The Queen v Dibble[2013] QDC 120

DISTRICT COURT OF QUEENSLAND

1. [1]
   In the early hours of 30 December 2011, on a footpath in Roma, police observed Mr Dibble swinging haymaker style punches at the complainant, who was lying on the ground, trying to protect his head from further blows, while another man tried to stop the attack. Others at the scene witnessed Mr Dibble’s violent conduct towards the complainant. Police intervened.

2. [2]
   Mr Dibble was taken to the Roma Watch house where he was charged with committing a public nuisance. He was required to appear at the Magistrates Court in Roma on 17 January 2012.

3. [3]
   The complainant was transported to Roma hospital. When the police visited him there, he told them he was not sure if he would make an assault complaint; it would depend on the seriousness of his injuries.

4. [4]
   In fact, he had sustained significant facial injuries. The next day, he was transferred to the Princess Alexander Hospital. He underwent two operations. On 3 January 2012, before he was discharged, the complainant advised police he wished to make a formal complaint against Mr Dibble. On 10 January, he gave a statement to police.

5. [5]
   A week later, on 17 January, 2012, Mr Dibble appeared in the Magistrates Court at Roma, as required. He entered a plea of guilty to the charge of public nuisance and was fined $400. No conviction was recorded.

6. [6]
   On 2 March 2013, the police charged Mr Dibble with causing grievous bodily harm, having received a medical opinion about the injuries sustained by the complainant.

7. [7]
   The question addressed in this judgment is whether the prosecution of Mr Dibble for grievous bodily harm may proceed, given he has been punished for the offence of public nuisance.

8. [8]
   Mr Vasta QC for Mr Dibble, relied on s 16 of the Criminal Code (Qld). He argued it would be an abuse of process to prosecute Mr Dibble on a charge of grievous bodily harm in the circumstances of this case. He asked the Court to stay the indictment.

9. [9]
   Ms Balic, for the prosecution, conceded a permanent stay would be justified if s 16 applies, but submitted it did not and, therefore, argued the application to stay the indictment should be refused.

10. [10]
    Section 16 provides, relevantly:

A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission,…

(emphasis added)

11. [11]
    The dispute hinges on the scope of s 16 and its application to the facts of this case.

The scope of s 16

12. [12]
    Section 16 is one of two sections of the Code which give expression to what is customarily referred to as the rule against double jeopardy. It is common ground that the other provision, section 17, applies the pleas in bar of autrefois convict and autrefois acquit and does not apply to this case.

13. [13]
    The metes and bounds of the common law rule against double jeopardy have been contested territory and the subject of extensive jurisprudence.  Its scope has shifted over time. The broadest conception, it seems, is derived from the decision in Wemyss v Hopkins.^[1]

14. [14]
    In that case, the Court found there was a defence available “in the nature of a plea of autrefois convict”. Each Member of the Court used a slightly different formulation in explaining the defence:

• Per Blackburn J: a previous conviction “shall be a bar to all further proceedings for the same offence, and [the defendant] shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence”;
• Per Lush J: the second conviction “… violated a fundamental principle of law, that no person shall be prosecuted twice for the same offence… [the defendant] therefore cannot be afterwards convicted again for the same act…”; and
• Per Field J: “A person cannot be twice punished for the same cause.”

(emphasis added)

15. [15]
    The different terms - the same matter or act or cause - did not clarify the law and introduced “a new dimension” into the law of pleas in bar^[2].

16. [16]
    In Pearce v The Queen, the High Court acknowledged that Wemyss established a wider principle than the plea in bar of autrefois convict; that no-one should be punished twice for the same matter.^[3]It confined the plea of autrefois convict to cases in which the elements of the offence charged are identical or in which all the elements of one offence are wholly included in the other.^[4]

17. [17]
    If autrefois convict is so confined, and if it is accepted that that plea is the domain of section 17, the question remains, what is the scope of s 16?

