R v WKT[2018] QDCPR 25

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   WKT is charged on indictment before the District Court as follows:

Count 1: Assault occasioning bodily harm (Domestic violence offence)

Count 2: Assault occasioning bodily harm

Count 3: Common assault

Count 4: Common assault

2. [2]
   WKT applies for a pre-trial ruling, pursuant to s 590AA of the Code, that proceedings upon the indictment be permanently stayed. 

3. [3]
   I have concluded that the application should be refused. These are my reasons.

Material

4. [4]
   The parties relied upon the following material.

Exhibit 1: Application filed 27/2/2018;

Exhibit 2: Affidavit of Nathan Edward Bouchier filed 27/2/2018 attaching:

Exhibit A Transcript of Proceedings of 12/10/2016, and

Exhibit B Correspondence;

Exhibit 3: Applicant’s outline of submissions filed 27/2/2018;

Exhibit 4: Respondent’s outline of submissions filed 6/3/2018.

Prosecution case

5. [5]
   It is alleged the offences occurred in the evening of 15 June 2016 at a residence where the applicant lived with his wife and two children. It is alleged the applicant assaulted his wife JN (count 1), and her friend LK (counts 2, 3 & 4).

6. [6]
   It is alleged LK was visiting the applicant’s residence and all were drinking alcohol. A dispute erupted which caused both JN and LK to seek refuge in a room. After a time, the two emerged from the room and a physical altercation with the applicant ensued. Particulars of the alleged offences are set out in the respondent’s outline of submissions. Count 1 alleges the applicant pushed JN with two hands, causing her to fall and strike her head, kicked her to the head, straddled her and punched her repeatedly to the head and chest.^[1] The other offences occurred after LK intervened in the assault upon JN. Count 2 alleges the applicant straddled LK, grabbed her hair and hit her head on the floor.^[2] Count 3 alleges the applicant choked LK with both hands around her neck.^[3] Count 4 alleges the applicant attempted to gouge LK’s eyes.^[4]

Relevant events

7. [7]
   Police attended the applicant’s residence on the morning of 16 June 2016 and he was arrested and taken into custody. The applicant was charged with the offence that:

… being the respondent against whom a domestic violence order had been made contravened the order namely the protection order made on 4^th of September 2014 in the Magistrates Court at Beenleigh and he was present in court when the order was made.^[5]

The applicant was remanded in custody on that charge.

8. [8]
   The complainant, JN, provided a statement to police detailing the allegations on 17 June 2016. LK provided a statement to police on 19 July 2016.^[6]

9. [9]
   On 18 July 2016, solicitors for the applicant sent an email to Beenleigh Police Prosecutions asking whether police intended to charge the applicant with any other offences arising out of the incident. This email referred to advice given of that possibility when at court on the last occasion.^[7] By reply email on 19 July 2016, the prosecutor advised that she did not recall giving that advice. The email also said the prosecutor had “no instructions” from the arresting police officer that any other charges were pending arising out of the incident. The email also said the prosecutor did not know “what stage the investigation is at” and that she was not involved with the investigation. The email also said the prosecutor “updated the investigation task to notify police that the defendant is in custody. Perhaps this will expedite the investigation.”^[8]

10. [10]
    On 20 July 2016, solicitors for the applicant again sent an email to the prosecutor concerning the question whether the applicant would face any further charges. This email referred to both complainants having told the applicant’s sister, based on their dealings with investigating police, they expected further charges to be laid. The email asked the prosecutor to again check with the investigating officer and referred to a prison visit to take instructions from the applicant. On 25 July 2016, a further email was sent by solicitors for the applicant to Police Prosecutions stating the applicant advised he had further charges outstanding and seeking details of them.^[9] On 26 July 2016, an email was sent from Police Prosecutions advising the applicant “has not been charged with any further offences”.^[10]
11. [11]
    On 12 October 2016, the applicant pleaded guilty before the Beenleigh Magistrates Court to the charge of contravening the protection order. In the course of making submissions, the solicitor for the applicant said:

Your Honour, I’d ask you to take into account my client’s plea of guilty. There was some minor delay at the beginning of the matter, and that was because we had received some information that the – there may have been other charges as a result of this incident, but those were never forthcoming. As soon as we were given the all clear, we then listed the matter immediately for sentence.^[11]

The prosecution did not dissent from or otherwise comment upon that submission.^[12]

12. [12]
    The prosecutor at the sentence hearing provided details of the offence which relevantly, included the following:

The aggrieved in – and victim in this matter is JN. The named children in this matter is an TS and a WZ. The witness is a LK; she’s 31 years old. The respondent and the aggrieved currently reside – resided together, at the nominated address, and have been married for approximately six years. The respondent and aggrieved have two children, six and four. They’re the named persons in the protection order.

