R v MCD[2016] QDCPR 9

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the Crown to amend the indictment presently before the Court.

2. [2]
   The defendant is charged with a number of counts alleging assaults on his wife on 11 February 2015. The Crown applies, pursuant to s 572(1A) of the Criminal Code, to amend the indictment to allege that each of the offences is also a domestic violence offence.

3. [3]
   The Crown submits that the amendment should be permitted as the provisions of the Criminal Law (Domestic Violence) Amendment Act 2015 (Q) are retrospective.  The defence, on the other hand, submits that the amendments are substantive and are, therefore, not retrospective and the amendment ought not to be permitted.

Discussion

4. [4]
   It is common ground between the parties that the complainant and the defendant were husband and wife. They separated about 12 months prior to the offences. The allegations involve various assaults by the defendant on the complainant at her home.

5. [5]
   The assaults allegedly occurred after the two of them were drinking wine together discussing their relationship.

6. [6]
   The Criminal Law (Domestic Violence) Amendment Act 2015 (Q) commenced on 1 December 2015.  A number of pieces of legislation were amended thereby. 

7. [7]
   Section 564(3A) of the Criminal Code provides:

“An indictment for an offence may also state the offence is a domestic violence offence.”

8. [8]
   Section 572(1A) of the Criminal Code provides:

“Without limiting subsection (1) if the court considers the offence charged the indictment is also a domestic violence offence, the court may order that the indictment be amended to state that the offence is also a domestic violence offence.”

9. [9]
   The consequence of a matter being a domestic violence offence is set out in s 12A of the Penalties and Sentences Act 1991 (Q).  This section provides:

“Convictions for offences relating to domestic violence

3. (1)
   Subsection (2) applies if—

1. (a)
   a complaint or an indictment for a charge for an offence states the offence is also a domestic violence offence; and

2. (b)
   the offender is convicted of the offence; and

3. (c)
   a court is satisfied the offence is also a domestic violence offence.

Note—

See the Evidence Act 1977, section 132C which provides for the sentencing judge or magistrate in any sentencing procedure in a criminal proceeding to act on allegations of fact.

3. (2)
   The court must order—

1. (a)
   for an offence for which a conviction is recorded—that the conviction also be recorded as a conviction for a domestic violence offence; or

2. (b)
   otherwise—that the offence be entered in the offender’s criminal history as a domestic violence offence.

3. (3)
   If a court makes an order under subsection (2) or convicts an offender of an offence against the Domestic and Family Violence Protection Act 2012, part 7, the prosecution may apply to the court for an order that an offence, stated in the application, of which the offender has previously been convicted (a previous offence)—

1. (a)
   for a previous offence for which a conviction was recorded—also be recorded as a conviction for a domestic violence offence; or

2. (b)
   otherwise—be entered in the offender’s criminal history as a domestic violence offence.

3. (4)
   The application—

1. (a)
   may be made in writing or orally; and

2. (b)
   must include enough information to allow the court to make a decision about whether it is appropriate to make the order.

3. (5)
   The court may ask the prosecutor for further information for it to decide whether to make an order under subsection (6).

3. (6)
   If, after considering the application, the court is satisfied a previous offence is a domestic violence offence, the court must order that the offence—

1. (a)
   for a previous offence for which a conviction was recorded—also be recorded as a conviction for a domestic violence offence; or

2. (b)
   otherwise—be entered in the offender’s criminal history as a domestic violence offence.

3. (7)
   A person against whom the domestic violence offence was committed is not compellable as a witness in proceedings before the court to decide the application.

3. (8)
   If a court is satisfied an error has been made in recording or entering an offence as a domestic violence offence, the court may, on an application or its own initiative, correct the error.”

10. [10]
    Therefore, it seems to me that the real effect of the amendments is to ensure that the fact an offence is a domestic violence offence is noted on the offender’s criminal history.

