of Australia, being a male did unlawfully assault Debra Lee Fraser, a female, and the said Debra Lee Fraser was threatened with an offensive weapon, namely a knife, and thereby suffered bodily harm, and the said Debra Lee Fraser was further threatened with a firearm, namely a rifle, and further threatened with an offensive weapon, namely an axe: Section 188 Criminal Code. II. The said information came on for hearing before me on the 31st day of August 1989, and currently stands adjourned to the 13th day of October, 1989. III. At the said hearing the following facts were either proved, or admitted by the parties: 1. that the defendant is a male and the said Debra Lee Fraser is a female;

2. that on the 19th day of June, 1989 at Darwin in the Northern Territory of Australia the defendant did unlawfully assault Debra Lee Fraser; 3. that on the 19th day of June, 1989 at Darwin in the Northern Territory of

Australia the defendant did threaten Debra Lee Fraser with an offensive weapon, namely a knife; 4. that on the 19th day of June, 1989 at Darwin in the Northern Territory of Australia, Debra Lee Fraser suffered bodily harm;

5. that on the 19th day of June, 1989 at Darwin in the Northern Territory of Australia the defendant did threaten Debra Lee Fraser with a firearm, namely a rifle; 6. that on the 19th day of June, 1989 at Darwin in the Northern Territory of Australia, the defendant did threaten Debra Lee Fraser with an offensive weapon, namely an axe; IV. Upon these facts I have not recorded a finding. V. On the part of the informant it was contended that the information in its amended form is in accordance with the provisions of Section 188(2) of the Criminal Code and is supported by the facts of the matter as have been proved or admitted by the parties and is good at law. VI. On the part of the defendant no contention was made. VII. I was of opinion in point of law that: 1. the information in its amended form is

duplicitous; 2. the aggravating factor provided for in the Criminal Code by Section 188(2)(b) and represented in the information as amended by the words "being a male" and "a female" is included in the aggravating factor provided for in the Criminal Code by Section 188(2)(a) and represented in the information as amended by the words "and thereby suffered bodily harm". 3. the aggravating factor provided for in the Criminal Code by Section 188(2)(m) and included in the information as amended by the words "was threatened with an offensive weapon, namely a knife" is included in the aggravating factor provided for in the Criminal Code by virtue of Section 188(2)(b) and represented in the information as amended by the words "and thereby suffered bodily harm". VIII. The question of law upon which this case is stated for the opinion of the Supreme court is whether the information as amended is duplicitous and therefore bad at law." 2. Where two or more offences are charged in the one count the indictment is bad for duplicity. R v Molloy (1921) 2 KB 364. c.f. s. 303 of NT Criminal Code. 3. Archbold (1985) 42nd Edition states at 1-57, "the rule though simple to state is sometimes difficult to apply". 4. The difficulties of application are well illustrated by Lord Morris of Borth-Y-Gest in DPP v Merriman (1973) AC 584 at 593: "The question arises - what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down, but I consider that clear and helpful guidance was given by Lord Widgery in a case where it was being considered whether an information was bad for duplicity (see Jemmison v Priddle (1972) 1 QB 489, 495). I agree respectfully with Lord Widgery that it will often be legitimate to bring a single charge in respect of what he called one activity even though that activity may involve more than one act. It must of course depend on the circumstances". 5. In the same case (Merriman) Lord Diplock said at p 607: "The rule against duplicity, viz that only one offence should be charged in any count of an indictment .... has always been applied in a practical, rather than in a strictly analytical way for the purpose of determining what constituted one offence." See also Wilson (1979) 69 CAR 86: Ex-parte Graham Re Dowling(1968) 88 WN (Part 1) NSW 270. 6. In the Stated Case, and as appears from paragraph III, and from the transcript of the proceedings before the learned Stipendiary Magistrate, it clearly appears that the actions of the defendant took place in the course of one activity as to place and time, and on the one person. Consistent with the above authorities it would not be duplicitous to allege the actual assaults with a knife, a rifle and an axe (assuming, for this purpose, that the expression "threatened" was equivalent to an assault) in the one information. Quite apart from the position at common law, the position in the Northern Territory is governed by the Code and so far as assaults are concerned s. 310(1) applies. That section provides: "(1) In an indictment against a person for

