Nunn v KS
[2023] ACTMC 52
•21 August 2023
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 Crimes Act.
6․In this matter, the prosecution makes representation to the effect that these charges are not matters that can properly be disposed of summarily, while the defendant makes representations to the effect that they are charges that can properly be disposed of summarily.
7․A preliminary matter arises in respect to nine of the charges that are ‘summary only’. That is, that the Supreme Court only has jurisdiction in respect to these charges if they are either ‘backup’ or ‘related offences’ and are transferred to the Supreme Court pursuant to s 90B of the Magistrate Court Act 1930 (ACT).
8․The prosecution submits that the summary only charges, which are charges of common assault contrary to s 26 of the Crimes Act and have a maximum penalty of 2 years imprisonment, are either backup charges in respect to three of them, and related offences as defined in s 68CA of the Supreme Court Act 1933 (ACT) (Supreme Court Act) for six of the charges. The defence accepts the characterisation of three of them as backup charges but submits that the contended related charges do not fall within the definition for such an offence.
9․This preliminary issue requires resolution as the decision may have a bearing on whether the prosecution maintained a representation that the summary/indictable charges ought to be committed to the Supreme Court for trial.
Related Offences
10․The preliminary question then is whether six of the common assault charges are related offences. This is determined by whether the summary offences “arise from substantially the same circumstances as those from which the first indictable offence has arisen”: s 68CA(b) of the Supreme Court Act. The ‘first indictable offence’ meaning an indictable offence: s 68CA of the Supreme Court Act.
11․In R v Klobucar (No 4) [2016] ACTSC 348 at [57] (Klobucar (No 4)), Penfold J emphasised that related offences are defined “in relation to” indictable offences and that such an offence must bear the specified relationship to a particular indictable offence. Her Honour said at [58]:
Section 90B does not in my view permit the transfer to the Supreme Court, when an accused is committed for trial on an indictable offence, of all other outstanding charges which the accused happens to be facing, merely because they are summary or capable of being dealt with summarily and irrespective of their connection or lack of connection with the indictable offence committed for trial.
I considered this a useful starting point for this matter.
12․In Klobucar (No 4), her Honour was considering weapons charges that her Honour viewed as capable, to an extent, of satisfying the definitions, but her Honour was not necessarily convinced of this. The circumstances there were that it was ultimately unnecessary for her Honour to determine the matter.
13․Justice Refshauge applied what was said in Klobucar (No 4) in R v McMahon (No 2) [2017] ACTSC 299 and found that a failure to appear charge in connection with a Supreme Court sentence matter was not a related offence. His Honour said at [22]:
Whatever the expedience or efficiency of having the one court deal with offences that have a connection with each other, that does not give the court jurisdiction. Only the statute does that.
Summary Charges
14․Viewed globally, it is apparent that there is a common allegation of family violence committed during the course of a relationship. However, it is appropriate to consider the summary charges individually, and in doing so, I make the following observations –
(a)The first of the summary offences is the first in time allegation, alleged to have been committed on 23 July 2006. The closest in time indictable offence to which it could be related is an allegation of choking, and a backup charge of common assault on 19 July 2008. The alleged offending in the 2006 charge occurs after the alleged verbal abuse, after which the defendant allegedly twisted the complainant’s arm. The closest in time, potentially related, indictable offence alleges, again, a verbal fight followed by physical assaults being alleged.
(b)The next in time summary offence occurs after that alleged indictable act, with the second summary charge contended to be related, arising from an alleged assault in November 2010. There are then alleged indictable acts of violence in March and December 2012. Applying the meaning of “first indictable offence”, the summary charges can be said to relate to any of the indictable offences. The ACT legislation does not require identification as to which specific indictable offence is said to be the offence to which the summary charge is related.
(c)The alleged indictable offences in 2012 involve threats to kill, occurring in a context of a verbal argument, and during which physical assaults are also alleged to have occurred.
(d)In 2014, two of the alleged summary acts occurred, followed by an act alleged to be a summary/indictable charge, involving assault occasioning actual bodily harm. The alleged offending in 2014 involves, again, verbal arguments leading to alleged physical violence.
(e)The final two charges involve alleged offending in January and February 2017, and involve the two remaining summary charges that are contended to be related to an indictable offence. Again, the allegation is of verbal arguments escalating to physical violence.
(f)The material relied upon by the prosecution in relation to this application otherwise includes the statement of the complainant which alleges acts of violence occurring in Queensland and Melbourne, and other times during the entire period of the alleged offending.
