Buckle, Gerald Raymond v Josephs, William Edward

[1983] FCA 105

Re: GERALD RAYMOND BUCKLE
And: WILLIAM EDWARD JOSEPHS
No. NTG 17 of 1982
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Forster J.
Toohey J.
Lockhart J.

CATCHWORDS

Criminal Law - assault accompanied by circumstances of aggravation - evidence not adduced in earlier proceedings - whether s.176A(1) of the Justices Act (N.T.) should have been considered by judge in Supreme Court - whether an offence of aggravated assault is created by provisions of the Justices Act - meaning of "include" in s.131D(1) of Justices Act - whether the throwing of a billiard ball at short range can constitute a circumstance of aggravation

Justices Act (N.T.) ss. 4, 131B, 131C, 131D, 176A(1), 176A(2)

Federal Court of Australia Act 1976 (Cth) s.28

HEARING

DARWIN

#DATE 3:6:1983

ORDER

1. The appeal is allowed.

2. The matter is remitted to the Supreme Court of the Northern Territory for a rehearing of the appeal from the Court of Summary Jurisdiction with a direction that the Court entertain an application by the appellant, pursuant to sub-sections (1) and (2) of section 176A of the Justices Act, to receive the evidence, if tendered, of Rodney James Huddlestone.

JUDGE1

I have had the advantage of reading the reasons for judgment of Toohey J. and Lockhart J. I agree with both and the orders proposed and have nothing to add.

JUDGE2

The appellant challenges his conviction in the court of summary jurisdiction at Alyangula, Groote Eylandt on 9 December 1981.

The certificate of conviction records that on that day he was convicted "for that on the 29th day of November 1981 at Groote Eylandt, he did commit an unlawful assault upon Peter Hilder accompanied by circumstances of aggravation". The complaint made against the appellant specified the circumstances of aggravation as "an unlawful assault with a billiard ball".

The learned stipendiary magistrate convicted the appellant and, without assessing a penalty at that stage, ordered that he be released forthwith on entering into a recognizance of $100 to be of good behaviour for a period of 18 months.

The appellant appealed from his conviction to the Supreme Court of the Northern Territory. It is from the dismissal of that appeal that the present appeal is brought.

The offence of which the appellant was convicted arose out of an incident about 10.45 pm on 29 November when Mr. Hilder, a security officer employed by Groote Eylandt Mining Company, was travelling as a passenger in a Toyota Land Cruiser along Bougainvillia Drive, Alyangula. The case against the appellant, accepted by the magistrate, was that following a threatening remark made to Hilder earlier that evening, the appellant stood on the road as the Toyota approached and threw a billiard ball that struck the vehicle.

Before the learned judge the conviction was challenged on several grounds. His Honour declined to interfere with the finding of the stipendiary magistrate that he was satisfied beyond reasonable doubt that the appellant did throw a billiard ball striking the Toyota. One ground of appeal was that at the time of the hearing of the case there was available to the respondent evidence that a person other than the appellant had committed the offence. That person was one Rodney James Huddlestone, then a police tracker but now an airline traffic officer. As the hearing of the appeal developed, however, it was on the basis that the Supreme Court should receive evidence of Huddlestone to this effect.

Section 176A(1) of the Justices Act empowers the Supreme Court, on the hearing of an appeal under that Act, to receive the evidence, if tendered, of any witness "if it thinks it necessary or expedient in the interest of justice" to do so. Sub-section 2 of that section provides that, without prejudice to sub-s.(1), where evidence is tendered to the Supreme Court:

" . . . that Court shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its power of receiving it if -
(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(b) it is satisfied that the evidence was not adduced in those proceedings and there is a reasonable explanation for failure to adduce it".

Sub-section 4 empowers the court to order the examination of any witness, whose attendance might be required under the section, before a judge or officer of the court or other person appointed for that purpose and to "allow the admission of any depositions so taken as evidence before the Supreme Court".

Thus there are two limbs to s.176A. There is a general power to receive evidence if necessary or expedient in the interest of justice; and there is an obligation to do so if it appears that the evidence is likely to be credible and admissible, the court is satisfied that the evidence was not adduced in the earlier proceedings and there is a reasonable explanation for the failure to adduce it unless the court is satisfied that the evidence would not afford any ground for allowing the appeal. Sub-section (1) is independent of sub-s.(2). "It reposes in the Supreme Court a complete discretion in those respects" (Messel v. Davern (1981) 9 NTR 21 at p.25).