assault the accused person may be charged and proceeded against notwithstanding that such assault is alleged to be constituted by a number of assaults provided they were committed on the same person in the prosecution of a single purpose or at about the same time." 7. This provision applies to complaints in a Court of Summary Jurisdiction. Section 314. But, by the use of the expression, "constituted by a number of assaults", s. 310 is clearly applying to assaults only, not to circumstances of aggravation as are alleged in the charge under consideration such as, the offender being a male and the victim a female, and the victim suffering bodily harm. Indeed, in the context, the "threats" with a knife, a rifle and an axe are more apt to be circumstances of aggravation than assaults. See s. 188(2). Whether the charge is duplicitous may depend therefore upon whether it remains a charge of assault with circumstances of aggravation or a separate charge of aggravated assault. 8. In the NT Criminal Code s. 188(1) relates to common assault and s. 188(2) sets out specified circumstances of aggravation. 9. The distinction between aggravated assault and assault with circumstances of aggravation may seem a fine one, but it carries with it important principles of drafting which are relevant to the question posed by the Stated Case. If aggravated assault is a separate offence it might be necessary to charge each circumstance of aggravation separately; since what is being alleged is not a series of assaults in one activity but a number of disparate circumstances in which the activity occurs. See s. 188(2). While one might properly charge a blow with a fist followed immediately by a kick, as one assault, it is difficult to see a connection between, say, the occurrence of bodily harm - s. 188(2)(a) - and the fact that the assailant was a male and the victim a female - s. 188(2)(b). These are not activities but circumstances, and, - if there exists a separate offence of aggravated assault

• may properly be considered duplicitous if charged together as one offence; since the defendant would face two different circumstances in the one charge. From the prosecution's view a similar difficulty would arise. Could the defendant be convicted if one circumstance was proved but not the other? If, however what is being charged is only one offence (the assault) but with circumstances of aggravation, there is no reason why more than one circumstance cannot be alleged, since the prosecution is doing no more than setting out various factors of the assault which it proposes to rely on as part of the basic charge. In effect, it is foreshadowing evidence which, if accepted, will make the defendant liable to a greater maximum penalty. c.f. s. 188(1) : s. 188(2).

10. The view that an assault with circumstances of aggravation is not a separate offence from common assault has been held for many years at common law. See Masper v Brown (1776) LR 1 CPD 97 : Holden v King (1876) 46 LJQB 75. In the latter case Cleasby B., after pointing out that s. 42 and s. 43 of Offences Against the Person Act allowed the justices to consider whether the offence under s. 42 had been aggravated by circumstances set out in s. 43 said succinctly: "That is a matter for their consideration and there is only one matter for them." See also : Cure v Smith [1951] TASStRp 3; (1951) Tas SR 5 where Morris C.J. remarks that "Aggravated assault means "aggravated qua assault", that is aggravated in respect of force or violence."
11. However, the principle enunciated by Lord Diplock in R v Courtie (1984) AC 463 should be kept in mind. In that case His Lordship, delivering a judgment with which the other members of the House of Lords concurred, said at 471: "My Lords where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another".
12. In Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264 at 276 their Honours Gibbs C.J., Wilson and Dawson JJ., referred specifically to these remarks of Lord Diplock but commented:

"This passage cannot have been intended to state an absolute rule of law, but rather a rule of construction or an indication of the way in which the courts will approach a question of this kind. .... The existence of a particular circumstance may increase the range of punishment available, but yet not alter the nature of the offence, if that is the will of Parliament. The rule of construction which Lord Diplock has enunciated is a salutary one, but must yield to an expression of a contrary intention." 13. In Kingswell's case, their Honours Gibbs C.J., Wilson and Dawson JJ. found such a contrary intention in certain sections of the Commonwealth Customs Act and in that view they were joined by Mason J. (as he then was), thereby constituting the majority of the Court. See also The Queen v Meaton [1986] HCA 27; (1986) 160 CLR 359, although in that case the judges who were in the minority in Kingswell (Brennan and Deane JJ.) maintained their objection in principle

see p 369. 14. So far as s. 188 of the NT Code is concerned it seems that the rule of construction enunciated by Lord Diplock must yield to an expression of a contrary intention by Parliament. 15. If any doubt existed before, it is, in my view, laid to rest by the amending Act No. 9 of 1984. Prior to that amendment the circumstances of aggravation were included in a separate section (s. 189). By the amendment that section now becomes subsection (2) of s. 188. Hence in the one section 188 we find subsection (1) providing that "Any person who unlawfully assaults another is guilty of an offence and, if no greater punishment is provided, is liable to imprisonment for one year." 16. Subsection (2) then commences with the words: "(2) If the person assaulted

