R v Sanderson[2015] QDC 106

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 12 December 2014, an indictment was presented in this court, charging the applicant with one count of assault occasioning bodily harm, in the following terms:

“That on the twenty-seventh day of January, 2014 at Maroochydore in the State of Queensland, TERENCE JOHN SANDERSON unlawfully assaulted SAMUEL NEVILLE STEWART and did him bodily harm.”

2. [2]
   By an application filed on 18 March 2015, the defendant seeks an order permanently staying the prosecution of that charge.^[1]  The basis of that application is the contention that the inevitable outcome of that prosecution, in the event that the applicant is found guilty of the offence which is charged, would be the application of s 16 of the Criminal Code.  That is, the contention is that the applicant could not be again punished for the act which constitutes this alleged offence. 

The Contentions

3. [3]
   Accordingly, the contention is that, in this sense, the continued prosecution of this offence is an abuse of process that warrants the order of a permanent stay of proceedings and that the situation is relevantly indistinguishable from that which led to such an outcome in R v Dibble; ex parte Attorney-General (Qld).^[2]

4. [4]
   The underlying circumstances are that:

1. (a)
   also arising out of the events of 27 January 2014, the applicant was charged with an offence of committing public nuisance, pursuant to s 6 of the Summary Offences Act 2005; and

2. (b)
   that offence was dealt with in the Magistrates Court at Maroochydore on 10 February 2014^[3] and upon acceptance of the applicant’s guilty plea, entered in writing^[4] and, with the result that the applicant was fined the sum of $300, without recording a conviction and it was directed that particulars of that penalty be referred to SPER for registration.

5. [5]
   As is correctly pointed out for the respondent, the written form of the applicant’s plea of guilty does not contain any reference to or acknowledgment of any act or conduct of the applicant as constituting the basis upon which that guilty plea was entered.^[5]  However and as required by s 146A(2A)(b), a statement with respect to the facts relating to the offence was made on behalf of the complainant, in the following terms:

“About 2.20 a.m., a disturbance occurred at the bus depot at Maroochydore.  Police saw a male person – upon arrival, police saw a person being restrained by a number of patrons.  This person was later placed in – subsequently placed in the back of the police vehicle to allow police to conduct further enquiries as to what – what had happened.  Police observed another male person with a large contusion to the side of his head, walking in the direction of police.  He appeared dazed and confused.  He walked past police and proceeded on the side of the fence while the ambulance service who was at the scene attended to him.

Police later learnt that the defendant approached a group of patrons, was seen pushing a female onto the road.  A male person acting in self‑defence of the female approached the defendant and asked him what he was doing.  He became engaged in an altercation with the male person, where he was knocked unconscious by the defendant.  Other patrons passing by had to move away from the incident in fear of their own safety.  As a result of the enquiries, the defendant was arrested and conveyed to the watch-house.  He was charged with the offence. 

… And he’s accused of – of trying to fight other people.  In regards to his history, your Honour, he has no previous of a like offence – he has history, but no – none of the like offence.”^[6]

6. [6]
   As was noted in R v Dibble, an offence under s 6 of the Summary Offences Act 2005 is committed if:

“(a)  the person behaves in–

1. (i)
   a disorderly way; or

2. (ii)
   an offensive way; or

3. (iii)
   a threatening way; or

4. (iv)
   a violent way; and

2. (b)
   the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.”

7. [7]
   In this case, the following description of the circumstances pertaining in R v Dibble are equally apposite:

“[6]  The charge itself did not particularise the behaviour of the respondent that was alleged to have constituted the public nuisance; nor was such behaviour particularised during the course of the proceedings in the Magistrates Court. As well, the charge did not characterise the behaviour as disorderly, offensive, threatening or violent. Provided that the behaviour was capable of being characterised as at least one of them, which it evidently was, such a characterisation was not necessary.”

8. [8]
   In R v Dibble, the issue arose in respect of an indictment charging him with unlawfully doing grievous bodily harm, after he had also been fined in respect of an offence of public nuisance, relating to the same incident.  However, it can be observed that the conduct or behaviour that constituted the offence of public nuisance, in R v Dibble, was more clearly identified.  As explained by the Court of Appeal:

“[7] The respondent pleaded guilty in writing. The plea was received by the Magistrate at Roma at a hearing on 17 January 2012. On that occasion the prosecutor outlined the facts briefly in the following way:

‘About 25 minutes past midnight 30th 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.’

[8]  The Magistrate then gave the following decision:

‘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.

