R v Jimmy Boungaru [FLR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Martin CJ
• Judgment Date: 13 May 1993
• Docket Number: No. 85 of 1992
• Date: 13 May 1993

(1993) 113 FLR 211

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Martin CJ

No. 85 of 1992

R

and

Jimmy Boungaru

Appearances not available

Indictments

JUDGE1

1 Martin CJ Upon the accused appearing before the Court on 19 April, an indictment was presented charging that on 24 May 1992 at Maningrida he murdered Robert Bruce. His counsel applied, before a plea was entered, to quash the indictment pursuant to s339 of the Criminal Code. It provides that the Court may quash, amend or stay proceedings on an indictment if it is shown that it is calculated to prejudice or embarrass the accused in his defence to the charge.

Martin CJ

2 It was claimed on behalf of the accused that prior to and during the course of the committal proceeding upon the charge of murder, his legal representative understood that the prosecutor would only be seeking to have him committed for trial for manslaughter. The committing magistrate did in fact only commit for manslaughter, but only after considering the material before him and in the light of the prosecutor's indication to him, after all the evidence was in, that he was not submitting that the accused ought to be committed for trial on a charge of murder, and counsel for the accused responding: ‘In those circumstances I have no submissions’.

3 The accused sought to establish in this application that it would be unfair to permit the Crown to proceed upon the indictment for murder when he had understood prior to the commencement of the committal proceedings that although he had been originally charged with that offence, the prosecutor would not be pressing that he be committed for trial for that offence, but only manslaughter. It is not possible to make a firm finding as to how that understanding arose. Both the prosecutor before the committing magistrate and counsel who appeared for the accused gave viva voce evidence before this Court, but neither has a clear recollection of what passed between them, although it is clear the question was discussed. There was nothing in writing emanating from either of them which tends to confirm or deny any such understanding. Such writing as there is is equivocal. It comprises twomemoranda from the prosecutor to counsel for the accused. The first was dated 24 August and contained copies of all statements of prospective witnesses provided to the prosecutor, and sought advice as to whether any of the witnesses would not be required to attend. The following day there was a further memorandum referring to a telephone conversation between the prosecutor and counsel for the accused of that morning confirming that twelve of the prospective witnesses would not be required by the accused to attend, but that their statements could be tendered. That left six witnesses to be called.

4 Counsel for the accused before this Court relied heavily upon the arrangements made as to the attendance of witnesses to give viva voce evidence as being highly indicative of an understanding on the part of counsel, who appeared at committal, that his client was not facing a risk of being put up for...