The Queen v Andrew Walker - [2019] NTSC 6

CITATION:The Queen v Andrew Walker [2019] NTSC 6
PARTIES:THE QUEEN

v
WALKER, Andrew

TITLE OF COURT:                   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NOs:21655453 & 21728729
DELIVERED ON:  30 January 2019
HEARING DATE:  10 December 2018
JUDGMENT OF:  Mildren AJ
CATCHWORDS:

Criminal law- historic offences – repealed legislation - maximum penalty prescribed two years - whether offence is an indictable offence - plea of no jurisdiction - whether plea made out.
Bail Act (NT) s 37D
Criminal Law Consolidation Act and Ordinance (NT) s 66, s 334
Criminal Code (NT) s 3, s 14(1), s 188(1) and (2) (c) and (k), s 298,
s 347, s 388(a), s 389(2), s 390, s 451
Criminal Code Act (NT) s 6(2)
Criminal Law and Procedure Act (NT) s 20
Director of Public Prosecutions Act s 38(1)
Interpretation (Criminal Code) Amendment Act (NT) s 4, s 38E
Interpretation Act (NT) s 3(3), s 12, s 17
Justice and Other Legislation Amendment Act 2014 s 4
Northern Territory Acceptance Act 1910 (Cth) s 7
Northern Territory (Self-Government) Act 1978 (Cth) s 57
Supreme Court Act (NT) s 14(1)(b)
Rodway v The Queen [1990] HCA 19 at [14]; (1990) 169 CLR 515 at 522;

Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 at 241; Dowler v Princes Securities Pty Ltd (1971) 1 SASR 578; referred to
Blackstone, Laws of England, Special Edition (1983) Vol IV, p 299, para II,
Kenny, Outline of Criminal Law, 6^th Edn, (1914) p 91, pp 93-100, p 421,
pp 454-454
Pearce, D. Interpretation Acts in Australia para [10.34]
Pearce and Geddes Statutory Interpretation in Australia paras [10.23]-
10.34]
REPRESENTATION:
Counsel:
Prosecution:  S Geary
Accused:T Collins
Solicitors:
Prosecution:  Office of the Director of Public Prosecutions
Accused:Central Australian Aboriginal Legal Aid Service
Judgment category classification:    B
Judgment ID Number:  Mil19551
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Andrew Walker [2019] NTSC 6
Nos. 21655453 & 21728729

BETWEEN:

THE QUEEN

AND:

ANDREW WALKER

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 30 January 2019)

Introduction
[1]The accused, Andrew Walker, is charged with five offences under the provisions of the Criminal Law Consolidated Act and Ordinance (the previous Act). Two of the counts (counts 1 and 5) allege that at certain times between 1981 and 1983, the accused indecently assaulted two girls namely, JF and CW, contrary to s 66 of the previous Act. The maximum penalty prescribed by the previous Act is imprisonment for two years. The previous Act did not specify that this offence is a felony, nor did it specify that it is a misdemeanour, although the other offences which were charged were characterised by the Act as one or the other. Historically, indictable offences were required to be either felonies (including treason) or misdemeanours[1]. The significance of this is that, unless an offence is indictable, there can be no trial by jury in relation to that offence.
[2]The charges…

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 Queen v Andrew Walker

Details

AGLC: The Queen v Andrew Walker [2019] NTSC 6
Case: [2019] NTSC 6
Decision Date: 30 January 2019

CaseChat Overview and Summary

The Queen, in this case represented by the Director of Public Prosecutions, sought to prosecute Andrew Walker for historic offences under repealed legislation. The court was required to determine whether the offence in question was indictable, and if the maximum penalty prescribed of two years was sufficient to classify it as such. Walker contested the prosecution by arguing that the offence was not indictable and that the court lacked jurisdiction to hear the case. The primary legal issue before the court was whether the offence constituted an indictable offence under the repealed legislation, and if the prescribed maximum penalty was adequate to classify it as such. The court also had to consider whether Walker's plea of no jurisdiction was valid.

The court examined the relevant legislation and determined that the offence in question was indeed indictable, as it carried a maximum penalty of two years imprisonment. The court found that the prescribed penalty was sufficient to classify the offence as indictable, and therefore, it had jurisdiction to hear the case. The court rejected Walker's plea of no jurisdiction, finding that the offence was properly classified as indictable under the repealed legislation. Consequently, the court found that the prosecution could proceed.

The final orders of the court were that the plea of no jurisdiction was dismissed, and the court found that it had jurisdiction to hear the case. The court ruled that the offence was indictable, and the prosecution could proceed as intended.

Orders