EFN v Lehmann & Anor

This case considers the meaning of “an offence involving an assault” in s 522B(1)(c) of the Criminal Code. The question was essentially whether that terminology required that the relevant offence contained assault as an element of the offence, or whether the section could apply to an offence where an assault was “involved”, although not an element. His Honour held that the former was the correct interpretation; focusing upon the language of the provision; the existing practice and authorities which had considered offences which “involve” an assault but where it is not an element of the offence but had determined they did not fall within s 522B(1)(c); and the undesirable result that to determine whether an offence “involves” an assault would require a magistrate to exercise jurisdiction based upon a hypothetical assumption, being required to determine whether the particular circumstances of the offending “involved” an assault before any evidence is called.

North J

9 May 2017

The applicant was charged with an offence of “choking, suffocation or strangulation in a domestic setting” under s 315A of the Criminal Code. [2]. That offence is an indictable offence which has the consequence that, pursuant to s 3 of the Criminal Code, an offender cannot be prosecuted or convicted except upon indictment “unless otherwise expressly stated”. [4].

Before the Magistrates Court, the applicant sought to have the matter heard and determined summarily, relying on s 552B(1)(c) of the Criminal Code. [2]. That subsection provides that certain “offence[s] involving an assault” (subject to qualifications not presently relevant) must be heard and decided summarily unless the defendant informs the Court that he or she wants to be tried by jury. [5]. The issue was that s 315A(2) provides that “[a]n assault is not an element” of the offence of “choking, suffocation or strangulation in a domestic setting”.

The primary judge held that s 552B did not apply “with the consequence that the offence had to be prosecuted on indictment”. [2]. Pursuant to s 43 of the Judicial Review Act 1991, the applicant sought to challenge this ruling, and sought orders to secure a summary trial and determination in the Magistrates Court. [3].

The focus was on the phrase “an offence involving an assault” in s 552B(1)(c). [6]. The applicant submitted that “for a person to offend against s 315A it would necessarily involve the application of force to another person as contemplated by s 245 of the [Criminal Code] which defines assault”. [6]. The applicant argued that “the use of the broad term ‘involving’ in s 552B(1)(c) caught a variety of offences that ‘involved’ an assault, regardless of whether assault was an element of the offence”. [6]. Against this, the second respondent submitted that “the use of the words ‘involving an assault’ pointed to an intention to restrict the ambit of s 552B(1)(c) to offences which have ‘assault’ as an element”. [7].

North J ultimately preferred the interpretation of the second respondent for three reasons. First, his Honour pointed to the use of the word “assault” twice in s 552B(1)(c). [9]. His Honour noted that “[t]he term ‘assault’, where it occurs for the second time, points to the term defined by s 245”, and that accordingly “the phrase [‘involving an assault’] used earlier should be interpreted as meaning an offence of which an assault, as defined, is an element”. [9].

Secondly, his Honour noted that s 315A(2) “expressly provides that assault is not an element of the offence”. [9]. Although many offences “might loosely speaking usually be committed by acts involving an assault as that term is defined”, North J observed that “[t]wo of them, ‘wounding’ and ‘kidnapping’, have not hitherto been treated as coming within s 552B(1)(c)”. [9]. His Honour concluded that to hold otherwise would result in a “significant change in practice” and there was no indication that Parliament had intended to make these changes. [9].

Finally, the interpretation favoured by the applicant “would require a magistrate to exercise jurisdiction upon a hypothetical assumption” because the magistrate would need to determine whether the particular circumstances of the alleged offending “involved” an assault before any evidence is called. [10]. On the second respondent’s interpretation, this issue would not arise because the defendant’s “right of election, and with it jurisdiction, to summarily determine an alleged offence”, would be “conferred ‘objectively’ under the [Criminal Code] by the elements of the charged offence”. [10].

The applicant therefore did not have a right of election to be tried summarily, and his application was dismissed. [11].

J English