18. [18]
    In R v Tricklebank, Macrossan CJ observed cases derived from jurisdictions without the equivalent of s 16 provide little assistance in interpreting that provision because they tend not to draw exact distinction between the identity or similarity of what is charged and the acts, facts and evidence which may have been the basis for the charge.^[5]

19. [19]
    In Pearce, Kirby J posited that the expansion of the idea in the common law plea of autrefois convict in Wemyss and its progeny, explains the broader language of s 16. He observed that Griffith CJ who should have known, recognised that what that section enacted was ‘not quite the same as the law which allows the defence of autrefois convict.^[6]
20. [20]
    Following that reasoning, in applying s 16, a distinction must be drawn between the elements of the offence (which relates to the plea of autrefois convict) and the matter, act or cause upon which the charge is based.
21. [21]
    That is consistent with the reasoning of Griffith CJ in R v Hull (No 2), ^[7]in which he stated:

I think it is only necessary to look at the words “the same act or omission,” to say, that when it is alleged that acts referred to in two indictments are the same, there is implied a unity, at least, of time and place… it seems to me that there was no unity of place between the two offences… the two charges are distinct, and relate to different acts altogether.^[8]

22. [22]
    The Court applied the same approach in Connolly v Meagher^[9]where the Court applied s 16 because it found the one transaction had constituted two offences.
23. [23]
    In her submissions, Ms Balic relied on the reasoning of the Queensland Court of Criminal Appeal in R v Gordon^[10]. In that case, Hanger CJ concluded that the reference to the same act or omission in s 16 must mean punishable acts or omissions.^[11] Williams J considered the proper test is whether the same wrongful act or omission which previously resulted in conviction and punishment, is the central theme, the focal point or for want of a more apt choice of words… the basic act or omission in the later offence charged.^[12]

24. [24]
    Determining whether the reference to act in s 16 is a reference to a punishable act or a wrongful act, and whether the two formulations mean different things, seems to me to likely involve an arid exercise in semantics.

25. [25]
    Ms Balic argued this Court should distinguish between the facts alleged and the acts punished. This sets up a somewhat circular argument, which, in this case, started with identifying acts but ended with a consideration of the elements of the offence. For example, Ms Balic submitted that s 16 did not apply because there has not yet been a conviction on a vital element of the offence of grievous bodily harm.^[13]

26. [26]
    In my view, the critical distinction is between the elements of the offences and the acts relied upon to prove them. That follows from the High Court’s reasoning in Pearce which employs an analysis of the elements of the offences to determine if the plea in bar of autrefois convict applies. The wider concept of double jeopardy embraced by s 16 must, therefore, look beyond the elements of the offence, which define its nature and character. Instead, I consider the Court must examine the factual basis for the prosecution of the earlier offence in order to identify which act has been punished and to consider whether that act also founds the subsequent prosecution.

27. [27]
    While there must be a connection between the acts and the elements, or the offence cannot be established, the focus must be on whether the acts that prove the offence are the same, not on whether the elements are so. The exercise, then, is a factual enquiry: What act or acts are alleged by the prosecution to establish each of the offences? Is there a unity in time and place in the act or acts alleged? Does the same act constitute each offence?

Application of s 16 to the facts of this case

28. [28]
    Ms Balic submitted that the act punished in the Magistrates Court at Roma was ‘an interaction between the applicant and another person, which was disorderly or otherwise violent in nature’^[14]  while the “act or omission relied upon with respect to the indictment is the causing of the grievous bodily harm in unlawful circumstances.”^[15]Mr Vasta submitted the one act was involved; Mr Dibble’s violent conduct towards the complainant.

29. [29]
    In the busy jurisdiction of a Magistrates Court dealing with a summary offence, it is not surprising that there is scant detail of the allegations founding the charge. The only material available to this Court was the brief transcript of proceedings.

