Ellis v Balchin

Ellis v Balchin [2009] NTSC 17

PARTIES: ELLIS, Martin Anthony
v
BALCHIN, Vivien Lynette
TITLE OF COURT: SUPREME COURT OF THE NORTHERN
TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY
EXERCISING APPELLATE
JURISDICTION
FILE NO: JA18 of 2008 (20710545)
DELIVERED: 29 April 2009
HEARING DATES: 26, 27 February and 24 March 2009
JUDGMENT OF: MARTIN (BR) CJ
APPEAL FROM: Mr M Carey SM
CATCHWORDS:
CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – nullity.
APPEAL AGAINST SENTENCE
Stalking – admission of evidence outside period not erroneous – evidence relevant in relation to other charges – error in manner in which evidence used – no miscarriage of justice – appeal against conviction dismissed – appeal against sentence allowed.
Threat to kill – summary trial – absence of consent – whether trial a nullity – appeal allowed – remitted to Magistrate.
Criminal Code (NT) ss 3, 166, 188, 189, 295; Interpretation Act (NT);
Justices Act (NT) ss 49A, 50, 51, 57, 58, 101, 101A, 102, 181, 182,
183, 183A; Sentencing Act (NT) ss 52, 78BA; Summary Offences Act
s 47; Traffic Act (NT) s 30; Traffic Regulations (NT) reg 18; Youth
Justice Act (NT).
Birkeland-Corro v Tudor-Stack (2005) 15 NTLR 208; Moore v Haynes
[2008] NTCA 9, followed.
Bounds v The Queen [2005] WASCA 1; Paciente v The Queen
(Unreported, Western Australian Court of Criminal Appeal, Franklyn,
Nicholson and Ipp JJ, 10 November 2008); Pioch v Lauder (1976) 27
FLR 79, discussed.
Bounds v The Queen (2006) 228 ALR 190, referred.
R v Nemer (2003) 87 SASR 168 at 171

REPRESENTATION:
Counsel:

Appellant: M Abbott QC
Respondent: P Usher
Solicitors:

Appellant: Withnalls, Barristers & Solicitors
Respondent: Office of the Director of Public
Prosecutions

Judgment category classification: B
Judgment ID Number: Mar0902
Number of pages: 53
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ellis v Balchin [2009] NTSC 17 No. JA 18 of 2008 (20710545)
BETWEEN:
MARTIN ANTHONY ELLIS

Appellant

AND:
VIVIEN LYNETTE BALCHIN

Respondent

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 29 April 2009)

Introduction

This is an appeal against convictions in the Court of Summary Jurisdiction
for a number of offences, all involving the same victim, including stalking,
threatening to kill and assault. The grounds of appeal raise the issue of
duplicity and assert a number of errors, including procedural errors of a
fundamental nature going to jurisdiction. The appellant also complains
that some of the convictions were against the weight of the evidence.
The combination of sentences imposed by the learned Magistrate resulted
in an effective sentence of 14 months imprisonment which was suspended

after the appellant had served five months. The appellant appeals against
the sentences primarily on the ground that the total sentence was
manifestly excessive.
Charges

The charges were laid on both complaint and information. In summary the
matters that went to trial were charged as follows:

Count Particulars Findings

Count 1 (information Between 12 August 2006 and 17 April Guilty
22 August 2007) 2007 at Katherine did stalk Grant Dickens
(s 189(2) Criminal Code)
Count 2 (complaint On 16 April 2007 drove a vehicle on Not
22 August 2007) Holtze Crescent and Callistemon Drive at Guilty

Katherine in a manner dangerous to the public (s 30(1) Traffic Act).
Count 3 (complaint On 16 April 2007 in the same locality Guilty
22 August 2007) drove without due care (reg 18 Traffic
Regulations).
Count 4 (complaint On 16 April 2007 behaved in an offensive Guilty
22 August 2007) manner in a public place, namely, outside
37 Holtze Crescent Katherine (s 47(a)
Summary Offences Act).
Count 5 (information On 16 April 2007, with intent to cause Guilty
22 August 2007) fear, made a threat to kill Grant Dickens
and Neroli Dickens which threat was of
such a nature as to cause fear to any
person of reasonable firmness and courage
(s 166 Criminal Code).
Count 6 (complaint On 16 April 2007 unlawfully assaulted Guilty
29 August 2007) Grant Dickens (s 188(1) Criminal Code).
Count 7 (complaint On 17 April 2007 drove a vehicle on Guilty
22 August 2007) Chambers Drive, Maluka Drive and
Callistemon Drive at Katherine in a
manner dangerous to the public (s 30(1)
Traffic Act).
Count 8 (complaint On 17 April 2007 in the same locality Not
22 August 2007) drove without due care (reg 18 Traffic Guilty
(alternative to count Regulations).
7)
Factual Basis

The appellant’s son had been employed by Woolworths in Katherine, but
that employment was terminated. The primary victim (“the victim”) was employed by Woolworths and it was the Crown case that the appellant’s conduct was motivated by anger toward the appellant and Woolworths in connection with his son’s loss of employment.
Count 1 - Stalking
The prosecution case on the charge of stalking in count 1 was based upon
conduct of the appellant which can be summarised as follows:

(a) Commencing in the latter half of 2006 at a time when the victim had
not met the appellant, on a number of occasions the appellant paced up
and down outside the checkout area of the Woolworths store in
Katherine with the intention of intimidating the victim.
(b) On a Sunday in the latter half of 2006 the appellant drove slowly past
the victim’s house while staring at the victim.

(c) Toward the end of 2006, as the victim and a fellow employee were
leaving the Woolworths store, the appellant approached them and, in a
threatening manner with his left hand clenched beside him, said “I

2006, the day of the Woolworths staff Christmas party. He was in his
front driveway at 37 Holtze Crescent when he heard a car bottom out
on the gutter. He looked up and saw a white Commodore station
wagon going into his neighbour’s driveway at 35 Holtze Crescent.
Some 30 seconds to a minute later he heard country music playing
loudly and when he looked up he saw the white Commodore directly
in front of his driveway facing Callistemon Drive. The defendant was
driving and he was starting [sic] in Dickens’ direction at Dickens.
“The next occasion on which he saw the defendant was 9 December he did so, he continued to look at Dickens. He said that he felt very scared at that time.

obtain supplied [sic] for the staff Christmas party. He reversed out of
his yard and, as he went to shut the gate, he heard a care [sic]
accelerate down the street. He looked up and saw the same
Commodore station wagon approaching him under acceleration but
then braked and slowed and went past him very, very slowly. The
defendant was driving. He said the defendant just stared and went
past slowly. Dickens waited a minute and then drove off towards
Callistemon Drive on his way to Woolworths. When he reached
Callistemon Drive, he looked to his left and saw the same Commodore
parked facing him on the opposite side of the road in front of a block
of flats. He turned right and the Commodore came up behind him and
was stationary behind him at the first intersection. He looked in his
rear vision mirror and saw the defendant was driving the Commodore
and that it was a metre or less behind his vehicle. He proceeded
towards Chambers Drive and said the Commodore followed and it was
rather close behind him. He felt worried and intimidated by this and
he said that he felt this way because of previous incidents and wasn’t
sure what sort of confrontation was going to come of it. He pulled up
at the Woolworths car park adjacent to the Max(?) Liquor entrance.
About 20 to 30 minutes later, Dickens had to go to Woolworths to defendant appeared to be looking in his direction as he went past. He felt shaken and worried. He entered Max Liquor and was called by a fellow employee to assist with a cash register that was malfunctioning.
At this time, the defendant walked past the Max Liquor entrance,
looked out towards Dickens’ vehicle and then walked through Max
Liquor into Woolworths. A short time later the defendant came back
to Max Liquor and purchased some washing powder, paying at the
Max Liquor cash register. Although it was later conceded by the
witness that people sometimes pay for grocery items at that register,
he said it was not a general check out for grocery items and that there
were other check outs open in Woolworths. He ensured that he did not
make eye contact with the defendant because he didn’t want any
confrontation.”
hold you two personally responsible for what happened to my son”.
The appellant also said that the two men had to get his son’s job back.