There’s a current domestic violence protection order in place between the respondent and the aggrieved, which was made 4^th of September 2014 in the Beenleigh Magistrates Court. The respondent was present in court. Two conditions: must be of good behaviour towards the aggrieved; the second states the respondent must be of good behaviour towards the named persons.

At 12.20am on the 16^th of June 2016, police were given an urgent job and details to attend [applicant’s address], in relation to a violent disturbance between the respondent and aggrieved.  Upon arrival at the address, police have sighted the aggrieved on the front lawn of the address in a hysterical state. As police exited their vehicle, they have sighted extensive injuries and heavy bleeding to the aggrieved’s face and mouth. Police have then called for urgent medical assistance, and have proceeded to enter in an attempt to locate the respondent.

Police took up with the aggrieved again, who was also showing strong signs of indicia, who stated that she and the respondent had consumed a number of bottles of wine throughout the night. The aggrieved then went on to state that she had begun to fall asleep on the couch, at which stage the respondent has woken her and yelled words to the effect of, “Get up and get into bed you old – you piece of shit.” The aggrieved has then stated that the respondent had pulled her off the couch and has thrown her against a book cabinet located in the lounge room. The witness involved in this matter has then attempted to intervene, and has yelled at the respondent to stop.

As a result, the respondent has then thrown both the aggrieved and the witness to the floor, and has straddled them and commenced punching them both in the face numerous times with a closed fist, causing the extensive injuries to the face of the aggrieved. The aggrieved and the witness have then managed to escape and call triple zero, and sought refuge in the master bedroom of the dwelling.

The children of the respondent and aggrieved were present in the dwelling and were exposed to the violence that occurred. The children could be heard screaming as police entered the dwelling to locate the respondent.

… The aggrieved was transported to hospital by QAS for x-rays to her face and the respondent was transported to the Beenleigh Watch-house where he was charged with contravention of the domestic violence order. …^[13]

13. [13]
    The applicant was sentenced to 12 months imprisonment with release on parole after serving 119 days, which were declared time served under the sentence.^[14] The Magistrate also made a further protection order for a period of two years commencing on 12 October 2016.^[15] The applicant has now completed the sentence without breach of his parole conditions.^[16]

14. [14]
    On 26 November 2016, the applicant was charged with two offences of assault occasioning bodily harm, arising out of these events, and was subsequently committed for trial on those charges.^[17] The indictment charging four offences arising out of the same incident was presented in the District Court on 22 November 2017.

15. [15]
    On the hearing of this application, counsel for the respondent provided some further explanation of the delay in charging the applicant. This information was based on discussions held by counsel with the investigating officer and the police prosecutor who sent the email of 19 July 2016. The investigating policeman told counsel for the respondent he did not receive any contact from police prosecutions and was unable to charge the applicant with the further offences because he was unaware of his whereabouts. That officer claimed the police computer system did not record the applicant as being in custody, and he believed he learned of that only from the applicant’s wife, after the applicant was released.^[18] The police prosecutor advised she had, after receiving the further email from the applicant’s solicitor on 20 July, made another enquiry of the investigator. The prosecutor said she received a response on 28 July to the effect that investigation was pending for two charges of assault occasioning bodily harm. The prosecutor then went on leave and assumed that information would, in the ordinary course, be passed on to the applicant’s lawyers by another prosecutor. The police prosecutor also advised counsel for the respondent that the police computer system recorded, as at June 2016, the applicant was in custody at Arthur Gorrie Correctional Centre. The prosecutor also advised counsel for the respondent the police computer system was automatically updated by the court computer system regarding whether persons were in custody.

