R v BEO[2025] QCA 40

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  The reasons of Crowley J accord with my reasons for joining in the orders made on 4 March 2025.
2. [2]
   BRADLEY J:  I concurred with the orders made on 4 March 2025 for the reasons given by Crowley J.
3. [3]
   CROWLEY J:  The appellant was convicted of the sexual assault of his daughter’s 16-year-old friend.  The Crown particularised the offence as an application of force, involving the appellant touching the complainant’s breast on the outside of her clothing, with his lips or mouth, without her consent.  At the conclusion of the Crown case, the trial judge raised the prospect that irrespective of the way the case had been particularised, it appeared on the evidence that the jury could find the offence proven if it was satisfied beyond reasonable doubt that the appellant had attempted or threatened to bite the complainant’s breast.  Over defence counsel’s objection, the trial judge ruled that the Court was not bound by the Crown’s particulars and the expanded case would be left to the jury.  Consequently, the trial judge directed the jury the assault element of the alleged offence would be proven if the jury was satisfied beyond reasonable doubt that the appellant’s conduct amounted to either an application of force, or an attempt or threat to apply force.
4. [4]
   The jury found the appellant guilty but, by special verdict, announced that it was not satisfied that the assault involved an application of force.
5. [5]
   The appellant challenged his conviction on the sole ground that, “The trial judge erred by directing the jury in discordance with the particulars.”
6. [6]
   Although it was not made plain in the stated ground of appeal, at the hearing of the appeal the appellant confirmed that his case was that by allowing the jury to consider a broader case than that articulated by the Crown, the trial judge made a wrong decision on a question of law.
7. [7]
   After hearing oral argument, the Court made orders to allow the appellant’s appeal, set aside the verdict below and enter a verdict of acquittal.  These are my reasons for joining in those orders.

The alleged sexual assault

8. [8]
   The Crown alleged the appellant sexually assaulted the complainant one night when she was at his home for a sleepover with his daughter, when wrestling with her as part of a game.
9. [9]
   During the evening in question, the appellant’s daughter was in her room with the complainant watching a movie.  The appellant and his three sons, and another male family friend who was visiting, were elsewhere in the house.  On the Crown case, the girls had some lollies in the room, which they did not intend to share with any of the boys.  Suspecting that they had the lollies, the appellant and his eldest teenage son came into the room to find them.  The appellant’s daughter first tried to hide the lollies by putting them in her bedroom drawers, before then putting the packet up her shirt.  The appellant’s son tackled her and began wrestling with her to try to get the lollies.  While this was happening, the appellant tackled the complainant and began to wrestle with her.  The complainant was wearing a T-shirt, boxer shorts and had no bra on at the time.
10. [10]
    The Crown case was that while wrestling with the complainant, the appellant opportunistically put his head down to her chest and opened and closed his mouth, acting as if he was trying to bite her nipple, and while doing so his mouth eventually touched her nipple over her shirt.
11. [11]
    After the incident, the complainant made an immediate preliminary complaint to the appellant’s daughter.  She subsequently made further preliminary complaints, including to her mother when she returned home after school the next day.  The police then became involved and conducted a video recorded interview with the complainant a few days after the incident.  The police interview was admitted as evidence at the appellant’s trial, pursuant to s 93A of the Evidence Act 1977 (Qld).
12. [12]
    In her s 93A statement, the complainant explained the lead-up to the incident and how the appellant and his son had come into the room looking for the lollies.  As to the circumstances in which the alleged assault upon her occurred, the complainant stated:

“Yes. So we had Skittles and they had come in the room trying to look for them and we put them in a drawer next to her bed. And they, they eventually checked there and found the Skittles and [the appellant’s daughter] um, quickly grabbed them and stuffed them up her shirt. And then her brother jumped on [the appellant’s daughter] and then her dad jumped on me and, um, her dad was pinning me down to the bed and, um, her brother was, um, trying to get the Skittles out from underneath her shirt…

…

And her dad was on me and I was trying to push him off, I was kicking and everything and he ended up pinning me down and then he put his head, um, on my right chest area and then proceeded to try and bite my nipple and, um, I eventually started kicking him trying to get him off. And then her little brother came in and grabbed my phone and ran out of the room and her dad still had me pinned and then, um, I started yelling out to [the appellant’s daughter] to just give them the Skittles because it's not worth it. And, um, her, she ended up finally giving the Skittles and her brother got off her and then ran out of the room with the Skittles and then, um, [the appellant’s daughter] got up and ran after her little brother to get my phone. And while everyone was out of the room, um, her dad finally let me go and then, um, he left and then [the appellant’s daughter] had come back in with, um, my phone and I ended up telling [the appellant’s daughter] what her dad had did…”

13. [13]
    When further asked by police about what had happened when the appellant came into the room, the complainant stated:

“Um, so he had come into the room and then I was trying to get the Skittles off of [the appellant’s daughter] so they wouldn't get [the appellant’s daughter], and then he ended up just tackling me to the bed and had me pinned and, ah, he, ah, he had my legs free and so I started kicking and then he ended up moving so he could sit on my legs while he was still pinning me down. And he ended up having his head just here and then tried to bite, um, my nipple and then I was like trying to cross my arms like this, but he wouldn't let me and he was, um, holding on to, um, my burn because later that, earlier that day we were making pancakes and I burnt myself, and he was like holding on to that so that I couldn't, couldn't really move because it hurt so much. And, um, yeah, he had me pinned and then, um, they ended up running out of the room after her brother got off her, and then she ran out to get my phone off of her little brother and he had me still pinned here and then he eventually got off and walked out.”

14. [14]
    When asked further about the appellant trying to bite her nipple, the complainant stated:

“Um, so his head was resting here and then, um, his mouth was like directly over it and then he started going, um, like opening and closing his mouth trying to bite it and I ended up trying to move like this, trying to like get him off me and I was like moving and like pushing and stuff and he eventually stopped and then I started to yell out to [the appellant’s daughter] to just give them the Skittles.”

15. [15]
    When asked to further describe how the appellant had tried to bite her nipple through her T-shirt, the complainant stated:

“It was, I still had my shirt on… And it was like just, like just on me and then              he had his, um, head here… And I wasn't wearing a bra so like yeah, and he ended up trying to like bite it.”

