R v Booth
[2021] ACTSC 31
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Booth |
Citation: | [2021] ACTSC 317 |
Hearing Date: | 23 June 2021 |
DecisionDate: | 23 June 2021 |
Before: | Mossop J |
Decision: | See [14] |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Aggravated burglary – common assault – where assault counts were included as ex officio charges on the indictment – interpretation of s 277 of the Crimes Act 1900 (ACT) – aggravated burglary charge cannot be characterised as an offence against the person for the purposes of the Crimes Act 1900 (ACT) – assault charges cannot be included on the indictment |
Legislation Cited: | Crimes Act 1900 (ACT), pts 2, 3, 4, ss 108 – 114, 277, 375, 379, 380 Crimes Act 1900 (NSW), s 110 Legislation Act 2001 (ACT), ss 126, 190 |
Parties: | The Queen (Crown) Stancy Booth (Accused) Bonnie Booth (Accused) Melanie Booth (Accused) Richard Booth (Accused) Sharniesha Booth (Accused) |
Representation: | Counsel T Hickey (Crown) K Musgrove (Stancy Booth) J Moffett (Bonnie Booth) B Morrisroe (Melanie Booth) J De Bruin (Richard Booth) A Doig (Sharniesha Booth) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Stancy Booth) Tim Sharman Solicitors (Bonnie Booth) David Healy Solicitors (Melanie Booth) Legal Aid ACT (Richard Booth) Daryl Perkins Solicitors (Sharniesha Booth) | |
File Numbers: | SCC 174, 175, 176, 177, 178, 179, 180, 182, 202 & 203 of 2019 |
MOSSOP J:
Stancy Booth, Bonnie Booth, Melanie Booth, Richard Booth and Sharniesha Booth have been charged with various offences on a joint indictment dated 21 June 2021. The five co-accused are to be tried before a jury. The empanelment of the jury was due to commence this morning. Prior to the empanelment of the jury, counsel for Stancy Booth made a challenge to the indictment, insofar as it included counts 2, 3, 4, 5, 6, 7 and 8. Each of those counts were counts of assault which had been included by the Director of Public Prosecutions on the indictment as ex officio charges. Counts 3, 6 and 8 were counts that were mirrored by transfer charges of common assault. There was no challenge to count 1 on the indictment, which was a charge of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT).
Counsel for Stancy Booth, joined by those representing each of the other accused, made the submission that it was not legally open to include the ex officio charges of common assault on the indictment, having regard to the fact that they were not indictable offences. Notwithstanding that this issue had been apparent to the parties prior to today, the matter was raised immediately prior to the empanelment of the jury. Unless the jury panel was to be put off to another day, it was an issue which required an immediate ruling. No written submissions were provided. Brief oral submissions were made. Only counsel for the Crown made some brief reference to the history of the relevant provision.
I observe that the manner in which this issue has proceeded is completely unsatisfactory. If parties wish to raise an issue about the form of the indictment, particularly one which raises an issue of statutory interpretation involving an examination of the legislative history, they should do so in a way that allows the issue to be dealt with without keeping a large jury panel waiting. Further, the parties should be in a position to provide proper assistance to the court which, in a case like this, would necessarily have involved some proper examination of the legislative history of the relevant provisions.
The argument articulated by counsel for the accused, Stancy Booth, was that the common assault charge was punishable on conviction by imprisonment for two years only. Section 190 of the Legislation Act 2001 (ACT) defines an “indictable offence” as an offence which is punishable by imprisonment for longer than two years or is declared by an ACT law to be an indictable offence. Neither of those conditions apply to the charge of common assault. Section 277 of the Crimes Act 1900 (ACT) provides that “[i]n an indictment for an offence against the person, if the offence includes an assault, a count may be added for the assault”. A heading to a chapter, part or division of an Act is said by s 126 of the Legislation Act to be part of the Act. The submission was that an offence against the person in s 277 should be interpreted by reference to the headings that exist in the Crimes Act, which includes a heading “Offences against the person”, which is the heading to part 2 of the Crimes Act. It was submitted that the expression should not be understood as extending to a charge of aggravated burglary in s 312 of the Criminal Code.