(d) A series of incidents occurred on 9 December 2006, an overview of
which is found in the Magistrate’s summary of the victim’s evidence:

“He stated that on 16 April 2007 and between 5 and 5.30pm, he and
his wife took their dogs for a walk for approximately half an hour. A
neighbour, Ivan Bryant(?) stopped them on their way home and spoke
to them. As a result they went straight home. He was in his yard
changing sprinklers around and when he went towards the sprinkler
that was on the median strip, he heard a car accelerate. He looked up
and saw a white Commodore heading in his direction at speed. He
said that he froze, standing behind his gates which were closed. The
Commodore drove onto his driveway nose on and pulled up. The
defendant got out of the Commodore and said, ‘I told you I’d be back,
the paperwork is over.’ Dickens replied to the effect of ‘What’s
wrong Martin?’ He stated [sic] the defendant then said, ‘You’ve
ruined my son’s life now I’m going to ruin yours.’ He said the
defendant had a phone number written on his hand and he kept telling
him to ring that number and get his son’s job back. He replied, ‘I
can’t ring anyone. I’m trying to stay out of it.’ The defendant said,
‘Unfortunately you’re the weakest one’ and kept saying to get his
son’s job back.

ball bearing thing on a hinge. The defendant said, ‘See this, see this’
and started banging on the pole beside Dickens on the gate saying, ‘I
can kill you, your mum and your dad. Do you love your mum’ and
things like that. And then, ‘I going to kill you, someone is going to
die and it’s going to be in this house.’ Dickens said that he was
freaking, he was just scared. He was fearing the worst. He was
expecting definitely violence resulting in physical harm to himself.
He described the knuckleduster as ‘A large stainless steel ball bearing
the size of an 8 ball.’ He said that ‘It was on a (inaudible) hinge
mechanism with the ball bearing attached to the hinge. The hinge
mechanism thing was like a plastic of ivory colour, off white colour.
The defendant was sort of holding it clenched in his fist above
He said the defendant then produced a knuckleduster, a large metal gate go bang, bang, bang and threatened to split his head open.’ The [sic] he said, ‘I’m going to kill you, I’m going to kill your wife, your mother and your father.’ And then he said, ‘Do you love your mother?’ At that stage the defendant was within 50 cm to a metre of Dickens.
At the time the witness’s father-in-law, John Berger arrived. He had
been called by Ivan Bryant. Dickens said that the defendant was
yelling at him and when Burger [sic] got out of the car, the defendant
looked around and said who the fuck are you, or words to that effect.
He described the defendant’s demeanour as ‘very intimidating.’ He
said the defendant has quite a presence, that he’s sort of a large man
and certainly got confrontational. When the defendant spoke to
Berger, he was irate, yelling and definitely loud. Berger asked what
was going on and the defendant went on about getting his son’s job
back. Berger asked what that had to do with Dickens and the
defendant said, ‘Nothing but he’s a weak person.’ He said that Berger
was the calmest person there. The defendant then sort of threw his
arms in the air and said, ‘Good, maybe you’ll throw the first punch.’
At that stage the witness opened the gate and went outside (the
witness, being Dickens). He said he did this just to do the best he
could to help John Berger if it went that way. He said that Berger was
still very calm and just trying to make the best of it, then the police
arrived. After some initial discussion, the police allowed the
defendant to leave and as he left the defendant said, ‘This isn’t over’
and got into his car. He said that when the defendant was making the
threats to him he felt petrified and very scared.”

(e) An incident occurred on 16 April 2007 in respect of which the
Magistrate summarised the evidence of the victim in the following
terms:

In connection with the incident described in subpara (e), the threat by the

appellant to kill the victim was the subject of count 5 being the charge of
threat to kill. The Magistrate specifically excluded that threat from the
evidence to be considered in connection with the charge of stalking.

Also in subpara (e) is reference to the appellant’s actions with a
knuckleduster. Those actions were the subject of the charge of assault in

count 6 and the Magistrate specifically excluded those actions from the
evidence relevant to the charge of stalking.

“The following day, 17 April 2007, he was in his vehicle on Chambers
Drive going to the court house when the defendant went past
travelling in the opposite direction. He kept an eye on the defendant
but didn’t see him turn around. He pulled up in a car park in First
Street outside the court house. He found that the court house was
closed and he was walking back to his vehicle when the defendant
drove past and turned into the same car park a few metres from his
parked vehicle. The defendant was driving a small white Suzuki 4
wheel drive. He said the defendant was laughing out rather loud and
said something but he didn’t recall the words used. He then drove
down First Street and said he turned left into Lindsay Street heading
back towards Katherine East to where he lives. He said that he saw
the defendant drive from First Street on to Chambers Drive.
Chambers Drive runs approximately parallel to Lindsay Street until
Lindsay Street veers towards and meets in an intersection with
Chambers Drive. He said that when he reached the intersection with
Chambers Drive, the defendant drove slowly past and he slowed to get
some space between them and then followed the defendant down
Chambers Drive.

defendant was looking at him again. He said he tried to stay a long
way away from the defendant’s vehicle but there’s a sharp turn at the
end of Chambers Drive and the defendant had slowed down a lot there
and he had another car behind him and he sort of got pushed and was
reasonably close to the defendant’s vehicle about a car length away as
they approached the intersection of Chamber’s [D]rive and Maluka
Road. Just then, he said, the defendant slammed on his brakes and he
had to swerve to avoid running into the rear end of the Suzuki. He
said there was no vehicle, pedestrian or animal in front of the
defendant. He took evasive action and went past the defendant’s
vehicle and continued up the Callistemon Drive intersection with the
defendant now behind him. He said the defendant followed him about
a metre behind him and onto Callistemon Drive. He said the
defendant continued to follow him very closely until he turned into
Holtze Crescent, whereupon the defendant continued down
He said that as the defendant went past him at the intersection the wasn’t going to go away.”

(f) An incident occurred on 17 April 2007 in respect of which the
Magistrate summarised the victim’s evidence as follows:

Count 2 – Dangerous Driving

Count 2 related to the early stages of the events on 16 April 2007. The

victim’s neighbour saw the appellant driving his motor vehicle at a fast
speed on Holtze Crescent. The witness described the speed as excessive
and the driving as reckless. Her concern about the reckless nature of the
driving led her to push her pram off the bitumen roadway onto the grass
verge. While accepting the evidence of the witness, in the absence of other
evidence from which a conclusion could be drawn about the speed and
manner of the driving, the Magistrate was not satisfied that the offence had
been proven and found the appellant not guilty.
Count 3 – Driving Without Due Care

Count 3 related to driving on 16 April 2007 a short time before the driving
that was the subject of count 2. On this occasion the neighbour observed the appellant reverse out of the victim’s driveway and accelerate quickly
causing his tyres to screech and the vehicle to fishtail up the road. The Magistrate found that the offence of driving without due care had been
proven.
Count 4 – Offensive Behaviour
Count 4, the charge of behaving in an offensive manner on 16 April 2007,

concerned the behaviour of the appellant before he reversed out of the
victim’s driveway and fishtailed up the road. The neighbour described the
appellant as standing outside his vehicle yelling loudly, “Come on out
Grant, if you don’t come out, I’m going to keep coming back and I’m going
to get angrier …” The witness said the appellant called Grant “a fucking
cunt.” The Magistrate found that the offence had been proven.
Count 5 – Threat to Kill

Count 5, the charge of threatening to kill the victim and his wife, was
based upon the evidence of the victim and other witnesses that during the
incident outside the victim’s house on 16 April 2007 the appellant
threatened to kill the victim, his wife and parents. The Magistrate accepted
the evidence of the victim that the appellant said, “I can kill you, your
mum and your dad” and, “I’m going to kill you, someone is going to die and it’s going to be in this house.” His Honour found that the appellant was very angry, aggressive and intimidating. Further, his Honour was

satisfied that the threat was of such a nature as to cause fear to any person
of reasonable firmness and courage and that at the time of making the
threat, the appellant intended to cause fear to the victim.
Count 6 - Assault

Count 6 was based upon the evidence of the victim that during the incident

on 16 April 2007 outside the home of the victim, the appellant produced a
“knuckleduster” which was described as a large metal ball on a hinge. The

appellant banged the knuckleduster on a pole saying, “See this, see this”. The Magistrate accepted the evidence of the victim which he summarised
on this aspect as follows:
“‘… The defendant was sort of holding it [the knuckleduster] clenched
in his fist above [the victim’s] head and was flicking it onto the gate
so that it made the gate go bang, bang, bang and threatened to split his
head open’. Then he said, ‘I’m going to kill you, I’m going to kill
your wife, your mother and your father.’ And then he said ‘Do you
love your mother?’ At that stage the defendant was within 50 cm to a
metre of [the victim].”

Having accepted the evidence of the victim and rejected the appellant’s denial of having a knuckleduster, the Magistrate found the offence of

assault proven. As I have said, the Magistrate separated the facts relating
to the assault involving the knuckleduster and the threat to split open the
head of the victim with the knuckleduster from the facts related to the
stalking and those relating to the threat to kill.

Counts 7 and 8 – Dangerous Driving/Driving Without Due Care

Counts 7 and 8 were charged in the alternative. The driving under

consideration occurred on 17 April 2007 and it related to the occasion
when, according to the victim, he was driving behind the appellant’s
vehicle and the appellant applied his brakes suddenly and with force
causing the victim to take evasive action in order to avoid running into the
rear end of the appellant’s vehicle. The Magistrate found that the “act of
slamming on the brakes without warning” when the appellant knew there
was a vehicle close behind him, and in circumstances where there was no
occasion for such an action, constituted driving in a manner dangerous to
the public. His Honour rejected the appellant’s evidence that he applied
his brakes lightly merely to let the appellant know that he was too close.

