R v Booth - [2021] ACTSC 317

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 Criminal Code 2002 (ACT), ch 3, pt 3.2, s 312 Criminal Law Amendment Act 1883 (NSW), s 316 Crimes Legislation Amendment Act 2008 (ACT) 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…

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 R v Booth

Details

AGLC: R v Booth [2021] ACTSC 317
Case: [2021] ACTSC 317
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory dealt with an indictment involving multiple accused, who were charged with various offences including aggravated burglary and common assault. The challenge to the indictment arose when it was argued that counts of common assault could not be included on the indictment as ex officio charges, as they were not indictable offences. The court had to decide on the interpretation of section 277 of the Crimes Act 1900 (ACT) and whether it allowed for the inclusion of assault charges on an indictment for an offence against the person. The accused argued that section 277 should be interpreted by reference to the headings in the Crimes Act, which would exclude aggravated burglary, while the Crown argued that the interpretation should not be limited by the headings. The court examined the legislative history of section 277 and found that it was originally derived from a New South Wales statute, which did not include burglary within the definition of an offence against the person. The court concluded that section 277 did not permit the addition of counts of common assault to an indictment for aggravated burglary. The indictment was subsequently amended to remove the counts of common assault.

The court emphasised the importance of raising issues about the form of an indictment in a timely manner, allowing for proper examination of the relevant statutory provisions and providing proper assistance to the court. The court found that the interpretation of section 277 should draw a distinction between offences directed to physical harm or the invasion of autonomy of a person's body and those directed to property. The court held that aggravated burglary was properly characterised as an offence directed to property, rather than an offence against the person. Therefore, the inclusion of common assault charges on the indictment was not permitted under section 277 of the Crimes Act 1900 (ACT). The indictment was amended to exclude the counts of common assault, and the trial proceeded with the remaining charges.

Orders