The Queen v Eugenio Kurungaiyi [2005] NTSC 25

[Back to Main List] [Back to NTSC 2005 List]

The Queen v Eugenio Kurungaiyi [2005] NTSC 25

PARTIES: THE QUEEN

v

EUGENIO KURUNGAIYI

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: SCC 20210644

DELIVERED: 7 June 2005

HEARING DATES: 9 May 2005

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

CRIMINAL LAW – PROSECUTION

Form of Indictments; Defective Indictments; Quashing of an Indictment; Circumstances of Aggravation; Unlawful Entry; Common Assault; Intent to Commit an Offence

Criminal code (NT) Sections 213(1), (2), (3), (4), (5), (6); Sections 188(1), (2)

R v Mardday & Ors (1998) 7 NTLR 192 (applied); O’Brien v Fraser (1990) 66 NTR 9 (referred to)

REPRESENTATION:

Counsel:
Plaintiff: Ms R Brebner
Defendant: Mr S O’Connell

Solicitors:
Plaintiff: Office of the Director of Public Prosecutions
Defendant: Northern Territory Legal Aid Service

Judgment category classification: A
Judgment ID Number: Sou 0503
Number of pages: 11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Eugenio Kurungaiyi [2005] NTSC 25
No. SCC 20210644

BETWEEN:

THE QUEEN
Plaintiff

AND:

EUGENIO KURUNGAIYI
Defendant

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 7 June 2005)

The Application
[1] On 9 May 2005, immediately before a jury was to be empanelled and the trial of Eugenio Kurungaiyi was due to start on an indictment dated 8 September 2004, Ms Brebner, counsel for the Crown, withdrew the indictment dated 8 September 2004 and filed a fresh indictment dated 9 May 2005. Ms Brebner told the Court that the Crown and the accused disputed whether Count 1 of the indictment was defective. I then heard argument about whether the indictment was formally defective. The argument culminated in a further indictment dated 9 May 2005 (which suffered from similar defects to the original indictment dated 9 May 2005) being filed by the Crown and an application by the accused pursuant to section 339 of the Criminal Code (NT) to quash Count 1 of the indictment. I then quashed Count 1 of the indictment.
[2] On the application of the Crown, I then vacated the trial dates for Count 2 of the indictment and adjourned the matter for mention on 31 May 2005. On that date the matter was further adjourned until 7 June 2005. My reasons for quashing Count 1 of the indictment are as follows.
The Indictment
[3] Counts 1 and 2 of the indictment dated 9 May 2005 (document 15) were pleaded by the Crown as follows:
“The Director of Public Prosecutions for the Northern Territory of Australia, charges that

Eugenio Kurungaiyi

Count 1

Between 9 May 2002 and 10 May 2002 at Port Keats in the Northern Territory of Australia, unlawfully entered a building, namely a dwelling house situated on Lot 261 Port Keats Community, with intent to commit an offence therein

AND THAT the unlawful entry involved the following circumstance of aggravation, namely,

(i) that the offence intended to be committed therein was a crime, namely, assault, accompanied by the following circumstances of aggravation
(a) that Dominic Dumoo would suffer bodily harm;
(b) that Dominic Dumoo would be unable to effectively defend himself due to the situation,
(ii) that the building was a dwelling house,
(iii) that the offence occurred at night-time.

Section 213(1),(2),(4) and (5) read with section 188(1) and (2)(a) and (d) of the Criminal Code

Count 2

Between 9 May 2002 and 10 May 2002 at Port Keats in the Northern Territory of Australia, unlawfully assaulted Dominic Dumoo

AND THAT the unlawful assault involved the following circumstances of aggravation, namely,

(i) that Dominic Dumoo suffered bodily harm,
(ii) that Dominic Dumoo was unable to effectively defend himself due to the situation.

Section 188(1) and (2)(a), (d) of the Criminal Code.”

The Issue
[4] The central issue in the application was whether pursuant to subsection 213(4) of the Criminal Code, a person may be charged in a count in an indictment with unlawfully entering a building with intent to commit a common assault with circumstances of aggravation.

[5] In my opinion a person cannot be so charged. Such a charge in an indictment is formally defective because it involves a fundamental departure from the essential requirements of section 213 of the Criminal Code. The intent which must be pleaded against a person charged with an offence pursuant to section 213 of the Criminal Code is intent to commit an offence for which criminal responsibility is imposed by the Criminal Code or some other law in force in the Northern Territory.