After finding the appellant guilty of count 7, the Magistrate returned a

verdict of not guilty with respect to the alternative charge in count 8 of
driving without due care. His Honour said:
“I find the defendant guilty on count 7 and, because it is charged in
the alternative, not guilty on count 8.”

It was inappropriate to find the appellant not guilty of the lesser

alternative. The finding of guilt on count 7 necessarily involved a
conclusion that the appellant had committed the less serious offence, but a
finding to that effect was subsumed by the finding of guilt of the more

serious driving offence. In these circumstances the appropriate course was to return the verdict of guilty of the more serious offence and to record that
the finding subsumes the alternative charge. The alternative charge
remains on file without any finding or order being recorded. In this way,
should the finding of guilt with respect to the more serious driving offence
later be set aside, the charge of the less serious offence remains alive.
“Previous “Dismissal”

During the hearing of the appeal the history of the proceedings in the
Katherine Court of Summary Jurisdiction was the subject of consideration by way of background. While examining the court file I observed an entry
on the file on 28 August 2007 to the effect that a number of counts had been “dismissed”. As a consequence the appellant was granted leave to

add a ground of appeal asserting that because counts 1 and 6 had been
“dismissed”, in the absence of a new complaint or information having been
laid in respect of those charges, the Magistrate did not possess jurisdiction
to hear those charges and the trial on those charges was, therefore, a
nullity.

The issue of withdrawal and dismissal of a number of counts arose in the

context of pleas of guilty that were subsequently withdrawn. On 28 August
2007 the prosecutor and counsel for the appellant were involved in
extensive discussions concerning possible pleas of guilty. Agreement was reached between counsel that if the appellant pleaded guilty to counts 3, 4, 5 and 8, the prosecution would not proceed with counts 1, 2, 6 and 7.

When the matter was called on before the Magistrate, the prosecutor
informed the Magistrate that pleas of guilty would be entered to counts 3,
4, 5 and 8 and the remaining counts would be withdrawn. The prosecution

read out counts 3, 4 and 5 and the appellant entered pleas of guilty to each
of those counts. However, when the prosecutor read out count 8, the
appellant refused to plead guilty because the description of the motor
vehicle was incorrect. According to an affidavit of the prosecutor tendered
on the appeal, the content of which is not challenged, after refusing to
plead guilty to count 8 the appellant said words to the effect that he was
“not doing this anymore” and would no longer be pleading guilty. The
pleas of guilty were then withdrawn and the appellant informed the court
that he wanted to obtain the services of another lawyer.

After the appellant withdrew his pleas of guilty, the Magistrate noted that
the pleas of guilty to counts 3, 4, 5 and 8 were withdrawn and the matter

was re-listed for a summary hearing in January 2008. Aware that
amendments were required to charges in order to avoid a time problem in
January 2008, the prosecutor requested amendments to counts 4, 7 and 8
which were made by the Magistrate. The hearing was then adjourned to
January 2008 for a summary trial.

I am satisfied that the prosecutor did not “withdraw” counts 1, 2, 6 and 7.
Aware that agreements as to pleas can easily fall apart, the prosecutor was

careful not to withdraw the charges at that time. In addition, as the
prosecutor has said, she would have been well aware that she would not
have been able to request amendments to the charges if those charges had
already been withdrawn.

The difficulty with which I am confronted is a notation on the court file

made by the Magistrate to the effect that counts 1, 2, 6 and 7 were
“dismissed”. Beneath the stamp of 28 August 2007 in which the Magistrate
has written in the surnames of the prosecutor and counsel for the appellant,
his Honour wrote the following:
“PG 3, 4, 5 & 8. Counts 1, 2, 6 & 7 dismissed.
Plea not guilty count 8.
Facts admitted. Found proved.
Change of plea indicated.
NAAJA granted leave to withdraw.
Pleas vacated. Pleas
D requires new legal representation
Vacate hearing this week.
Adjd 21-23 January 08 for hearing
CMI 10.12.07
B/E to 10.12.07.”

[23] The Magistrate signed immediately below the last entry.

The reproduction of the entry in type written form does not convey the full
picture. A photocopy is attached to these reasons. It is apparent from the
photocopy that the Magistrate made entries of events that he anticipated
occurring before they had occurred. For example, his Honour wrote that a plea of guilty had been entered to count 8 and that facts had been admitted

and found proved. The proceedings did not reach the point of facts being
read out or admitted. It is obvious that his Honour made that particular
entry in anticipation of facts being admitted and making a finding that the
offences were proved. It is apparent that the words, “Plea not guilty count
8” were inserted after the entry concerning the admission of facts and
following the plea of not guilty to count 8 which was not anticipated.

I am satisfied that the Magistrate recorded that counts 1, 2, 6 and 7 were
dismissed in anticipation of making an order to that effect once the pleas of
guilty had been entered. However, pleas to each of the counts to which
pleas were anticipated did not eventuate. The occasion did not arise for his
Honour to make an order dismissing the remaining counts because the
anticipated plea to count 8 did not occur.
My view in this regard is reinforced by notations made by the Magistrate

on the information and complaint which were both dated 22 August 2007.
First, the Magistrate wrote the letters “PG” alongside counts 3, 4 and 5, but
subsequently drew lines through those entries by way of deletion. These
were obviously entries reflecting the pleas of guilty and the subsequent
withdrawal of those pleas. In conjunction with those entries, his Honour
also wrote the letter “PG” alongside count 8 and subsequently deleted that
entry. Again, this was an entry made in anticipation of a plea which never
occurred.

Secondly, the Magistrate drew a line through each of counts 1, 2, 6 and 7

and wrote alongside each of those counts the word “W/drawn”.
Subsequently his Honour drew lines through those entries with respect to
all but count 6, again suggesting that his Honour made the entries in
anticipation of those counts being withdrawn following the pleas of guilty.

Identifying the procedure followed with respect to count 6 is more

problematic. The way in which the entries “w/drawn” were written
alongside counts 1, 2, 6 and 7 strongly suggest that those entries were
made at the same time. However, the Magistrate did not draw lines
through the entry “w/drawn” alongside count 6. In addition, the transcript
at the commencement of the trial on 22 January 2008 records that the
prosecutor withdrew the charge of assault in count 6 on the information
dated 22 August 2007.

The charge of assault in count 6 on the information of 22 August 2007 later
became the subject of a separate complaint dated 29 August 2007. It

appears likely that on 28 August 2007, the day of the failed plea
arrangements, the prosecutor realised that the charge of the simple offence
of assault should not have been on information and informed the Magistrate
that the charge would be withdrawn and replaced by a charge on complaint.
As I have said, the complaint of assault, laid as count 6, was made the
following day. This appears to be a reasonable explanation because the
deletions of the other entries of “w/drawn” were undoubtedly made on 28
August 2007 as the events of the unsuccessful plea arrangements unfolded.

The subsequent conduct of the proceedings supports the conclusions I have

reached. On 28 August 2007, after the pleas of guilty had been vacated,
the Magistrate entertained and acceded to an application for amendments to
counts 1 and 7. If his Honour had, in fact, dismissed those counts, he would not have permitted the amendments to be made. Nor would his Honour have permitted the trial to subsequently proceed on those counts.

Counsel for the appellant is correct that the critical question is whether the
Magistrate made an order of dismissal and not what the prosecutor did or
did not ask the Magistrate to do. There is force in counsel’s submission
that the court record made by the Magistrate on the court file speaks for
itself, but the notations are not finally determinative of the question to be

answered. For the reasons I have given, in all the circumstances I am
satisfied that the Magistrate did not make an order dismissing counts 1, 2,
6 and 7.

Before leaving this ground of appeal, I observe that the circumstances of
this case provide a good example of the care that is needed in

circumstances where a court is presented with a “plea agreement” that
involves the entry of pleas of guilty to some counts on the basis that the
prosecution will not proceed with other counts. Plea agreements of this
nature commonly occur and, within well recognised limits, this practice is to be encouraged. However, when matters are charged on complaint, care

needs to be taken in respect of orders as to the counts upon which the
prosecution does not proceed because time limits for laying those counts
may have expired. As the circumstances of this case demonstrate, if the pleas of guilty are subsequently vacated or set aside, the six month time
limitation for laying a complaint is likely to have expired. It should be
borne in mind that it is not unknown for pleas of guilty to be set aside on
appeal.