The section would not appear to permit evidence to be adduced by affidavit (except by consent) but it is appropriate, if the Supreme Court is to be asked to receive such evidence, to tender an affidavit or affidavits with a view to persuading the court that sub-s.(1) or sub-s.(2) or both are applicable.

The matter is further complicated in the present case because of the allegation that the evidence sought to be relied upon by the appellant was known to the respondent at the time of the hearing in the Court of Summary Jurisdiction. Of itself this does not afford an additional ground for the reception of evidence but it may well strengthen the case for its reception. Before this court the appellant does not challenge his conviction merely on the ground that the respondent (the then complainant) failed to make known to him or his counsel the existence of material throwing doubt upon his guilt. Nor was the existence of such material fully canvassed before us.

In this court the appellant produced an affidavit sworn by Huddlestone dealing with the events of the evening of 29 November and a visit by him to the police station a couple of days later. Counsel did not seek formally to tender that affidavit and in the view I have taken of the matter it is unnecessary for the appellant to rely upon it.

If the Supreme Court had thought it necessary or expedient in the interest of justice it was empowered to receive the evidence of Huddlestone. If it had considered that evidence to be likely to be credible and to be admissible and if it were satisfied that there was a reasonable explanation for the appellant's failure to adduce it, it was obliged to receive the evidence unless satisfied that it would not afford any ground for allowing the appeal.

The learned judge does not appear to have directed his attention to s.176A(1) but only to s.176A(2). No responsibility attaches to the appellant in this regard for his counsel made it clear that the application was based on both limbs of s.176A. But his Honour's failure to consider sub-s.(1) was, I think, contributed to by the submissions of counsel for the respondent which approached the matter as if there were only an application under sub-s.(2).

The learned judge was not satisfied that a reasonable explanation for the failure to call Huddlestone before the stipendiary magistrate had been put forward. In his words:

"It emerged from the appellant's evidence before me that he was aware of the proximity of Huddlestone to the scene of the offence which gave rise to the appellant's conviction. He was therefore aware at the time of the hearing that Huddlestone could give relevant evidence. At the hearing the appellant was represented by counsel and elected to give evidence. He also called on his behalf another so-called eye witness named Blintner and said that he considered sufficient to support his case. His decision to rely on Blintner's evidence alone was therefore at his own election".

In my respectful view his Honour did not fully comprehend the basis of the application made to him. It was not the appellant's case merely that Huddlestone was present at the time and that, for instance, he could have given evidence that the appellant did not throw anything at the Toyota and that he had nothing in his hand to throw. The appellant's case was that on any view of the facts only one object had been thrown at the vehicle; that Huddlestone admitted that he had thrown a billiard ball at the vehicle and heard a bang from which the inference could be drawn that the object had struck its mark; and that these facts were known to the respondent but not known to the appellant at the time of the hearing in the court of summary jurisdiction.

This last element is not entirely supported by the evidence as appears from the following paragraph in the cross-examination of the appellant:

"When you spoke to them later on that night, what did they tell you? On what did you speak about? . . . Well, we first spoke about who hit the security car, and said - Rodney said he done it. Well, I don't know who threw the ball, but there was those three and . . .
His Worship: You say you do not know if it was a ball? . . . Beg your pardon?
What did you say about you do not know? . . . Who threw the . . .
You said Rodney said he done it; you do not know who threw the billiard ball? . . . No."

However, the appellant's evidence in this respect was somewhat equivocal and it was not the respondent's case before us that this evidence was fatal to an application under s.176A. The fact is that his Honour did not consider whether it was "necessary or expedient in the interest of justice" to receive additional evidence and in failing to do so his Honour, in my respectful view, erred. The consequences of this error remain to be considered after I have dealt with certain other grounds of appeal.

