R v MKW[2014] QDC 300

DISTRICT COURT OF QUEENSLAND

1. [1]
   There is presently an indictment before the court charging the defendant MKW with an offence of unlawfully doing grievous bodily harm to one RRB. By way of pre-trial argument pursuant to s 590AA of the Criminal Code, the applicant/defendant now seeks an order for a permanent stay of proceedings on that indictment on the ground that continued prosecution would constitute an abuse of process.  Specifically, it is argued that the applicant has already been punished for the same act which gives rise to the present charge, and that continued prosecution would therefore be in contravention of s 16 of the Criminal Code, thereby constituting an abuse of process.

2. [2]
   To properly understand this application it is necessary to make some reference to the history of the matter. On the afternoon of 3 February 2013, the applicant had been drinking alcohol at an address in Mount Isa with a group of people which included the complainant, RRB.  RRB was in fact the applicant’s de facto partner at the time.  An argument developed, during the course of which the applicant struck RRB with a collapsible chair.  She suffered a laceration to her head and was transported to the Mount Isa Hospital where she received treatment in the Intensive Care Unit.  Later that evening the applicant was arrested in relation to the incident and charged with having breached a domestic violence order.  On 13 March 2014 he pleaded guilty to that charge in the Mount Isa Magistrates Court and was sentenced to a period of 12 months’ imprisonment with parole release after serving four months.

3. [3]
   On 13 June 2013, police officers obtained a statement from a doctor at the Mount Isa Hospital which indicated that RRB had in fact suffered a laceration to her right eyebrow and a periorbital hematoma with fractures of the superior and lateral orbit in the assault of 3 February 2013.  The doctor considered that those injuries, if left untreated, were likely to have caused disfigurement or loss of vision and could have proved life threatening.  As a consequence, on 16 July 2013, three days after his release from custody, the applicant was charged with an offence of unlawfully doing grievous bodily harm to RRB.  It is that charge which is the subject of the present application.

Section 16 of the Criminal Code

4. [4]
   In its relevant part s 16 of the Criminal Code provides as follows:-

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

5. [5]
   Section 16 was considered by the then Court of Criminal Appeal in R v Gordon; ex parte Attorney-General [1975] Qd R 301 a case in which the driver of a motor vehicle was charged with an offence of dangerous driving causing grievous bodily harm.  He had previously been dealt with in the Magistrates Court for an offence of driving whilst under the influence of liquor or a drug arising from the same incident and involving the same facts as the dangerous driving charge.  In dealing with the dangerous driving charge, the judge had ordered that the offender be convicted but held that, because of s 16, he could not be punished for the offence.  In considering the application of s 16 in the circumstances of that case, Hanger CJ said at pp 306‑307:

“Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omission would constitute two different offences.  It is to these cases that the section is directed ….  If this construction of s 16 is right, then the section would have no application to the circumstances of the present case.  The punishable act or omission which had already been dealt with by the magistrate being in charge of a motor vehicle whilst under the influence of liquor or a drug – was not the punishable act or omission before his Honour – dangerous driving causing grievous bodily harm.  His Honour therefore proceeded on a wrong footing in taking the course which he did.”

6. [6]
   The test of punishable acts or omission articulated by Hanger CJ was adopted and applied most recently by the Court of Appeal in R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8^[1] and represents therefore the test which should be applied in this present application. 

7. [7]
   The circumstances surrounding the breach of domestic violence order offence were outlined in the Magistrates Court at Mount Isa as follows:

“… A domestic violence order was made in the Mount Isa Magistrates Court on the fifth day of June 2012.  The defendant was named as the respondent and the aggrieved RRB.  On Sunday the 3^rd of February 2013 at around 3 p.m. the defendant and the aggrieved were drinking alcohol together when the witness at the incident location – a witness at the incident location which is 23 Tadman Avenue, Mount Isa.  The defendant and the aggrieved were sitting down on the concrete driveway under the carport with that witness.  At the time the defendant has entered into a verbal argument with the aggrieved in relation to infidelity issues.

The defendant has begun yelling profanities at the aggrieved.  The defendant has reached behind him and has picked up a black metal collapsible chair, has lifted that chair and swung it down, hitting the aggrieved on the right side of her forehead.  As a result of the chair hitting the aggrieved it has caused laceration, approximately five centimetres in length, which is depicted in the photos, your Honour.  The aggrieved has gotten up off the concrete and has begun walking away, a witness has followed and used a rag to place over the aggrieved’s forehead and the informant has subsequently called the Queensland Ambulance Service.  The Queensland Ambulance Service transported the aggrieved to the Mount Isa Base Hospital for medical treatment.

The police have also attended the Mount Isa Base Hospital and spoken with the doctor who stated that due to the extent and nature of the aggrieved’s injuries, she would later be admitted to the intensive care unit of the Mount Isa Base Hospital.”

8. [8]
   In imposing sentence the learned Magistrate observed:-

“Perpetrators of serious acts of domestic violence must learn that society will not tolerate that behaviour.  They can expect the courts to impose significant penalties of imprisonment involving actual custody.  Now, it is conceded today that actual custody is within range.  The injuries that this woman sustained are quite clear on the photographs.  They are significant – a five centimetre laceration, one centimetre in depth.  The fact that she was taken to the intensive care unit for observation does suggest that there was significant potential for that injury at the very least.  When people are drinking alcohol and they get significant blows to the head, it is well known that they are – there’s a prospect they will die.  And you won’t mean that, because you may have been angry, but you certainly would have intended – would not have intended that in most cases.”

