DPP (NSW) v Murray [2008] NSWSC 1161

New South Wales Supreme Court

CITATION : DPP (NSW) v Murray [2008] NSWSC 1161

HEARING DATE(S) : 20 October 2008

JUDGMENT DATE : 4 November 2008

JURISDICTION : Common Law Division

JUDGMENT OF : Hislop J

DECISION : (1) Appeal allowed; (2) The order of the magistrate made on 23 May 2008 at Blacktown Local Court permanently staying proceedings against the defendant for the offence of assault occasioning actual bodily harm, s59(1) of the Crimes Act, 1900, be set aside. (3) The matter is remitted to the Blacktown Local Court to be dealt with according to law.

LEGISLATION CITED : Crimes Act, 1900

CASES CITED : Pearce v The Queen (1998) 194 CLR 610 Davis v R [2006] NSWCCA 392

PARTIES : Director of Public Prosecutions (NSW) (Plaintiff) Tony Mark Murray (Defendant)

FILE NUMBER(S) : SC 14056/08

COUNSEL : A. Mitchelmore (Plaintiff) A. Cook SC (Defendant)

SOLICITORS : Solicitor for Public Prosecutions (Plaintiff) Legal Aid Commission (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate Brown

LOWER COURT DATE OF DECISION : 23 May 2008

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HISLOP J

Tuesday 4 November 2008

14056/08 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v TONY MARK MURRAY

JUDGMENT

Introduction 1 On 18 November 2007 criminal proceedings were commenced against the defendant for the offences of

(a) assault occasioning actual bodily harm, contrary to the Crimes Act , 1900, s 59(1) and

(b) knowingly contravene a restriction specified in an apprehended violence order ("AVO"), contrary to the Crimes Act , s 562ZG(1). 2 The AVO was in the following terms: "A. The defendant must not engage in conduct that intimidates the protected person(s) or any other person having a domestic relationship with the protected person(s). B. The defendant must not stalk the protected person(s). OTHER ORDERS MADE: 1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s). 10. The defendant must not approach the protected person(s) within twelve (12) hours of consuming intoxicating liquor or drugs. 11. The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s)." 3 On 1 May 2008 the charges were heard together by a magistrate at the Blacktown Local Court. At the conclusion of the hearing his Honour was satisfied beyond reasonable doubt that both offences had been established. 4 His Honour adjourned the proceedings until 23 May 2008. On that day he convicted the defendant of contravening the AVO and sentenced him to a term of imprisonment. His Honour permanently stayed proceedings on the assault charge. His Honour concluded that that was the appropriate way to deal with the situation before him in which, in his opinion, the two charges arose out of a single event (namely, the assault of the protected person) and there was a total overlap. In such circumstances his Honour considered "…it would be wrong in principle not just to punish Mr Murray twice but to record two convictions for what is in substance exactly the same matter, with the addition of it being a breach of the apprehended violence order to bring it within the second charge." 5 On 7 August 2008 a summons was filed in this court seeking the following orders: "1. An order allowing the appeal. 2. An order, pursuant to section 59(2) of the Crimes (Appeal and Review) Act 2001, that the order of Dr Brown, Magistrate, made on 23 May 2008 at Blacktown Local Court, permanently staying proceedings against the Defendant, for the offence of assault occasioning actual bodily harm, section 59(1) of the Crimes Act , be set aside. 3. An order that the matter be remitted to the Blacktown Local Court to be dealt with according to law. 4. An order that the Defendant pay the Plaintiff's costs of and incidental to this summons. 5. Such further or other orders as to the Court seems fit." 6 When the summons was called on for hearing the Court was informed that the plaintiff did not press for order 4 and that the defendant did not oppose orders 2 and 3 being made, it being accepted by both parties that his Honour had erred in staying the proceedings on the assault charge.