Bakes v Holt

[2022] ACTMC 24

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Nunn v KS
Citation:	[2023] ACTMC 52
Hearing Date:	7 August 2023
Decision Date:	21 August 2023
Before:	Special Magistrate Christensen
Decision:	See [23].
Catchwords:	CRIMINAL LAW – committal – whether charges are “related charges” – transfer of charges to Supreme Court – whether the
summary offences arise from substantially the same circumstances from which the first indictable offence has arisen
Legislation Cited:	Crimes Act 1900 (ACT) ss 26, 28, 374-5
Magistrates Court Act 1930 (ACT) s 90B Supreme Court Act 1933 (ACT) ss 68CA, 68D
Cases Cited:	Bakes v Holt [2022] ACTMC 24 DJ v R [2017] NSWCCA 319 DPP (NSW) v Sinton [2000] NSWSC 473 Jibran v R [2020] NSWCCA 86 R v Barker [2014] ACTSC 374 R v Klobucar (No 4) [2016] ACTSC 348 R v McMahon (No 2) [2017] ACTSC 299 R v Mehajer (No 2) [2023] NSWDC 151 R v Raymond (No 1) [2014] ACTSC 122
Parties:	A Nunn (Informant) KS (Defendant)
Representation:	Counsel
J Melloy (Informant) T Sharman (Defendant)
Solicitors
ACT Director of Public Prosecutions
Tim Sharman Solicitor (Defendant)
File Numbers:	CC 4017-4021 of 2022
CC 4025-4028 of 2022 CC 4030-4032 of 2022 CC 12353 of 2022

SPECIAL MAGISTRATE CHRISTENSEN

REASONS FOR DECISION:

Introduction

1․	The matter is before the court for a determination as to whether the charges ought to be
committed to the Supreme Court.
2․	The defendant is charged with 13 separate charges with maximum penalties of two years,
five years, and 10 years imprisonment. Pleas of not guilty have been entered in respect to
11 of the charges with no plea entered in respect of the remaining two charges. For the
purposes of progressing this decision, I have inferred that a not guilty plea would be entered
to those charges if the defendant was invited to do so.
3․	Four of the charges are what are known as ‘summary/indictable’ charges. That is, the
offences are punishable by imprisonment for longer than two years. The prosecution may
elect summary disposal pursuant to s 374 of the Crimes Act 1900 (ACT) (Crimes Act) or the
defendant may consent to the summary jurisdiction pursuant to s 375 of the Crimes Act.
4․	Where it is the prosecution election, that is, in respect to charge CC2022/12353 (a charge
of intentionally and unlawfully choking, suffocating, or strangling another person contrary to
s 28(2) of the Crimes Act) and charge CC2022/4026 (a charge of assault occasioning actual
bodily harm contrary to s 24 of the Crimes Act), the prosecution has not elected summary
disposition. Section 374 provides that the court must then deal with the charge in accordance
with s 375(6)-(16).
5․	In relation to the other summary indictable charges, that is, charges CC2022/4021 and
CC2022/4031, both are a charge of reckless threat to kill another person contrary to s 30 of
the Crimes Act. The Magistrates Court may deal with the matters in accordance with s 375
of the Crimes Act.
6․	In this matter, the prosecution makes representation to the effect that these charges are not
matters that can properly be disposed of summarily, while the defendant makes
representations to the effect that they are charges that can properly be disposed of
summarily.
7․	A preliminary matter arises in respect to nine of the charges that are ‘summary only’. That
is, that the Supreme Court only has jurisdiction in respect to these charges if they are either
‘backup’ or ‘related offences’ and are transferred to the Supreme Court pursuant to s 90B of
the Magistrate Court Act 1930 (ACT).
8․	The prosecution submits that the summary only charges, which are charges of common
assault contrary to s 26 of the Crimes Act and have a maximum penalty of 2 years
imprisonment, are either backup charges in respect to three of them, and related offences
as defined in s 68CA of the Supreme Court Act 1933 (ACT) (Supreme Court Act) for six of
the charges. The defence accepts the characterisation of three of them as backup charges
but submits that the contended related charges do not fall within the definition for such an
offence.
9․	This preliminary issue requires resolution as the decision may have a bearing on whether
the prosecution maintained a representation that the summary/indictable charges ought to
be committed to the Supreme Court for trial.

