The Queen v Whittington - [2006] NTCCA 4

The Queen v Whittington [2006] NTCCA 04
PARTIES:THE QUEEN

v
WHITTINGTON, Robert Gregory

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: RESERVATION OF A POINT OF LAW PURSUANT TO S 408 OF THE CRIMINAL CODE
FILE NO:20304540
DELIVERED:  1 March 2006
HEARING DATES:  8 November 2005
JUDGMENT OF:  MILDREN, RILEY & SOUTHWOOD JJ
CATCHWORDS:

CRIMINAL LAW – practice and procedure – charges of manslaughter and dangerous act – four shots fired in quick succession – one bullet caused death – Crown unable to identify which shot caused the death – whether one act or four separate acts – whether charge bad for latent duplicity – defendant intends to raise authorisation – whether Crown obliged to provide particulars of why act not authorised
Criminal Code, Part 1, s 2, s 23, s 24, s 26, s 26(1)(b), s 27, s 28, s 29, s 31, s 31(2), s 33, s 154, s 163, s 305, s 305(1), s 305(3), s 311, s 313, s 408
Archbold, Criminal Pleading, Evidence and Practice, 44^th edition, Sweet & Maxwell, London, 1995
Director of Public Prosecutions v Merriman [1973] AC 584; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; R v Chapman (2001) 214 LSJS 319; applied
Hoessinger v R (1992) 62 A Crim R 146; Johnson v Miller (1937) 59 CLR 467; Walsh v Tattersall (1996) 188 CLR 77; distinguished
Greenfield (1973) 57 Cr App R 849; Johnson v Miller (1937) 59 CLR 467; Pearce v The Queen (1998) 194 CLR 610; R v Buckett (1995) 79 A Crim R 302; R v Haslet & Anor (1987) 50 NTR 17; R v Morton (2001) 11 NTLR 97; R v S [2000] 1 Qd R 445; Saffron (No 1) (1988) 36 A Crim R 262; Stanton v Abernathy (1990) 48 A Crim R 16; The King v Weaver (1931) 45 CLR 321; The Queen v Juraszko (1967) Qd.R 128; referred to
REPRESENTATION:
Counsel:
Crown:J. Tippett QC/D. Lewis
Accused:M. Abbott QC/I. Rowbottom
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Withnalls
Judgment category classification:    B
Judgment ID Number:  Mil 06368
Number of pages:  29

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Whittington [2006] NTCCA 04

No. 20304540

IN THE MATTER of Criminal Code s 405 and
IN THE MATTER of a reservation of point of law stated by the Supreme Court of the Northern Territory in an application by the accused to quash or stay the indictment for the opinion of the Court of Criminal Appeal
BETWEEN:

THE QUEEN

Crown

AND:

ROBERT GREGORY WHITTINGTON

Accused

CORAM: MILDREN, RILEY & SOUTHWOOD JJ
REASONS FOR JUDGMENT
(Delivered 1 March 2006)
Mildren J:

This is a reservation of a point of law formulated for the opinion of the Court of Criminal Appeal in pursuance of s 408 of the Criminal Code.
The accused stands charged with one count of manslaughter and…

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 Whittington

Details

AGLC: The Queen v Whittington [2006] NTCCA 4
Case: [2006] NTCCA 4
Decision Date: 1 March 2006

CaseChat Overview and Summary

The case of *The Queen v Whittington* concerned charges of manslaughter and dangerous act. The prosecution alleged that the defendant fired four shots in quick succession, one of which caused the death of the victim. A central difficulty for the Crown was its inability to identify which specific shot was the fatal one. The defendant sought to raise the defence of authorisation.

The legal issues before the court were whether the indictment was bad for latent duplicity, given the uncertainty as to which of the four shots constituted the dangerous act or the act causing death. The court also had to determine whether the Crown was obliged to provide particulars of why the act in question was not authorised, in circumstances where the defendant intended to raise authorisation as a defence.

The court held that the indictment was not bad for latent duplicity. It reasoned that the four shots fired in quick succession could properly be considered a single act for the purposes of the charges. The court applied principles established in cases concerning the nature of a single act for criminal liability, particularly where a series of actions are closely connected in time and intent. Regarding the particulars of authorisation, the court found that the Crown was not obliged to provide such particulars. The onus remained on the defendant to establish the defence of authorisation, and the Crown was not required to anticipate and negate every possible basis for such a defence in the indictment.

The court dismissed the appeal.

Orders