He’s fined $400.

No conviction is recorded in view of the absence of any suggestion he has got previous.

I refer the fine to SPER.’”

9. [9]
   Consequently, the respondent seeks to distinguish this situation from that which pertained in R v Dibble. In a written outline of submissions, the respondent’s contentions are summarised as follows:

“1. This application should be dismissed because it is impossible, at this stage of the prosecution, to determine which acts the applicant is liable to be punished for if convicted.

  2.  Alternatively, s 16 of the Criminal Code is not engaged because there is no sufficient coincidence between the acts upon which the applicant has been punished and the acts upon which he would be likely to be punished, if convicted.

  3.  Alternatively, if s 16 is engaged and this Court’s discretion to order a stay of this prosecution is enlivened, that discretion should not be exercised because the applicant would be likely to be punished for acts materially additional to those for which he has already been punished.”

Discussion

10. [10]
    However, the respondent’s first proposition is not any obstacle to a ruling being made on this application, at this stage. This is because it is now possible to determine the acts for which the prosecution will seek to have the applicant punished upon the indicted charge. On the hearing of this application, that was particularised as the defendant attacking the complainant and punching him, knocking him to the ground and then kicking him in the head.^[7]

11. [11]
    The remaining contentions proceed upon the assertions that in the prosecution of the indicted offence, it will not be contended that the defendant pushed a woman or that there was any intervention by anyone in defence of that woman or that there was any altercation which caused people to move away from it. Rather and as was emphasised, the allegation is that the defendant attacked the complainant up to some five metres away from any incident giving rise to any female being knocked over and that people in the vicinity moved towards rather than away from this incident.

12. [12]
    It was the respondent’s submission that unlike the position in R v Dibble (which it was noted proceeded on the basis of complete correspondence of the punishable acts involved), here there is or will be no actual correspondence between what was dealt with in the Magistrate’s Court and the acts sought to be punished in this prosecution. Although, it was conceded that there may be some overlap, which may require adjustment on sentence, in deference to s 16.

13. [13]
    The respondent sought to underpin these submissions by reference to Pearce v R.^[8] In essence, the contention was that, at best for the applicant, some adjustment in the sentence to be imposed on the indictable offence, may prove to be necessary, in order to reflect any overlap and to avoid any double punishment for any act for which punishment had already been imposed. Ultimately it was contended that there would only be a stay of proceedings ordered if, like the position in R v Dibble, there is precise correspondence of acts and if no additional punishment in any way, shape or form should be imposed.

Should there be a stay of proceedings 

14. [14]
    I will return to the question of correspondence of acts. However, it must first be noted that the decision in Pearce v R may tend to provide some support for the respondent’s third contention. In R v Dibble it is recorded that:

“The argument in support of the application was that were the respondent to be punished upon conviction on the count in the indictment, he would be punished twice for the same act or omission for which he was punished by way of fine. That was an outcome which s 16 precluded. Hence, to permit the prosecution on indictment to proceed would be to condone an infringement of s 16.”^[9]

Further, it can also be observed that it was also noted in the judgment, that despite there being a second ground of appeal, which and in addition to a ground which challenged the primary finding that the offences were based on the same act, asserted error in the finding that the prosecution for unlawfully causing grievous bodily harm was an abuse of process. In relation to that, the Court of Appeal observed: 

“On the hearing of the appeal, counsel for the appellant, Attorney-General for Queensland, did not advance separate arguments in respect of each ground. That approach reflected the reality that the second ground was a challenge only to the conclusion to which the finding challenged by the first ground inevitably led. The second ground did not raise any additional issue requiring separate consideration.”^[10]

15. [15]
    As there is no reference made to Pearce v R, in R v Dibble^[11] and the latter case does not expressly deal with contentions of this type, it is necessary to say something more about them.

16. [16]
    In Pearce v R, the appeal was allowed because of a majority conclusion that the individual sentences imposed in respect of offences of maliciously inflicting grievous bodily harm, with intent to do grievous bodily harm and breaking and entering the dwelling house, of the same victim and while therein inflicting grievous bodily harm on him (in each case the same term of imprisonment to be served concurrently) “were flawed because they doubly punished the appellant for a single act, namely the infliction of grievous bodily harm”.^[12] Underlying that outcome were the conclusions that:

“[43]  The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.”; and

“[49] … Further, to make the sentences imposed on those two accounts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count…”

17. [17]
    Notwithstanding that he dissented in the outcome of that appeal, Kirby J also recognised the underlying concern as to double punishment and his judgement (at [130]), provides insight into the essential problem being in the absence of reasoning by the sentencing judge and “insufficient attention was disclosed to the risk of punishing the appellant twice for the conduct amounting to the infliction of grievous bodily harm common to counts 9 and 10”.

