--Malogorski v Kidd [2012] NTSC 58

 

PARTIES:                                         MALOGORSKI, Mark

 

                                                         v

 

                                                         KIDD, James

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA 20 of 2012 (21102146)

 

DELIVERED:                                   10 August 2012

 

HEARING DATES:                           31 July and 01 August 2012

 

JUDGMENT OF:                              RILEY CJ

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     L Wilson

    Respondent:                                  L Bennett

 

Solicitors:

    Appellant:                                     Office of the Director of Public Prosecutions

    Respondent:                                  Northern Territory Legal Aid Commission

 

Judgment category classification:    B

Judgment ID Number:                       Ril1212

Number of pages:                             10



 IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Malogorski v Kidd [2012] NTSC 58

No. JA 20 of 2012 (21102146)

 

 

                                                     BETWEEN:

 

                                                     MARK MALOGORSKI

                                                         Appellant

 

                                                     AND:

 

                                                     JAMES KIDD

                                                         Respondent

 

CORAM:     RILEY CJ

 

REASONS FOR JUDGMENT

 

(Delivered 10 August 2012)

 

[1]       On 6 March 2012 charges against the respondent of assault, resist police and trespass were dismissed in the Court of Summary Jurisdiction. This is a Crown appeal against the verdict in relation to the charge of assault.

[2]       The charges arose out of an incident that occurred on 25 November 2010. There was no challenge by the respondent to the description of events provided by the witnesses for the prosecution. On that night the respondent went to a house in Millner where he ingested two "little tabs of acid". Sometime later he and a friend smoked "a joint of marijuana". The friend gave evidence that thereafter the respondent "just snapped" and began to act alternately aggressively and then remorsefully. When aggressive he would lash out violently at his friend. When remorseful he would apologise and ask "what is going on”? This happened "over and over". An effort was made to get the respondent to sleep but he would not calm down and the time between violent episodes became shorter. He was throwing things around, smashing things and "running everywhere". The friend gave evidence that the respondent then ran "full bore out the gate down the street". At that point the friend called the police.

[3]       The respondent ran into the yard of a house occupied by the female victim, JM. She observed the respondent in the yard and described him as being very agitated. She asked him to leave and he refused. She threatened to call the police and the respondent then lunged towards her and punched her two or three times in the face. When she raised her hands to block the blows he hit her on the top of the head. The respondent then grabbed his victim and threw her so that she landed several feet away. She lost consciousness for a short period and then escaped into the house intending to call the police.

[4]       Shortly thereafter the police arrived. When JM emerged from the house to talk to police the respondent saw her, became angry and "took a swing" at her striking her to the side of her face with the inside of his arm. The police immediately restrained and arrested the respondent.

The reasons for decision

[5]       The learned magistrate determined that at the time of the incident the respondent was intoxicated and that his intoxication was voluntary. His Honour observed that there was a good deal of evidence as to the state of intoxication of the respondent, including medical evidence. In ex tempore reasons for decision his Honour stated that the respondent was:

... behaving in a totally incredible fashion, to say the least, and certainly not acting in a way that is consistent with rational behaviour, highly irrational behaviour following the ingestion of what the court is told was LSD.

[6]       The magistrate identified the thrust of the defence case in the following terms:

The defence case essentially is that the acts of the defendant on the night in question were not voluntary or if voluntary, were not intentional or alternatively were not reckless; that is to say that the actions were not accompanied by foresight in the terms expressed in section 31 of the Code. The defence (relied) upon intoxication as a circumstance that negates the requisite voluntariness, intention or foresight.

[7]       In so doing his Honour noted that the defence had raised three issues in relation to which doubt existed. The first was whether the conduct of the respondent was voluntary. The second was whether the respondent had the necessary intent. The third was whether the respondent had the requisite foresight. His Honour went on to conclude:

So in this particular case, in my view, the prosecution (has) not established that the behaviour was voluntary. There is a real doubt on the evidence before me that his behaviour was voluntary on the night in question. Once that is raised, it is clear at law the prosecution carry the burden of removing any reasonable doubt about the issue of voluntariness. But even if I am wrong, assuming that I am wrong on that first step, in my view the defence (has) raised a reasonable doubt that Mr Kidd had the requisite intent and once raised it is then up to the prosecution to prove beyond reasonable doubt that he had the requisite intent. I believe they have failed to do that. Alternatively, there having been a doubt raised as to the requisite foresight, in my view, that having been raised it is then up to the prosecution to establish the necessary foresight in terms of s 31(1).[1] In my opinion the prosecution (has) failed to do that. So the effect of my decision is that although I have found the intoxication to have been voluntary, in my view the defence (has) raised sufficient evidence to answer the evidential presumption and as I am required in Charlie's case [2]to consider not only the evidential presumption but all of the other evidence including the evidence as to intoxication, I can't be satisfied that on the night in question Mr Kidd acted with the necessary mental elements and for those reasons, the charge must be dismissed.