While there may be proceedings available to rectify the problem created by
the withdrawal or dismissal of charges in these circumstances, such as a
late appeal or review based on an abuse of process, it would appear that the
preferable course is for the court to note that the prosecution accepts the
pleas of guilty in satisfaction of all counts before the court, without making

any orders as to the remaining counts, thereby leaving the remaining counts
to lie on the file. Those remaining counts should not be withdrawn or
dismissed. This is the practice followed in the Supreme Court when pleas
of guilty to a particular count or counts are accepted in satisfaction of all
counts on the Indictment.
Information – Validity on its Face

At the hearing of the appeal, leave was granted to add an additional ground
complaining that the information was invalid for the following reasons:

“(i) because it did not indicate the authority by which the respondent
signed the Indictment; and
(ii) because on its face it failed to state whether the Indictment was on oath or affirmation; and
(iii) because the respondent failed to swear or affirm the Indictment before a Justice of the Peace.”

In my opinion there is no substance in this ground. The general power to
lay an information is found in s 101 of the Justices Act. Section 102(1)

specifically limits the requirement that an information be in writing and
substantiated on oath to circumstances where it is intended to issue a
warrant in the first instance:

“(1) If it is intended to issue a warrant in the first instance, as
hereinafter provided, the information shall be in writing, and the
matter thereof shall be substantiated by the oath of the informant or a
witness.”

The information dated 22 August 2007 is expressed to be taken “upon oath

or affirmation”. It is signed by a Justice of the Peace. If there is any
irregularity, it is of no moment.

In this context, if it was necessary to rely upon a statutory provision, s 182
of the Justices Act provides that no objection “shall be taken or allowed to any information” in respect of “any alleged defect therein, in substance or in form …”. In addition, as was pointed out in Moore v Haynes,[1] although
the legislature “always intends that procedural stipulations will be

complied with”, it does not necessarily follow that the legislature “intends
that every failure to comply with such a stipulation has the consequence
that a failure to so comply renders the proceedings invalid”.[2] The

requirements of the Justices Act with respect to the laying of informations is far removed from the requirements of the Youth Justice Act discussed in
Moore and Haynes where not only was the consent of an authorised officer
to the charging of an offence required, the Youth Justice Act specifically
required that the document charging a youth must indicate that the charges
have been consented to by an authorised officer and identify that officer.
Grounds 1 and 2 – Information/Complaint

Grounds 1 and 2 concern the charging on information of counts 1 (unlawful

stalking) and 6 (assault), rather than on complaint. The appellant
contended that these charges were wrongly included on the information
with the consequence that the information was a nullity and the Magistrate
had no jurisdiction to embark on a hearing of these charges.

The matter is complicated by the existence of two informations and three

complaints. The charge of stalking found in count 1 was the first charge on
informations dated 19 April and 22 August 2007. There is, therefore, no
doubt that the Magistrate proceeded with the trial of the charge of stalking
on information.

The charge of assault first appeared as count 4 on a complaint dated
19 April 2007. Next it appeared as count 6 on an information dated
22 August 2007. Finally it was charged as count 6 on a complaint dated
29 August 2007.
The appellant’s contention concerning count 6 on the information dated
22 August 2007 was based upon a version of the transcript that was
incomplete. The full transcript obtained during the hearing of the appeal

records that the prosecutor withdrew the charge of assault on the
information and proceeded on count 6 as charged on the complaint dated
29 August 2007. Counsel for the appellant accepted that the charge of
assault proceeded properly on complaint. That leaves the question of the
validity of the charge of stalking in count 1 on the information dated 22
August 2007.
Information/Complaint – Statutory Scheme

The statutory scheme for the charging of offences and their determination
is primarily found in a combination of the Justices Act and the Criminal
Code (the “Code”). Section 295 of the Code provides that the jurisdiction

of courts with respect to the trial of offenders “is set forth in the laws
relating to the constitution and jurisdiction of those courts …”.

Section 3(1) of the Code specifies that offences “are of 3 kinds, namely,
crimes, simple offences and regulatory offences.” There is no definition of “crime”, but s 38E of the Interpretation Act provides that where the penalty
for an offence is a period of imprisonment of more than two years, the

offence is a crime. Section 3(4) of the Code states that an offence “not
otherwise designated” is a “simple offence”.

Section 3(2) of the Code specifically directs that, “A person charged with a
crime cannot, unless otherwise stated, be prosecuted or found guilty except upon indictment”. Subsection (3) provides that unless otherwise stated, “a person guilty of a simple offence or a regulatory offence may be found
guilty summarily”. Unlike the direction in the Code that a person charged

with a crime cannot be prosecuted except upon indictment, there is no
specific statutory direction that a person charged with a simple offence
must be charged on complaint and cannot be charged on indictment.

The charge of stalking contrary to s 189(2) of the Code carries a maximum
penalty of two years imprisonment and is, therefore, a simple offence. The

appellant submitted that a simple offence cannot be prosecuted on
indictment and must be prosecuted on complaint. In these circumstances it
was said that count 1 on the information of 22 August 2007 was a nullity.
Simple Offence

Part IV of the Justices Act concerns Courts of Summary Jurisdiction and

the exercise of the summary jurisdiction. The provisions in Pt IV are
supplemented by provisions in Div 2 of Pt V which, in defined
circumstances and subject to specified conditions, permit the Court of
Summary Jurisdiction to hear and determine in a summary manner charges
of specified indictable offences. Those provisions are discussed later in
these reasons.

As to the commencement of proceedings with respect to simple offences,

s 49(a) of the Justices Act provides that a complaint may be laid where a
person has committed or is suspected of having committed “any simple
offence”. Section 50(1) permits a complaint to be made by the complainant
in person or by any person so authorised by the complainant. Although it
is the practice that a complaint is made in writing and a specific form

headed “COMPLAINT” is available for that purpose, s 50(2) of the
Justices Act specifically states that, “No complaint need be in writing
unless it is required to be so by some Special Act”. The complaint need not be on oath unless required by a Special Act or where the Justice is to issue a warrant at first instance: s 50(3).

Section 57(1) provides that whenever a complaint is made, a Justice may
issue a summons for the appearance of any person charged by the
complaint. A Justice is empowered to issue a warrant of apprehension if the matter of complaint is substantiated to the satisfaction of the Justice

upon oath: s 58(1). If a defendant fails to appear in obedience to a
summons, provided the matter of the complaint is substantiated on oath and
it is proved that the summons was served, a Justice may issue a warrant for
the apprehension of the defendant: s 58(3).

The balance of the provisions in Pt IV are concerned with accepting pleas
of guilty and procedural matters in connection with summary trials together with findings of guilt and judgment. Provision is made for the awarding of costs.
Parts V and VI of the Justices Act are concerned with indictable offences

and appeals from Courts of Summary Jurisdiction respectively. Part VII
contains supplementary provisions applicable to both informations and
complaints.

Division 1 of Pt VII of the Justices Act is headed “Irregularities and
Amendment”. As to the adequacy of the content of an information or complaint, s 181 provides that in any information or complaint it shall be sufficient if the information or complaint “gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged”.

Irregularities in informations or complaints are dealt with in s 182:
“182 Information or complaint not to be objected to for
irregularity
No objection shall be taken or allowed to any information or
complaint in respect of –

(a) any alleged defect therein, in substance or in form; or
(b) any variance between it and the evidence adduced in its support at the preliminary examination or at the hearing (as the case may be):

Provided that the Court shall dismiss the information or complaint, unless it is amended as provided by section 183, if it appears to him or to it –

(a) that the defendant has been prejudiced by the defect or variance; or
(b) that the information or complaint fails to disclose any offence or matter of complaint.”

Amendment of a defective information or complaint is permitted in

accordance with s 183:

“183 Amendment of information or complaint
If it appears to the Court before whom any defendant comes or

is brought to answer any information or complaint that the
information or complaint –

(a)

fails to disclose any offence or matter of complaint, or is otherwise defective; and

(b)

ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect,
the Court may amend the information or complaint upon such terms as
may be just.”

Indictable Offences

The jurisdiction of a Court of Summary Jurisdiction to deal with a charge of an indictable offence is found in Pt V of the Justices Act which is headed “INDICTABLE OFFENCES”. Against the background of the
provisions of the Code to which I have referred, in Birkeland-Corro v
Tudor-Stack,[3] I concluded that where the Justices Act speaks of an
indictable offence it is referring to a crime which, unless otherwise stated,
must be prosecuted on indictment.
Part V begins with s 101 which provides that an information may be laid
before a Justice where a person is suspected of having committed “any
treason, felony, or indictable misdemeanour, or other indictable offence

whatsoever, within the Territory …”. Provisions follow for the disposition
of charges of indictable offences on information which allow for both
preliminary examination and committal for trial on indictment before the
Supreme Court and, in specified circumstances, for a summary disposition
by way of trial or sentence. These provisions are discussed later in these
reasons when dealing with the appellant’s complaint that the Magistrate
failed to comply with the requirements of the Justices Act in respect of the
summary hearing of the charge of threatening to kill (count 5).
Joinder

As to the joinder of multiple charges in a complaint or information, s 51

states that charges for any number of offences may be joined in the same
complaint “if the charges arise out of the same set of circumstances”.
Section 101A provides that charges for “any offences, whether felonies or
misdemeanours, may be joined in the same information if the charges are
founded on the same facts or form or are part of a series of offences of the
same or a similar character”.