Although the certificate of conviction records that the appellant was convicted of "unlawful assault . . . accompanied by circumstances of aggravation", it was submitted to the learned judge and to this court that the offence itself was one of assault accompanied by circumstances of aggravation as opposed to an offence of assault which, if accompanied by circumstances of aggravation, attracted a more severe penalty. The learned judge rejected this submission on the basis that there is an offence of common assault punishable pursuant to s.48 of the Criminal Law Consolidation Act upon information before the Supreme Court, but that there is no offence of aggravated assault.

Section 131B(1) of the Justices Act confers jurisdiction upon a court of summary jurisdiction "to hear and determine in a summary way a charge in respect of common assault, not being a common assault accompanied by circumstances of aggravation". Section 131C then confers upon a court, constituted by a stipendiary magistrate, jurisdiction to hear and determine in a summary way "a charge in respect of an unlawful assault accompanied by circumstances of aggravation".

Section 131C(3) reads:

"A person shall not be punished as for an assault accompanied by circumstances of aggravation within the meaning of this section unless he has been charged with committing such an assault and the circumstances of aggravation have been stated in the charge".

Section 131D provides that "circumstances of aggravation" include circumstances that make the assault an offence of a sexual nature, an unlawful assault on a child under the age of 17 years or an unlawful assault on a female.

Section 131E excludes the jurisdiction of a court of summary jurisdiction to deal summarily with a charge of assault under certain circumstances, none of which is applicable here.

In my view the learned judge was right when he viewed ss. 131B, 131C and 131D as conferring upon courts of summary jurisdiction to deal with common assaults and, where the court is constituted by a stipendiary magistrate, with assaults accompanied by circumstances of aggravation. I am unable to regard any of these provisions as itself creating an offence of aggravated assault (cf. Pioch v. Lauder (1976) 13 ALR 266 at p.270). Indeed the reference in s.131B(1) to "a common assault accompanied by circumstances of aggravation" and in s.131C to "an unlawful assault accompanied by circumstances of aggravation" and in s.131E to "a charge of assault" make it clear that circumstances of aggravation are relevant only when considering the jurisdiction of a court of summary jurisdiction and the penalty that may be imposed by such a court. This view has been taken in other jurisdictions (see for instance Cronin v. Hamilton-Smith; ex parte Hamilton-Smith (1958) Qd. R. 24), but there are differences in the language of the relevant statutory provisions.

The appellant submitted that whether there is a specific offence of aggravated assault or merely an assault that may be accompanied by circumstances of aggravation, the offence is limited or the circumstances are confined to those set out in s.131D(1). The submission invited the court to read the word "include" in that sub-section as "mean and include". There is authority that the word "include" may be so read "if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to "mean and include," and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions" (Dilworth v. Commissioner of Stamps (1899) A.C. 99 at p.106).

In Y.Z. Finance Co. Pty. Ltd. v. Cummings (1963-1964) 109 CLR 395 at pp.401-402), Kitto J. commented:

"Unlike the verb 'means', 'includes' has not exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v. Commissioner of Stamps should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word 'includes'. Strictly speaking, that word cannot be equivalent to 'means and includes'. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is that of character has the same effect as if 'means' had been the verb instead of 'includes'. The question whether a particular provision is exclusive although 'includes' is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole".

There are in the Justices Act some definitions in the interpretation provision, s.4, which may well answer that description. For instance "fine" is defined to include "any pecuniary penalty or pecuniary forfeiture or pecuniary compensation payable under a conviction". It is difficult to think of anything capable of answering the description "fine" which does not already appear in the definition. The same cannot be said of "circumstances of aggravation" as defined in s.131D. On the contrary, the legislature has chosen an expression of wide ambit and then referred expressly to certain circumstances that in no way can be said to exhaust the ordinary sense of that term. In my view the particular circumstances referred to in s.131D are illustrative of circumstances of aggravation but not exhaustively definitive of those circumstances. It is true that such an approach may give rise to some uncertainty in the administration of this part of the law but it must not be overlooked that s.131C precludes punishment as for an assault accompanied by circumstances of aggravation unless the defendant has been charged with committing such an assault and the circumstances of aggravation have been stated in the charge. In that event, not only is the defendant alerted to the potential seriousness of what is alleged against him but the court is put on notice that it should be constituted by a stipendiary magistrate.