The law

[8]       The most serious offence with which the respondent had been charged was that he assaulted his victim contrary to s 188(2)(a) of the Criminal Code. This is the only offence which is the subject of appeal. The fault element relevant to such a charge is found in s 31 of the Code.[3] Section 31 is in the following terms:

(1) A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct.

(2) A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct.

[9]       In the present case it was necessary for the prosecution to establish that the respondent intended the act which constituted the alleged assault upon JM, being the application of force to her without her consent.[4] The intoxication of the respondent was relevant to determine the intent of the respondent at the time.

[10]     Section 7 of the Criminal Code provides that in all cases where intoxication may be regarded for the purposes of determining whether a person is guilty or not guilty of an offence it shall be presumed that, until the contrary is proved, the intoxication was voluntary and it shall be presumed evidentially that the accused person foresaw the natural and probable consequences of his conduct. There is no challenge to the finding of his Honour that the respondent was intoxicated at the time of the incident and that the intoxication was voluntary.

The submissions of the appellant

[11]     Before dealing with the principal submission made on behalf of the appellant I address an issue raised in the course of argument. In the reasons for decision the magistrate discussed the fact that the respondent had consumed a drug, apparently LSD or a substance of that type, and whether there was any evidence that he had previous experience with the drug and whether it would predispose him to violent behaviour. His Honour concluded that there was no evidence in this regard. It was submitted on behalf of the appellant that his Honour incorrectly considered this issue and that doing so led him into error. In my opinion a fair reading of the ex tempore reasons for decision delivered by the magistrate makes it plain that his Honour identified the issue of whether the respondent had a predisposition to violence when under the influence of the particular drug, resolved it by concluding there was no evidence to that effect and then put the issue to one side. The suggestion that his Honour incorrectly considered the issue in his final determination and that it somehow led him into error is not made out.

[12]     The principal submission made on behalf of the appellant was that the magistrate erred in the application of s 31 of the Criminal Code and in his consideration of whether the acts of the respondent were shown to be voluntary. It was acknowledged that the onus rested upon the prosecution to establish the physical and mental elements of the assault. The physical element that constituted the offence was the application of force by the respondent to JM and the onus rested upon the prosecution to prove that the application of force was voluntary. It was accepted that intoxication has the potential to render the actions of a person involuntary; however there is an evidentiary presumption that the conduct of an intoxicated person is voluntary. It was submitted that in this case the evidence was not capable of supporting a finding that the acts of the accused were not voluntary or, further, that the respondent did not have the necessary intention or foresight.

[13]     In relation to the impact of the intoxication of the respondent the appellant referred to the observations of Barwick CJ in The Queen v O'Connor [5]where his Honour discussed the fact that the state of drunkenness or intoxication of an individual can vary greatly in degree. The Chief Justice observed that a person may be intoxicated in the sense that his personality has changed or his self-control weakened "so that whilst intoxicated to this degree he does act voluntarily and intentionally which in a sober state he would or might not have done". Except in cases of a crime of specific intent "the fact that the state of intoxication has prevented the accused from knowing or appreciating the nature and quality of the act which he is doing will not be relevant to the determination of guilt or innocence." His Honour then went on to discuss a more serious state of intoxication. His Honour observed:

But the state of intoxication may, though perhaps only rarely, divorce the will from the movements of the body so that they are truly involuntary. Or, again, and perhaps more frequently, the state of intoxication, whilst not being so complete as to preclude the exercise of the will, is sufficient to prevent the formation of an intent to do the physical act involved in the crime charged.