As to a single summary hearing of charges on both complaint and
information, s 183A provides that notwithstanding any other provision of
the Justices Act, where a court has jurisdiction to deal with both a charge

specified in a complaint and a charge specified in an information relating
to the same defendant and “arising from the same or associated
circumstances”, the court may deal with both the complaint and
information together.
Statutory Scheme - Summary

For present purposes, the scheme may be summarised as follows:

• Proceedings in respect of a crime must be commenced on information and,
if a committal for trial or sentence in the Supreme Court occurs, the

charge must be laid on indictment. If a charge of a crime is dealt with in
the Court of Summary Jurisdiction, that charge must proceed on
information.

• Unless a Special Act requires otherwise or a warrant is to be issued at the
first instance, a complaint of a simple offence may be made to a Justice
either orally or in writing and without the support of an oath.

• In contrast to the statutory direction that a charge of a crime may only be
prosecuted on indictment, there is no statutory direction that a charge of a
simple offence may not be prosecuted on information or indictment.

• Leaving aside cases involving the issue of a warrant and other special
provisions, when a complaint is made of a simple offence the court
processes with respect to receiving the appearance before the court of the
defendant are initiated by the Justice issuing a summons for the
appearance of the person charged by the complaint.

• The statutory scheme provides different procedures for the disposal of
charges on complaint and information. Summary procedures follow for
charges on complaint. Charges on information may proceed to a
preliminary examination and committal for trial or sentence on indictment
before the Supreme Court or, in specified circumstances, to summary
disposition before the Court of Summary Jurisdiction either by trial or
sentence.
Simple Offence on Information

As I have said, the offence of stalking charged in count 1 is a simple

offence. It was presented to the appellant and the Court on a document
headed “INFORMATION FOR AN INDICTABLE OFFENCE” being a
standard form of information issued under the Justices Act for charges of
crimes. If the charge of stalking was to be reduced to writing, it should
have been on a document headed “COMPLAINT” in the standard form
issued under the Justices Act.

In these circumstances, the critical issue for determination is readily
identified. Was a valid complaint of stalking before the Magistrate? If an
indictment was presented to the Supreme Court containing a charge of a

simple offence, that indictment would be invalid and a nullity. However,
the issue is not the validity of the document containing the charge of a
simple offence as an information. In issue is the validity of the document as a complaint or, more correctly, the validity of count 1 on the document as a complaint of stalking.

In Pioch v Lauder[4] Forster J was presented with a charge of aggravated

assault on information. His Honour held that an offence of aggravated
assault was a simple offence and should have been charged on complaint.
In those circumstances, his Honour expressed the view “that entitling the

charging document ‘Information’ is a nullity …”.[5]

Counsel for the appellant placed reliance upon that observation of
Forster J. However, when that statement is read in its context, I am far
from satisfied that his Honour meant that the charge was a “nullity” and

could not found the jurisdiction of the Magistrate. The wider context is
found in this passage of which the reference to the information being a
nullity is a part:[6]
“At the outset it should be observed that although the charge of assault prima-facie case made out and that he would deal with it himself then that was the appropriate time to ask for a plea.” (my emphasis)
accompanied by circumstances of aggravation appears on a document
entitled ‘Information’, and an information is the appropriate document
for laying a charge of an indictable offence, the learned magistrate
started the proceedings by asking for a plea from counsel for the
defendant. This procedure is wholly inappropriate where the charge is
one of an indictable offence but appropriate if the charge is one of a
simple offence. It becomes of critical importance to the answering of
the special case stated to determine whether a charge of assault
accompanied by circumstances of aggravation is a simple offence or
an indictable offence. If it be a simple offence, I consider that
entitling the charging document ‘Information’ is a nullity and the
appropriate procedure for the magistrate to follow was that for a
simple offence, which indeed was what he appears to have done at the
commencement of the proceedings at least, although later in the
hearing he stated that it was an indictable offence. If it was so, of
course, the appropriate procedure was the administrative hearing of
the evidence and determination whether or not a prima-facie case was
made out by the prosecution and, after such determination, the learned
magistrate could have, so to speak, reverted to the status of a court
and proceeded to deal with the charge as a minor indictable offence or
he could have committed the defendant for trial in the Supreme Court.

Forster J determined that although “entitling” of the charging document as
an information was “a nullity”, nevertheless “the appropriate procedure for the magistrate to follow was that for a simple offence ...”. In other words,
there was a valid charge before the Magistrate, namely, a charge of a

simple offence and the Magistrate should have followed the procedure laid
down by the statute for a simple offence. Forster J did not find that the
charge was a nullity and, therefore, the Magistrate did not have
jurisdiction. Far from supporting the appellant, the decision of Forster J
supports the Crown contention that a complaint of a simple offence was validly before the Magistrate and the Magistrate had jurisdiction to hear and determine it.

The appellant also relied upon the decision of the Western Australian Court

of Criminal Appeal in Bounds v The Queen.[7] The relevant legislation
divided offences into simple and indictable offences and, like the Northern
Territory, an indictable offence was triable only on indictment unless
expressly authorised otherwise. A simple offence could not be charged on
indictment and, therefore, the Court held that the indictment before the

District Court was a nullity with respect to the particular count alleging a simple offence and the District Court did not have jurisdiction to try that count. McKechnie J made the following observation:[8]
“A document setting out particulars of a simple offence can never be
an indictment, no matter what it purports because it does not set out
the provisions for an indictable offence. Any document such as count
2 is a nullity. The jurisdiction of the superior court is never invoked
by such a document. Therefore, the procedures for trying a simple
offence disclosed by such a document are never activated.”

In an earlier decision of Paciente v The Queen[9] a similar situation had

arisen and the particular count was held to be a nullity. Franklyn J, with
whom Nicholson and Ipp JJ agreed, said:
“The indictment presented to the Court was signed by the senior
assistant Crown counsel. It is not in dispute that he was authorised in
that behalf by the Governor. However by count 2 it did not charge an
indictable offence, but a simple offence which, by reason of s 9, was
to be tried summarily.
Thus the indictment alleged an offence not capable of being the subject of an indictment or of a committal for trial. In my view, in respect of count 2, the indictment was a nullity”.

In Bounds, the jurisdiction of the District Court could only be invoked by
the filing of an indictment. To the extent that the document, purporting to
be an indictment, set out particulars of a simple offence, that document was
incapable of amounting to an indictment. The issue under consideration is
different. It is not whether the document before the Magistrate was valid
as an information. It is whether the document was valid as a complaint.
A valid complaint could have been made orally. It could have been
reduced to writing on a scrap piece of paper. While the power of amendment in s 182 of the Justice Act could not be used to cure a fundamental defect that renders an information a nullity, it could be used in
the circumstances under consideration to delete the heading
“INFORMATION FOR AN INDICTABLE OFFENCE” and to substitute
the heading “COMPLAINT”. In my view, a valid complaint of the offence

of stalking was before the Magistrate and his Honour followed the correct
procedures with respect to the hearing and determination of that complaint.
If necessary, I would make an order amending the “complaint” of 29
August 2007 accordingly.

The use of an incorrect document as the document recording the complaint

of stalking did not cause any prejudice to the appellant. If evidence was
erroneously admitted or taken into account on the stalking charge, it
matters not that the Magistrate might have been misled by the title of the
document on which the complaint was presented. If error occurred, and it
did, the appeal process is available to rectify any miscarriage of justice

caused by such error. The reason for the error is of no consequence. of the incorrect document as the written record of the complaint of stalking.
Ground 3 – Wrongful Admission of Evidence

Ground 3 complained that as a consequence of erroneously proceeding with
the charge of stalking on information, the Magistrate erred in admitting

evidence of events that occurred more than six months prior to the date on
which the information was laid. If the proper procedure had been followed
and a complaint had been laid, the complaint could not have been based
upon evidence of events occurring more than six months prior to the laying
of the complaint because s 52 of the Justice Act requires that a complaint be
made “within 6 months from the time when the matter of the complaint
arose”.