(then follow various circumstances of aggravation) .... the offender is guilty of a crime and is liable to imprisonment for 5 years or, upon summary conviction to imprisonment for 2 years." 17. It seems therefore that the amendment is designed specifically to make it plain that circumstances of aggravation do not constitute separate offences; and it does that by placing them in the same section as the substantive offence; and I note that, despite the classification of simple offence in s. 188(1) and crime in s. 188(2), the section bears the heading "Common Assault", whereas s. 189, before its repeal, was headed "Aggravated Assaults." 18. I should add that, with diffidence, and appreciating the heresy generally implied, and appreciating that the NT has no provision similar to s. 15AB of The Commonwealth Acts Interpretation Act, but perhaps emboldened by the robust remarks of Lord Denning M.R. and Lord Hailsham L.C. in Hadmor Productions v Hamilton (1981) 2 All ER 724 at 731, (and see also Director of Public Prosecutions Reference No. 1 of 1988 - [1989] VicRp 75; (1989) VR 857), I have turned to the NT Parliamentary Debates Vol 18 p 443 to note the Attorney-General's remarks introducing the amendment because they are particularly illuminating. He says: "Charges of aggravated assault under s. 189 are meant to involve common law assault with aggravating circumstances. Further it was intended that a charge under s. 189 could include a number of circumstances of aggravation and allow for a conviction on some or all of these circumstances. It can be argued that the Code, however, has not properly achieved this and, accordingly sections 188 and 189 are restructured into one new section 188. Otherwise, a person must be charged with numerous specific offences to avoid arguments of duplicity." 19. One may also call to aid s. 305 of the Code. That provides: "305. FORM OF INDICTMENT (1) An indictment shall contain a statement of the offence charged together with such particulars as may be necessary to give reasonable information as to the nature of the charge. (2) If more than one offence is charged each offence shall be set out in a separate paragraph called a count and numbered consecutively. (3) The statement of the offence shall describe the offence shortly in ordinary language in which the use of technical terms is unnecessary and it need not state all the elements of the offence, but it shall contain a reference to the section and the enactment defining the offence. (4) If any circumstance of aggravation is intended to be relied upon it shall be charged in the indictment." 20. It is significant that subsections (1)(2) and (3) refer to offences whereas subsection (4) does not. The context, I think, makes it plain that a circumstance of aggravation that must be charged in the indictment is regarded as ancillary to the particular offence to be charged. 21. Normally a conviction for common assault, being a simple offence, would be under summary procedure. Section 3(3). But it is possible for a person to be convicted for common assault on indictment, if circumstances of aggravation are alleged and the matter either proceeds on indictment by choice of the Crown; or a magistrate before whom the charge is presented summarily is of of opinion that the charge should rather be prosecuted on indictment. Section 131A(2) of the Justices Act. In such a case a jury might reject the circumstances of aggravation but nevertheless find proved the elements of common assault and give a verdict to that effect. Section 315 of the Code provides that "Upon an indictment charging a person with an offence committed with circumstances of aggravation he may be convicted alternatively of the offence charged without any of such circumstances of aggravation ....". 22. This, in my view, is again a significant factor in concluding that the "offence" (using the generic meaning which first appears in s. 3(1), rather than the more restricted meaning given by the later part of s. 3(1) and s. 3(4)), is the same despite the difference in nomenclature created by s. 188(1) and s. 188(2). In my view the reasoning in Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 applies despite the fact that the sections of the Queensland Code there under consideration did not create a different categorisation between common assaults and assaults accompanied with circumstances of aggravation. 23. In Ross v The Queen (supra) Gibbs J. (as he then was) in delivering the main judgment, with which all the other members of the Court concurred, was considering ss. 343, 343A and 344 of the Queensland Criminal Code. Section 343 of that Code deals with common assaults. Section 343A deals with assaults occasioning bodily harm. Section 344 deals with assaults of an aggravated nature. Section 344 differs from s. 188(2) of the NT Code in that the circumstances of aggravation which are set out in s. 344 do not exclude other possible situations, whereas in the Northern Territory section there can be no circumstances of aggravation outside those specifically mentioned. Otherwise, however, there are basic similarities. 24. Gibbs J. said this, at p. 437: "Section 343 differs from ss. 343 and 343A in that it has no direct parallel in ch. XXX. Nevertheless the words of s. 344, like those of ss. 343 and 343A are not apt to create an offence; rather they provide the penalties that may be imposed if the offender is dealt with summarily, instead of upon indictment. Both s. 343 and 344 have the effect that a person who has committed the misdemeanour of common assault may be prosecuted and convicted summarily, but s. 344 enables increased penalties to be imposed if the assault has been an aggravated one. The provisions of s. 345, which treat a conviction under s. 344 as a conviction for assault, support the view that s. 344 creates no new offence and that view was accepted as correct in Crown v Hamilton-Smith; ex parte Hamilton-Smith (1958) Qd R 24". 