18. [18]
    Pearce v R was concerned with the law of New South Wales. In Queensland and in R v Nagy,^[13] that decision was explained and the well-established sentencing practice of imposing an effective head sentence and one reflecting the overall criminality involved, on one of a number of distinct and unrelated offences, with often lesser concurrent sentences imposed on the others, was endorsed, except where the approach “would effectively mean that the offender was being doubly punished for the one act or where there would be collateral consequences…”^[14]

19. [19]
    It may also be noted that as a matter of common practice and where the act upon a less serious offence is based, is also encompassed or subsumed as and taken into account as an act upon which a more serious offence is based, a common approach is to convict and not punish.^[15]

20. [20]
    In Pearce v R, the High Court was not directly concerned with the application of s 16 of the Criminal Code and the judgments were principally concerned with examination of the issue of double punishment, at common law.  In that regard, it was noted that past decisions had vacillated between an approach premised on avoidance of punishment again for the same offence^[16] and for what is substantially the same act or omission.^[17]  As has already been noted, the High Court proceeded upon the basis of the need to avoid double punishment for the same act.  But it is of some significance to note that the act in issue was identified, in that case, in the following way:

“It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by ‘excessive subtleties and refinements’. It should be approached as a matter of common sense, not as a matter of semantics.”^[18]

21. [21]
    It also should be noted that this determination came in the context that, earlier, some general considerations had been noted, including that:

“… in creating offences, legislatures must necessarily proscribe conduct by reference to particular elements. A complex act by an accused may contain all the elements of more than one offence. …”;

and that:

“… it follows that to punish the whole of the accused’s criminal conduct, there will be cases where more than one offence must be charged and punishment exacted for each.”^[19]

22. [22]
    Those considerations then led to the following statement:

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”^[20]

23. [23]
    However and as demonstrated by the decision in R v Dibble, the application of s 16 is not necessarily met by pointing to considerations that might be added or attached to an act or omission, in order to found an allegation of a different offence. That is so even if by doing that, an addition elemental of criminality or seriousness might be added and sought to be punished. For example, the addition of an allegation of the causation of bodily harm to a complainant (as is the case here) or of grievous bodily harm (as was the case in R v Dibble). It can also be noted that such a conclusion follows from the terms of s 16, which provides for an express exception as to causing death.

24. [24]
    Further and as was noted in R v Dibble, s 16 of the Criminal Code is concerned with “punishable acts or omissions”, which is a reflection of the definition of “offence” in s 2 of the Criminal Code. That is:

“an act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.”

25. [25]
    As has been previously noted,^[21] what flows from that fundamental definition is that specific offences (including circumstances of aggravation that may attach to such offences) are defined as to the necessary elements and made punishable, by reference to “an element of conduct (an act or omission) which attracts criminal liability if it be accompanied by prescribed circumstances or if it causes a prescribed result or if it be engaged in with a prescribed state of mind”. However, the fundamental requirement is of a punishable act or omission.^[22]

26. [26]
    A fundamental problem with attempting to apply the considerations discussed in Pearce v R is that they are referable to a different situation and where the defendant stood for sentence and had been sentenced, in respect of each of the offences joined on an indictment.  In such a situation, it is clear that a court must, in some way, deal with all such offences.  Further, it can be noted that in stating the principle that was applied in that case,^[23] the majority judgment proceeds to note that:

“In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law.”^[24]

27. [27]
    Pursuant to s 16 of the Queensland Criminal Code, the principle is a positive rule of law and the result of the application of that rule in R v Dibble, is a clear obstacle to the respondent’s contention.  Notwithstanding the absence of argument on the point and any direct reference to Pearce v R, no impediment to the stay of proceedings that was ordered, was found in the different and more serious nature of the allegation of unlawfully doing grievous bodily harm.