Related Offences

10․	The preliminary question then is whether six of the common assault charges are related
offences. This is determined by whether the summary offences “arise from substantially the
same circumstances as those from which the first indictable offence has arisen”: s 68CA(b)
of the Supreme Court Act. The ‘first indictable offence’ meaning an indictable offence: s
68CA of the Supreme Court Act.
11․	In R v Klobucar (No 4) [2016] ACTSC 348 at [57] (Klobucar (No 4)), Penfold J emphasised
that related offences are defined “in relation to” indictable offences and that such an offence
must bear the specified relationship to a particular indictable offence. Her Honour said at
[58] :

Section 90B does not in my view permit the transfer to the Supreme Court, when an accused is

committed for trial on an indictable offence, of all other outstanding charges which the accused

happens to be facing, merely because they are summary or capable of being dealt with

summarily and irrespective of their connection or lack of connection with the indictable offence

committed for trial.

I considered this a useful starting point for this matter.

12․	In Klobucar (No 4), her Honour was considering weapons charges that her Honour viewed
as capable, to an extent, of satisfying the definitions, but her Honour was not necessarily
convinced of this. The circumstances there were that it was ultimately unnecessary for her
Honour to determine the matter.
13․	Justice Refshauge applied what was said in Klobucar (No 4) in R v McMahon (No 2) [2017]
ACTSC 299 and found that a failure to appear charge in connection with a Supreme Court
sentence matter was not a related offence. His Honour said at [22]:

Whatever the expedience or efficiency of having the one court deal with offences that have a

connection with each other, that does not give the court jurisdiction. Only the statute does that.

Summary Charges

14․	Viewed globally, it is apparent that there is a common allegation of family violence committed
during the course of a relationship. However, it is appropriate to consider the summary
charges individually, and in doing so, I make the following observations –

(a) The first of the summary offences is the first in time allegation, alleged to have been

committed on 23 July 2006. The closest in time indictable offence to which it could

be related is an allegation of choking, and a backup charge of common assault on

19 July 2008. The alleged offending in the 2006 charge occurs after the alleged

verbal abuse, after which the defendant allegedly twisted the complainant’s arm.

The closest in time, potentially related, indictable offence alleges, again, a verbal

fight followed by physical assaults being alleged.

(b) The next in time summary offence occurs after that alleged indictable act, with the

second summary charge contended to be related, arising from an alleged assault

in November 2010. There are then alleged indictable acts of violence in March and

December 2012. Applying the meaning of “first indictable offence”, the summary

charges can be said to relate to any of the indictable offences. The ACT legislation

does not require identification as to which specific indictable offence is said to be

the offence to which the summary charge is related.

(c) The alleged indictable offences in 2012 involve threats to kill, occurring in a context

of a verbal argument, and during which physical assaults are also alleged to have

occurred.

(d) In 2014, two of the alleged summary acts occurred, followed by an act alleged to

be a summary/indictable charge, involving assault occasioning actual bodily harm.

The alleged offending in 2014 involves, again, verbal arguments leading to alleged

physical violence.

(e) The final two charges involve alleged offending in January and February 2017, and

involve the two remaining summary charges that are contended to be related to an

indictable offence. Again, the allegation is of verbal arguments escalating to

physical violence.

(f) The material relied upon by the prosecution in relation to this application otherwise

includes the statement of the complainant which alleges acts of violence occurring

in Queensland and Melbourne, and other times during the entire period of the

alleged offending.

