DPP (NSW) v Murray - [2008] NSWSC 1161

CITATION: DPP (NSW) v Murray [2008] NSWSC 1161

HEARING DATE(S): 20 October 2008

JUDGMENT DATE :
4 November 2008

JURISDICTION: Common Law Division

JUDGMENT OF: Hislop J

DECISION: (1) Appeal allowed; (2) The order of the magistrate made on 23 May 2008 at Blacktown Local Court permanently staying proceedings against the defendant for the offence of assault occasioning actual bodily harm, s59(1) of the Crimes Act, 1900, be set aside. (3) The matter is remitted to the Blacktown Local Court to be dealt with according to law.

LEGISLATION CITED: Crimes Act, 1900

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
Davis v R [2006] NSWCCA 392

PARTIES: Director of Public Prosecutions (NSW) (Plaintiff)
Tony Mark Murray (Defendant)

FILE NUMBER(S): SC 14056/08

COUNSEL: A. Mitchelmore (Plaintiff)
A. Cook SC (Defendant)

SOLICITORS: Solicitor for Public Prosecutions (Plaintiff)
Legal Aid Commission (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate Brown

LOWER COURT DATE OF DECISION: 23 May 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Tuesday 4 November 2008

14056/08 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v TONY MARK MURRAY

JUDGMENT
Introduction

1 On 18 November 2007 criminal proceedings were commenced against the defendant for the offences of

(a) assault occasioning actual bodily harm, contrary to the Crimes Act , 1900, s 59(1) and

Crimes Act

2 The AVO was in the following terms:

“A. The defendant must not engage in conduct that intimidates the protected person(s) or any other person having a domestic relationship with the protected person(s).

B. The defendant must not stalk the protected person(s).

OTHER ORDERS MADE:

1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s).

10. The defendant must not approach the protected person(s) within twelve (12) hours of consuming intoxicating liquor or drugs.

11. The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s).”

3 On 1 May 2008 the charges were heard together by a magistrate at the Blacktown Local Court. At the conclusion of the hearing his Honour was satisfied beyond reasonable doubt that both offences had been established.

4 His Honour adjourned the proceedings until 23 May 2008. On that day he convicted the defendant of contravening the AVO and sentenced him to a term of imprisonment. His Honour permanently stayed proceedings on the assault charge. His Honour concluded that that was the appropriate way to deal with the situation before him in which, in his opinion, the two charges arose out of a single event (namely, the assault of the protected person) and there was a total overlap. In such circumstances his Honour considered

“…it would be wrong in principle not just to punish Mr Murray twice but to record two convictions for what is in substance exactly the same matter, with the addition of it being a breach of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP (NSW) v Murray

Details

AGLC: Director of Public Prosecutions (NSW) v Murray [2008] NSWSC 1161
Case: [2008] NSWSC 1161
Decision Date: 4 November 2008

CaseChat Overview and Summary

In this matter, the Director of Public Prosecutions for New South Wales (DPP) sought a permanent stay of proceedings against Murray, who was charged with two offences. The first was assault occasioning actual bodily harm under section 59(1) of the Crimes Act, 1900. The second was knowingly contravening a restriction specified in an AVO, contrary to section 562ZG(1) of the Crimes Act. The case was heard in the Supreme Court of New South Wales.

The court needed to determine if both charges were the same offence and thus should be stayed under section 10(1)(b) of the Crimes (Spent Convictions) Act, 1997. This required an analysis of whether the two offences were the same for the purposes of the Act. The court also had to consider whether the two charges were in fact different offences, even if they arose from the same events and punished different acts.

The court found that the two offences were different for the purposes of the Act. While both charges arose from the same events, they punished different acts and thus were not the same offence. The court held that it was possible for different offences to arise from the same events and still be distinct for the purposes of the Act. The court also held that the permanent stay of proceedings against Murray was overturned.

The court made an order that the stay of proceedings against Murray be permanently set aside and that the charges against him proceed to trial.

Orders