Consideration
15․The situation here can be significantly contrasted from that in the R v Barker [2014] ACTSC 374, in which Refshauge J described common assault charges as being appropriately transferred as they were “inextricably linked” to the indictable charges in a circumstance where the summary and indictable charges all arose from the same incident said to have occurred on the same day. Here, the contended related charges occurred within years of each other and within years of the indictable allegations.
16․This situation is not dissimilar to the situation that arose in R v Mehajer (No. 2) [2023] NSWDC 151 (R v Mehajer (No. 2), in which Bennett SC DCJ considered an application to remit related offences for hearing in the NSW Local Court. The legislative provisions in NSW that provide for the transfer of summary charges are largely identical to the ACT provisions. In particular, that it is an offence “that arises from substantially the same circumstances as those from which the first indictable offence has arisen”. There is a distinction in the NSW provision in that a certificate must be produced by the prosecution, a procedural step that is not required in the ACT, although incidentally would be of benefit to the court in identifying which indictable charges it is said the summary charge is a backup or related to.
17․Another distinction when applying R v Mehajer (No. 2) is that the court there was concerned with the question of whether it was in the “interests of justice” for the District Court to determine the summary charges. A similar consideration could arise for the Supreme Court here, pursuant to s 68D of the Supreme Court Act, if the charges are transferred. In Mehajer (No. 2), the court considered matters such as appeal opportunities and court efficiency in making its decision. However, these considerations are not what this court is called to consider or determine. It will be a matter for the Supreme Court in due course to consider the applicable provision of Pt 8 (whether as currently in effect or as in effect in 2013) of the Supreme Court Act, and the authority of R v Raymond (No 1) [2014] ACTSC 122, as relied upon by the defendant, if the charges are committed and transferred.
18․In R v Mehajer (No. 2), the court was satisfied that summary charges committed in 2020 were appropriately regarded as related offences where the summary charges were a contravention of orders relating to a domestic violence situation. The trial indictment alleged offences of violence between 2018 and 2020. Bennett SC DCJ was satisfied that the summary offences arose “from substantially the same circumstances as those of the indictable offences”.
19․The prosecution submits that the determination here of what is meant by “arises from substantially the circumstances” is a low threshold and is not restricted to a temporal consideration. I accept this submission, having regard to what was said by the NSW Supreme Court in considering the legislative history of a similar NSW provision in DPP (NSW) v Sinton [2000] NSWSC 473 at [21] (DPP v Sinton), that the provisions are intended to encompass “a wide coverage” of offences. Justice O’Keefe in DPP v Sinton also observed that there are benefits to an accused person from the provisions as they enable an accused person to make forensic decisions in a context where they are aware of all outstanding charges.
20․Otherwise, the NSW authorities, again, considering the similar provisions, make the point that the use of the provisions “serve the efficient administration of justice’”: see: DJ v R [2017] NSWCCA 319 at [61], and Jibran v R [2020] NSWCCA 86.
21․I do not accept the prosecution’s submission that the summary charges, having a characteristic of “contributing towards tendency and relationship evidence”, establishes them as related offences. The evidence in respect of the summary charges will, subject to any applications to be made, be admissible on that basis whether they are charges within the court’s jurisdiction or not. I am also hesitant to apply the meaning of a similar phrase from a context of severance or joinder applications as submitted by the prosecution that this court should do, given the determination here is concerned with an interpretation of a distinct statutory phrase with its own legislative history. However, equally, this court must be hesitant in applying the NSW authorities to which I have referred.
Determination
22․The essential issue to determine comes back to whether the summary charges “arise from substantially the same circumstances as those from which the indictable offence or offences have arisen”.
23․I am satisfied that they do. Irrespective as to whether the law categorises the alleged offending as a summary or indictable, or summary/indictable charge, the allegations involve contended acts of assault and threats committed during the course of a domestic relationship that spanned from 2004 to 2017. The relationship between the defendant and the complainant is inextricably part of the allegations regardless of the charge or incident, and while there is a level of remote temporality across the charges, there is a proximity of circumstance and a similarity in alleged conduct. The summary charges arise from substantially the same circumstances as the indictable offences.
Order
24․The determination of the court on the preliminary issue is that the relevant six summary only charges fall within the definition of related offences pursuant to s 68CA of the Supreme Court Act.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of a revision from a transcript of the oral reason for decision of her Honour Special Magistrate Christensen delivered in court. Associate: Susie Kim Date: 22 May 2024 |
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