30. [30]
    The Police Prosecutor told the Court that:

“About 25 minutes past midnight 30^th of December, 2011, Bowen Street Roma, police observed a group of people on footpath watching two males fighting. Defendant was throwing haymaker style punches towards the face of another male who was attempting to cover his head from being further assaulted and male on the ground was bleeding.”^[16]

31. [31]
    His Honour’s concise sentencing remarks included the statement:

“Well, this is fighting in the street. He has obviously been collecting a few. A few of his punches must have been effective because the other person was on the ground.”^[17]

32. [32]
    The act of fighting the complainant at the time and in the place he did constituted the offence of public nuisance. Mr Dibble was behaving in a violent way. He accepted that his behaviour interfered with or was likely to interfere with the peaceful passage through, or enjoyment of, a public place by a member of the public.^[18]
33. [33]
    The same act of fighting the complainant, at the same time and place, is relied upon to constitute the offence of causing grievous bodily harm. Mr Dibble could not be convicted of that offence unless the prosecution could also establish that the complainant’s injuries satisfied the definition of grievous bodily harm and that Mr Dibble’s actions were unlawful. Those further requirements, however, do not constitute different acts.
34. [34]
    I have been assisted in applying s 16 to the facts of this case by the distinction drawn by Macrossan CJ in Tricklebank between an act and its consequence.^[19]  Mr Tricklebank had been previously convicted and punished for driving a vehicle whilst under the influence of alcohol. He subsequently pled guilty to the offence of dangerous operation of a motor vehicle causing death, with his intoxication serving as a circumstance of aggravation. Macrossan CJ determined the defendant’s consumption of alcohol had two consequences: firstly, that it caused him to be adversely affected by alcohol and, secondly, to cause his blood alcohol level to remain above the legally permitted level. Those dual consequences, his Honour held, “should be characterised as the results of [Mr Tricklebank’s] acts rather than his acts.”^[20]For that reason, his Honour held that the defendant could not be punished for the circumstance of aggravation.
35. [35]
    Here, the act relied upon is Mr Dibble’s violent conduct towards the complainant. That act had two consequences: it interfered with the peaceful enjoyment of a public place and it caused serious injuries to the complainant.
36. [36]
    The remaining requirement, that Mr Dibble’s act of fighting the complainant was unlawful, is a legal question which turns on any justification Mr Dibble may have had for his violent conduct. It is not an act that constitutes the offence.
37. [37]
    I am satisfied, therefore, that the one act constitutes the two offences in this case.

38. [38]
    It has been recognised, in the past, that the application of this aspect of the rule against double jeopardy might create a sense of unease. In The Queen v Miles (1890) 24 OBD 423, Hawkins J said:

No doubt it seems a little startling that a conviction for a common assault, accompanied by a shilling fine or dismissal of the complaint as too trifling for any punishment, should afford an answer to a subsequent indictment for the same assault, upon conclusive evidence that it was accompanied by an intent to murder; but reason and good sense point out that, even at the risk of occasional miscarriages of justice, when once a criminal charge has been adjudicated upon by a court having jurisdiction, that adjudication ought to be final… ^[21]

39. [39]
    The police were aware that the complainant had sustained significant injuries when Mr Dibble entered his plea to the public nuisance. The prosecution could have adopted a different course. It could have deferred the prosecution until it had further information about the extent of the injuries. Had that course been adopted, a somewhat uncomfortable outcome might have been avoided.
40. [40]
    Nevertheless, this Court must apply the law as it stands to the facts. I consider there is a unity of time and place between the acts relied upon for the two charges. The basic act relied on for the charge of grievous bodily harm is the same act punished on the charge of public nuisance. The charges may be distinct in their legal formulation, but in this case they rest on the same course of conduct. Allowing the indictment to proceed, would, in my mind, be contrary to s 16 and, as such, constitute an abuse of  process.
41. [41]
    The prosecution of this indictment is permanently stayed.