Consideration

15․	The situation here can be significantly contrasted from that in the R v Barker [2014] ACTSC
374, in which Refshauge J described common assault charges as being appropriately
transferred as they were “inextricably linked” to the indictable charges in a circumstance
where the summary and indictable charges all arose from the same incident said to have
occurred on the same day. Here, the contended related charges occurred within years of
each other and within years of the indictable allegations.
16․	This situation is not dissimilar to the situation that arose in R v Mehajer (No. 2) [2023]
NSWDC 151 (R v Mehajer (No. 2), in which Bennett SC DCJ considered an application to
remit related offences for hearing in the NSW Local Court. The legislative provisions in NSW
that provide for the transfer of summary charges are largely identical to the ACT provisions.
In particular, that it is an offence “that arises from substantially the same circumstances as
those from which the first indictable offence has arisen”. There is a distinction in the NSW
provision in that a certificate must be produced by the prosecution, a procedural step that is
not required in the ACT, although incidentally would be of benefit to the court in identifying
which indictable charges it is said the summary charge is a backup or related to.
17․	Another distinction when applying R v Mehajer (No. 2) is that the court there was concerned
with the question of whether it was in the “interests of justice” for the District Court to
determine the summary charges. A similar consideration could arise for the Supreme Court
here, pursuant to s 68D of the Supreme Court Act, if the charges are transferred. In Mehajer
(No. 2), the court considered matters such as appeal opportunities and court efficiency in
making its decision. However, these considerations are not what this court is called to
consider or determine. It will be a matter for the Supreme Court in due course to consider
the applicable provision of Pt 8 (whether as currently in effect or as in effect in 2013) of the
Supreme Court Act, and the authority of R v Raymond (No 1) [2014] ACTSC 122, as relied
upon by the defendant, if the charges are committed and transferred.
18․	In R v Mehajer (No. 2), the court was satisfied that summary charges committed in 2020
were appropriately regarded as related offences where the summary charges were a
contravention of orders relating to a domestic violence situation. The trial indictment alleged
offences of violence between 2018 and 2020. Bennett SC DCJ was satisfied that the
summary offences arose “from substantially the same circumstances as those of the
indictable offences”.
19․	The prosecution submits that the determination here of what is meant by “arises from
substantially the circumstances” is a low threshold and is not restricted to a temporal
consideration. I accept this submission, having regard to what was said by the NSW
Supreme Court in considering the legislative history of a similar NSW provision in DPP
(NSW) v Sinton [2000] NSWSC 473 at [21] (DPP v Sinton), that the provisions are intended
to encompass “a wide coverage” of offences. Justice O’Keefe in DPP v Sinton also observed
that there are benefits to an accused person from the provisions as they enable an accused
person to make forensic decisions in a context where they are aware of all outstanding
charges.
20․	Otherwise, the NSW authorities, again, considering the similar provisions, make the point
that the use of the provisions “serve the efficient administration of justice’”: see: DJ v R
[2017] NSWCCA 319 at [61], and Jibran v R [2020] NSWCCA 86.

21․ I do not accept the prosecution’s submission that the summary charges, having a

characteristic of “contributing towards tendency and relationship evidence”, establishes

them as related offences. The evidence in respect of the summary charges will, subject to

any applications to be made, be admissible on that basis whether they are charges within

the court’s jurisdiction or not. I am also hesitant to apply the meaning of a similar phrase

from a context of severance or joinder applications as submitted by the prosecution that this

court should do, given the determination here is concerned with an interpretation of a distinct

statutory phrase with its own legislative history. However, equally, this court must be hesitant

in applying the NSW authorities to which I have referred.

Determination

22․	The essential issue to determine comes back to whether the summary charges “arise from
substantially the same circumstances as those from which the indictable offence or offences
have arisen”.
23․	I am satisfied that they do. Irrespective as to whether the law categorises the alleged
offending as a summary or indictable, or summary/indictable charge, the allegations involve
contended acts of assault and threats committed during the course of a domestic
relationship that spanned from 2004 to 2017. The relationship between the defendant and
the complainant is inextricably part of the allegations regardless of the charge or incident,
and while there is a level of remote temporality across the charges, there is a proximity of
circumstance and a similarity in alleged conduct. The summary charges arise from
substantially the same circumstances as the indictable offences.
Order
24․	The determination of the court on the preliminary issue is that the relevant six summary only
charges fall within the definition of related offences pursuant to s 68CA of the Supreme Court
Act.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of a revision from a transcript of the oral reason for decision of her Honour Special Magistrate Christensen delivered in court.

Associate: Susie Kim

Date: 22 May 2024