The offence of stalking contrary to s 189 of the Criminal Code requires
proof of conduct that includes repeated instances or a combination of types

of conduct identified in s 189(1)(a)–(g). The instances of conduct upon
which the prosecution relied were identified by the Magistrate as follows:

“(a) the defendant was pacing up and down in front of the cash
register area of Woolworths with the intent of intimidating Dickens;
(b) the defendant was driving slowly by the house of Dickens on a Sunday and staring at him;

(c) an incident outside the premises of Target in the presence of
Dickens and Larry Sullivan;

(d) a series of incidents on 9 December 2006 outside the home of
Dickens involving playing loud music and spinning the wheels of a vehicle followed by waiting for Dickens outside a block of flats in Callistemon Drive and thereafter following him to Woolworths.
(e) events outside Dickens’ home on 16 April 2007 involving the defendant, Dickens and Dickens’ father-in-law, John Burger;

(f) parking beside Dickens’ vehicle on First Street, outside the
Katherine Court House, laughing and gesturing at Dickens and
thereafter waiting at the Target car park and following Dickens on
Chambers Drive.”

The Magistrate expressed the view that should he find any two of the

allegations set out in paras (a) to (f), the requisite conduct for the purposes
of count 1 would be proven. Ultimately his Honour was not satisfied that
the conduct identified in (a) and (b) formed part of the relevant course of
conduct because there was no evidence that those incidents occurred after
the employment of the appellant’s son at Woolworths had been terminated.
His Honour was satisfied that the conduct identified in paras (c) – (f)

occurred and constituted repeated instances of or a combination of the
various types of conduct referred to in s 189.

The charge of stalking was first laid on 19 April 2007, but the complaint
that proceeded to trial was dated 22 August 2007. By reason of a six

month time limit, it could be based only upon conduct occurring on or after
22 February 2007. In these circumstances the Magistrate erred in relying
upon the conduct identified in paras (c) and (d) because they occurred
outside the six month period.

Although the Magistrate erred in this way, in my opinion no miscarriage of
justice has occurred with respect to the conviction for stalking. His
Honour was of the view that should he find any two of the allegations set out in paras (a) – (f) proven, the charge of stalking would be established. In these circumstances, the erroneous inclusion of the conduct identified in
paras (c) and (d) did not result in a miscarriage of justice with respect to
the conviction for stalking. However, different considerations arise in

connection with the sentencing of the appellant for that offence which are
discussed later in these reasons

In connection with this ground of appeal, the appellant’s written

submissions contended that evidence of events outside the six month period
would have been inadmissible if the charge of stalking had been laid on
complaint. This submission must be rejected. By reason of the statutory
time limitation, conduct occurring outside the six month period could not
be relied on as conduct amounting to stalking, but the question of

admissibility of evidence concerning such conduct is not determined by
reference to the statutory limitation. It is determined by the application of
the ordinary test of relevance.

As to the charge of stalking, the entire course of conduct was directly
relevant to the intention of the appellant. In order to prove the offence of stalking, the Crown was required to prove that the appellant undertook the conduct specified in paras (e) and (f) “with the intention of causing
physical or mental harm to the victim or of arousing apprehension or fear
in the victim for his or her own safety or that of another person …”. The

appellant’s earlier conduct, which formed part of a course of conduct
aimed at the victim, was probative as to his intention when he engaged in
the conduct specified in paras (e) and (f).

The Crown was also required to prove that the conduct specified in paras
(e) and (f) actually caused mental harm to the victim or aroused an

apprehension or fear in the victim for his safety or that of another person.
Viewed in isolation, the conduct in paras (e) and (f) bears an entirely
different complexion from its true complexion viewed in the context of the
prior conduct over a number of months. The prior course of conduct was

relevant to an assessment of whether the conduct in paras (e) and (f)
actually caused mental harm or aroused the relevant apprehension or fear.

Evidence of the appellant’s conduct toward the victim outside the six

month period was also relevant and admissible in respect of a number of
the charges. The entire course of conduct was relevant as bearing upon the
appellant’s attitude to the victim and a likelihood that he would engage in
the conduct alleged. In particular, the entire course of conduct was

relevant to the charge of threatening to kill. That course of conduct was probative of the appellant’s intention when he uttered the threats. It was
also relevant to the question whether the threats were of such a nature as to
cause fear to any person of reasonable firmness and courage.
Ground 4

Ground 4 complains that in relation to the charges of stalking and assault,

“the appellant was deprived of the right to a trial according to law”. This
ground relied upon the various matters to which I have already referred,
including evidence of the events occurring outside the six month period. It
is unnecessary to add to what I have already said.
Grounds 5 and 6 – Duplicity
[79] This ground as originally presented complained that duplicity arose
because in finding the offence stalking proved, the Magistrate relied upon

conduct that was the basis of the convictions in count 3 for driving without
due care and count 4 for behaving in an offensive manner. However, on

the hearing of the appeal, counsel for the appellant properly conceded that
the Magistrate had not erred in this respect because these counts were
based upon events that occurred in the absence of the victim and his
Honour had relied only upon events occurring in the presence of the victim
and the victim’s father-in-law.

There was one area of overlap that had the potential to give rise to the
problem of duplicity. The conduct in para (f) had the potential to overlap

with the dangerous driving charged in count 7. The course of events
identified in para (f) included a period of driving on Chambers Drive and it
was while the two vehicles were on Chambers Drive that the dangerous driving occurred when the appellant, whose vehicle at the relevant time

was in front of the victim’s vehicle, slammed on his brakes causing the
victim to take evasive action.

In my opinion, however, no overlapping occurred. After the appellant

slammed on his brakes and the dangerous driving occurred, the victim’s
vehicle overtook the appellant’s vehicle in the avoidance manoeuvre and
proceeded with the appellant following close behind. In identifying the
conduct in para (f), the Magistrate referred to the appellant “following [the
victim] on Chambers Drive”. His Honour did not rely upon the earlier
conduct when the appellant was in front and slammed on his brakes.

In any event, even if there was a degree of overlap, it was not such as to
give rise to duplicity and no miscarriage of justice has occurred.
Threat to Kill – Summary Trial – Absence of Consent
An additional ground added at the hearing of the appeal alleged that the
Magistrate erred in proceeding with the summary trial of the charge of
threatening to kill without first obtaining the consent of the appellant. In
these circumstances it was said that the trial on that charge was a nullity.
This ground of appeal requires consideration of the statutory scheme
pursuant to which the Court of Summary Jurisdiction is given jurisdiction
to hear and determine in a summary manner charges of indictable offences

on information. I discussed the scheme in Birkeland-Corro v Tudor-Stack[10]
and I adhere to the views expressed in that decision. In summary, the
relevant features of the scheme for present purposes are as follows:

•	Subject to jurisdiction to hear and determine in a summary way specific

indictable offences, the procedure commences with the preliminary
examination: Justices Act ss 105A – 112.

•	If the charge is one of a “minor indictable offence”, pursuant to s 109(3)(a),

the Justice may proceed in the manner directed and under the provisions

contained in Div 2 of Pt V. A “minor indictable offence” is defined in s 4
as an indictable offence which is capable of being, and is, in the opinion of
the Justice, fit to be heard and determined in a summary way under the
provisions of Div 2.

•

Division 2 of Pt V contains a number of provisions conferring jurisdiction upon a Magistrate to hear and determine charges of indictable offences in a summary manner:

(i)	Offences identified in s 120 which are described as “minor offences”.

This jurisdiction may be exercised whether or not the defendant consents to its exercise.
(ii)      Offences identified in s 122A which include an offence punishable by

not more than ten years imprisonment: s 121A. The offence of
threatening to kill is such an offence.
(iii)     Section 121A prescribes a number of conditions that must be met
before the jurisdiction conferred by s 121A can be exercised. These
include the consent of the defendant.
(iv)     Section 121A is subject to the operation of s 122A which directs that
“serious or difficult matters” are not to be dealt with summarily if it

appears to the court that by reason of the seriousness or other matters
likely to arise at the trial the offence should be tried by the Supreme
Court.
(v)       Section 131A provides that summary jurisdiction in respect of bodily
harm and aggravated assault shall not be exercised if the court is of
the opinion that the charge should be prosecuted on indictment.

Following an examination of the history of the various provisions, in
Birkeland-Corro v Tudor-Stack[11] I concluded that the legislature did not
intend that before the summary jurisdiction under any of these provisions

could be exercised, a preliminary examination had to be conducted. I
remain of that view.

The jurisdiction to hear and determine in a summary way a charge of threat to kill contrary to s 166 of the Code is found in s 121A which expressly

states that where the defendant consents, “the Court has jurisdiction to hear
and determine the charge in a summary manner …”. In the absence of
consent the Court does not posses the necessary jurisdiction.

The earliest transcript now available is for 22 January 2008. Neither that

nor transcript of later appearances contains any reference to the question of
consent. The appellant and his wife both gave evidence that the appellant
was not asked whether he consented to a summary disposition of the charge
of stalking. Further, the appellant and his wife gave evidence that they
were never advised of the appellant’s right to a trial by jury. Nor were
they advised that the appellant’s consent was required in order for the
matter to be determined summarily. The Crown did not cross-examine the
appellant or his wife.