28. [28]
    In this regard, it may first be observed that an obvious tendency of the respondent’s contention is towards an approach that is premised upon restriction of subsequent proceedings for the same offence, as defined by the particular elements. Restrictions of that kind inherently underpin the provisions of s 17 of the Criminal Code.  Secondly and as was noted in R v Dibble, the test that has been consistently applied to s 16, is as to the same punishable acts or omissions, which:

“… bespeaks a unity of time and of place, at least, in the punishable acts or omissions.”^[25]

29. [29]
    Therefore and assuming that there is otherwise the necessary correspondence of act or conduct, in the sense of unity as to time and place, it would be appropriate to order that there be a stay of proceedings. Not only would that outcome be consistent with the outcome in R v Dibble, but it may be noted that some further explanation for differentiation from the approach in Pearce v R may be found in the judgment of Kirby J in that case. 

30. [30]
    Kirby J dissented in the outcome and perhaps because of that, his review of the principles of “double jeopardy” was more extensive than appeared in the other judgments.  After noting an expression of the English rule on double jeopardy in R v Elrington,^[26] observing:

“‘[T]he well established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form.’”^[27]

His Honour proceeded to further note, in relation to the “the pleas of autrefois acquit and autrefois convict”,^[28] that:

“[110]  … the position is complicated by a line of decisions which appear to recognise a separate plea in bar, to repel a second or double prosecution for a more serious offence. This plea is usually traced to the reasons of Blackburn J in Wemyss v Hopkins and of Hawkins J in R v Miles. The existence of a separate plea, in addition to autrefois acquit and autrefois convict, was accepted by Dawson J in Saraswati v The Queen. It has certainly given rise to a line of cases which suggest that there is a bar to an indictment based on the same ‘matter’. This loose concept led Hawkins J in Miles to express the view that the bar related to future proceedings ‘for or in respect of the same assault ’http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1998/57.html - fn182. This was an apparent reference to a factual rather than a legal notion.

[111]  It is possible that the expansion of the idea in the common law plea of autrefois convict, evidenced in Wemyss and its progeny, explains the broader language of s 16 of the Criminal Code (Q). 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’’. However that may be, the line of cases traced to Wemyss has encouraged some Australian courts to take a broader view of the pleas available to an accused alleging effective double jeopardy as a result of a second or double prosecution.”^[29]  (citations omitted)

31. [31]
    Then and after noting “the exercise of a judicial discretion to stay a second or double prosecution” as one of the number of practical rules or ways by which the common law allow for the risks of double jeopardy,^[30] Kirby J also said:

“There is one final recourse available to the judge to respond to complaints about double jeopardy. I refer to the exercise of the judicial function of sentencing. Of course at the stage of sentencing, it is too late to prevent vexation by a second or double prosecution. But it may present the opportunity to avoid double punishment.”^[31]

32. [32]
    His Honour then proceeded to outline his dissenting view as to the applicant of such a final recourse to the facts in Pearce v R. Accordingly and as has been noted, that case provided a quite different context to the circumstances presently in issue and accordingly the observations which were earlier noted as favouring the respondent’s contention, can be seen as only doing so superficially. 

33. [33]
    The situation in the present case confronts the issue of the burden or oppression (or as it is otherwise termed vexation) of duplication of prosecution proceedings and in the context of an inevitable application of the legal rule in Queensland, as encapsulated in s 16, it can be understood that the unquestioned approach in R v Dibble, was that a stay of proceedings was appropriate.  Accordingly and if there is the necessary correspondence of acts, so as to engage s 16 in this case, then the same conclusion is also appropriate and it  may be observed that to the extent that  the respondent’s submission included an implication that the applicant will therefore not be properly punished for his conduct on 27 January 2014, it must first be remembered that he has not been convicted of the indicted offence and secondly, that the basis of any such reasoning would necessarily be that a decision was taken to charge him with and then have him dealt with, for a largely inconsequential summary offence, encapsulating the conduct for which he might simply have been charged with the now indicted offence.

Correspondence of acts

34. [34]
    Accordingly, the critical question is whether this case may be distinguished from R v Dibble, upon the basis that there is not the necessary correspondence of acts. That is, that the proposed prosecution on indictment would not involve the prospect of punishment for the same punishable acts, having regard to unity of time and place.

35. [35]
    As noted in R v Dibble, particularly by reference to decisions such as R v Gordon^[32] and R v Tricklebank,^[33] the relevant punishable acts may differ in nature and quality, notwithstanding that essentially the same physical conduct is involved.^[34] However and assuming that there is the necessary unity of time and place, the approach taken and result in R v Dibble also precludes any consideration as to whether there is any relevant difference as to the nature and quality of any conduct that constituted any violent behaviour, as any part of the offence of disorderly behaviour and which is also relied upon as the conduct by which the defendant is alleged to have occasioned or caused bodily harm to the complainant. 

