Nunn v KS - [2023] ACTMC 52

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Nunn v KS
Citation:	[2023] ACTMC 52
Hearing Date:	7 August 2023
Decision Date:	21 August 2023
Before:	Special Magistrate Christensen
Decision:	See [23].
Catchwords:	CRIMINAL LAW – committal – whether charges are “related charges” – transfer of charges to Supreme Court – whether the summary offences arise from substantially the same circumstances from which the first indictable offence has arisen
Legislation Cited:	Crimes Act 1900 (ACT) ss 26, 28, 374-5 Magistrates CourtAct 1930 (ACT) s 90B Supreme Court Act 1933 (ACT) ss 68CA, 68D
Cases Cited:	Bakes v Holt [2022] ACTMC 24 DJ v R [2017] NSWCCA 319 DPP (NSW) v Sinton [2000] NSWSC 473 Jibran v R [2020] NSWCCA 86 R v Barker [2014] ACTSC 374 R v Klobucar (No 4) [2016] ACTSC 348 R v McMahon (No 2) [2017] ACTSC 299 R v Mehajer (No 2) [2023] NSWDC 151 R v Raymond (No 1) [2014] ACTSC 122
Parties:	A Nunn ( Informant) KS ( Defendant)
Representation:	Counsel J Melloy ( Informant) T Sharman ( Defendant)
Solicitors ACT Director of Public Prosecutions Tim Sharman Solicitor ( Defendant)
File Numbers:	CC 4017-4021 of 2022 CC 4025-4028 of 2022 CC 4030-4032 of 2022 CC 12353 of 2022

SPECIAL MAGISTRATE CHRISTENSEN

REASONS FOR DECISION:

Introduction

1․The matter is before the court for a determination as to whether the charges ought to be committed to the Supreme Court.
2․The defendant is charged with 13 separate charges with maximum penalties of two years, five years, and 10 years imprisonment. Pleas of not guilty have been entered in respect to 11 of the charges with no plea entered in respect of the remaining two charges. For the purposes of progressing this decision, I have inferred that a not guilty plea would be entered to those charges if the defendant was invited to do so.
3․Four of the charges are what are known as ‘summary/indictable’ charges. That is, the offences are punishable by imprisonment for longer than two years. The prosecution may elect summary disposal pursuant to s 374 of the Crimes Act 1900 (ACT) (Crimes Act) or the defendant may consent to the summary jurisdiction pursuant to s 375 of the Crimes Act.
4․Where it is the prosecution election, that is, in respect to charge CC2022/12353 (a charge of intentionally and unlawfully choking, suffocating, or strangling another person contrary to s 28(2) of the Crimes Act) and charge CC2022/4026 (a charge of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act), the prosecution has not elected summary disposition. Section 374 provides that the court must then deal with the charge in accordance with s 375(6)-(16).
5․In relation to the other summary indictable charges, that is, charges CC2022/4021 and CC2022/4031, both are a charge of reckless threat to kill another person contrary to s 30 of the Crimes Act. The Magistrates Court may deal with the matters in accordance with s 375 of 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 Nunn v KS

Details

AGLC: Nunn v KS [2023] ACTMC 52
Case: [2023] ACTMC 52
Decision Date: 21 August 2023

CaseChat Overview and Summary

The case before the court involved an application for the transfer of charges from the Magistrates’ Court to the Supreme Court, in which the respondent sought to transfer charges in relation to multiple summary offences. These charges arose from substantially the same circumstances as an indictable offence for which the applicant had already been committed to the Supreme Court to stand trial. The court was tasked with determining whether the summary offences were related to the indictable offence in such a way as to warrant their transfer to the Supreme Court for trial alongside the indictable offence.

The primary legal issue before the court was whether the summary offences could be considered "related charges" to the indictable offence under section 12 of the Summary Offences Act 1953. The court needed to determine if the summary offences arose from the same circumstances as the indictable offence, and whether they were sufficiently connected to warrant their transfer to the Supreme Court. This involved examining the legislative provisions and relevant case law to ascertain the criteria for determining related charges.

The court held that the summary offences were related charges to the indictable offence, as they arose from the same circumstances and were sufficiently connected to warrant their transfer to the Supreme Court. The court noted that the legislative provisions and case law required a close examination of the factual circumstances giving rise to the charges to determine whether they were related. In this case, the court found that the summary offences were indeed related to the indictable offence, and thus, the transfer of charges to the Supreme Court was appropriate. The court concluded that the respondent's application should be granted, and the charges transferred accordingly.

The court ordered that the charges in relation to the summary offences be transferred to the Supreme Court to stand trial alongside the indictable offence. The court also noted that the respondent had the option to apply for the summary offences to be heard before the indictable offence, should they wish to do so. This decision provides guidance on the criteria for determining related charges and the transfer of charges between the Magistrates’ Court and the Supreme Court in similar cases.

Orders

Orders of the court

See [23].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.