[6] The circumstances of aggravation created by subsection 188(2) of the Criminal Code are not elements of an offence of aggravated assault. Section 188(1) imposes criminal responsibility upon a person “who unlawfully assaults another”, that is, for the “act” of assault which is defined by section 187 of the Criminal Code. The events referred to in subsection 188(2) are not matters for which criminal responsibility is imposed by the creation of the offence pursuant to section 188. The circumstances of aggravation do no more than increase the penalty; they do not alter the nature of the charge. “Bodily harm” is not an event constituting the offence of assault nor is the circumstance of a victim being unable to effectually defend himself: R v Mardday & Ors (1998) 7 NTLR 192 at 197 per Bailey J.

[7] As is made plain by the use of the word, “offence” in subsections 213(5) and 213(6) of the Criminal Code, the use of the word, “crime”, in subsections 213(3) and 213(4) does not substantively differentiate those subsections from subsections 213(1) and 213(2) of the Criminal Code. Offences are of 3 kinds, namely, crimes, simple offences and regulatory offences: section 3 Criminal Code. The designation of the circumstances of aggravation created subsection 188(2) of the Criminal Code as crimes simply allows for the prosecution of an assault with circumstances of aggravation on indictment. The use of the word, “crime” in both subsections 188(2) and 213(4) does not make the circumstances of aggravation created by subsection 188(2) separate crimes for the purpose of subsection 213(4) of the Criminal Code.
[8] The above is not to say there are not offences created by the Criminal Code for which criminal responsibility is imposed for both the act and the event. For example, in a charge of murder, the Criminal Code imposes criminal responsibility for both the act and the event: R v Mardday and Ors (supra) at 197. A person may be charged pursuant to section 213 of the Criminal Code with unlawfully entering a building with intent to commit such an offence. In the present case the Crown could have charged the accused with unlawfully entering a dwelling house with intent to cause bodily harm to another (section 186 of the Criminal Code). The Crown elected not to do so.

[9] The circumstances of aggravation created by subsection 188(2) of the Criminal Code are not circumstances of aggravation of an offence contrary to section 213 of the Criminal Code. The circumstances of aggravation of an offence contrary to section 213 are contained in subsections 213(3) to (6) inclusive. Nor can section 369 of the Criminal Code be relied on to import into section 213 of the Criminal Code the circumstances of aggravation created by subsection 188(2) of the Code. For the reasons set out above, whether a person is guilty of an offence contrary to section 213(4) of the Criminal Code is not dependant upon proof of the specific events created by subsection 188(2). Section 188(2) of the Criminal Code does not create separate crimes. Nor are the circumstances of aggravation created by subsection 188(2) relevant to the proper punishment to be imposed upon a person being found guilty of an offence against subsection 213(4) of the Criminal Code.

[10] Count 1 of the indictment as currently pleaded is also duplicitous. While the Crown has pleaded as a circumstance of aggravation that the offence intended to be committed by the accused was an assault accompanied by circumstances of aggravation, the Crown has not otherwise particularised what offence the accused is said to have intended to commit at the time he unlawfully entered the dwelling house. The Crown has simply pleaded in the first paragraph of Count 1 of the indictment that the accused unlawfully entered a dwelling house with intent to commit an offence therein. Count 1 of the indictment charges the defendant with having committed two separate offences one of which is not specified.
The Argument on Behalf of the Accused
[11] I agree with the arguments made by Mr O’Connell, who appeared on behalf of the accused. He submitted that the Crown was required to particularise the offence that it was said the accused intended to commit at the time he entered the dwelling house. The Crown was not permitted to specify in its pleading, whether as a circumstance of aggravation or otherwise, that the accused unlawfully entered the dwelling house with intent to commit an aggravated assault as there is no such offence as an aggravated assault under the Criminal Code. The circumstances of aggravation specified in subsection 188(2) are not elements of an offence of aggravated assault: R v Mardday & Ors; O’Brien v Fraser (1990) 66 NTR 9. Under the Criminal Code there was simply an offence of common assault which may be committed with aggravating circumstances. Nor it was said could the Crown leave it open to the jury to find that the accused’s intent at the time he entered the dwelling house was to commit an aggravated assault. The circumstances of aggravation contained in section 188(2) of the Criminal Code could not be used as circumstances of aggravation for an offence contrary to section 213 of the Criminal Code. Section 213 creates a specific offence the mental element of which is intent to commit an offence upon entering a building. All of the circumstances of aggravation specified by section 213 of the Criminal Code exist at the time an accused enters the building. Circumstances of aggravation for other offences under the Criminal Code are not circumstances of aggravation of an offence contrary to section 213.