25. Turning to s. 575 of the Queensland Code, which corresponds with s. 315 of the NT Code, His Honour Gibbs J. appears to differ from Hart J. in R v Phillips and Lawrence (1967) Qd R 237 at 285 where His Honour had observed, "I also think that s. 575 contemplates that an offence with a circumstance of aggravation may be an offence in itself". 26. Gibbs J. did not expressly refute those remarks of Hart J. since it was not necessary in Ross v The Queen to do so. But he seems to have been of a different opinion. At p 439 in Ross, he says: "Neither the words of s. 2 of the Criminal Code, nor those of the definition of "circumstances of aggravation" in s. 1, appear to me to support the view that an offence committed with circumstances of aggravation is necessarily a different offence from the offence without those circumstances, although s. 575 contemplates that an element of an offence committed with circumstances of aggravation may itself constitute a different offence". 27. See also Buckle v Josephs (1983) 47 ALR 787. That case dealt with Sections 131B, 131C and 131D of the Justices Act of the Northern Territory as then enacted. Those sections gave jurisdiction to a Court of Summary Jurisdiction to deal with unlawful assaults "accompanied by circumstances of aggravation". By s. 131D the expression "circumstances of aggravation" was said to "include" certain specified acts (c.f. s. 344 of the Queensland Code). In Buckle v Josephs the Full Court of the Federal Court held that it did not limit the expression only to what it was defined as including; and their Honours were of the opinion that the sections did not create any separate offence of aggravated assault (Toohey J. - p 791: Lockhart J. - p 796). 28. These sections have been repealed since the introduction of the Northern Territory Criminal Code, and s. 131A of the Justices Act now reads: "131A(1) The Court constituted by a Magistrate has jurisdiction to hear and determine in a summary manner a charge in respect of an offence against s. 188(2) of the Criminal Code. (2) The Court shall not hear and determine in a summary manner a charge referred to in sub-section (1) if it is of the opinion that the charge should be prosecuted on indictment." 29. I think the principle still applies, despite the difference in categorisation between s. 188(1) and s. 188(2), that the latter does not create a separate offence but an offence under the former, in circumstances which would normally be expected to make the offence more heinous and carry with it a greater maximum penalty. All that has occurred is that the appropriate circumstances of aggravation are now set out in s. 188(2) of the Code, rather than in a section of the Justices Act and the definition is now confined to one or more specific circumstances set out in s. 188(2) and not otherwise "at large". 30. Although Wilson J. was in the minority in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 I do not think that any of the judges in that case or anything said in that case denied the general principle he enunciated when he said at p 396: "The presence of a "circumstance of aggravation", being a circumstance which if charged in the indictment and proved exposes the offender to liability to a greater maximum period of imprisonment, does not make the offence a different offence". 31. His Honour was there speaking of the crime of robbery but it appears the principles are the same whenever a circumstance of aggravation is provided as attaching to a specific offence. 32. See also R v Messenger (1867) 4 WW and A'B (law) 253: Smith v Every (1973) Qd R 367 at 368: Buckle v Josephs (1983) 47 ALR 787. 33. I cannot therefore agree with the learned Stipendiary Magistrate that the information in its amended form is duplicitous. It charges one offence and then gives a number of circumstances of aggravation. However, and in line with the observations already made, I consider that informations and indictments under s. 188 should be drafted by setting out first the substantive offence and then any circumstances of aggravation relied on. This makes it clear to the defendant that he is being charged with an assault and, if that is proved, it will also be alleged against him that the assault was accompanied by certain features which, if proved, will increase the limits of the sentencing power, though not necessarily the sentence, since the court retains the broad sentencing discretion. (See the remarks of Brennan J. in De Simoni at p 405). 34. The information in its present form does not draw this clear distinction between the substantive offence and the various circumstances of aggravation. (e.g. The information charges the defendant with "being a male did unlawfully assault Debra Lee Fraser a female", thereby mixing up the substantive offence with a circumstance of aggravation). I would not hold that the information is thereby void for uncertainty, since the basic elements of the charge and the circumstances of aggravation plainly appear; but it makes for greater clarity if the information is set out as follows: "That the defendant (setting out his name and description) on the 19th day of June 1989 at Darwin in the Northern Territory of Australia did unlawfully assault Debra Lee Fraser" and that the said assault involved the following circumstances of aggravation namely: (a) That the said defendant was a male and the said Debra Lee Fraser was a female. (b) That the said Debra Lee Fraser thereby suffered bodily harm. (c) That the defendant threatened the said Debra Lee Fraser with an offensive weapon namely a knife. (d) That the defendant threatened the said Debra Lee

