Pederson v Hales

[2000] NTSC 74

Pederson v Hales [2000] NTSC 74

PARTIES:PEDERSON, Simon Victor

v

HALES, Peter William

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:JA 14 of 2000

DELIVERED:   6 September 2000

HEARING DATES:  1 August 2000

JUDGMENT OF:  MARTIN CJ

CATCHWORDS:

APPEAL

Criminal law – general matters – whether the criminal code impacts upon the common law doctrine of “transferred malice” or “transferred intent”.

Criminal Code Act 1983 (NT), s 189A

Brennan v The King (1936) 55 CLR 253 at 263, applied.
R v Barlow (1997) 188 CLR 1 at 31-33, applied.

REPRESENTATION:

Counsel:

Appellant:S Cox   

Respondent:  A Fraser

Solicitors:

Appellant:NTLAC

Respondent:  DPP

Judgment category classification:      B

Judgment ID Number:  mar20029

Number of pages:  3

Mar20029

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Pederson v Hales [2000] NTSC 74
No. JA 14 of 2000

BETWEEN:

SIMON VICTOR PEDERSON

Appellant

AND:

PETER WILLIAM HALES

Respondent

CORAM:    MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 6 September 2000)

1. Appeal against conviction.  This appeal was allowed, and the conviction quashed at the conclusion of submissions by counsel for each party that it should be.  The following are the reasons which I indicated I would give later.

2. The appellant was convicted of assault upon a police officer in the course of his duty (s 189A of the Criminal Code Act 1983 (NT)). The assault alleged was spitting. His Worship found that the appellant did not intend to spit on the police officer and did not foresee that he would do so as a consequence of his conduct. It was found beyond reasonable doubt that the appellant intended to spit upon another person, and that the spittle hit the police officer by accident.

3. The common law concept of “transferred malice” or “transferred intent” applies where an accused aims to hit A, but accidentally hits B, the intention in respect of one victim is transferred by legal fiction to another. His Worship was properly concerned to consider whether the Criminal Code had any impact on the common law doctrine, and after considering the Code and the law relating to Codes concluded that it did not. That led him to find the appellant guilty.

4. In that I consider he erred.

   “It is not the proper course to begin by finding how the law stood before the Code and then to see if the Code would bear an interpretation which will leave the law unaltered” per Dixon and Evatt JJ in Brennan v The King (1936) 55 CLR 253 at 263.

5. As to some of the general rules which have been established for the construction of provisions of a Code, see the judgment of Kirby J in R v Barlow (1997) 188 CLR 1 at 31 to 33, repeated in summary form in his Honour’s judgment in Charlie v R (1999) 162 ALR 463 at 466. As his Honour says, it is not uncommon for the Code, including in the area of criminal law, to introduce fundamental changes to the law.

6. There is no provision in the Criminal Code of general application adopting the common law principle of transferred intent. Where parliament intended the like notion should apply it has especially said so. For example, see s 162(1)(a) regarding the offence of murder in circumstances where the offender intends to cause the death of the person killed or some other person, or intends to do the person killed or to some other person, grievous harm.

7. Having dealt with the subject specifically, it seems to me that the parliament intended that it should not apply generally.

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