9. [9]
   In my view it is clear from these remarks that the act for which the applicant was punished in the Magistrates Court was the act of striking RRB with a chair and causing significant injury to her head. It is equally clear that this is the same act relied upon to found the charge in this court of unlawfully doing grievous bodily harm. It follows that ordinarily at least to further punish the defendant for that act would be an act in contravention of s 16 of the Code. 

Domestic violence legislation

10. [10]
    Notwithstanding the above conclusion however, it is submitted for the Crown that the specific provisions of the Domestic and Family Violence Protection Act 2012, and in particular s 138 of that Act, serve to authorise the continuation of the proceedings against the applicant.  Section 138 provides as follows:-

“138Concurrent criminal proceeding

3. (1)
   An application under this Act may be made, and a court may deal with the application, even if a person concerned in the application has been charged with an offence arising out of conduct on which the application is based.

3. (2)
   However, if a person is charged with an offence arising out of conduct on which an application under this Act is based, a reference to any of the following is admissible in the trial of the person for the offence only with the leave of the court—

1. (a)
   the existence of the application;

2. (b)
   the existence of any proceeding relating to the application;

3. (c)
   the making of, or refusal to make, any order relating to the application;

4. (d)
   the making of, or refusal to make, any variation of any order relating to the application;

5. (e)
   the fact that evidence of a particular nature or content was given in any proceeding relating to the application.

3. (3)
   To remove any doubt, it is declared that, subject to this section, an application, proceeding or order under this Act in relation to the conduct of a person does not affect—

1. (a)
   any proceeding for an offence against the person arising out of the same conduct; or

2. (b)
   any civil liability of the person.

3. (4)
   The person may be punished for the offence mentioned in subsection (3)(a) despite any order made against the person under this Act.”

Discussion

11. [11]
    The domestic violence legislation establishes a scheme whereby application may be made, whether under Part 3 or Part 4 of the Act, for a domestic violence order. Section 138 is contained within Part 5 of the Act and clearly applies in a situation in which conduct leads both to an application for an order under the Act and to the bringing of a criminal charge. In such a situation the processing of the application provides no bar to the person being charged with a criminal offence, although on the hearing of the criminal charge leave of the court is required before mention may be made of any of the matters set out in s 138(2).  Such an approach is consistent with the Explanatory Notes to the Domestic and Family Violence Protection Bill 2011 which provide:-

“Clause 138 refers to situations where there are civil proceedings under the Act which are related to criminal proceedings in that they both arise out of the same conduct. The aim of clause 138 is to ensure that matters raised in the civil proceedings (those listed in subclause 138(2)) are not used in the related criminal proceedings without the leave of the court presiding over the criminal proceedings. This protects the interests of the person who is charged with the offence, by placing limitations on the admissibility of evidence which may be untested and subject to different evidentiary requirements. It also removes an impediment which may otherwise discourage a court from hearing the civil application before the criminal proceedings are finalised. This is appropriate given the object of maximising the safety, protection and wellbeing of people who experience domestic violence.

Subclause 138(3) provides that an application, proceeding or order under the Act does not affect any related criminal proceedings or any civil liability of a person. Subclause 138(4) provides that a person may be punished for an offence arising from the related criminal proceedings despite any order made under this Act. This makes it clear that the sentencing court should not feel constrained in relation to its sentencing options by the outcomes from the court hearing the civil application.” (emphasis added)

12. [12]
    Section 138(3) however refers not only to an application under the Act, but also to any “proceeding or order” under the Act. The Act does identify certain orders, such as protection orders (s 37) and temporary protection orders (s 23(3)), which are clearly orders made under the Act and which might properly be described as “outcomes” from the hearing of civil applications. I am, however, not for the present persuaded that a sentence order made against a person for a breach of a domestic violence order can properly be similarly regarded as an “order made against the person under (the) Act” for the purposes of s 138(4). Depending upon the ultimate outcome of this prosecution, this issue may require further submissions for it is at least arguable that the sentencing order is one made, not under the Domestic and Family Violence Protection Act, but under the Penalties and Sentences Act 1992 (Qld).

13. [13]
    The critical question for present purposes in my view is whether the prosecution of the applicant for the offence against the Domestic and Family Violence Protection Act constituted a “proceeding” under that Act.  If so, then in terms of s 138(3)(a) it does not affect any proceeding for an offence against him arising out of that same conduct; that is, it does not affect the proceeding for the offence of unlawfully doing grievous bodily harm. 

14. [14]
    Section 30 of the Act provides that if a respondent to a domestic violence order does not comply with the order, a police officer can charge that respondent with an offence. Penalties for contravention of an order are set out in s 177.  Section 181(1) of the Act provides that proceedings for an offence against the Act must be taken in a summary way under the Justices Act 1886. 

15. [15]
    In my view these provisions, and in particular s 181, make it plain that proceedings for the breach of a domestic violence order are “proceedings under (the) Act” for the purposes of s 138(3). 

16. [16]
    In Dibble,^[2] the primary judge had ruled that, because the indictable offence there charged was based upon the same “basic act” as had constituted the summary offence of which the defendant had previously been convicted, to allow the indictment to proceed would be contrary to s 16 of the Code and, as such, constitute an abuse of process. In the present case however, where the Act specifically authorises the continuation of the proceedings, there can be no such abuse of the court’s process. Accordingly, the application to stay the indictments should be dismissed.

17. [17]
    I should add that, if my tentative view of s 138(4) of the legislation is correct and if the applicant were to be convicted of the indictable offence, then the question remains as to whether s 16 of the Code prohibits him being further punished for that offence. At the very least, I would consider that ordinary and well-established sentencing principles would require that regard be had to the penalty imposed in the Magistrates Court for the breaching offence.