Fraser with an offensive weapon namely an axe. (e) That the defendant threatened the said Debra Lee Fraser with a firearm, namely a rifle. 35. Looked at in this way the defendant knows precisely what allegations are made against him, but no question of duplicity arises. The information does not charge the defendant with having committed two or more separate offences. Moreover it sets out the logical progression that the assault must first be proved before the circumstances of aggravation are investigated. No doubt the defendant would be entitled to ask for further particulars such as the time of the assault and a more specific address than Darwin simpliciter; and no doubt such particulars would be supplied. But nothing in the charge itself shows any "latent ambiguity", to use the words of Dixon J. (as he then was) in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 486. 36. The defendant, by being given the particular circumstances of aggravation which are relied on by the prosecution, is thereby on notice that the prosecution will attempt to prove these circumstances and he must be prepared to meet them. I cannot, with respect, agree with the view of the learned Stipendiary Magistrate that the aggravating factor represented by the words "being a male" and "a female", is included in the aggravating factor represented by the words "and thereby suffered bodily harm". (Para VII (2) of the Stated Case). They are obviously two different sets of circumstances. I think that what His Worship was probably referring to was that if one is proved the other is otiose because the maximum limit is already increased and another will not increase it further. That, of course, is true, but a finding on both may well have effect on the ultimate penalty, and it seems clear that one of the purposes of s. 188 is to allow for a series of circumstances of aggravation to be set out as ancillary to the main charge so as to give the court a clearer picture on sentencing if some or all of the circumstances are established. Furthermore it would seem a safeguard to the defendant that any circumstance not alleged or proved against him cannot be taken into account on the sentence. It cannot, in my view, be now otherwise argued that, once the maximum is established by proof of one circumstance of aggravation, the Court may have regard to any other conduct constituting a circumstance of aggravation notwithstanding that such conduct is not made a circumstance of aggravation in the charge. 37. His Honour Gibbs C.J. makes the distinction clear in De Simoni at p 392, when he is referring to s. 582 of The Queensland Code which provides that "If any circumstance of aggravation is intended to be proved it must be charged in the indictment". The Northern Territory Code is in very similar terms in s. 305(4), "If any circumstance of aggravation is intended to be relied on it shall be charged in the indictment". His Honour says: "In the present case whether s. 582 be construed according to its own terms, or with the assistance provided by the common law, it has, in my opinion, the effect that a judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance be placed upon it. He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment." 38. I would conclude therefore that any circumstances of aggravation intended to be relied on should be set out in the charge and it is not to the point that any one of them will be sufficient to extend the sentencing range. If not alleged they cannot be taken into account. 39. For the same reasons I would again respectfully disagree with the view of the learned Stipendiary Magistrate at VII (3) of the Stated Case that the aggravating factor of "threatening with an offensive weapon namely a knife" is included in the aggravating factor "and thereby suffered bodily harm". 40. It follows that the duty of a court where a person is accused of an assault with circumstances of aggravation is, first, to find whether the assault is proved; and if, and only if, that is proved, to determine whether any, and if so which, of the circumstances of aggravation are proved beyond reasonable doubt. This involves the court making a finding on every circumstance alleged so that a clear picture for sentencing purposes is disclosed and all allegations fully dealt with. If the matter proceeds on indictment this will involve asking for a special verdict from the jury (if the assault is proved) on every circumstance. See s. 369. 41. I should add that, because of the matters I have discussed, care should be taken, when a defendant pleads guilty to a charge containing aggravating circumstances, that he understands that his plea subsumes all the circumstances alleged. He may wish to admit some and deny others. If he denies any, there is then a triable issue between him and the prosecution on each such denial which should be resolved by the court before sentence is passed. 42. For the above reasons my answer to the question posed in the Stated Case at paragraph VIII is NO.