Ross v The Queen [1979] HCA 29

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Aickin JJ. Ross v The Queen [1979] HCA 29

ORDER Application for special leave to appeal granted. Appeal allowed and order of the Queensland Court of Criminal Appeal set aside. Order that the matter be remitted to that Court to enable the appeal to that Court to be heard.

Cur. adv. vult.

The following written judgments were delivered:—

June 21 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment of my brother Gibbs. I agree with his conclusion and the reasons he gives for reaching it.

I should like to add on my own account that the legislative scheme of the sections set out in the reasons of my brother Gibbs is that certain indictable offences may be tried summarily with specified penal consequences. The manner of trial does not alter the relevant statutory nature of the offence. If the offence be a common assault, it remains indictable because a misdemeanour though by the statute allowed to be tried summarily. The penal consequence of conviction will depend on the manner of trial.

When s. 344 of the Criminal Code Q. provides that punishment appropriate to an assault in circumstances of aggravation shall not be inflicted "unless" the defendant "has been charged therewith", it is quite clearly, in my opinion, not creating a new and different offence from the misdemeanour of common assault. The aggravation affects the possible penalty but does not alter the statutory nature of the offence. The presence of the word "charged" in s. 344 means no more, in my opinion, than that the defendant, at a time when he has an opportunity of denying or dealing with the alleged circumstances of aggravation, must have been made aware of the prosecutor's intention to establish such circumstances of aggravation: and the defendant must be given notice of the particular circumstance or circumstances of aggravation alleged. Naturally, the usual place for any such information to be found is in the document charging the common assault, i.e. the complaint or information. But the presence there of the particulars of circumstances of aggravation does not alter the statutory nature of the offence.