11. [11]
    As to whether a matter is a domestic violence offence, s 1 of the Criminal Code defines this as:

“domestic violence offence means an offence against an Act, other than the Domestic and Family Violence Protection Act 2012, committed by a person where the act done, or omission made, which constitutes the offence is also—

1. (a)
   domestic violence or associated domestic violence, under the Domestic and Family Violence Protection Act 2012, committed by the person; or

2. (b)
   a contravention of the Domestic and Family Violence Protection Act 2012, section 177(2).

Note—

Under the Domestic and Family Violence Protection Act 2012, section 177(2), a respondent against whom a domestic violence order has been made under that Act must not contravene the order.”

12. [12]
    Turning then to the provisions of Domestic and Family Violence Protection Act 2012, s 8 provides:

“Meaning of domestic violence

3. (1)
   Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

1. (a)
   is physically or sexually abusive; or

2. (b)
   is emotionally or psychologically abusive; or

3. (c)
   is economically abusive; or

4. (d)
   is threatening; or

5. (e)
   is coercive; or

6. (f)
   in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

3. (2)
   Without limiting subsection (1), domestic violence includes the following behaviour—

1. (a)
   causing personal injury to a person or threatening to do so;

2. (b)
   coercing a person to engage in sexual activity or attempting to do so;

3. (c)
   damaging a person’s property or threatening to do so;

4. (d)
   depriving a person of the person’s liberty or threatening to do so;

5. (e)
   threatening a person with the death or injury of the person, a child of the person, or someone else;

6. (f)
   threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;

7. (g)
   causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;

8. (h)
   unauthorised surveillance of a person;

1. (i)
   unlawfully stalking a person.

3. (3)
   A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.

3. (4)
   To remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt.

3. (5)
   In this section—

coerce, a person, means compel or force a person to do, or refrain from doing, something.

unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including, for example, by using technology.

Examples of surveillance by using technology—

• reading a person’s SMS messages

• monitoring a person’s email account or internet browser history

• monitoring a person’s account with a social networking internet site

• using a GPS device to track a person’s movements

• checking the recorded history in a person’s GPS device unlawful stalking see the Criminal Code, section 359B.”

And s 13 provides:

“Meaning of relevant relationship

A relevant relationship is—

1. (a)
   an intimate personal relationship; or

2. (b)
   a family relationship; or

3. (c)
   an informal care relationship.”

13. [13]
    It seems clear to me, on the material and the admissions made, that the parties were in a relevant relationship and the acts alleged are within the definition of domestic violence.

14. [14]
    The real issue in this case is whether the amendment is substantive or procedural.

15. [15]
    In Rodway v R^[1] the joint judgment at page 518 noted:

“The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction.  It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation.  It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure.  Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption.  It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events.  A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance.  But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations.  When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation.  But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.”

16. [16]
    The issue is also considered by Queensland Court of Appeal in R v Carlton.^[2]  In that particular case the Court of Appeal held that an amendment to the Penalties and Sentences Act removing the principle that a sentence of imprisonment should only be imposed as a last resort and that a sentence allowing the defendant to stay in the community is preferable was procedural only and, as a result, the amendment was retrospective. 

17. [17]
    On the other hand, in R v Koster^[3] it was held that an amendment to the Penalties and Sentences Act which provided that a prison term must be imposed unless there are exceptional circumstances was a substantive change and, therefore, was not retrospective. 

18. [18]
    It is however true to say that sometimes there is not a bright line between procedural statutes and statutes affecting substantive rights.

Determination

19. [19]
    To my mind the amendment here is procedural. The effect of the amendment is not to increase the sentence which may be imposed on an offender. The effect of the amendment is to categorise the nature of the offence on the criminal history of an offender. The allegation is not a circumstance of aggravation.

20. [20]
    In my judgment, this case is more akin to that in Carlton than the case of Koster. 

21. [21]
    In those circumstances, I consider that the statute is retrospective in so far as it applies to this case.

22. [22]
    In those circumstances, I permit the Crown to make the amendment to the indictment.