[14]     It was submitted on behalf of the appellant that in the present case the available evidence was not capable of establishing that the respondent was intoxicated to the extent that the movements of his body were truly involuntary. Further it was argued that the evidence of intoxication did not establish intoxication so complete as to prevent the formation of an intent on the part of the respondent to do the physical acts which together constituted the assault upon JM. Reference was made to evidence suggesting the contrary including:

a)        the evidence of the friends of the respondent that he acted aggressively towards them and then was apologetic for what he had done, suggesting he was aware of the nature of his physical actions; and

b)        the evidence that the respondent first attacked JM in response to her threat to call the police, she then left to call the police, the police arrived and when JM reappeared the respondent immediately became angry, tried to attack her and succeeded in striking her, all of which indicated a series of voluntary acts on the part of the respondent and an intention on his part to attack JM as an identified individual.

[15]     In dealing with the mental element of the offence the magistrate confirmed the finding that the intoxication was voluntary. The magistrate discussed s 31 of the Criminal Code and stated that it was necessary for the prosecution to establish that the respondent foresaw as a possible consequence of his bodily movements that an act of assault would occur. His Honour said that:

People can't be held responsible purely for bodily movements; they have to have the accompanying intent and foresight. And so if you happen to strike somebody and use bodily movements to do that, unless you have foreseen as a possible consequence of your conduct that that bodily movement would constitute an act of assault, then you cannot be held criminally responsible.

[16]     The magistrate held that the prosecution had not satisfied the onus of proof on this issue. The appellant accepted that the test posed by the magistrate was an appropriate test in this regard. However the appellant complained that his Honour did not go on to apply that test. His Honour did not identify the acts which were said to constitute the assault, being the initial punching of the victim to her head and then, upon her covering up, punching her to the top of the head, followed by throwing her to the ground and, finally, striking her in the presence of the police officers. His Honour did not address the evidentiary issues identified by the appellant suggesting relevant awareness on the part of the respondent.[6] His Honour did not make relevant findings of fact and did not disclose a basis for concluding that the prosecution had not established that the respondent had the relevant intent or foresight.

[17]     In relation to the physical element of the assault the appellant complained that, again, his Honour did not identify the acts that constituted the physical element of the assault and did not consider whether those were voluntary in light of the identified evidence. A review of the ex tempore reasons for decision does not reveal how the magistrate addressed the physical element of each of the actions said to constitute the assault nor the basis upon which his Honour concluded that the prosecution had not established that the acts were voluntary.

[18]     In the reasons for decision the learned magistrate did no more than make observations as to the bizarre conduct of the respondent at times on the night in question. His Honour did not identify the individual acts alleged to constitute the assault upon JM. There was no attempt to analyse the physical acts of the respondent and determine whether, in the light of all of the surrounding circumstances, those acts were the voluntary acts of the respondent. There was no consideration of the thought processes of the respondent at the time of those acts nor whether they were intended. There was no consideration of whether the respondent had the requisite foresight in all the circumstances. The magistrate simply made reference to the bizarre conduct of the respondent without considering how that impacted upon the issues of voluntariness, intent and foresight regarding the physical acts which were said to constitute the assault.

[19]     It is settled law that, generally speaking, magistrates are required to state their findings of fact and the reasons for decision in sufficient detail to enable the parties to understand the basis of the verdict.[7] A failure to give adequate reasons is an error of law. It is not necessary for there to be a detailed examination of the evidence or a minute explanation of every step in the reasoning process but the obligation is to state generally and at least briefly the grounds which have led the magistrate to the conclusions reached and to list the findings on the principal contested issues.[8]

[20]     In my opinion the appeal must be allowed. Whilst I bear in mind that this was an ex tempore decision, and making due allowance for that fact, the learned magistrate has not disclosed his reasoning process and has not dealt with the vital issues. The matter should be remitted to the magistrate to deal with the matter according to law.

_______________________



[1] Section 31(1) of the Criminal Code.

[2] Charlie v The Queen (1998) 7 NTLR 148

[3] S 188 of the Criminal Code is not a Schedule 1 offence and, therefore, Part 11AA of the Code does not apply.

[4] Definition of "assault" contained in s 187 of the Criminal Code.

[5] The Queen v O'Connor[1979-1980] 146 CLR 64 at 71-72.

[6] Par 14

[7] Mobassa v Dunkley  [1987] NTSC 35.

[8] Powell v Winzar [2002] NTSC 7; O’Brien v Northern Territory of Australia [2003] NTCA 04.