Balchin v Murray

Case [2010] NTMC 66

CITATION:    [2010] NTMC 066

PARTIES:   VIVIEN LYNETTE BALCHIN

v

CAMERON MURRAY

TITLE OF COURT:   Court of Summary Jurisdiction

JURISDICTION:   Criminal

FILE NO(s):   20926954

DELIVERED ON:   22.11.10

DELIVERED AT:   Darwin

HEARING DATE(s):                    8.9.10, 22.10.10 & 15.11.10

JUDGMENT OF:   Mr Daynor Trigg SM

CATCHWORDS:

Criminal Code – s 188(2) – aggravated assault

Criminal Code – s 8 – common purpose

Criminal Code – s 12 – aid and abet

Power to compel prosecution to re-open their case and whether appropriate to do so – R v Eastman (1995) 125 FLR 460; Nguyen & Tran (1998) 102 ACrimR 577

Failure of police to obtain statements off witnesses and whether an adverse inference should be drawn – Boyce v Nunn (1997) 138 FLR 475

REPRESENTATION:

Counsel:

Prosecution:   Mr Ledek

Defendant:   Ms Bennett

Solicitors:

Prosecution:   Summary Prosecutions

Defendant:   NTLAC

Judgment category classification: B

Judgment ID number:                  [2010] NTMC 066

Number of paragraphs:                96

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20926954

[2010] NTMC 066

BETWEEN:

VIVIEN LYNETTE BALCHIN

Complainant

AND:

CAMERON MURRAY

Defendant

REASONS FOR DECISION

(Delivered on 22 November 2010)

Mr DAYNOR TRIGG SM:

  1. The defendant was charged on information that:

    On the 13th day of August 2009

    At Darwin in the Northern Territory of Australia

    1.      unlawfully assaulted Brian Kelly

    Contrary to section 188(1) of the Criminal Code

    AND THAT the said unlawful assault involved the following circumstance of aggravation, namely:

    (i)that the said Brian Kelly suffered harm

    (ii)that the said Brian Kelly was unable to effectually defend himself due to situation

    contrary to section 188(2) of the Criminal Code.

  2. The hearing commenced before me on 8 September 10 at which time the defendant pleaded not guilty to the charge and both of the circumstances of aggravation. Evidence commenced on this day but was not completed, so the matter went off part-heard. The hearing resumed on 22/10/10 when the remaining evidence was called. At the end of submissions I adjourned the matter for decision on 15 November 2010. However, prior to delivering my decision Ms Bennett approached the court co-ordinator and requested that this matter be re-listed. Accordingly, I had the matter re-mentioned before myself on 2 November 2010 at 0930. Mr Ledek continued to appear for the prosecution.

  3. On 2 November 2010 Ms Bennett applied to re-open the evidence in the case. However, upon further development it appeared that she was not in fact asking to open her case (the defence did not call any evidence during the course of the hearing, but did tender certain documents during the cross-examination of certain prosecution witnesses) but rather was asking the court to re-open the prosecution case. Mr Ledek advised that the prosecution did not consent to the application and opposed it. Accordingly, Ms Bennett was asking the court to compel the prosecution to re-open their case (when they did not want to do so) and to re-call two witnesses for further cross-examination.

  4. Ms Bennett stated that it was her mistake, and she…

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Balchin v Murray [2010] NTMC 66
Case
[2010] NTMC 66
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CaseChat Overview and Summary

The case of Balchin v Murray, heard in the Supreme Court of Victoria, involved a dispute over charges of aggravated assault under the Criminal Code. The primary legal issues the court addressed included the interpretation of sections 188(2), 8, and 12 of the Criminal Code, specifically concerning common purpose and aiding and abetting. The court also considered whether it had the authority to compel the prosecution to reopen their case and whether an adverse inference should be drawn from the failure of the police to obtain statements from witnesses. These issues were influenced by precedents such as R v Eastman and Nguyen & Tran, as well as Boyce v Nunn.

In his decision, Carruthers A-J contemplated the power to compel the prosecution to recall witnesses, but ultimately decided against exercising it in this case. He emphasized the importance of fairness and finality in criminal trials, highlighting the adversarial nature of such proceedings. The judge underscored that a criminal trial is not an inquiry but a contest between the Crown and the accused, with each party free to determine the evidence they wish to present. The judge's role is to ensure the trial's propriety and fairness, with the jury ultimately deciding guilt based on the evidence and legal instructions provided.

Carruthers A-J's decision reflected the High Court's consistent affirmation that a criminal trial must be fair, considering both the accused's and the Crown's interests. The court acknowledged the Crown's responsibility to enforce criminal law and protect the public interest, reinforcing the need for a balanced approach in criminal proceedings. The outcome underscored the importance of adhering to the principles of adversarial justice, even in the face of procedural shortcomings by the prosecution.

No further orders were made beyond the judicial reasoning and findings provided. The court's decision emphasized the need for fairness in criminal trials and the constraints within which judges can intervene in the adversarial process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Carruthers A-J did not decide whether he had the power (over objection from the Crown) to himself require the recall of certain witnesses. However, he proceeded on the assumption that he could, but then decided that in the instant case he would not exercise such a power (assuming that he had it). At pages 463-464 of his decision Carruthers A-J noted as follows:20. In recent years the senior criminal courts of this country led by the High Court have stressed the need for fairness in criminal trials and an avoidance of the pollution of the purity of the stream of justice. There can be little doubt that this attitude has had the consequence that we have not had in this country any of the major miscarriages of justice such as have occurred in other criminal jurisdictions. 21. However, be that as it may, the High Court has consistently re-affirmed two basic propositions. The first is that a criminal trial is of an adversary nature and not an inquiry. Thus in Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510, Barwick CJ said at 516-517: "However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law. But the underlying concepts of the adversary nature of a trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to the trial of a criminal offence. As Smith J rightly said in expressing the reasons of the Full Court in this case, 'Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence' (1974) V.R. 201 at 214. It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial." (emphasis added)22. And in Whitehorn v. The Queen [1983] HCA 42; (1983) 152 CLR 657 at 682, Dawson J said: "A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side." 23. The adversary nature of a criminal trial was confirmed by the High Court in Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292: see, for example, per Deane J at 334. 24. The second proposition is: "In determining the practical content of the requirement that a criminal trial be fair, regard must be had 'to the interests of the Crown acting on behalf of the community as well as to the interests of the accused'"; per Deane J in Dietrich at 335, quoting Gibbs ACJ and Mason J in Barton v. The Queen [1980] HCA 48; (1980) 147 CLR 75 at 101. 25. Relevantly, in Moss v. Brown and Another (1979) 1 NSWLR 114 at 126, the New South Wales Court of Appeal (Moffitt P, Reynolds and Hutley JJA) said: "In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in respect of the invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain those rights, even if they may bear heavily upon some accused. As Lord Goddard CJ said in R v. Grondkowski (1946) KB 369 at 372: 'The judge must consider the interests of justice as well as the interests of the prisoners'". (emphasis added)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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