36. [36]
    Further, it can be noted that the further considerations as to differences in the evidence to be relied upon in the prosecution of the indicted offence, see paragraphs [10]-[13] above, do not go to the essential conduct of the defendant but rather the evidential context to that conduct. Accordingly, those features are not such as to change or differentiate the nature or quality of his acts or conduct.

37. [37]
    It is convenient to first note the approach taken by the Court of Appeal to this issue, in R v Dibble:

“For a public nuisance offence such as this, identification of the punishable act or acts which sustained a particular conviction will depend upon the totality of the behaviour which is put before the court as constituting the offending behaviour. If that behaviour is violence which includes landing a punch on another person, then the landing of the punch is part of the punishable acts. It is not to point to propose that other aspects of the offending behaviour (to the exclusion of the landing of the punch) would be sufficient to characterise that other behaviour as disorderly, offensive, threatening or even violent, as might sustain a conviction for a public nuisance offence.

Here, as noted, the offending behaviour was not particularised in a way which excluded any punch thrown by the respondent that landed on the complainant. Significantly, the transcript of the brief proceedings at the hearing on 17 January 2012 indicates quite clearly that the respondent was convicted on the basis that he threw more than one punch that had landed on the complainant. The prosecutor stated that the respondent was throwing haymaker style punches towards the complainant’s face; that the complainant was attempting to cover his head from being further assaulted; and that the complainant was on the ground bleeding. The Magistrate described the respondent as obviously “collecting a few” and that his punches must have been effective because the complainant was on the ground.

The circumstances of Donnelly and Maher¹⁷ are comparable. They were charged before a police magistrate with resisting arrest and using obscene language. They pleaded guilty to using obscene language, but not guilty to resisting arrest. They were tried and convicted on that charge before the magistrate. Later, they were charged on indictment in the Supreme Court of having assaulted a police constable in the execution of his duty. The prosecutor proposed to lead “substantially and practically” the same evidence as had been led before the magistrate. In asking the jury to return a verdict of not guilty on a defence based on s 16, Shand J observed that the magistrate must necessarily have taken the facts of the assault into consideration in convicting the offenders for resisting.¹⁸

For these reasons, I consider that the differentiation that the appellant seeks to make is not a valid one. The punishable acts for which the respondent was convicted in the Magistrates Court included the punches thrown by him which landed on the complainant and caused the latter harm. It follows that to punish the respondent a second time for those acts would offend s 16.”^[35]

38. [38]
    As I have already noted, any such correspondence of act is not, in this case, as is expressly clear. But it must be, at least, implicitly so. Following the approach of the Court of Appeal, it should be concluded that:

1. (a)
   It is not to the point that the offending behaviour for the public nuisance offence might have been established by reference to conduct excluding that which is relied upon in respect of the indicted charge. That is, the defendant’s violent conduct or applications of force to the complainant;^[36]

2. (b)
   The offending behaviour or conduct of the defendant in respect of the public nuisance offence, was not particularised in any way that excluded any such application of force; and

3. (c)
   The punishment of the applicant on the offence of public nuisance, must be taken to have included all and every application of force in the altercation with the complainant and which led to the described consequences that “he was knocked unconscious by the defendant” and was later observed “with a large contusion to the side of his head” and appearing “dazed and confused” and then attended to by the ambulance service at the scene.

39. [39]
    In that regard, it can be particularly noted that it is clear that the complainant named in the indictment is the male person with whom the applicant “became engaged in an altercation” and knocked unconscious, with the consequences that have otherwise been described. Also, it can be observed that in these circumstances and where it is necessarily clear that the punishable acts for the indicted charge must necessarily have been included as violent conduct of the applicant for the purposes of the public nuisance offence, it is also inconsequential that the particular or individual physical activity comprising that conduct was not particularised or expressly described to the sentencing Magistrate. Otherwise and in order to avoid the consequences of the application of s 16 to any conviction of the indicted offence, it would be necessary to determine that no punishable act upon which such a conviction was based was included in the public nuisance offence, and that conclusion is not open.

Conclusion

40. [40]
    Accordingly a similar conclusion to that reached in R v Dibble should follow, in that the punishable acts for which the applicant was punished in the Magistrates Court, included the violent conduct or applications of force which also constitute the punishable acts upon which the indicted charge is premised. Equally it follows, that to punish the respondent a second time for those acts would offend s 16 and that, in all of the circumstances, a stay of proceedings is warranted because of the oppression or vexation, in the sense of duplication of proceedings, which is involved.