16. [16]
    As can be seen from the above excerpts, although the complainant said the appellant had tried to bite her nipple, she did not allege that the appellant actually made contact at any stage.
17. [17]
    A few months after the sleepover and the alleged incident, police interviewed the appellant.  A copy of the recorded interview was tendered by the Crown at trial.
18. [18]
    During the interview, the appellant denied the allegations of sexual assault.  He agreed that there had been a wrestling incident with the girls in his daughter’s room but told police it was over one of the girls taking his youngest son’s phone and not about the boys trying to take lollies from the girls.  The appellant explained:

“…I was wrestling [the complainant] on the, on the bed to stop her getting the, her, to get the phone off her and, and then my oldest son was holding my daughter down so she wouldn't get the phone, and then once we got the phone that was pretty all, yeah, that was it.”

19. [19]
    The appellant went on to explain that they were just playing around, and that he did not pin the complainant down and was not holding her forcefully, rather he was just holding her arms so she could not grab the phone.  He agreed that she was on her back at the time.  He then further explained:

“Once we got the phone off [the appellant’s daughter] that was, that was it. I, I fell on top of [the complainant] accidentally… But I, yeah, I got straight up and yeah, didn't do anything. Like it was yeah, forceful wrestling, but that's, it wa-, there was nothing else involved.”

20. [20]
    When asked about how he fell on the complainant, the appellant stated:

“Well as I was holding on to her…I've slipped and my, I've fell down on to her chest… I, yeah, I got straight back up again… didn't lay there, I didn't do anything. I yeah, just sort of got straight back up again and…”

21. [21]
    The appellant told police that when he fell onto her, the complainant was a bit shocked.
22. [22]
    After hearing the appellant’s account, police then outlined to him what the complainant had apparently said in her s 93A statement.  In doing so, the interviewing officer misstated the version of events she had actually given to police, telling the appellant:

“…The dad [the appellant] has pinned the victim down by holding both her wrists and putting his head on the victim's chest. The victim felt the dad bite her right nipple, ah whilst holding her down. Victim screamed for the dad to stop what he was doing and yelled to her friend to give the Skittles to [the appellant]”

23. [23]
    In response to that accusation, the following exchange took place:

“APPELLANT: Well I didn't bite her.

POLICE: Okay.

APPELLANT: I, yeah, there's no way I'd bite her. I don't even know how old she is. I, yeah.

POLICE: So you're, you're saying you didn't bite her at all?

APPELLANT: No.”

24. [24]
    The appellant further denied doing anything at any point that could be considered as a sexual assault or indecent assault upon the complainant.

The Crown’s particulars and trial evidence

25. [25]
    Before the jury was empanelled, the Crown provided the trial judge with a copy of a document titled “Jury Indictment and Particulars”, which contained a statement of the charge of sexual assault and written particulars of the charge.  The trial judge subsequently marked the document for identification.^[1]
26. [26]
    The written particulars stated:

Particulars:  [Appellant] touched [complainant’s] breast, on the outside of her clothing, with his lips or mouth, without her consent.

27. [27]
    During her opening address to the jury, the Crown prosecutor placed a copy of the document on the visualiser and said to the jury:

“There is a single count of sexual assault. You’ll see where it has particulars,              that is where the prosecution says that [the appellant] touched [the complainant’s] breast on the outside of her clothing with his lips or mouth without her consent.

Now, the prosecution says that this was an unlawful assault and that it is indecent. And those will be the two core issues which are for you to decide.”

28. [28]
    It was evident from the Crown’s particulars that the allegation at trial was one of actual touching by the appellant of the complainant’s breast and not simply that he had tried to bite her nipple, as she had alleged in her s 93A statement.
29. [29]
    Immediately after the prosecutor opened the Crown case but before the complainant was called to give evidence, the trial judge gave preliminary directions to the jury, which included the following:

“The allegation is that she was touched orally by the defendant’s mouth in some way on her breast. To prove that, the prosecution must satisfy you beyond reasonable doubt of a number of essential ingredients, and I’ll address those elements in more detail at the conclusion of the trial but, in essence, the prosecution must prove, firstly, that the defendant – that the accused’s mouth made contact or his lips made contact with her breast; that it was an unlawful touching in that sense that it was deliberate, that he didn’t do it by accident; and, thirdly, that it was indecent, it was an indecent touching; and, fourthly, that it happened without [the complainant’s] consent, that [the complainant] didn’t consent to him putting his lips or his mouth on her breast.”

30. [30]
    The Crown was obviously aware before the trial commenced that the complainant was making the allegation of actually touching as particularised.  That was borne out by the fact that the allegation was contained in the written particular prepared for the jury as well as the further oral evidence the complainant gave at trial, which included the following:

“Now, [complainant], you told police in that interview that [the appellant] tried to bite your nipple?‑‑‑Yes.

Did [the appellant] ever actually touch your nipple?‑‑‑Um, at one stage he was successful, yes, but then that’s what I, like, pulled away and, like, he let go.

Can you describe how that happened for the jury?‑‑‑Um, so he was – like, he had his head here … and he was doing, like – like that. Like, trying to bite it, and then at one stage he did – he did get it, and so I, like, moved and, like, pushed him off.

…

For the record, your Honour, the witness opened and closed her mouth a number of times.”

31. [31]
    The complainant then gave further descriptions in response to questions asked by the trial judge:

HER HONOUR: Can you put into words what you were doing, [complainant], when you were…responding to the question about what the accused did?‑‑‑Um, he was opening and closing his mouth, like, trying to get to my nipple

And what do you mean by trying to get to your nipple? What was he doing?‑‑‑So he was, like – he, like, kept going like that … until he eventually got it, and then that’s when I, like – like, trying to get him off.

Okay. And you said that he kept going like – you again opened and closed your mouth a number of times. Is that what you were meaning to convey that the accused ‑ ‑ ‑?‑‑‑Yeah.

32. [32]
    When again asked questions by the prosecutor, the complainant gave the following further evidence:

“[Complainant], when you did that demonstration of opening and closing your mouth, do you know how many times [the appellant] did that before he touched your nipple?‑‑‑Um, I wasn’t really counting, but it would’ve been, like, at least a couple of times, and then he, like, got it, and then that’s when I, like, tried to, like, shift him – like, get him off.

