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

(b) knowingly contravene a restriction specified in an apprehended violence order (“AVO”), contrary to the Crimes Act , s 562ZG(1).

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 the apprehended violence order to bring it within the second charge.”

5 On 7 August 2008 a summons was filed in this court seeking the following orders:

“1. An order allowing the appeal.
2. An order, pursuant to section 59(2) of the Crimes (Appeal and Review) Act 2001, that the order of Dr Brown, 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, section 59(1) of the Crimes Act , be set aside.
3. An order that the matter be remitted to the Blacktown Local Court to be dealt with according to law.
4. An order that the Defendant pay the Plaintiff’s costs of and incidental to this summons.
5. Such further or other orders as to the Court seems fit.”

6 When the summons was called on for hearing the Court was informed that the plaintiff did not press for order 4 and that the defendant did not oppose orders 2 and 3 being made, it being accepted by both parties that his Honour had erred in staying the proceedings on the assault charge.

The submissions

7 It was submitted for the plaintiff, correctly, that the elements of the offences were, in respect of the s 562ZG(1) offence, that the defendant had had an order made against him; the order contained a prohibition or restriction; the defendant contravened this prohibition or restriction; and the defendant did this knowingly. The elements in respect of the s 59(1) offence were that the defendant assaulted a person; and as a consequence of that assault, the person suffered actual bodily harm.

8 It was submitted, in reliance upon Pearce v The Queen (1998) 194 CLR 610, that the prosecution framed the charges to deal with the fact that not only did the defendant assault the victim occasioning actual bodily harm but, in doing so, he breached his AVO. Although they arise out of the same events, the offences were different and punished different acts, the first being the assault and the second being the breach of a court order made against the defendant. A conviction for both charges would not have resulted in the defendant being convicted twice for the assault occasioning actual bodily harm. Evidence of the assault was only relevant to establishing the contravention of the restriction contained in the AVO.

Consideration

9 In Pearce the offender was charged with maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm (count 9) and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him (count 10). These two charges arose out of a single episode when the offender broke into the victim’s home and beat him. The primary judge refused an application for an order staying proceedings on one or other of the two counts. The offender then pleaded guilty to both counts and was sentenced on each to an identical term, the terms to be served concurrently.

10 McHugh, Hayne and Callinan JJ, in a joint judgment held:

“[16] It is clear in this case that each of the offences concerned contains an element that the other does not - a specific intent to do grievous bodily harm in s 33 which is absent from s 110 and a breaking and entering in s 110 which is absent from s 33. Neither offence, therefore, is wholly included in the other.”
“[30] The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time…
[31] There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.
[32] It follows that the primary judge was right to conclude that the proceedings on the indictment (or counts 9 and 10 in particular) should not be stayed.”
“[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

11 The decision in Pearce was considered by the Court of Criminal Appeal in Davis v R [2006] NSWCCA 392. In that case the appellant was convicted, inter alia, of offences that he took the complainant without her consent with intent to obtain advantage, namely to have her company and at the time of the taking occasioned to her actual bodily harm (count 1), and that he did assault the complainant thereby occasioning to her actual bodily harm (count 5). It was submitted for the applicant on appeal:

“…that it was an abuse of process or a breach of the rule against double jeopardy for the Crown to proceed on both count 1 and count 5 relying upon the same act of the accused and the same injury.”

12 Howie J, with whom the other members of the court agreed, held at [96]:

“…as Pearce makes clear, the fact that the accused might be exposed to double punishment does not mean that there is an abuse of process or that a particular count in the indictment should be stayed. It was accepted in the joint judgment that there could be overlapping between offences such that there is a common element to more than one charge in an indictment. If there was, the remedy is not in staying one of the charges but in addressing the overlap in sentencing so that the accused is not doubly punished for the one criminal act or the one consequence of his conduct.”

Conclusion

13 I accept the plaintiff’s submissions. In my opinion, his Honour erred in concluding that the charge relating to the assault should be stayed.

14 I make the following orders:

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, s 59(1) Crimes Act , 1900, be set aside.

3. The matter is remitted to the Blacktown Local Court to be dealt with according to law.

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