The appellant further submitted that even if "circumstances of aggravation" are not confined to those in s.131D, those circumstances are indicative of the intention of the legislature to protect persons needing particular protection viz. women and children, and that the particular assault alleged against the appellant fell quite outside those circumstances the legislature had in contemplation.

While the submission has some force, it fails to do justice to the breadth of the expression chosen by the legislature. In Cure v. Smith (1951) Tas S.R. 5, Morris C.J. reviewed various authorities, Australian and English, in which the nature of aggravated assault was considered and concluded:

"Aggravated assault means 'aggravated qua assault', that is aggravated in respect of force or violence". (at p.11)

I respectfully agree with this conclusion and am of the opinion that this is the meaning to be attached to the expression "circumstances of aggravation" in the Justices Act except to the extent that a special meaning is conferred by s.131D(1).

In the present appeal the learned judge commented:

"Upon the evidence which the learned Stipendiary Magistrate apparently accepted the ball was thrown from a range of about six to eight feet from the side of the vehicle in which Hilder was a passenger AND NARROWLY MISSED HIM. These actions in my view clearly constitute an assault upon Hilder. The use of a potentially dangerous object such as a billiard ball thrown from short range constitutes, in my opinion, a circumstance of aggravation".

The appellant has failed to show that, in reaching this conclusion, his Honour erred in any respect.

The appeal to the Supreme Court having miscarried by reason of the learned judge's failure to consider the operation of sub-s.(1) of s.176A of the Justices Act, this appeal must be allowed. The question then arises as to what orders this court should make as a consequence.

Section 28 of the Federal Court of Australia Act 1976 confers upon this court wide powers in the exercise of its appellate jurisdiction. The appellant having been already concerned in a hearing before the court of summary jurisdiction, the Supreme Court and now the Federal Court, there is much to be said for an order making any further hearing unnecessary. But I am not persuaded that such a course is appropriate. The appellant was convicted by the court of summary jurisdiction and, on the facts available to that court, properly convicted. It may be that if the evidence of Huddlestone had been available to that court the result would have been different. But that can only be speculation.

It seems to me that this court has no option but to remit the matter to a judge of the Supreme Court for a rehearing of the appeal from the court of summary jurisdiction, with a direction that the judge, if so asked by the appellant, entertain an application, pursuant to sub-ss. (1) and (2) of s.176A of the Justices Act to receive the evidence, if tendered, of Rodney James Huddlestone.

JUDGE3

On 9 December 1981 Gerald Raymond Buckle, the appellant, was convicted by a Court of Summary Jurisdiction constituted by a Stipendiary Magistrate at Alyangula, Groote Eylandt, on a charge in respect of an unlawful assault accompanied by circumstances of aggravation, namely, throwing a billiard ball at a security officer named Hilder whilst the latter was travelling as a passenger in a motor vehicle. The ball struck the car, not Mr Hilder. Early on the night in question - 29 November 1981 - an incident had occurred resulting in some ill feeling by the appellant and a number of other young men on Groote Eylandt towards Hilder.

The appellant was released upon his entering into a recognizance in the sum of $100 to be of good behaviour for 18 months. He appealed against his conviction to the Supreme Court of the Northern Territory (Williams J.) which dismissed the appeal. He now appeals to this Court.

The appellant attacks the Supreme Court's dismissal of his appeal on four grounds:-

First, it was said that the conviction should be quashed because the charge on which it is based is fundamentally bad in law; second, the facts relied on to found the charge were said to be incapable of constituting an assault by the appellant upon Hilder; third, even if the facts could support a common assault, it was not an aggravated assault; and fourth, the Supreme Court erred in law in declining to receive evidence from one Rodney Huddlestone.

The first three grounds of appeal may be dealt with briefly, but before turning to them I shall refer to the principal statutory provisions on which this appeal turns.