And what happened after he touched your nipple?‑‑‑Um, so he – he had, like, got it, and then I, like – that’s when I was, like, trying to, like – just, like, try and, like, get him off me and push him off me. And, like, he – he, like, let it go because I was, like, moving.

And in the course of the wrestling, how many times did, [the appellant], touch your nipple?‑‑‑Um, he would’ve – like, he bit it, like, once, but other than that he was just trying to get it.”

33. [33]
    No doubt the change in the complainant’s account and the fact that the Crown was putting its case at trial on the basis of an actual bite were disclosed to the appellant before trial.  Given this and the way the case had been opened and particularised by the Crown, a focal point of the cross-examination of the complainant was the discrepancy between her earlier complaint that the appellant had tried to bite her nipple, as per her previous s 93A account to police, and her later evidence at trial, that he had actually touched her nipple.  On that aspect, the complainant gave the following evidence:

“Now, do you agree that what you said to the police was that, “He went to, like, bite my nipple.” That was one of ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ the things you said?‑‑‑That was one of the things I said to the police, yes.

And do you agree that you also said that, “He proceeded to try and bite my              nipple”?‑‑‑Yes.

And do you also agree that he said to the police, “He started going – um, like,              opening and closing his mouth trying to bite it”?‑‑‑Yes.

Do you agree that you never told the police that he did actually bite your nipple?‑‑‑Yes. I never told them.

…

And you said to [appellant’s wife] that he went to bite your boob?‑‑‑Yes. He had – went to.

Right. And do you agree or disagree that you didn’t tell [appellant’s wife] that he did actually bite your boob?‑‑‑No. I didn’t tell anybody that he tried to bite my boob because I was confused on the whole situation, and I was still trying to process it. But he did, in fact, grab it.

Well, when did you ‑ ‑ ‑?‑‑‑Like ‑ ‑ ‑

When did you come to that realisation that he did, in ‑ ‑ ‑?‑‑‑It was ‑ ‑ ‑

 ‑ ‑ ‑ fact, bite it?‑‑‑Um, it was a couple days after. I was really thinking about it, and he did, like, bite it. I just didn’t tell the police or anything because I was still confused.

So is it right that at the time you were speaking with the police when they came to your house in that video that you watched earlier today, at that point had you come to the realisation that he did actually bite your nipple, or was it after you spoke to the police at your house?‑‑‑It would’ve been after, because I was talking to my mum about it, and I told her that ‑ ‑

…

And again, in that conversation with your mother before speaking to the police, you said that he was trying to bite your nipple; is that right?‑‑‑Yes.

And just to be abundantly clear, in that conversation you didn’t tell your mother that he actually bit your nipple; is that right?‑‑‑Yes.

What I suggest is that [the appellant’s] mouth did not come into contact with your breast over your clothing at any stage. Do you agree it didn’t come into contact, or do you say it did come into contact?‑‑‑It did come into contact.

And I suggest that at no stage did he even try to bite your nipple in the way that you demonstrated by opening and closing his mouth. So what I’m suggesting is he didn’t open and close his mouth trying to bite it. That didn’t happen. Do you agree or disagree?‑‑‑I disagree. It did, in fact, happen.”

34. [34]
    In the defence case, the appellant called as witnesses his two sons who had been involved in the incident with the girls.  They each gave evidence that the incident was over the girls taking the younger son’s phone; and variously said that they did not see the appellant’s head come into contact with the complainant’s breast; that they did not see him bite the complainant on the breast or nipple; and that they did not see him making a biting action with his mouth, opening and closing it. In cross-examination, they each denied suggestions put to them that the appellant bit the complainant’s nipple while he was holding her on the bed.

The trial judge’s ruling

35. [35]
    At the conclusion of the evidence, the trial judge discussed the issue of jury directions with counsel.  In doing so, the trial judge raised whether the evidence adduced was capable of proving an offence of sexual assault, notwithstanding the Crown’s particulars.  Her Honour noted that it would still be open to the jury to convict the appellant of sexual assault, “if it was an attempt to do so with the opening and closing of the mouth.”
36. [36]
    Defence counsel for the appellant opposed the suggestion and submitted it would not be open for the jury to convict on that basis in circumstances where the prosecution had narrowly particularised the case as “the complete act” and had conducted the case on that basis.  Defence counsel argued that if the jury was not satisfied that “the act of the mouth coming into contact with the breast occurred” then it could not convict the appellant of the charge.
37. [37]
    In further discussion, the trial judge queried whether there was any material difference between an act of touching and an attempt, having regard to the broad definition of assault.  In that respect, it is pertinent to note the definition of “assault” in s 245 of the Criminal Code relevantly provides:

“245 Definition of assault

A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.”

38. [38]
    Defence counsel maintained his submission that it was simply not open for the case to be left to the jury on an expanded basis that went beyond the Crown’s particulars, noting that the case the appellant had been asked to meet was one of actual touching; that the appellant’s case had been deliberately conducted to meet the narrow case particularised by the Crown; and that the point seemed very critical, insofar as the way the defence had been conducted.  In response, the trial judge observed:

“Well, it just seems to me obvious from the very beginning that aiming for the breast would be an offence – likely offence, whether he bit it or he didn’t, in the way that the contact has been described, surely.”

