The Queen v Darryl Corbett

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 14 December 2010
• Neutral Citation: [2010] NTSC 71
• Docket Number: FILE NO: 20819214 & 20819474
• Date: 14 December 2010

[2010] NTSC 71

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Mildren J

FILE NO: 20819214 & 20819474

Between:

The Queen

and

Gary Elkedra

First Defendant

and

Darryl Corbett

Second Defendant

REPRESENTATION:

Counsel:

Plaintiff: M McColm

Defendant: E Sinoch

Birkeland-Corro v Tudor-Stack (2005) 15 NTLR 208; Megson v The Queen (2006) 17 NTLR 57; R v Kurungaiyi (2005) 15 NTLR 70; referred to

Criminal Code Act, s 3, s 3(4), s 8(1), s 112, s 112(l)(a), s 112(l)(b),

s 112(2), s 112(2A), s 188(1), s 188(2), s 213(1), s 213(2), s 298(1), s 299, s 300, s 315(1), s 348, s 348A

Criminal Law and Procedure Ordinance 1978–1981, s 20, s 21

Interpretation Act, s 38E

Justices Act, s 4, s 49, s 52, s 101(a)

Police Administration Act, s 128(1), s 129, s 130(l)(a)

Sentencing Act, s 107(3)

Archbold, Criminal Pleading, Evidence and Practice, 42 ^nd ed, Sweet & Maxwell, London

CRIMINAL LAW — offences on indictment — whether indictment should contain crimes — whether simple offences triable in Supreme Court -prisoners discharged — Criminal Code s 3 and s 298(1)

REASONS FOR JUDGMENT

(Delivered 14 December 2010)

1 The accused in this matter are both charged with an offence against s 112(l)(b) of the Criminal Code of being a person lawfully detained as an intoxicated person, escaping from such detention.

2 The accused were originally committed for trial on other charges. The original indictment against the accused, Gary Elkedra, contained a count of being a prisoner in lawful custody following arrest, escaped from such custody contrary to s 112(l)(a). The accused Darryl Corbett was not charged with an escape offence. Following discussions as to plea, the current charges were included in a fresh indictment to which the accused had pleaded guilty. The facts alleged that each accused had been apprehended under s 128(1) of the Police Administration Act, which provides:

Where a member has reasonable grounds for believing that a person is intoxicated with alcohol or a drug and that that person is in a public place or trespassing on private property the member may, without warrant, apprehend and take that person into custody.

3 A person taken into custody under s 128(1) is not a person under arrest for an offence. The old summary offence of being drunk in a public place was repealed in the mid 1970s. The police are empowered to hold a person in custody under this Act only for so long as it appears that a person remains intoxicated 1 and whilst under apprehension cannot be charged with an offence. 2

4 During the course of the plea, it came to my attention that the maximum penalty for a breach of s 112(l)(b) of the Criminal Code was only imprisonment for 12 months and I raised with the parties whether the Court had jurisdiction to entertain those charges. I adjourned the hearing until the following day to enable counsel to consider the matter and make submissions.

5 The following morning Mr McColm, counsel for the prosecution, conceded that the Court did not have jurisdiction to deal with those offences. I had reached the same conclusion having considered the matter overnight. Accordingly, I ruled that I did not have jurisdiction to deal with those charges and I discharged the accused from them.

6 As the matter is of some importance to the administration of justice, I have decided to publish my reasons. These are my reasons.

7 Prior to the introduction of the Criminal Code, the Criminal Law and Procedure Ordinance 1978–1981 provided that offences against a law of the Territory which are punishable by imprisonment for a period exceeding six months are indictable offences. 3 Other offences were punishable only on summary conviction. 4

8 The expression ‘indictable offence’ was mirrored in the provisions of Part V of the Justices Ordinance (now called the Justices Act). The Justices Act currently provides that an information may be laid before a Justice in any case where a person is suspected to have committed ‘any treason, felony, or indictable misdemeanour, or other indictable offence whatsoever, within the Territory’. 5 The Justices Act does not contain a definition of what is an

indictable offence, although there is a definition of minor indictable offence. 6

9 When the Criminal Code came into force in 1984, the expression ‘indictable offence’ was not used.

10 Section 3 of the Criminal Code provides:

3 Division of offences

• (1) Offences are of 3 kinds, namely, crimes, simple offences and regulatory offences.

• (2) A person charged with a crime cannot, unless otherwise stated, be prosecuted or found guilty except upon indictment.

• (3) Unless otherwise stated, a person guilty of a simple offence or a regulatory offence may be found guilty summarily.

• (4) An offence not otherwise designated is a simple offence.

11 Section 112 of the Criminal Code provides as follows:

112 Escape from lawful custody

(1) Any person who:

• (a) being a prisoner in lawful custody following his arrest or conviction for an offence: or

• (b) is lawfully confined or detained otherwise than as referred to in paragraph (a) and who,

  escapes from such custody, confinement or detention, is guilty of an offence.

12 Section 112(2) of the Code provides the circumstances in which the escape is a crime and is limited to crimes for which the person has been arrested or convicted. Section 112(2A) provides that a person who commits an offence against s 112(l)(b) is liable to imprisonment for 12 months.

13 On the face of it therefore, a breach of s 112(l)(b) is a simple offence by virtue of s 3(4) of the Code and also by virtue of s 38E of the Interpretation Act, which generally provides that an offence is a crime if the penalty for the offence is imprisonment for a period of more than two years.

14 Section 298(1) of the Criminal Code provides:

(1) When a person charged with a crime has been committed for trial and it is intended to put him on his trial for the crime the charge is to be reduced to writing in a document that is called an indictment.

15 Section 49 of the Justices Act provides that a complaint may be made to a Justice in any case where any person has committed, or is suspected to have committed any simple offence.

16 As Martin (BR) CJ said in Birkeland-Corro v Tudor-Stack: 7

By this somewhat circuitous route involving the Act, the Interpretation Act and the ...