[12] The Crown was not entitled to pluck circumstances of aggravation from anywhere and fit them under section 213. It is not a circumstance of aggravation of an offence contrary to section 213 of the Criminal Code that the offence which was subsequently committed by the accused once inside the building was aggravated by events which occurred at the time of or after an offence was committed by the accused after he entered the building. In particular bodily harm which may be the result of the commission of an assault by an accused after he has entered a building is not a circumstance of aggravation of the offence created by section 213 of the Criminal Code.

[13] The Crown cannot have it both ways. If the Crown wanted to allege that the accused entered the dwelling house with the intent of committing bodily harm it was required to specify and plead that the accused entered the dwelling house with the intent to commit the offence of bodily harm that is created by section 186 of the Criminal Code. Under section 186, criminal responsibility is imposed by the Criminal Code for both the act and the event which flows from the act. Bodily harm which results from an assault that is committed after an accused has entered a building is not relevant to a charge under section 213. An offence contrary to section 213 of the Criminal Code is committed at the time the offender steps into the building and it is the offender’s intention at that time that is relevant.
The Argument on behalf of the Crown
[14] The Crown submitted that the indictment is not defective. The argument of Ms Brebner was not immediately easy to follow. At first she submitted,
“The Crown’s case is that, Eugenio Kurungaiyi, at the point of entry, intended to commit an aggravated assault. However, that’s a question of fact for the jury, what the relevant intent was at the point of entry, so the Crown has not alleged that in the indictment.”
[15] The reason for this Ms Brebner said was that the Court of Criminal Appeal’s decision in R v Mardday & Ors:
“States that the Crown cannot rely on circumstances of aggravation on that offence because they are not elements of that particular offence, it can only allege the offence itself, which in this case the Crown says the intention was to be the assault.”
[16] She continued,
“So what the Crown has done is framed Count 1 to include all the elements, the circumstances of aggravation relevant to section 213 which may then flow. If it is found by the jury that the relevant intention at the point of entry was to commit a crime for which the maximum penalty is greater than three years, for example, an aggravated assault for which the maximum penalty is five years…Essentially this means that there can be no maximum penalty stated at the outset for this offence because it will depend on whether the jury finds that the relevant intent at the point of entry was a simple offence or a crime.”
[17] At the outset Ms Brebner appeared to be conceding that because of the Court of Appeal’s decision in R v Mardday & Ors there was a difficulty in the Crown pleading in an indictment charging a count under section 213 of the Criminal Code that the accused intended to commit an aggravated assault at the time he entered the dwelling house as there was no such offence. However, at the same time the Crown appeared to be arguing that any such difficulty could be overcome by pleading as a mere circumstance of aggravation (rather than a substantive offence) that when the accused entered the dwelling house he intended to commit the crime of assault which was accompanied by various circumstances of aggravation. Presumably it was thought that in such a manner a valid distinction could be drawn between the substantive offence the Crown said the accused intended to commit at the time he entered the dwelling house (which as pleaded above did not infringe the Court of Appeal’s ruling in R v Mardday & Ors because it was left as a matter of fact for the jury and was not specified) and the circumstance of aggravation (aggravated assault) which if pleaded as the substantive offence potentially did infringe the principle enunciated in R v Mardday & Ors Such an approach it was said was akin to asking the jury for a special verdict in accordance with section 369 of the Criminal Code. However, for the reasons stated above the argument must be rejected. The circumstances of aggravation created by subsection 188(2) are not circumstances of aggravation of section 213 of the Criminal Code.

[18] In formulating its pleadings in relation to section 213 of the Criminal Code, the Crown appeared to be attempting to adopt a similar approach to that recommended by Asche CJ when pleading a common assault which was accompanied by the circumstances of aggravation stipulated in subsection 188(2) of the Criminal Code: O’Brien v Fraser (supra) at 17. Again for the reasons set out above this argument must be rejected.

[19] The Crown’s argument incorrectly assumes that for the purposes of subsection 213(4) of the Criminal Code there is a distinction between a “crime” and an “offence”. It ignores the fact that section 188(2) does not create separate crimes. The provision in subsection 188(2) that a person who is found guilty of a circumstance of aggravation is guilty of a crime merely allows for the prosecution of an assault with a circumstance of aggravation on indictment: R v Mardday and Ors at 195.