Counsel for the Crown submitted that the words 'offence against the person' should not be interpreted by reference to the headings in the Act. He pointed out that if they were interpreted in that way, they would now exclude sexual offences in what is now part 3 of the Crimes Act. He made reference to three cases relating to the operation of s 375 of the Crimes Act which considered the scope of the words 'relates to'. Quite properly, he pointed to the fact that common assault had previously been an indictable offence.
The definition of “indictable offence” was amended by the Crimes Legislation Amendment Act 2008 (ACT) so as to change the definition so that it required the maximum penalty be longer than two years, rather than longer than one year as it had been previously. That was a matter which tended against the Crown's argument because it indicated that the purpose of s 277 may have been to avoid the need for a committal, rather than to permit summary offences to be dealt with as if indictable.
Section 277 was previously s 380 of the Crimes Act. It existed at the commencement of the Crimes Act 1900 (NSW) (the 1900 Act), which was subsequently applied in the Territory. Section 380 was derived from s 316 of the Criminal Law Amendment Act 1883 (NSW) (the 1883 Act). Section 316 provided:
In every case not capital counts may be inserted in the same indictment against the same person for any number of distinct offences of the same kind not exceeding three committed against the same party Provided that no more than six months have elapsed between the first and last of such offences And in every indictment for an offence against the person not being capital where such offence includes an assault a count may be added for such assault.
Section 380 of the Crimes Act, as enacted, provided:
In an indictment for an offence against the person, not being capital, where such offence includes an assault, a count may be added for such assault.
The annotations in the official print of the 1900 Act refer back to s 316 of the 1883 Act. Section 379 of the Crimes Act provided:
In an indictment for rape, or an unnatural crime, or an attempt to commit the same, a count may be added for an indecent assault.
As at 1900, part 3 of the Crimes Act had the heading “offences against the person'. It included homicide, conspiracy to murder, attempts to murder, letters threatening to murder, acts causing danger to life, possessing explosives with intention to injure a person, assaults upon clergymen, officers and others, common assault, rape and similar offences, unnatural offences, attempts to procure abortion, concealing the birth of a child, abduction, and bigamy. Part 4 of the Act included, “offences relating to property”. Included in this part was, “sacrilege, burglary, and housebreaking”. That part included ss 108 to 114, which related to burglary and breaking and entering offences.
It is clear, in my view, that when enacted, the reference to an “offence against the person” in s 380 was not intended to cover burglary. Section 110 of the 1900 Act was an offence of breaking or entering a dwelling house, or assaulting with intent to murder any person, or inflicting grievous bodily harm on that person. The penalty for that was death and, hence, it was clearly outside the scope of s 380. The clarity of the position has broken down as a result of the change in the structure of the Crimes Act. Most obvious is the movement of many sexual offences to a separate chapter and the movement of property offences to the Criminal Code, in particular chapter 3 and part 3.2 of the Code.
It is likely that the legislature has never considered whether s 277, which is the renumbered s 380, should be amended to accommodate these changes. It has just been left there as a remnant of the original Crimes Act. The section must be interpreted having regard to the legislation as a whole as it presently stands, and the context in which that legislation exists. In those circumstances it is not, in my view, possible to confine the term “offence against the person” to only those offences which appear in part 2 of the Act. To do so would fail to have regard to the fact that many sexual offences formerly within that part have been moved elsewhere in the Crimes Act.
It would make little sense to interpret the expression “offence against the person” rigidly by reference to a chapter heading when what are in substance offences against the person, and which were previously included in part 2, have been moved and re-enacted in somewhat different forms elsewhere in the Crimes Act. Having said that, the words “offence against the person” must be given some meaning. In my view, the expression draws a distinction between those offences which are directed to physical harm or the invasion of autonomy of a person's body and those the gravamen of which are directed to property. That reflects the distinction made in the 1900 Act.
Although the offence of burglary may involve an intent to cause harm or threatening to cause harm, it is properly characterised as an offence directed to property, rather than an offence against the person. In the particular circumstances of this case, I do not consider that the allegation that an assault may have occurred is sufficient to permit burglary or an aggravated burglary charge to be characterised itself as an offence against the person. For those reasons, s 277 of the Crimes Act does not permit the addition of the counts of common assault to the indictment.
[Submissions from the Crown were heard as to what consequential order should be made. The indictment was amended to remove the counts of common assault].
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 22 December 2021 |
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