39. [39]
    In the ensuing discussion, defence counsel submitted that to leave other potential factual scenarios to the jury as the basis for liability would cause a degree of unfairness to the appellant.  Taking up that point, the trial judge asked defence counsel whether the appellant’s case would have been conducted any differently if the case had been presented on the basis of an attempt to bite the complainant’s breast.  In response, defence counsel conceded that he would not have asked anything different.
40. [40]
    After further discussion, the trial judge ultimately deferred further argument on the point to allow the appellant’s counsel to consider the matter overnight.
41. [41]
    The following morning, defence counsel maintained his objection and submitted that the Crown were bound by the particulars unless or until they are amended; and noted that as the Crown was not making any such application the only way the case could be put was as stated in its particulars.  Defence counsel then adverted to whether leave to amend the particulars ought to be granted to the Crown.  After referring the trial judge to R v Knight,^[2] defence counsel submitted that leave to amend should not be given as the appellant would be prejudiced if the particulars were expanded as he had a materially greater chance of acquittal on the narrow particulars and may therefore lose a chance of an acquittal if the case were broadened in the manner suggested.
42. [42]
    Defence counsel concluded by informing the trial judge that, upon reflection, the concession he had previously made, that the case would not have been conducted any differently had the Crown proceeded from the outset on the suggested expanded case, was wrongly made.  He submitted that he may have made different forensic choices and would have pursued certain lines of cross-examination in greater detail.
43. [43]
    In response, the Crown prosecutor submitted the alternative pathway to conviction could be left to the jury without the particulars being amended, “because the jury have their own right to reason a pathway to conviction or acquittal” and that although the case had been particularised by the Crown, that was done “on the basis to avoid surprise to the defence’s case.”  The Crown prosecutor further submitted that if it was ever apparent that there was a “lesser variant” still proving the case, then there would be no surprise and therefore no prejudice to the defence case.
44. [44]
    The Crown prosecutor argued that the case was not one of different pathways to conviction but rather one of matters of degree, submitting:

“But here the question is the degree of the assault, whether it’s attempted biting or actual biting, it’s a single course of conduct. Both bases of conviction lie along that same pathway.”

45. [45]
    The Crown prosecutor submitted this was the approach that had been endorsed in R v Chong.^[3]  The Crown prosecutor further noted that whilst the Court in Knight^[4] had stated that particulars of the indictment form part of the formal record of the Court and bind the Crown until they are amended, the Court also nevertheless noted that the particulars did not form part of the indictment.  The Crown prosecutor then concluded that, as in Chong, in circumstances where there was no substantial change to the nature of the charge; where the appellant always knew the complainant had given an account of an attempted biting; and where he had been informed of the basis upon which the case would be left to the jury, there was no prejudice and amended particulars would add nothing.  Accordingly, she reiterated, there was no need for any amendment of the particulars and the case could be left to the jury on the broader basis as intimated by the trial judge.
46. [46]
    The trial judge ultimately ruled that the case could be left to the jury on a basis broader than the Crown’s particulars.  The trial judge’s ruling was in these terms:

“This is a single charge for a single incident and the complainant has always maintained that the accused pinned her down and tried to bite her breast, opening and closing his mouth. Her evidence – her testimony was that he succeeded in biting her breast. The prosecution particularised its case as a bite and that further allegation had come after the initial complaint, but before her evidence was taken.

Those matters were all known to the defence prior to trial. Logically it would be open to the jury to believe the complainant’s evidence of the attempt to bite the breast, but have doubt as to whether or not the attempt succeeded.

Mr Marley [i.e., defence counsel] accepts such conduct as capable of founding the charge, but the issue is whether the alternate pathway should or could be left to the jury, in light of the narrow particulars.

…

The case is different from Knight, which involved an entirely different mechanism of rape from that particularised. Here, like Cheong [sic. Chong], there was a single course of conduct. That conduct being whether there was an attempt or a completed act. In Cheong it was a threat to – whether it was a threat to throw the rock or the rock was thrown. Both pathways were left, despite the Crown’s particulars being the throw.

The Chief Justice wrote the majority judgment and found that there was no injustice caused by the – both pathways being left. The defence knew the evidence to be called. It knew the alternate ways to conviction. And if convicted of either pathway it was not a situation where there would be a risk of double jeopardy.

Here, similarly, the gravamen of the Crown case is the completed act, but the evidence of the attempt to commit that act has always been known, or has always been – always been an issue to be addressed.

The description of the attempt was – or the assertion of the attempt was challenged in cross-examination of the complainant, although that questioning – that aspect of questioning was short.

The defence case is that the accused did not do any deliberate act and that there was no contact with the breast, other than through an accidental fall.

Mr Marley had originally conceded that the – he would not have changed – the conduct of the defence would not have changed if the broader particulars had been given. This morning, having had overnight to consider it, he said he would have spent more time with that.

It does not appear to be a case – sorry, I should say there was little specificity about that and I am satisfied that this is not a case where there was a conscious forensic decision to limit the questioning in respect of the evidence of attempt because of the narrowness of the particulars.

I am also satisfied that the presentation of both pathways to the jury would cause no unfairness to the accused. The particulars form part of the record of the court and they bind the Crown, unless amended, but they do not necessarily bind the court.

The main purpose of particulars is to ensure that the accused knows the case against him so he has the proper opportunity to meet it. That has been satisfied. And the jury – it is for the jury to decide the case on the evidence, not the particulars. Lest there be any confusion about the basis of the verdict, a special verdict will be sought in the event of a conviction.”

The Crown’s closing address

47. [47]
    In her closing address, the Crown prosecutor maintained the Crown case was that the appellant had actually touched the complainant’s nipple with his mouth.  The Crown prosecutor did not argue that the assault element of the alleged offence would be satisfied if the jury accepted beyond reasonable doubt that the appellant had threatened or attempted to apply force to the complainant without her consent.  Although the Crown prosecutor referred to the complainant’s evidence of the appellant opening and closing his mouth and pretending or trying to bite the complainant’s nipple, she did so to emphasise the Crown’s argument that the alleged actual touching was deliberate and not accidental.

The trial judge’s directions

48. [48]
    When summing up, the trial judge gave the following directions to the jury relevant to the offence element of “assault”, supplemented by a written aid:

“All right. That takes me now to the offence itself of indecent assault. The prosecution case, of course, is that while the accused was on top of [the complainant], he bit her breast. [The complainant] gave that evidence in court. When she first spoke to people and did her police interview, she used the term “tried to bite.” In court, her evidence was he not only tried, but he did bite her.

Assault in law covers a broad range of actions done on purpose and without the consent of the other person. It can be touching or otherwise applying force to another person’s body. It can be making a movement or a gesture in an attempt to apply force to another person’s body or it can be making a movement or a gesture to threaten to apply force to that other person’s body. So it can be the actual touching, a threat to touch or an attempt to touch to apply force.

