R v PJMS - [2011] NTSC 48

R v PJMS [2011] NTSC 48
PARTIES: THE QUEEN

v
PJMS

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   21013634
DELIVERED:   24 JUNE 2011
HEARING DATES:   9 JUNE 2011
JUDGMENT OF:   MILDREN J
CATCHWORDS:

CRIMINAL LAW – joinder of charges – assault charge joined with two counts of indecent dealing – whether properly joined – whether all counts should be severed – Criminal Code (NT) s 309(1), s 341
Criminal Code, s 309(1), s 341
R v Cogley [1999] 3 VR 366; R v Cranston (1988) 1 Qd R 159; followed
Carr v The Queen (2001) 206 CLR 221; De Jesus v The Queen (1986) 61 ALJR 1; R v Mulkatana [2009] NTSC 52; Sutton v The Queen (1984) 132 CLR 528; referred to
REPRESENTATION:
Counsel:
Crown:   T McNamee
Defendant:   P Maley
Solicitors:
Crown:   Office of the Director of Public Prosecutions
Defendant:   Maleys
Judgment category classification:    B
Number of pages:   6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v PJMS [2011] NTSC 48

No 21013634
BETWEEN:

THE QUEEN

Crown

AND:

PJMS

Defendant

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 24 June 2011)

The accused in this case was charged with three counts on the same indictment.
Counts 1 and 2 both alleged an indecent dealing with CAS, a child under the age of 16 years. Count 3 alleged a charge of aggravated unlawful assault upon CAS.
After hearing submissions, I ruled that count 3 was improperly joined with counts 1 and 2. It was submitted that counts 1 and 2 were also improperly joined. I rejected that submission. Counsel for the accused asked me to sever counts 1 and 2 in exercise of my powers under s 341 of the Code. I declined to sever count 2 from count 1. I provided brief reasons at the time and said that I reserved the right to publish more complete reasons at a later time.
These are those reasons.
Joinder of Charges
The general rule is that except as otherwise expressly provided by the Criminal Code an indictment must charge one offence against one person.[1]
Section 309 of the Criminal Code provides that:
(1)Charges for more than one offence may be joined in the same indictment against the same person, whether he has been proceeded against separately or with another or others, if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.
The facts which the Crown were relying upon in relation to count 1 were essentially that in about November 2008 the child was visiting the accused pursuant to an arrangement under which the accused had access to the child over a weekend. The accused lived with his parents in a separate flat on the same land.…

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 PJMS

Details

AGLC: R v PJMS [2011] NTSC 48
Case: [2011] NTSC 48
Decision Date: 24/06/2011

CaseChat Overview and Summary

The defendant, PJMS, was charged with three counts: two counts of indecent dealing with a child under 16 years of age, and one count of aggravated unlawful assault on the same child. The Supreme Court of the Northern Territory was tasked with determining whether the charges were properly joined under the Criminal Code and whether any of the counts should be severed. Mildren J held that the charge of aggravated unlawful assault was not properly joined with the indecent dealing charges, as it was neither of the same nor a similar character. However, the indecent dealing charges were properly joined, as they were based on similar facts and circumstances. Despite the potential for prejudice to the defendant due to the joinder, the judge decided against severing the charges, considering the convenience of trying the charges together and the weaker evidence on one of the indecent dealing charges. The decision underscores the importance of balancing the rights of the defendant with the interests of justice and the practical considerations of the trial process.

Orders