Police v Izod - [2008] NTMC 32

CITATION: Police v Izod [2008] NTMC 032

PARTIES: GAVIN KENNEDY

IAN IZOD

TITLE OF COURT: COURT OF SUMMARY JURISDICTION

JURISDICTION: Criminal

FILE NO(s): 20631086

DELIVERED ON: 6 May 2008

DELIVERED AT: Darwin

HEARING DATE(s): 22 February 2008

JUDGMENT OF: Dr John Allan Lowndes

CATCHWORDS:
CRIMINAL LAW – GOING ARMED IN PUBLIC – MEANING OF EACH OF THE OFFENCE ELEMENTS – CASE TO ANSWER
Criminal Code (NT) s 69
Parmbuck v McMaster [2005] NTSC 72 Applied
R v Anderson [1910] QWN 19 Considered
R v Hildebrandt [1964] Qd R 43 Considered
R v Bennett [1998] 2 Qd R 174 Applied
Australasian Performing Right Association Ltd v Cth Bank of Australia (1992) 111 ALR 671 Considered
R v Campbell (unreported 5.4.90) Considered
Morrisons Holdings Ltd v Inland Revenue Commissioner (1996) 1 ALL ER 789 Applied
Jennings v Stephens [1936] Ch 469 Applied
R v Sharp; Sharp v Johnson [1957] QB 552 Applied

REPRESENTATION:
Counsel:
Prosecution: Mr A Woodcock
Defendant: Ms J Truman
Solicitors:
Prosecution: Woodcock Solicitors
Defendant: John Toohey Chambers
Judgment category classification: A
Judgment ID number: [2008] NTMC 032
Number of paragraphs: 53

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20631086
[2008] NTMC 032

BETWEEN:

GAVIN KENNEDY
Prosecutor

AND:

IAN IZOD
Defendant

REASONS FOR DECISION

(Delivered 6 May 2008)

Dr John Allan Lowndes SM:
THE CHARGE
1. The defendant has been charged with an offence contrary to s 69 of the Criminal Code (NT), to wit:
“Did go armed in public, namely with a firearm, without lawful occasion and in such a manner as to cause fear to a person of reasonable firmness and courage”.
2. At the close of the prosecution case I found a case to answer. That ruling was given on 7 March 2008. Given the somewhat unusual circumstances of this case and the paucity of law in relation to the subject offence, I indicated that I would give written reasons for finding a case to answer. Those reasons are contained herein.
THE EVIDENCE IN THE PROSECUTION CASE
3. Mrs Hayne gave evidence that on 26 May 2006 she saw the defendant enter private property owned by herself and her husband. At that time Mrs Hayne and her two children along with an invitee, Mr Devereux, were on the said property. While on the said property the defendant removed a rifle from the boot of his vehicle. He then approached Mrs Haynes and Mr Devereux, in a crouched position, carrying the rifle in a horizontal position. He appeared to be ready to use the firearm. Fearing for the safety of her two children, Mrs Hayne started moving towards the defendant imploring him to put the rifle down. Mrs Hayne said that she was “absolutely terrified” that the defendant might accidentally shoot her two children who were off to the side. It was only when Mrs Hayne identified herself that the defendant put the rifle away.
4. During cross–examination it was put to Mrs Hayne that she had told Sergeant…

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 Police v Izod

Details

AGLC: Police v Izod [2008] NTMC 32
Case: [2008] NTMC 32
Decision Date: 6 May 2008

CaseChat Overview and Summary

The matter before the Court is an application by the defendant, Ian Izod, to discharge him from a charge laid under s 69 of the Criminal Code (NT) for going armed in public. The defendant was charged with going armed in public with a firearm, without lawful occasion, in such a manner as to cause fear to a person of reasonable firmness and courage. The defendant contends that the Court should dismiss the charge because there was insufficient evidence to establish a case to answer. The Magistrate found that the prosecution had established a case to answer on each of the three elements of the offence.

The Magistrate explained that to go armed in public means to be armed in a manner that is accessible to or observable by members of the public. The Magistrate found that the defendant's conduct occurred in the presence of Michelle Hayne, her two children, and Greg Devereux, who were members of the public for the purposes of the offence. The Magistrate also found that the prosecution had established a case to answer in relation to the element of "without lawful occasion". Although the defendant had provided an explanation for his conduct, the Magistrate found that a jury properly instructed could be satisfied beyond reasonable doubt that the defendant's conduct was without lawful occasion. Finally, the Magistrate found that the evidence was sufficient to establish that the defendant's conduct caused fear to a person of reasonable firmness and courage.

The Magistrate concluded that the prosecution had established a case to answer on each of the elements of the offence and that there was no basis to discharge the defendant from the charge. The Magistrate refused the defendant's application to be discharged from the charge.

Orders