The appellant initially sought legal advice from the Northern Australian
Aboriginal Justice Agency (“NAAJA”). A solicitor from that Agency

represented the appellant until being given leave to withdraw on 29 August
2007. No evidence has been called to rebut the appellant’s evidence, and
that of his wife, that he was not advised of his choices or the requirement
of consent.

Between August 2007 and the summary hearing in January 2008, the
appellant retained the services of a solicitor, Mr Peter Maley. Mr Maley gave evidence that when he received instructions it was on the basis that
the matter was to proceed by way of a summary trial. In these

circumstances, it did not occur to Mr Maley that he should discuss with the
appellant his right to choose between a trial by jury and a summary
hearing. Nor was there any discussion about the appellant consenting to a
summary disposition.

I am satisfied that the appellant was not aware of his right to choose

between a trial by jury and a summary hearing. Nor was the appellant
aware that his consent was required before the Magistrate could proceed
with a summary hearing.

In these circumstances, from a practical point of view the appellant was
denied the opportunity of exercising his fundamental right to choose a trial
by jury. Further, I am satisfied that as a matter of fact the appellant did

enlivening of the Magistrate’s jurisdiction was not fulfilled. The
not consent to the summary disposition. A condition precedent to the the charge in count 5 of threatening to kill. That conviction must be set
aside.

Counsel for the appellant urged that I quash the conviction and not remit
the matter to a Magistrate. The appellant has served approximately three
days in prison and the errors that occurred in the hearing before the
Magistrate did not involve any fault on the part of the appellant. In
particular, counsel urged that the absence of jurisdiction was caused by the
Magistrate’s failure to obtain the appellant’s consent to a summary
disposition of the charge of threat to kill and, therefore, it would be unfair
to remit the charge for further hearing.
I accept that it is the duty of a Magistrate to ensure that jurisdiction to proceed to summary disposition exists. If consent is required to found
jurisdiction, a Magistrate is required to obtain consent explicitly before
proceeding in a summary manner. This case demonstrates the danger of assuming that counsel has obtained a defendant’s consent. The specific question should be asked and it will often be advisable to obtain from

remit the charge of threatening to kill in count 5 for hearing before another hearing. If he does not consent, a summary trial cannot occur and a
preliminary examination will be required. As the Crown evidence has
already been the subject of a full trial before a Magistrate in which the
Crown witnesses were examined and cross-examined, it would be open to
the appellant to reduce delay and expense by consenting to the Director of
Public Prosecutions laying an ex officio indictment in the Supreme Court.

counsel an assurance that the defendant has been advised of the options and
has given explicit consent to summary disposition.

The appellant will now face re-sentencing in respect of the charge of

stalking. In addition, the appellant has appealed against the severity of the
sentence imposed for the offence of assault and, as these reasons later
disclose, I have allowed that aspect of the appeal and will re-sentence for
that offence.

In the context of the course of conduct which the Magistrate found had

occurred, the threat to kill was a serious offence carrying a maximum
penalty of seven years imprisonment. On the facts found by the
Magistrate, his Honour was of the view that the offence warranted a

sentence of 14 months imprisonment. His Honour determined that the
offence of stalking required a sentence of ten months imprisonment, but he
imposed an aggregate sentence of 14 months imprisonment for the offences
of stalking and threatening to kill. That sentence was to be suspended after
service of five months. In re-sentencing the appellant for the stalking
offence I will not take into account the threats to kill.

In all the circumstances I have decided that the appropriate course is to
Convictions Unsafe
Ground 8 asserts that the convictions with respect to counts 1, 5 and 6
“were against the evidence and the weight of the evidence”. This ground

was not canvassed in the written outline of submissions. Nor was it
addressed orally. It is sufficient for me to observe that it was open to the
Magistrate to accept the evidence of the victim and other witnesses for the
prosecution. Once such evidence was accepted, it was not only open to the
Magistrate to convict, but his Honour would have been in error if he had
not done so. From my reading of the transcript, the evidence was
convincing and his Honour reached the correct conclusions.
Sentence

As I have said, the Magistrate imposed an aggregate sentence of 14 months
imprisonment in respect of the offences of stalking and threatening to kill.
Section 52 of the Sentencing Act authorises the imposition of an aggregate

sentence, but only if the offences are joined in the same information,
complaint or indictment. The charge of stalking was on complaint, but the
charge of threatening to kill was on information. In these circumstances,
s 52 of the Sentencing Act had no application.

In addition, an aggregate sentence cannot be imposed if one of the offences
is a “violent offence”. For this purpose, a violent offence is an offence
listed in sch 2 of the Sentencing Act and includes an offence of threatening
to kill contrary to s 166 of the Code.

[100] The appeal against the sentence imposed with respect to the offence of

stalking is allowed. I will re-sentence the appellant in respect of that
offence.
[101] As to the offence of assault charged in count 6, the Magistrate imposed a

sentence of three months imprisonment to be served concurrently with the
aggregate sentence of 14 months imposed in respect of counts 1 and 5. The
appellant submits that the sentence was manifestly excessive.
[102] The offence of assault was based upon the conduct of the appellant in
threatening the victim with the knuckleduster. The appellant banged the
knuckleduster on a pole saying, “See this, see this” and flicked it onto the
gate while threatening to split the victim’s head open. The offence was

committed through the threat of violence and no application of physical
force occurred.
[103] The Magistrate carefully excluded other conduct, such as the threat to kill,

from the facts upon which he was to sentence for the offence of assault.
However, it is difficult to avoid the conclusion that his Honour might have
been influenced by what he perceived was an “ongoing, deliberate

campaign of terror over more than a four-month period” in which the
appellant engaged. His Honour did not explain why he regarded a sentence
of imprisonment as the appropriate sentence for an assault which did not
involve physical violence. If his Honour took into account the course of
conduct over a four-month period, his Honour would have been in error
because that conduct, described by his Honour as a campaign of terror, was
taken into account in connection with the offence of stalking.
[104] The Magistrate faced a difficult task in sentencing on the basis of facts

separated from surrounding circumstances which were taken into account
in respect of other offences. It was necessary to isolate the facts of the
assault and to avoid an overlapping of factors. When the facts of the
assault are isolated from other facts, in my opinion a sentence of three
months imprisonment was manifestly excessive.
Conclusion
[105] The appeal against the conviction for stalking charged in count 1 is
dismissed. The appeal against the sentence imposed on count 1 is allowed
and the sentence is set aside.
[106] The appeal against the conviction for threatening to kill charged in count 5

is allowed. The conviction and sentence with respect to count 5 are set
aside. The charge on information on count 5 is remitted to the Magistrates
Court for hearing before a different Magistrate.
[107] The appeal against the conviction for assault charged in count 6 is
dismissed. The appeal against the sentence imposed on count 6 is allowed
and the sentence is set aside.
Re-sentencing
[108] I am now required to re-sentence the appellant for the offences of stalking

and assault. This sentencing exercise takes place in the context that the
appellant has already served approximately three days in custody and paid
an aggregate fine of $1,000, together with $120 in levies, for the offences
of driving without due care (count 3), offensive behaviour (count 4) and
driving in a manner dangerous to the public (count 7). In addition, with
respect to count 7, the Magistrate disqualified the appellant from holding
or obtaining a driver’s licence for a period of six months.
[109] As to the factual basis of the offence of stalking for which sentence must
be imposed, subject to excluding the threat to kill and the facts of the

assault involving use of the knuckleduster, and subject also to the
exclusion of the driving that was the subject of count 7, the essential facts
of the stalking offence occurred on 16 and 17 April 2007 and were
summarised by the Magistrate in paras (e) and (f) which are set out in
para [5] of these reasons.
[110] The appellant submitted that these events “formed one incident”. No doubt
there was a single underlying cause of the appellant’s behaviour, namely,
the dismissal of his son from Woolworths, but the events of 16 and
17 April 2007 were separate episodes, each of which were distressing to
the victim. Counsel contended that the appellant’s threat that “this isn’t

over” uttered as he left after the altercation at the victim’s premises on
16 April 2007 was nothing but bravado. If it was, the victim and his wife
could be forgiven for not realising that it was merely bravado.
[111] The appellant’s conduct on 16 and 17 April 2007 is not to be viewed in
isolation from the earlier events. While those earlier events set out in
paras (a) – (d) of para [5] of these reasons are not the subject of the acts

comprising the stalking offence because they occurred more than six
months before the date of the complaint, nevertheless they are not to be
ignored for sentencing purposes. They provide the context in which the
relevant conduct of stalking occurred. Those earlier events demonstrate
that when the appellant engaged in the relevant conduct on 16 and 17 April
2007, he intended to intimidate the victim and to instil in the victim a
belief that he would carry out his threats. That earlier conduct also
demonstrates why, from the perspective of the victim and his wife, the
actions of the appellant on 16 and 17 April 2007 were not isolated acts of no concern to the victim or his wife. From the perspective of the victim, the appellant was continuing his course of intimidatory conduct which the