What you make of [the complainant’s] evidence is a matter for you. For example, you might find her evidence of the completed bite both honest and reliable or you might be uncertain about whether there was an actual bite but find that her evidence in the – the police interview and in the court of the accused trying to bite her was both honest and reliable or a third possibility is that you might have doubts about either of those – both of those allegations and in that case, your verdict would be not guilty. If you are not satisfied that he either attempted to bite her or deliberately acted like he was going to bite her breast, he could not be guilty and you would find him not guilty without going any further.

But if the accused did at least try to bite her, he may be guilty. If you find that he had at least acted like he was trying to bite her breast, then you must determine – determine whether the elements – all of the elements of the offence have been proved. And we will get to that shortly and I have a handout for you to assist you in relation to the elements.

…

The first element is that the accused did any one of those three acts that are listed, that he either bit [the complainant’s] breast or opened and closed his mouth in an attempt to bite her breast or that he threatened to bite her breast through the actions of opening and closing his mouth and other movements.”

49. [49]
    The trial judge further directed that in the event of a guilty verdict, the jury would be required to answer the following question by way of special verdict:

“Do you find that the accused did bite [the complainant]’s breast, yes or no?”

50. [50]
    Her Honour directed the jury that the answer “Yes” could only be given to the special verdict question if all twelve jurors were satisfied beyond reasonable doubt that the appellant bit the complainant’s breast, otherwise the answer must be “No”.

Verdict

51. [51]
    The jury returned a guilty verdict on the charge of sexual assault.  On the special verdict question, the jury answered, “No”.

Submissions

52. [52]
    The appellant submitted that the trial judge was wrong to conclude:

“The particulars form part of the record of the court and they bind the Crown, unless amended, but they do not necessarily bind the court.”

53. [53]
    The appellant contended that decisions in Chong and Knight make plain that the particulars of the charge form part of the court record and that the Crown is bound by its particulars unless, and until, they are amended.  He further submitted that here, where the Crown did not seek to amend its particulars, the trial judge erred in directing the jury that it could be satisfied beyond reasonable doubt that the appellant did the alleged act of assault if it were satisfied of an “attempt” by the appellant to bite the complainant’s breast or that he had “threatened” to bite her breast.
54. [54]
    The respondent argued that the trial judge did not err.  In doing so, it adopted a similar position to that argued by the Crown prosecutor at trial, contending that the approach of the trial judge was permissible and in accordance with what had occurred in the supposedly analogous case of Chong.  The respondent contended that resolution of the appeal ultimately depended upon consideration of the proper function of particulars and an assessment of prejudice to the appellant.
55. [55]
    The respondent submitted that the function of particulars was multi-faceted, but of particular relevance here the function was to enable the accused person to know the case they must meet.  Conversely, it contended that it was not the proper function of particulars to bind the Crown in such a way that the trial judge was not permitted to extend the basis of liability, as her Honour had done when directing the jury.  In making that argument, the respondent sought to draw support from various provisions of the Criminal Code which permit an accused person to be convicted of an offence, or an attempt to commit an offence, different to that charged, where such an offence is established on the evidence.^[5]  The respondent argued that in such circumstances the Crown would not be bound by any particulars of the charge it had furnished.
56. [56]
    In any event, the respondent submitted that the directions given by the trial judge were correct and in accordance with the law and the evidence given by the complainant at trial.  The respondent further submitted that as the appellant was always aware that the complainant had told police in her s 93A statement that he tried to bite her on the breast, and where he had not shown how he would have conducted his case at trial any differently in answer to the expanded case, there was no prejudice to him.

Consideration

57. [57]
    The determination of this appeal does not depend upon the proper function of particulars, nor whether the appellant was, or had demonstrated that he would be, prejudiced at trial if the expanded case was left for the jury’s consideration.
58. [58]
    The appellant asserts that the trial judge made a wrong decision on a question of law.  Although it was not clearly articulated in the ground of appeal, it seems to me that the question of law involved is whether the Crown was permitted to advance a case beyond its particulars, without first being given leave to amend its particulars.  On the appellant’s case, it was the erroneous affirmative ruling on that question that led to the trial judge directing the jury on the offence element of assault in “discordance” with the particulars.
59. [59]
    In my opinion, the trial judge erred in law as the appellant contends.  To explain why, it is necessary to consider the cases of Chong and Knight in some further detail.
60. [60]
    In Chong, the appellant was tried and convicted of an offence of serious assault.  The Crown case was that the appellant, and her co-accused, had been involved in an altercation with police, during which the appellant had come at one of the police officers whilst armed with a rock or piece of concrete.  There was conflicting evidence as to whether the appellant had actually thrown the rock at the complainant police officer or whether she had simply, threatened to do so.  The conflicting versions were apparent from the committal depositions before trial.  At the outset of the trial, the Crown had particularised the assault as one where the appellant “threw, or threatened to throw, a rock or piece of concrete” in the direction of the complainant police officer.  Before the jury had been empanelled, the trial judge indicated his view that the particulars were duplicitous and observed that if there were more than one act involved, the Crown could separately have charged throwing and threatening to throw as distinct assaults, but if only a single act were involved, it was incumbent on the Crown to elect whether it would proceed on the basis that the appellant threw the rock, or that she threatened to throw it, since either would constitute an assault.  As a result, the Crown provided amended particulars, alleging that the appellant “threw a rock or piece of concrete” in the direction of the complainant police officer.  The trial then proceeded on that basis.
61. [61]
    The complainant police officer gave evidence in the Crown case that the appellant had thrown the rock in her direction.  Another police officer gave evidence that the appellant had the rock in her possession but did not get a chance to throw it as he grabbed her and pulled her down to the ground.  On neither account had the rock actually hit the complainant.  After the close of the Crown case, and when each of the accused had indicated they would not give evidence, the issue of what act constituted the assault was again raised.  After observing that the evidence was equivocal as to whether the appellant had thrown the rock or merely threatened to throw it, the trial judge informed the parties that he would direct the jury that if they accepted that she threatened to throw the rock, that would also satisfy the definition of assault.  The appellant’s counsel did not raise any objection and the trial judge directed the jury accordingly.  During her address to the jury, the Crown prosecutor urged the jury to focus upon and accept the evidence of the complainant police officer.  She said nothing about the other officer’s evidence and did not seek to identify any different bases for conviction.
62. [62]
    On appeal, the appellant contended that the jury’s verdict was unreasonable; that a miscarriage of justice had occurred because the case against her was left to the jury on a basis different to that particularised by the Crown; and that the trial judge erred when directing the jury on the elements of the offence of serious assault.  The Court allowed the appeal and entered a verdict of acquittal.
63. [63]
    On the question of an unreasonable verdict, Holmes JA, (as her Honour then was), held that the jury was entitled to convict of serious assault if satisfied that the appellant had threatened to throw the rock at the complainant, a finding which was consistent with the case left to it by the trial judge and which was open on the evidence of both officers.  Holmes JA further concluded that there would be nothing unreasonable in the jury convicting on that basis simply because the Crown had not particularised the offence in that way, although there might arise questions of prejudice to the defence, which was a consideration relevant to the miscarriage of justice ground.^[6]
64. [64]
    When assessing whether a miscarriage of justice had occurred because the Crown was permitted to depart from the particulars of the charge it had given at the start of the trial, Holmes JA first observed it was not necessary for the Crown to have made the election it did.  Her Honour noted the case was not one of latent ambiguity in which there was more than one occasion which might be embraced by the count and the particulars given of it.  Rather, it involved a single course of conduct and the only conflict in the evidence was as to its extent: whether the appellant’s conduct was simply running in the direction of the complainant with a rock held over her head, or whether it included the further step of actually throwing it at the complainant.  Her Honour considered the first scenario could properly be characterised as a threat to apply force within the meaning of s 245 of the Criminal Code, and the second as an attempt to do so.^[7]
65. [65]
    As to whether a miscarriage of justice had occurred as a result of the case being left to the jury on a basis different to that run by the Crown, Holmes JA relevantly stated:

