The King v Swan (No 2) - [2024] NTSC 94

CITATION:The King v Swan (No 2) [2024] NTSC 94
PARTIES:THE KING
v

SWAN, Rebecca

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22037672
DELIVERED:  9 October 2024
HEARING DATE:  9 October 2024
JUDGMENT OF:  Grant CJ
REPRESENTATION:
Counsel:
Crown:  A Lonergan
Accused:C Voumard with D Gorry
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:  Northern Territory Legal Aid Commission
Judgment category classification:     C
Judgment ID Number:  Gra2415
Number of pages:  4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
The King v Swan (No 2) [2024] NTSC 94
No. 22037672

BETWEEN:

THE KING

AND:

REBECCA SWAN

CORAM: GRANT CJ
EDITED REASONS FOR DECISION
(Delivered ex tempore on 9 October 2024)

The defence asserts that the offences charged in counts 2 and 3 of the indictment breach the rule against duplicity. The defence has made application to stay those counts on the indictment until the prosecution elects the precise formulation of the charges. That is, in effect, an application for the stay of the prosecution generally.
Neither count in the indictment patently alleges the commission of two or more offences. The duplicity asserted in this case is latent in nature in that it is said to arise because the evidence in respect of a single charge reveals the possible commission of two or more offences. So far as the serious harm charge is concerned, the two possible offences are the infliction of serious harm by smashing the glass and causing damage to the soft tissue of the complainant’s eyeball by the entry of shards and/or the infliction of serious harm by striking the complainant directly to the face causing facial fractures. So far as the reckless endangerment charge in the alternative is concerned, the two possible offences are constituted, again, by smashing the glass and/or striking the complainant directly with the bat.
There is an exception to the rule against duplicity where the alleged conduct has occurred so close in space and time that it may be viewed as a single composite activity, or an activity of a continuing nature. That is no doubt the case which presents here, but the prosecution has clearly put its case on the basis that there are two possible formulations of the offences charged. Those two possibilities arise both in terms of the conduct said to have caused the harm or the reckless endangerment in question, and the nature of the harm involved. The Crown has not made any election which would cure that duplicity in formulation. In the absence of that election, the question becomes whether a fair trial is possible in the circumstances.
This is not a case where the evidence reveals a single offence for which the jury may be able to convict on several alternate legal bases, such as in a homicide case where there are a number of alternative legal pathways to guilt. As stated, this is a case in which the evidence reveals two…

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 The King v Swan (No 2)

Details

AGLC: The King v Swan (No 2) [2024] NTSC 94
Case: [2024] NTSC 94
Decision Date: 9 October 2024

CaseChat Overview and Summary

The case of The King v Swan (No 2) was heard in the Supreme Court of the Northern Territory. The defendant, Rebecca Swan, was charged with offences which the defence argued were duplicative in nature, violating the rule against duplicity. Specifically, the defence contended that counts 2 and 3 of the indictment were not clearly distinct, potentially resulting in a single act being considered as two separate offences. The defence applied to stay these counts until the prosecution clarified which specific offence it intended to pursue, effectively seeking a general stay of the prosecution.

The court had to determine whether the charges against Swan were indeed duplicative and, if so, whether this duplicity could be remedied through jury directions. The court found that the charges did not patently allege the commission of two or more offences but that the duplicity was latent, arising from the evidence suggesting two possible offences for each count. The court considered whether the alleged conduct could be viewed as a single composite activity or a continuing act, but concluded that the prosecution had presented the case as involving two distinct possibilities. The Crown had not made any election to clarify the charges, leaving the question of whether a fair trial was possible under these circumstances.

The court held that while the duplicity could be addressed through jury directions, the risk of a compromised verdict remained due to variations in the evidence for each potential offence. However, given the clear nature of the offences and the lack of evidentiary prejudice to the defence, the court determined that jury directions would be sufficient to ensure a fair trial. The court directed the jury to agree unanimously on the specific act constituting the offence and the form of serious harm involved before convicting. Consequently, the application for a stay of prosecution was dismissed.

The court's final orders included directions to the jury to ensure unanimous agreement on the specific act and the form of harm involved in each count before convicting. This ruling allowed the trial to proceed while safeguarding the defendant's right to a fair trial.

Orders