Sections 131B, 131C and 131D of the Justices Act of the Northern Territory provide as follows:-

"131B. SUMMARY JURISDICTION IN CERTAIN ASSAULT CASES
(1) Subject to section 131E, the Court of Summary Jurisdiction shall have jurisdiction to hear and determine in a summary way a charge in respect of a common assault, not being a common assault accompanied by circumstances of aggravation.
(2) If the defendant is convicted, the Court may adjudge him to be punished by a fine not exceeding $500 or imprisonment for a period not exceeding 6 months.
131C. SUMMARY JURISDICTION IN ASSAULT CASES OF AN AGGRAVATED NATURE
(1) Subject to section 131E, the Court constituted by a Stipendiary Magistrate shall have jurisdiction to hear and determine in a summary way a charge in respect of an unlawful assault accompanied by circumstances of aggravation.
(2) If the defendant is convicted, the Court may adjudge him to be punished by a fine not exceeding $2,000 or imprisonment for a period not exceeding 2 years, and may, if it thinks fit, require the offender to enter into a recognizance to keep the peace and be of good behaviour for a period not exceeding 6 months from the expiration of the sentence.
(3) A person shall not be punished as for an assault accompanied by circumstances of aggravation within the meaning of this section unless he has been charged with committing such an assault and the circumstances of aggravation have been stated in the charge.
131D. DEFINITIONS
(1) In sections 131B and 131C, "circumstances of aggravation" include circumstances that make the assault -
(a) an offence of a sexual nature;
(b) an unlawful assault on a child under the age of 17 years; or
(c) an unlawful assault on a female.
(2) In this section, "offence of a sexual nature" includes -
(a) an offence constituted wholly or partly by an act whereby the offender has exhibited a failure to exercise proper control over his sexual instincts; and
(b) an offence so committed that the offender has, in the circumstances associated with the committal, exhibited a failure to exercise proper control over his sexual instincts."

In his first submission, counsel for the appellant argued that the word "include" in sub-s. 131D(1) is used in the exhaustive sense of "mean and include" so that the only circumstances that answer the description of aggravating circumstances are those specified in the sub-section, namely offences of a sexual nature, unlawful assaults on children under the age of 17 years or unlawful assaults on females. As the throwing of a billiard ball does not fall within any of those categories the charge was said to be bad. The matters relied on by counsel to make good this submission were as follows:-
(a) The context in which the word "include" appears suggests its use in the exhaustive sense. If the word "include" is given its ordinary and natural meaning then the courts hearing complaints of assault would have substantial difficulty in determining whether there is jurisdiction. If the assault complained of is assault accompanied by circumstances of aggravation, those circumstances must be stated in the charge. So it would become a matter for the subjective determination of the particular Court before whom the charge came whether the assault was properly the subject of complaint under s.131B or s.131C.
(b) As the liberty of the subject is at stake, penal provisions should not be construed so as to permit what was described in argument as an "open ended and undefined" definition of circumstances that constitute a criminal offence.

In my opinion these submissions do not support the appellant's argument. Support for such a construction must be found in the context of the Act itself. Circumstances in which the courts may construe the word "include" in legislation as if it read "mean and include" have been mentioned by courts of high authority more than once. The principles are well known and do not call for repetition. They are plainly expounded in the oft cited passage in the opinion of the Judicial Committee delivered by Lord Watson in Dilworth v. The Commissioner of Stamps (1899) A.C. 99 (at pp. 105 and 106).

I see nothing which suggests that the interpretation contended for on behalf of the appellant should be adopted. The possibility that the word "includes" which appears in sub-s. 131B(2), when defining the expression "offences of a sexual nature", may be used in an exhaustive sense (I say nothing as to whether it is in fact so used) does not in my view aid the appellant's argument as to the construction of the word "include" where appearing in sub-s. 131D. It is plain to me that the word "include" in sub-s. 131D(1) is used in its ordinary sense. It is not difficult to think of many examples that may constitute circumstances of aggravation in addition to those specified in sub-s. 131D(1). For example, an assault with an iron bar or a sharp instrument upon a person.

Aggravated assault is common assault with some circumstances of aggravation which the Legislature regards as rendering the offence more serious. Aggravated assault is generally punishable more severely than common assault. Sometimes legislation requires that a person be charged with committing an aggravated assault and that the circumstances of aggravation be stated in the charge. Sections 131B and 131C of the Act under consideration here and ss. 335, 343 and 344 of the Queensland Criminal Code are examples. But it does not follow that those sections create offences of aggravated assault: see Cronin v. Hamilton-Smith (1958) Qd.R. 24. Under the Justices Act of the Northern Territory circumstances of aggravation are relevant to the jurisdiction of the Court of Summary Jurisdiction and to penalty.