victim had every cause to believe posed a genuine threat to his wellbeing
and that of his wife.
[112] As to the assault, again the acts of the appellant that constitute the assault

are to be viewed in the context of the earlier conduct of the appellant.
Given the earlier intimidatory conduct carried out over a number of
months, the threat by the appellant with the knuckleduster was not a minor
offence. The appellant used a dangerous weapon and deliberately set out to
intimidate and put fear into the victim. He was successful in scaring the
victim who feared physical violence and harm.
[113] As the Magistrate observed, the ongoing campaign of intimidation in which
the appellant engaged did not end voluntarily. It took the arrest of the
appellant and strict bail conditions to end it. The appellant has shown no indication of any remorse. At the time of sentencing by the Magistrate in
February 2008, his Honour observed that the behaviour of the appellant had
produced a “profound effect” on the lives of the victim and his wife and
they had not been able to move on. I do not have any information as to the
progress or otherwise of the victims in recovering from their ordeal.
[114] In mentioning these matters, I emphasise that the appellant is not to be

sentenced for an ongoing campaign of intimidation. He is to be sentenced
for the offence of stalking comprised of the conduct on 16 and 17 April
2007, but viewed in the context of the earlier intimidatory conduct. He is

to be sentenced for the facts of the assault, but also in that same context. I
mention these matters to emphasise that the conduct for which the
appellant is to be sentenced was not trivial conduct carried out by way of
bravado. It was serious intimidatory conduct through which the appellant
sought to intimidate and put fear into the victim and it was conduct that
had significant adverse effects upon the victim and his wife.
[115] As to matters personal to the appellant, he was born in Western Australia

and is now aged 43 years. The appellant has worked most of his adult life
in the construction and farming industries. As at February 2008 he was
working as a mango farmer outside Katherine.
[116] The appellant has been married for over 20 years and he and his wife have
four adult children. As at February 2008 they owned a home in Katherine

and both the appellant and his wife were working in order to meet their
mortgage commitments.
[117] In September 2006 the appellant was convicted of assault and fined $800.
That assault occurred in August 2006 at about the same time that the

appellant commenced his course of conduct against the victim. That
offence also concerned a person who the appellant believed was part of a
group responsible for the decision that resulted in the appellant’s son’s
employment at Woolworths being terminated.
[118] It was put to the Magistrate that the appellant and his family had moved on

and the appellant found his few days in custody a “harrowing and sobering event”. I accept that the appellant is determined to get on with his life, but personal deterrence remains a factor in the exercise of the sentencing
discretion. As I have said, the appellant has shown no remorse and there is

no basis upon which I can find that he has a proper insight into the nature
of his actions and why his conduct was totally unacceptable.
[119] On the charge of stalking, I impose a sentence of four months
imprisonment. In respect of the offence of assault, s 78BA of the
Sentencing Act requires that I must order that the offender serve a term of

actual imprisonment or a term that is suspended partly but not wholly. I
impose a sentence of imprisonment for one month and direct that the
sentence be served concurrently with the sentence imposed for the offence
of stalking.
[120] I direct that the sentences commence on 26 April 2009 in order to reflect
the three days that the appellant has already served by way of custody. The

sentence will be suspended from today and the operational period of
suspension for the purposes of the Sentencing Act is 12 months from today.
It is a condition of the suspension that for the operational period the
appellant not assault, harass or intimidate the victim, the victim’s wife or
any member of the victim’s immediate family or the wider family of the
victim and the victim’s wife, namely, their parents, siblings or children of
their siblings.
[121] As I have said, in arriving at these sentences I have put aside entirely the

evidence that the appellant threatened to kill the victim and members of his
family. If the offence of threatening to kill is proven, in the context in
which it occurred, that offence was the most serious offence committed by the appellant and had the greatest adverse impact upon the victims. If the
appellant is convicted of the threat to kill, the sentencing court will be
entitled to take into account the total context in which the crime was
committed in the knowledge that the facts of that crime and its particular
impact upon the victims have not been taken into account by me.

[1] [2008] NTCA 9.

[2] Moore v Haynes [2008] NTCA 9 at [31].

[3] (2005) 15 NTLR 208 at 227.

[4] (1976) 27 FLR 79.

[5] Pioch v Lauder (1976) 27 FLR 79 at 81.

[6] Pioch v Lauder (1976) 27 FLR 79 at 81.

[7] [2005] WASCA 1. An appeal to the High Court was dismissed: Bounds v R (2006) 228 ALR 190.

[8] Bounds v The Queen [2005] WASCA 1 at [120].

[9] (Unreported, Western Australian Court of Criminal Appeal, Franklyn, Nicholson and Ipp JJ,

10 November 1992).

[10] (2005) 15 NTLR 208 at [63] – [101].

[11] (2005) 15 NTLR 208 at 227.

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Citations

Ellis v Balchin [2009] NTSC 17

Most Recent Citation

Crowson v Millar [2014] NTSC 61

Cases Citing This Decision

2

O’Neill v Rankine and Westphal v Foster [2015] NTSC 24

Crowson v Millar [2014] NTSC 61

Cases Cited

9

Statutory Material Cited

0

AM v The Queen [2006] NTCCA 18

Birkeland-Corro v Tudor-Stack [2005] NTSC 23

Moore v Haynes [2008] NTCA 9

PARTIES:	ELLIS, Martin Anthony
v
BALCHIN, Vivien Lynette
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:	JA18 of 2008 (20710545)
DELIVERED:	29 April 2009
HEARING DATES:	26, 27 February and 24 March 2009
JUDGMENT OF:	MARTIN (BR) CJ
APPEAL FROM:	Mr M Carey SM
CATCHWORDS:

Appellant:	Withnalls, Barristers & Solicitors
Respondent:	Office of the Director of Public Prosecutions
Judgment category classification:	B
Judgment ID Number:	Mar0902
Number of pages:	53
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Count 1 (information	Between 12 August 2006 and 17 April	Guilty
22 August 2007)	2007 at Katherine did stalk Grant Dickens (s 189(2) Criminal Code)
Count 2 (complaint	On 16 April 2007 drove a vehicle on	Not
22 August 2007)	Holtze Crescent and Callistemon Drive at	Guilty
Katherine in a manner dangerous to the public (s 30(1) Traffic Act).
Count 3 (complaint	On 16 April 2007 in the same locality	Guilty
22 August 2007)	drove without due care (reg 18 Traffic Regulations).
Count 4 (complaint	On 16 April 2007 behaved in an offensive	Guilty
22 August 2007)	manner in a public place, namely, outside 37 Holtze Crescent Katherine (s 47(a) Summary Offences Act).
Count 5 (information	On 16 April 2007, with intent to cause	Guilty
22 August 2007)	fear, made a threat to kill Grant Dickens and Neroli Dickens which threat was of such a nature as to cause fear to any person of reasonable firmness and courage (s 166 Criminal Code).
Count 6 (complaint	On 16 April 2007 unlawfully assaulted	Guilty
29 August 2007)	Grant Dickens (s 188(1) Criminal Code).
Count 7 (complaint	On 17 April 2007 drove a vehicle on	Guilty
22 August 2007)	Chambers Drive, Maluka Drive and
Callistemon Drive at Katherine in a
manner dangerous to the public (s 30(1) Traffic Act).
Count 8 (complaint	On 17 April 2007 in the same locality	Not
22 August 2007)	drove without due care (reg 18 Traffic	Guilty
(alternative to count	Regulations).
7)

(a)	Commencing in the latter half of 2006 at a time when the victim had
not met the appellant, on a number of occasions the appellant paced up and down outside the checkout area of the Woolworths store in Katherine with the intention of intimidating the victim.
(b)	On a Sunday in the latter half of 2006 the appellant drove slowly past

(c)	Toward the end of 2006, as the victim and a fellow employee were
leaving the Woolworths store, the appellant approached them and, in a threatening manner with his left hand clenched beside him, said “I

“(i)	because it did not indicate the authority by which the respondent signed the Indictment; and
(ii)	because on its face it failed to state whether the Indictment was on oath or affirmation; and
(iii)	because the respondent failed to swear or affirm the Indictment before a Justice of the Peace.”

(a)	any alleged defect therein, in substance or in form; or
(b)	any variance between it and the evidence adduced in its support at the preliminary examination or at the hearing (as the case may be):

(a)	that the defendant has been prejudiced by the defect or variance; or
(b)	that the information or complaint fails to disclose any offence or matter of complaint.”

(a)	fails to disclose any offence or matter of complaint, or is otherwise defective; and
(b)	ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect,

•	The statutory scheme provides different procedures for the disposal of
charges on complaint and information. Summary procedures follow for charges on complaint. Charges on information may proceed to a preliminary examination and committal for trial or sentence on indictment

[2009] NTSC 17

29/04/2009