“The Crown, of course, is not bound by particulars given at the commencement of the trial. In the present case, it could, at the end of the evidence or when the learned judge gave his intimation as to his intended directions, have applied to amend them. It did not; but, as counsel for the respondent pointed out, failure to do so made little practical difference. The judge made the defence aware of the basis on which the case would be left to the jury, and amended particulars would have added nothing.”^[8]

66. [66]
    Holmes JA considered that it was arguable that aspects of the defence case may have been conducted differently had the risk of the appellant’s conviction on the basis of a threat been appreciated from the outset, however the fact that no objection was taken when the trial judge foreshadowed that he would leave both bases to the jury suggested there was no perceived problem in proceeding with the trial, nor any advantage in a different approach to the Crown case.  Ultimately, Holmes JA did not consider it necessary to determine the issue as her Honour was satisfied that the trial judge had erred in his directions on the elements of the offence of serious assault and therefore the appeal was to be allowed on that basis.^[9]
67. [67]
    Although Fryberg J, agreed that the appeal should be allowed for the reasons given by Holmes JA with respect to the other grounds of appeal, his Honour expressed a different conclusion to her Honour on the issue of the Crown’s departure from its particulars.  Fryberg J agreed that the original particulars were not duplicitous, and it had been unnecessary for the Crown to amend them, but went on to state:

“However, having delivered amended particulars, the prosecution remained bound by them unless and until they were further amended. As particulars of the indictment they formed part of the court record. They provided a gauge for the measurement of relevance. They informed the defence of the case to be met and limited the prosecution to that case.”^[10]

68. [68]
    On that basis, Fryberg J concluded that the approach of the trial judge was wrong; the jury should not have been directed that it could consider a Crown case based on both “threat” and “attempt”; and a miscarriage of justice had occurred as a result.  His Honour noted that it would have been open to the Crown to ask for the case to be left on this basis, but only if it first secured leave to amend it particulars.  Such an application would then have focused attention on more than the definition of assault and would have required the issue of any prejudice to the appellant’s case to be considered in the context of the trial.  Fryberg J further remarked:

“In addition there is the fact that the District Court is a court of record. The particulars were part of the court record. A judge should not give directions to the jury which are inconsistent with that record.”^[11]

69. [69]
    The third member of the Court, North J, agreed with Holmes JA that the trial judge had misdirected the jury on the elements of the offence of serious assault and that the appeal should be allowed on that basis.  In those circumstances, his Honour did not consider it necessary to address the miscarriage of justice ground concerning the Crown’s departure from its particulars.
70. [70]
    As is obvious from the foregoing, the ground relating to the Crown’s departure from its particulars in Chong was not determinative of the appeal and there was no consensus on whether what had occurred there had resulted in a miscarriage of justice.
71. [71]
    In Knight, the appellant was tried and convicted of multiple sex offences committed over a number of years against a complainant who was aged from 10 to 17 years.  He appealed his convictions on various grounds, including that there had been a miscarriage of justice due to cumulative errors that made his trial unfair.  Amongst other things under that ground, the appellant complained that the Crown had departed from its particulars and opening; that the trial judge had improperly allowed amendment of the indictment on one count; and the trial judge had improperly allowed amendment of the particulars in respect of another (Count 10).
72. [72]
    Count 10 was a charge of rape.  At the start of the trial, the Crown tendered particulars and opened its case on that count on the basis that the appellant “penetrated the complainant’s anus with his penis”.  Consistent with that allegation, the margin notes of the indictment described the offence as one against s 349(1) and s 349(2)(a) of the Criminal Code (i.e., carnal knowledge without consent).  However, the complainant’s evidence at trial in respect of that count was that the appellant had penetrated his anus with his finger.  The trial judge raised the fact that the complainant had not come up to proof on this count, and several others, at the end of the first day of the trial.  In response, the prosecutor sought leave to amend the particulars for Count 10 by substituting the word “finger” for “penis”.  In the ensuing discussion with counsel, the trial judge observed that the charge of rape could be constituted by either digital or penile rape; that the question of prejudice to the accused was a relevant consideration to any amendment of the indictment or particulars; and that there would seem to be no real prejudice to the appellant if the indictment was amended, as his case was simply that he did not do any of the alleged acts, whether it was alleged to be a penile rape or a digital rape.  The matter was then adjourned to the next day.
73. [73]
    The following morning, the Crown prosecutor sought leave to amend the margin notes in the indictment for Count 10, to reference s 349(2)(b), which stipulated penetration of another person’s anus with any part of the person’s body other than a penis, in lieu of s 349(2)(a).  The proposed amendment was not opposed by the appellant’s counsel and was allowed by the trial judge.  In permitting the amendment, the trial judge noted that the amendment was sought to ensure that Count 10 aligned with the evidence given by the complainant.  Counsel for the appellant did not oppose a subsequent application for amendment of the particulars for Count 10 to substitute the word “finger” for “penis”.
74. [74]
    On appeal, Morrison JA, with whom Fraser JA and McMurdo JA each agreed, noted that whilst s 572 of the Criminal Code governed the amendment of indictments, that provision had no application to the amendment to the indictment in the appellant’s case, which was simply an amendment to the margin notes.  His Honour held that marginal notes in an indictment were an aid to, but not part of, the indictment and therefore s 572 had no application.^[12]
75. [75]
    As to the amendment to the particulars, Morrison JA noted that particulars are not part of the indictment either, though the serve the purpose of elucidating matters alleged in the indictment;^[13] and that they served in part to give the accused sufficient indication of what is alleged against him or her on the occasion when he or she is said to have committed the offence.  After citing what Heydon J had stated in Patel v The Queen,^[14] by reference to Johnson v Miller,^[15] with respect to the central role of particulars of an indictment, Morrison JA concluded:

