Citation: LAROBINA, Adriano v R [2009] NSWDC 79
Court: District Court of New South Wales
Date: 8 April 2009
Judge(s): Bennett SC DCJ
Background
The appellant was convicted in the Local Court at Queanbeyan on 27 October 2008 of a serious animal cruelty offence under s 530(1)(a) of the Crimes Act 1900. The prosecution case was that he was one of a group of men who injected an unknown substance into a ferret belonging to another person.
The charge as expressed in the court attendance notice read: "Commit serious act of animal cruelty with intent severe pain between 6.00am and 11.59pm on 07/05/2007 at Jerrabomberra did inject a ferret with an unknown substance." In the Local Court, neither the appellant's legal representatives nor the prosecution raised any issue with the wording of the charge. The Magistrate convicted the appellant based on the full text of the provision.
On appeal to the District Court, Bennett SC DCJ identified, of his own motion, that the charge as drafted omitted an essential ingredient of the offence. This prompted further submissions and a preliminary ruling before the appeal could proceed to a final determination.
Legal Issues
- Whether the charge in the court attendance notice omitted an essential ingredient of the offence under s 530 of the Crimes Act 1900
- Whether the word "and" joining paragraphs (a) and (b) of s 530(1) is conjunctive or disjunctive, and what that means for the elements of the offence
- Whether a conviction based on a defective charge amounts to a nullity
- Whether the District Court has jurisdiction, on appeal under the Crimes (Appeal and Review) Act 2001, to permit the prosecution to amend the charge to cure the deficiency
Decision
Bennett SC DCJ held that s 530(1) creates a single offence requiring proof of three cumulative elements: (1) an intention to inflict severe pain; (2) at least one act listed in paragraph (a), being torture, beating, or another serious act of cruelty; and (3) at least one outcome listed in paragraph (b), being death, serious injury, or prolonged suffering. The word "and" connecting paragraphs (a) and (b) is conjunctive, not disjunctive. This reading was confirmed by the Explanatory Note to the amending Bill, which described the offence as requiring that the offender intend to inflict severe pain and kill or cause serious injury or prolonged suffering.
The charge as drafted addressed only the paragraph (a) conduct and the requisite intention. It entirely omitted any reference to the paragraph (b) outcome. The court inferred that the drafter had misread "and" as disjunctive, treating s 530(1) as creating separate offences rather than one compound offence. The Magistrate had nonetheless found guilt by reference to the full statutory text rather than the terms of the charge as filed.
The court declined to accept the appellant's submission that the conviction was simply a nullity to be set aside without more. The Local Court conviction was held to remain in force unless and until the District Court made an order setting it aside under s 20(1)(a) of the Crimes (Appeal and Review) Act 2001. However, the court noted that the Crimes (Appeal and Review) Act 2001 limits the District Court's appeal powers to a re-hearing on the certified transcript, and s 28 does not expressly empower the court to allow the prosecution to amend the charge at the appeal stage.
Despite that limitation, the court indicated it was inclined to allow the Director of Public Prosecutions to make an application to amend the court attendance notice under s 21 of the Criminal Procedure Act 1986, subject to any further argument from the appellant. The appeal was adjourned to permit both sides to consider their positions and the appellant to obtain advice in light of the ruling.
Orders Made
- The conviction in the Local Court stands unless and until the District Court makes an order setting it aside pursuant to s 20(1)(a) of the Crimes (Appeal and Review) Act 2001
- The appeal is adjourned for the hearing of a DPP application to amend the charge, and for such further or other orders as required
Key Takeaways
- Section 530(1) of the Crimes Act 1900 creates a single compound offence. A prosecution must establish the requisite intention, an act of cruelty under paragraph (a), and an outcome of death, serious injury, or prolonged suffering under paragraph (b). All three limbs are required.
- A court attendance notice that omits an essential ingredient of the offence is defective, and a conviction entered on such a charge does not automatically become a nullity. The District Court found that the Local Court conviction continued to stand until formally set aside by order.
- Where neither party raised the deficiency at first instance, the appellate court may still identify and act upon the omission of an essential ingredient.
- Under the Crimes (Appeal and Review) Act 2001, District Court appeals from Local Court convictions proceed by way of re-hearing on the certified transcript. The powers conferred by s 28 are more limited than those available under the former de novo appeal regime.
- The District Court left open, pending further argument, whether it could permit the prosecution to amend the charge at the appeal stage under s 21 of the Criminal Procedure Act 1986, signalling that the question of jurisdiction to cure a defective charge on appeal remains live.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 530
- Crimes (Appeal and Review) Act 2001 (NSW), ss 20, 21, 28
- Criminal Procedure Act 1986 (NSW), s 21
Cases:
- Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
- Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
- Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39
- Director of Public Prosecutions v Emanuel [2009] NSWCA 42
- Ex Parte Burnett; Re Wicks [1968] 2 NSWR 119
- Ex Parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
- Knaggs v The Director of Public Prosecutions & Anor [2007] NSWCA 83; (2007) 170 A Crim R 366
- Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217