper administration of criminal justice, and if they did not apply to
committal proceedings serious injustice would result. Although committal proceedings are
administrative and not judicial, the magistrate dealing with them sits as a court, and it
cannot be the case that such a magistrate is powerless to deal with a prosecutor’s refusal
to make clear the charge against the defendant. The magistrate has a duty to act fairly and
Joe Briggs
18
Continuing Legal Education (CLE)
18
December
2002
the various procedures identified in Johnson v Miller constitute means by which that duty
can be fulfilled.”
How and when should particulars be revealed to the jury?
In R v R [2001] QCA 488, where particulars had been exchanged between the parties and the
judge in the absence of the jury, Amrose J, with whom the other judges agreed, said at 7:
“To my mind, because, as was held in Lewis, particulars must be read with the terms of the
indictment to define the terms of the charge on the case which the Crown has to prove, it
would be desirable if such particulars, in proper form, were read to the jury subsequent to
time of arraignment and before the opening of the Crown case. If as sometimes occurs and
as occurred in this case, the jury is given a copy of the indictment before it retires to
consider its verdict, it should also be given particulars in writing of each charge in proper
form. Where an indictment such as this one, drawn with four counts in identical terms each
relating to an offence committed on
a different occasion and some involving different acts from others, it would not help but
merely tend to confuse a jury in their deliberations should they be given a copy of the
indictment without proper particulars of each count.”
Joe Briggs
19