“Further, particulars of the indictment form part of the formal record of the Court and bind the Crown until they are amended.”

76. [76]
    The authority cited by Morrison JA for these last propositions was paragraph [32] of Fryberg J’s judgment in Chong.
77. [77]
    Morrison JA considered that although s 572(1) of the Criminal Code did not apply to the amendment of the marginal notes and was not directly applicable to the amendment of the particulars, the matters raised by s 572(1) were nonetheless the type of considerations that would be applicable to an application to amend particulars.  Drawing upon the wording of s 572(1), his Honour noted that relevant considerations would include factors such as, if the amendment sought was “the consequence of a variance between the evidence and the indictment, whether the variance was material to the merits of the case”; and whether the defendant “will suffer prejudice if the amendment is granted.”^[16]  His Honour further noted that, unlike an application to amend an indictment under s 572(1), where the Crown bore the onus of showing that the amendment was [not]^[17] material and the absence of prejudice to an accused, on an application to amend particulars an accused person had at least an evidentiary onus to show that prejudice would flow to the defence from the proposed amendment.^[18]
78. [78]
    Whilst noting that the appellant’s counsel had not opposed the amendment to the particulars, nor had he identified any potential prejudice to the defence case, Morrison JA nevertheless concluded that the trial judge had an overriding obligation to ensure a fair trial to the accused; that there was no apparent weighing of matters relevant to the proposed amendment; and that the order permitting the amendment was in error and resulted in a miscarriage of justice.^[19]
79. [79]
    In my view, the following matters relevant to the disposition of this appeal emerge from the foregoing analysis of Chong and Knight.
80. [80]
    First, Chong is not authority for the proposition that the Crown is not required to obtain leave to amend its particulars where a trial judge makes the defence aware of the basis upon which the case will be left to the jury and amended particulars “would have added nothing”; nor is it authority for the proposition that amendment of particulars is not required where the alleged offence involves a “single course of conduct” and the only conflict raised by the evidence is the extent of the conduct.
81. [81]
    Second, Knight is authority for the proposition that where, as here, the Crown provides particulars of the indictment, which become part of the court record, the Crown is bound by those particulars unless, and until, they are amended; and furthermore, where leave to amend the particulars is sought by the Crown, a trial judge is obliged to consider the prejudice the proposed amendment would occasion to the accused person when determining whether leave should be granted.  As Morrison JA noted in Knight, factors particularly relevant to the question of prejudice will include that the accused came to meet a Crown case differently particularised, and that on the state of the evidence at the time of the application the Crown case would likely fail, and the accused might thereby lose a chance of acquittal if the amendment was allowed.^[20]
82. [82]
    Before leaving the authorities, I should note that the respondent also relied upon R v Trifyllis,^[21] where the Court dismissed the appellant’s appeal against his conviction for assault occasioning bodily harm.  The appellant there had complained that there had been disconformity between the acts disclosed in evidence in the Crown case and those particularised by the Crown as constituting the alleged offence.  In that case, after the Crown had opened, defence counsel asked that the Crown put something “formally on the record as particulars relied upon in respect of the bodily harm”.  In response, the prosecutor stated before the jury that, “the Crown particularised the assault as the accused man punching the complainant repeatedly with closed fists at the upper body and head in a boxing style”.  At the close of the Crown case, defence counsel submitted that, on the evidence adduced, the jury could not be satisfied beyond reasonable doubt that the assault had occurred in the manner particularised.  He contended that the assault particularised was fundamentally different from that described by the complainant.  The trial judge ruled that despite the particulars given, the case would be left to the jury on the basis that if the jury found an unlawful assault on the evidence as a whole, the jury would be entitled to convict.
83. [83]
    The supposed “disconformity” between the particulars and the evidence in Trifyllis came about because the particulars were based on a description given by one witness, who described the appellant delivering several punches from a position in front of the complainant, whereas the complainant had described receiving a punch from behind, which knocked some of his teeth out, and then a little later receiving a second hit as he turned away to leave the area.  It was the alleged blow that dislodged the complainant’s teeth that was the act said to have occasioned bodily harm.  The appellant’s contention on appeal was that the trial judge’s ruling had deprived him of a fair trial as the case had been conducted on the basis of the particulars provided and the assault as particularised was fundamentally different to that described by the complainant.
84. [84]
    In concluding that the appeal should be dismissed, Chesterman J noted that the appellant’s argument sought to compartmentalise the altercation between the appellant and the complainant into separate assaults and then to contend that the assault the subject of the Crown’s particulars could not be, on a fair reading of the evidence as a whole, the assault from which the complainant lost his teeth.  However, as his Honour made plain, there were not two separate and distinct assaults, rather there were simply different accounts given by several witnesses in respect of the one assault.
85. [85]
    Chesterman J then went on to consider whether the conviction should be set aside because the Crown had based its particulars on the description given by one witness, who said she saw the appellant assault the complainant by several punches delivered front on.  After reviewing several authorities and canvassing the proper function of particulars in a criminal case, his Honour noted that this was not a case where the particulars provided by the Crown were necessary to enable the accused to know the nature of the charge he was called upon to meet; that it was probably inappropriate for the prosecutor to have complied with the request to provide them; and that the defence was aware, in detail, of the evidence to be led by the Crown in support of the indictment and of the fact that there were discrepancies in the description of the assault to be proffered by the witnesses it would call.  Chesterman J ultimately concluded:

“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.”

