Ebatarinja v Deland

[1998] HCA 62

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, GUMMOW, HAYNE AND CALLINAN JJ

ROLAND EBATARINJA  FIRST APPELLANT

CONLEY EBATARINJA  SECOND APPELLANT

AND

CATHY DELAND SM  FIRST RESPONDENT

LEONARD DAVID PRYCE  SECOND RESPONDENT

REX WILD QC  THIRD RESPONDENT

Ebatarinja v Deland (D8-1998) [1998] HCA 62
30 September 1998

ORDER

1. Appeal allowed with costs.

1. Set aside the order of the Court of Appeal of the Northern Territory of Australia and, in lieu thereof, order that the appeal to that Court be allowed with costs and that prohibition issue directed to the first respondent prohibiting the further hearing of committal proceedings against the first appellant.

On appeal from the Supreme Court of the Northern Territory

Representation:

D J Ross QC with B Fox for the appellants (instructed by Central Australian Aboriginal Legal Aid Service Incorporated)

2.

R S L Wild QC with A M Fraser for the second respondent (instructed by Director of Public Prosecutions (Northern Territory))

No appearance for the first and third respondents

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Ebatarinja v Deland

Criminal procedure – Committal proceedings – Jurisdiction of Magistrate to hear committal proceedings – Proceedings to be conducted "in the presence or hearing of the defendant" – Whether essential that defendant understand and follow the proceedings – Deaf, mute and illiterate defendant – Whether an order for prohibition should be made.

Criminal procedure – Committal proceedings – Requirement in Justices Act (NT), ss 110 and 111 that Magistrate address defendant in certain terms – Whether mandatory or directory.

Criminal procedure – Committal proceedings against defendant not possible – Whether Crown may proceed by way of ex officio indictment.

Words and phrases – "in the presence or hearing of the defendant".

Justices Act (NT), ss 106, 110, 111.

Kunnath v The State [1993] 1 WLR 1315; [1993] 4 All ER 30, considered.

1. GAUDRON, McHUGH, GUMMOW, HAYNE AND CALLINAN JJ.   The question in this appeal is whether committal proceedings pending against the first appellant, Roland Ebatarinja, ("the appellant") should be prohibited from further proceeding on the ground that he does not know with what he is charged, is unable to follow the proceedings before the Magistrate and is unable to communicate with those lawyers representing him.

2. The appellant stands charged with three indictable offences, the chief of which is that on 16 February 1995 he murdered Gregory Jabaltjari Long, contrary to the Criminal Code (NT), s 162. The prosecution alleges that, on 16 February 1995, the appellant and two other persons went to a house in an area known as Larapinta Valley Camp where the appellant embraced a female in an affectionate manner. Her husband, Mr Long, became upset and punched the appellant in the head. The appellant left the area but returned shortly after with a pocket-knife with which he attacked Mr Long, stabbing him three times. Mr Long died five days later on 21 February 1995.

3. The appellant is a deaf mute Aborigine…