Malogorski v Kidd - [2012] NTSC 58

--Malogorski v Kidd [2012] NTSC 58
PARTIES: MALOGORSKI, Mark
v

KIDD, James

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 20 of 2012 (21102146)
DELIVERED:   10 August 2012
HEARING DATES:   31 July and 01 August 2012
JUDGMENT OF:   RILEY CJ

REPRESENTATION:
Counsel:
Appellant:   L Wilson
Respondent:   L Bennett
Solicitors:
Appellant:   Office of the Director of Public Prosecutions
Respondent:   Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:   Ril1212
Number of pages:   10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Malogorski v Kidd [2012] NTSC 58

No. JA 20 of 2012 (21102146)
BETWEEN:

MARK MALOGORSKI

Appellant

AND:

JAMES KIDD

Respondent

CORAM: RILEY CJ
REASONS FOR JUDGMENT
(Delivered 10 August 2012)

On 6 March 2012 charges against the respondent of assault, resist police and trespass were dismissed in the Court of Summary Jurisdiction. This is a Crown appeal against the verdict in relation to the charge of assault.
The charges arose out of an incident that occurred on 25 November 2010. There was no challenge by the respondent to the description of events provided by the witnesses for the prosecution. On that night the respondent went to a house in Millner where he ingested two "little tabs of acid". Sometime later he and a friend smoked "a joint of marijuana". The friend gave evidence that thereafter the respondent "just snapped" and began to act alternately aggressively and then remorsefully. When aggressive he would lash out violently at his friend. When remorseful he would apologise and ask "what is going on”? This happened "over and over". An effort was made to get the respondent to sleep but he would not calm down and the time between violent episodes became shorter. He was throwing things around, smashing things and "running everywhere". The friend gave evidence that the respondent then ran "full bore out the gate down the street". At that point the friend called the police.
The respondent ran into the yard of a house occupied by the female victim, JM. She observed the respondent in the yard and described him as being very agitated. She asked him to leave and he refused. She threatened to call the police and the respondent then lunged towards her and punched her two or three times in the face. When she raised her hands to block the blows he hit her on the top of the head. The respondent then grabbed his victim and threw her so that she landed several feet away. She lost consciousness for a short period and then escaped into the house intending to call the police.
Shortly thereafter the police arrived. When JM emerged from the house to talk to police the respondent saw her, became angry and "took a swing" at her striking her to the side of her face with the inside of his arm. The police immediately restrained and arrested the respondent.
The reasons for decision
The…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Malogorski v Kidd

Details

AGLC: Malogorski v Kidd [2012] NTSC 58
Case: [2012] NTSC 58
Decision Date: 10 August 2012

CaseChat Overview and Summary

In the case of Malogorski v Kidd, the respondent was charged with assaulting the appellant by striking her to the side of her face. The incident occurred when the respondent, having consumed LSD, attacked the appellant while she was speaking to the police. The respondent was subsequently arrested. The dispute centred on whether the respondent's actions were voluntary and whether he had the requisite intent or foresight to be held criminally responsible for the assault. The case was heard in the Local Court of New South Wales.

The court had to determine three key legal issues: whether the respondent's actions were voluntary, whether he had the necessary intent to commit the assault, and whether he had the requisite foresight as defined in section 31 of the Crimes Act. The defence argued that the respondent's intoxication negated the voluntariness, intent, or foresight required for criminal liability. The court examined the evidence presented, including medical evidence regarding the respondent's state of intoxication, and concluded that there was a reasonable doubt that the respondent's actions were voluntary and that he lacked the necessary intent and foresight.

The magistrate found that while the respondent's intoxication was voluntary, the evidence raised a reasonable doubt about the voluntariness of his actions. The court held that once such doubt was raised, the prosecution had the burden of proving beyond reasonable doubt that the respondent acted voluntarily. Additionally, the court found that the defence had sufficiently raised doubts about the respondent's intent and foresight, and that the prosecution failed to disprove these doubts. Therefore, the court dismissed the charge against the respondent.

The final orders of the court were that the charge against the respondent be dismissed due to the reasonable doubts raised by the defence regarding the respondent's voluntariness, intent, and foresight.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Shortly thereafter the police arrived. When JM emerged from the house to talk to police the respondent saw her, became angry and "took a swing" at her striking her to the side of her face with the inside of his arm. The police immediately restrained and arrested the respondent. The reasons for decision The learned magistrate determined that at the time of the incident the respondent was intoxicated and that his intoxication was voluntary. His Honour observed that there was a good deal of evidence as to the state of intoxication of the respondent, including medical evidence. In ex tempore reasons for decision his Honour stated that the respondent was:... behaving in a totally incredible fashion, to say the least, and certainly not acting in a way that is consistent with rational behaviour, highly irrational behaviour following the ingestion of what the court is told was LSD. The magistrate identified the thrust of the defence case in the following terms:The defence case essentially is that the acts of the defendant on the night in question were not voluntary or if voluntary, were not intentional or alternatively were not reckless; that is to say that the actions were not accompanied by foresight in the terms expressed in section 31 of the Code. The defence (relied) upon intoxication as a circumstance that negates the requisite voluntariness, intention or foresight. In so doing his Honour noted that the defence had raised three issues in relation to which doubt existed. The first was whether the conduct of the respondent was voluntary. The second was whether the respondent had the necessary intent. The third was whether the respondent had the requisite foresight. His Honour went on to conclude:So in this particular case, in my view, the prosecution (has) not established that the behaviour was voluntary. There is a real doubt on the evidence before me that his behaviour was voluntary on the night in question. Once that is raised, it is clear at law the prosecution carry the burden of removing any reasonable doubt about the issue of voluntariness. But even if I am wrong, assuming that I am wrong on that first step, in my view the defence (has) raised a reasonable doubt that Mr Kidd had the requisite intent and once raised it is then up to the prosecution to prove beyond reasonable doubt that he had the requisite intent. I believe they have failed to do that. Alternatively, there having been a doubt raised as to the requisite foresight, in my view, that having been raised it is then up to the prosecution to establish the necessary foresight in terms of s 31(1).[1] In my opinion the prosecution (has) failed to do that. So the effect of my decision is that although I have found the intoxication to have been voluntary, in my view the defence (has) raised sufficient evidence to answer the evidential presumption and as I am required in Charlie's case [2]to consider not only the evidential presumption but all of the other evidence including the evidence as to intoxication, I can't be satisfied that on the night in question Mr Kidd acted with the necessary mental elements and for those reasons, the charge must be dismissed.The law

Ratio Decidendi

Legal Principle Established

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