A perusal of relevant legislation of the States and Territories of Australia shows that circumstances of aggravation are of many and diverse kinds. It is difficult to see any consistent pattern.

Offences of a sexual nature, unlawful assaults on children under the age of 17 years or unlawful assaults on females are the instances selected by the Northern Territory Act as constituting circumstances of aggravation. Why these particular classes of aggravated circumstances have been selected is not readily apparent, although they are very similar to the particular circumstances of aggravation found in other legislation such as s.344 of the Queensland Criminal Code.

The second submission of counsel for the appellant was that there was no evidence before the Stipendiary Magistrate that Mr Hilder was put in fear of his life or safety and therefore, so it was said, there was no assault, whether aggravated or otherwise.

Why Mr Hilder should fear for his life or safety before an assault, whether aggravated or common assault simpliciter, can be committed, is not clear to me, but it does not matter in this case. Mr Hilder was a passenger in the motor vehicle which swerved to avoid someone standing in the road. That person then raised his arm and said words to the effect of "I'll get you this time" and made a forward throwing motion with his hand. Mr Hilder ducked and then heard a bang on the side of the vehicle. His ducking was obviously to avoid being hit by something which he thought the person was about to throw. Plainly he feared for his safety.

The third submission was that the assault was not accompanied by circumstances of aggravation. Again it was said that Mr Hilder was not put in fear of his life or safety. "Circumstances of aggravation" is an expression incapable of comprehensive and inflexible definition. It reflects the Legislature's concern to authorise the imposition of a greater punishment on summary conviction for common assault than would otherwise be the case. The circumstances must be such as increase the gravity of the offence. The circumstances of this case to my mind answer that description.

It is on the fourth submission that this appeal turns. Counsel for the appellant asked the Supreme Court to exercise its power under s. 176A of the Justices Act to hear evidence from Mr Huddleston who was not called in the proceedings before the Court of Summary Jurisdiction. No evidence was called in support of the application, but counsel informed his Honour of the nature of the evidence which Mr Huddlestone would give namely, that Mr Huddlestone was a police tracker attached to the Alyangula police station who, on the night in question, was present at the scene of the offence of which the appellant was convicted. Mr Huddlestone and others, but not the appellant, were together in the shadows in Bougainvillia Drive when the security vehicle in which Mr Hilder was travelling came towards the appellant who was standing on the road. Mr Huddlestone ran out towards the vehicle holding a billiard ball and threw it at the vehicle. He turned and heard one bang. Mr Huddlestone revealed these matters to the respondent at Alyangula some days later. He (Huddlestone) was later charged by summons dated 21 December 1981 with the offence of behaving in a disorderly manner in a public place contrary to para. 47(a) of the Summary Offences Act and the particulars of the charge were:-

"On the night of 29 November 1981, you were involved in an incident in which the duty Gemco security personnel also featured. Later that same night after seeing the security vehicle containing the duty personnel pass along Bougainvillia Street you armed yourself with billiard balls obtained from the single person's accommodation block and when the security vehicle returned along Bougainvillia Street you hurled a billiard ball at it."

Mr Huddlestone pleaded guilty to the charge in the Alyangula Court of Summary Jurisdiction on 5 January 1982.

Counsel for the appellant informed his Honour that Mr Huddlestone had made a statement to the police soon after the night of 29 November. Counsel for the Crown told his Honour that there was a statement in the respondent's possession but it was undated.

Section 176A relevantly provides:-

"176A. SUPREME COURT MAY ORDER PRODUCTION OF DOCUMENTS, EXAMINATION OF WITNESSES, &c.
(1) For the purposes of this Part, the Supreme Court may, if it thinks it necessary or expedient in the interest of justice -
(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;
(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Supreme Court, whether or not he was called in those proceedings; and
(c) subject to sub-section (3), receive the evidence, if tendered, of any witness.
(2) Without prejudice to sub-section (1), where evidence is tendered to the Supreme Court that Court shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if -
(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal and
(b) it is satisfied that the evidence was not adduced in those proceedings and there is a reasonable explanation for the failure to adduce it."