86. [86]
    In my view, Trifyllis provides no support for the respondent’s arguments.  The issues in the case were quite different.  The particulars provided by the Crown there were unnecessary, and in any event, there was no disconformity because the Crown had alleged, particularised and proven the alleged assault, by means of the appellant punching the complainant, which had occurred in the course of a single episode.  In the present case, there has never been a suggestion that the particulars were unnecessary; they were provided by the Crown of its own initiative to identify the case that the defendant was required to meet; and the basis upon which the Crown was permitted to prove the assault was different to, and in disconformity with, that which it had particularised.  None of the principles of law with respect to the function of particulars discussed in Trifyllis gainsay the proposition that where the Crown provides particulars of a charge that form part of the court record, the Crown is bound by those particulars unless, and until, the Court gives leave for the particulars to be amended.
87. [87]
    During the hearing of the appeal, the respondent ultimately conceded that proposition of law, as stated by Fryberg J in Chong and reiterated by the Court in Knight, was a correct statement of the law.  That concession was properly made.
88. [88]
    Finally, I do not consider there is any merit in the respondent’s further argument that there are provisions of the Criminal Code that allow for a defendant to be found guilty of a different offence to that charged.  That there are specific legislative provisions that permit a defendant to be convicted of another charge where the prosecution fails to prove some element or aspect of the crime alleged to the requisite standard says nothing about the issues with respect to particulars with which the Court is concerned in this case.
89. [89]
    Against the foregoing analysis, resolution of the appeal becomes straightforward.  The Crown provided written particulars of the charge.  Those particulars narrowly framed the case against the appellant as one alleging “actual touching”.  At the close of the evidence, it was obvious that the complainant had given evidence which, if accepted, was capable of establishing facts that could satisfy the legal definition of assault in s 245 of the Criminal Code in one or more ways, beyond the narrow particulars.  Aware of that prospect, the trial judge raised the issue of her own volition, but wrongly noted, in my view, that such avenues to conviction were obvious from the outset and had been the Crown case “all the way through”.  Despite the issue being raised by the trial judge, at no stage did the Crown apply to amend its particulars.  Indeed, it maintained that such a course was not necessary in the circumstances.  After hearing argument, the trial judge ruled that the expanded case could be left for the jury’s consideration.  The trial judge then directed the jury accordingly, in circumstances where the Crown’s particulars formed part of the record of the court; where the Crown did not seek to amend its particulars; and where the trial judge did not hear and determine such an application.
90. [90]
    The trial judge was correct to observe that the Court was not bound by the Crown’s particulars, but only in the sense that the Court always retained the power to permit the Crown to amend its particulars, in the exercise of discretion, if it first sought leave to do so.  That is not what happened in this case.  Here, the trial judge simply determined it would be open to the jury to convict the appellant if satisfied beyond reasonable doubt that the appellant’s conduct amounted to an assault, by any of the diverse means the law defines as an assault, and therefore permitted the jury to consider a case different to that particularised and advanced by the Crown.
91. [91]
    The critical focus here is not the function of particulars but the effect of the Crown giving particulars of a charge.  It is well established that the system of criminal justice administered by courts in Australia is adversarial and accusatorial in nature.^[22]  Under that system, it is the prosecution that determines and frames the charge which it seeks to prove at trial.
92. [92]
    In my opinion, the trial judge wrongly decided the question of law to be determined and thereby left for the jury’s consideration a Crown case on the offence element of assault that encompassed either an application of force (as particularised), or an attempted application of force, or a threat to apply force.  Over the appellant’s objection, it was not open for her Honour to take that course in the absence of the Crown seeking, and being granted, leave to amend its particulars.
93. [93]
    It is beside the point, in my view, that the trial judge may have considered the question of any potential prejudice to the appellant by allowing the expanded case to go to the jury.  This was not simply a case of considering whether the appellant was taken by surprise, or whether the case was materially different from that particularised or whether any different forensic decisions may have been taken by the appellant.  The obvious actual prejudice to the appellant was that he stood trial on a case that was commenced and conducted by the Crown on a discrete basis, but by the end of the trial he faced an expanded case, initiated by the trial judge, yet not embraced by the Crown.
94. [94]
    It is also beside the point that the complainant’s evidence, if accepted, was capable of proving the appellant had engaged in conduct that would satisfy the legal definition of “assault” in s 245.  Having been of that view at the close of the evidence, the proper course for the trial judge to take was to raise the issue with the parties and enquire whether the Crown wished to seek leave to amend its particulars.  If it had sought such leave, then the trial judge would have been obliged to consider and determine that application, having regard to all factors relevant to the exercise of the discretion.  If, as happened here, the Crown did not seek leave to amend the particulars, then the only proper course was to direct the jury on the element of assault in accordance with the narrow case as particularised and maintained by the Crown.

Disposition

95. [95]
    The respondent confirmed at the hearing of this appeal that, in the event the Court was satisfied that the trial judge had made a wrong decision on a question of law, it did not seek to rely upon the proviso.  Nevertheless, it contended that if the appeal succeeded and the appellant’s conviction were quashed the appropriate course would be for the Court to order a retrial and not enter a verdict of acquittal, so that the Crown would be able to bring the different case that it would otherwise have been denied.
96. [96]
    In my view, it would not be appropriate for the Court to order a retrial.  As the jury’s answer to the special verdict question makes plain, the end result of the trial judge’s erroneous ruling was that the appellant was convicted of the sexual assault of the complainant on a different basis to the case particularised and run by the Crown.  He plainly was deprived of a chance (if not certainty) of an acquittal had the case been left to the jury on the narrow basis particularised by the Crown.  He should not again face trial and the prospect of conviction on the same charge, whether differently particularised or otherwise.