His Honour heard lengthy argument on the application to receive evidence from Mr Huddlestone and declined to order that he be called to give evidence. His Honour decided the question on the basis that sub-s. 176A(2) governed sub-s. 176A(1) so that unless the Court was satisfied, amongst other things, that there was a reasonable explanation for the failure to adduce the evidence in the proceedings before the lower Court, the Supreme Court could not receive the evidence.

Section 176A is not, in my opinion, susceptible of this construction. Where the Supreme Court hears an appeal from a Court of Summary Jurisdiction under Part VI of the Justices Act, the Court may order any witness who would have been a compellable witness in the proceedings appealed from to appear and give evidence before the Supreme Court and may receive that evidence. This power is vested in the Supreme Court to be exercised by it if it thinks it necessary or expedient to do so in the interests of justice (sub-s. 176A(1)). It vests in the Supreme Court a complete discretion with respect to those matters: Messel v. Davern (1981) 9 N.T.R. 21 (at p.25).

The Supreme Court is bound to receive evidence tendered to it on the hearing of such an application:-
(a) if it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings below on an issue which is alive in the appeal; and
(b) if it is satisfied that the evidence was not adduced in the lower court and there is a reasonable explanation for the failure to adduce it.
This requirement to receive the evidence is subject to the qualification that if the court is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, it is not bound to receive it (sub-s. 176A(2)).

Sub-section (2) does not govern sub-s. (1). As the introductory words of sub-s. (2) state, the requirement that fresh evidence be received in the circumstances specified in that sub-section is "Without prejudice to sub-section (1)". Sub-section (1) is independent of sub-section (2).

His Honour's erroneous interpretation of s.176A led him to decline to receive the evidence of Mr Huddlestone and not to consider the exercise by him of the power conferred by sub-s. 176A(1).

The evidence of Mr Huddlestone, if received by the Supreme Court, would have touched critical questions in the appeal. It is difficult to conceive of more important fresh evidence than the evidence of Mr Huddlestone as outlined to his Honour by counsel for the appellant.

During argument before us counsel for the appellant, who also appeared before the Supreme Court and the Stipendiary Magistrate, sought leave to read an affidavit of Mr Huddlestone sworn on 23 May 1983. We reserved our decision on the question of its admissibility. In my view the affidavit should be read not as truth of its contents, but solely on the basis that it identifies the evidence which Mr Huddlestone would give if allowed to do so. I have read the affidavit. Mr Huddlestone swears to the events of the evening of 29 November and later events substantially as outlined to the Supreme Court by counsel for the appellant, but in greater detail. If Mr Huddlestone's evidence is received and he is believed then a serious question would arise whether the tribunal of fact could be satisfied beyond reasonable doubt of the appellant's guilt.

There are aspects of this case which give rise to some disquiet. The appellant, an aboriginal youth, was charged with committing an aggravated assault by the respondent's complaint taken on 3 December 1981 and heard on 9 December 1981 before the Court of Summary Jurisdiction at Alyangula, Groote Eylandt. The respondent interviewed Mr Huddlestone soon after the events of 29 November yet the prosecutor did not call Mr Huddlestone as a witness before the Stipendiary Magistrate. It is common ground that Mr Huddlestone received a summons dated 21 December 1981 signed by the respondent charging him with disorderly behaviour, the particulars of which I have already mentioned. Mr Huddlestone pleaded guilty to the charge at the Alyangula Court of Summary Jurisdiction and was convicted and fined $30.00. The appellant has been convicted of an offence which may cause him to lose his apprenticeship, if he has not already lost it.

These considerations, irrespective of the veracity of Mr Huddlestone's evidence, would lead me, if this Court could properly do so, to consider setting aside the conviction. But this is an appeal from the Supreme Court's order dismissing the appeal to it from the Court of Summary Jurisdiction. As the only point on which the appellant has succeeded relates to the failure of the Supreme Court to properly consider the application under sub-s. 176A(1) to receive the evidence of Mr Huddlestone, the appropriate course for this Court to take is to remit the matter to the Supreme Court for a re-hearing of the appeal from the Court of Summary Jurisdiction and to direct the Supreme Court to entertain an application by the appellant, pursuant to sub-ss. 176A(1) and (2) of the Justices Act to receive the evidence, if tendered, of Mr Huddlestone. No orders for costs are sought by either party.