Submissions

16. [16]
    The applicant submits a number of bases upon which these proceedings should be permanently stayed. It is submitted the course of conduct by the police and prosecuting authority are oppressive. It is submitted the police refrained from charging offences of assault and effectively gave an assurance to the applicant he would not be charged with any further offences arising out of this incident. Yet after the applicant entered a plea of guilty and was sentenced for the offence of contravening the protection order, police charged him with offences of assault. It is submitted this results in unfairness to the applicant who specifically sought to have all charges preferred in order to avoid duplicity and/or unfairness in the sentencing process; e.g. as to the making of a pre-sentence custody declaration and having one sentencing court deal with all allegations at one time. The applicant submits this conduct brings the administration of justice into disrepute.

17. [17]
    Further, it is submitted the applicant is now in jeopardy of being twice punished for the same acts. In particular, the applicant submits the acts constituting the contravention of the order are the same as those relied upon to prove the charges in the indictment. Thus, the applicant submits, the further prosecution of these charges offends against s 16 of the Code. The applicant argues that s 138 of the Domestic and Family Violence Protection Act 2012 (DFVPA) does no more than confirm that a separate “proceeding” under the Act may be heard and determined, notwithstanding that a person is also charged with an offence arising out of the same conduct. The applicant contends s 138(3) should not be construed as permitting punishment for a charge of an offence of contravention of a protection order and also a charge of assault, based on the same acts. The applicant submits the indictment should be permanently stayed.

18. [18]
    The respondent submits the conduct of the police and/or prosecution has not resulted in oppression or unfairness to the applicant. The respondent accepts it was unfortunate the assault charges were not brought prior to the applicant pleading guilty and being sentenced for contravention of the protection order. However, the respondent submits that no promise or undertaking not to bring further charges was made. The respondent points to the terms of the police prosecutor’s response of 19 July 2016, as indicating the prosecutor was not involved with, or aware of the state of, further investigation of the incident. The respondent submits the failure to communicate the intention to bring further charges was due to miscommunication and not deliberate. Counsel candidly conceded the explanations offered by the prosecutor were inconsistent with those of the investigator. The respondent submitted that any unfairness to the applicant remains a matter than can be resolved at the time of sentence, assuming the applicant is convicted of these offences. The respondent conceded, although acknowledging this concession could not bind any future prosecutor, that the applicant should not be required to serve any further actual custody if convicted.

19. [19]
    The respondent submitted prosecution of the charges in the indictment does not put the applicant at risk of being twice punished for the same acts. The respondent contends the acts punished by the applicant’s conviction and sentence for the offence of contravention of the protection order, are separate from the acts relied upon as the basis of the assault charges. The respondent argues the assaults upon LK (counts 2, 3, & 4), could not amount to a contravention of the protection order in any event, because LK was not the aggrieved or a named person in the protection order, so that assaults upon her are not acts of domestic violence against JN. The respondent argues the detail of assaults upon LK was placed before the sentencing Magistrate only to provide a “broader context to the offence” of contravening the protection order.

20. [20]
    Alternatively, the respondent submitted that s 138 of DFVPA provides a specific exception to s 16 of the Criminal Code, so as to avoid prohibition against being twice punished for the same acts. The respondent submitted the use of the term “proceeding” in s 138(3) contemplated punishment for separate charges of contravention of a protection order and specific counts of assault, arising out of the same conduct. The respondent submitted proceedings on the indictment should continue.

Consideration

21. [21]
    The applicant argues that the indictment offends the prohibition against being twice punished for the same acts. It is therefore necessary to identify the acts for which the applicant was punished when sentenced for the offence of contravening the protection order.

22. [22]
    The protection order included conditions that the applicant be of good behaviour towards the aggrieved (JN) and not commit domestic violence against her; and the applicant be of good behaviour towards the named persons (the children), not commit associated domestic violence against them, and not expose them to domestic violence. These were mandatory conditions pursuant to s 56 of DFVPA. Since the order did not include LK as a named person, any violence committed upon her could not breach the order, unless that conduct could be said to be domestic violence against JN, or associated domestic violence against the children, or to have exposed the children to domestic violence.

23. [23]
    The definition of domestic violence is set out in s 8 of DFVPA. Section 8(1) relevantly provides “Domestic violence means behaviour by a person (the first person) towards another person (the second person) that” fulfils any of the descriptions provided in paragraphs (a) to (f). The only paragraph presently relevant is paragraph (f), which requires behaviour that “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” (emphasis added). Section 8(2)(e) provides domestic violence also includes behaviour such as “threatening a person with the death or injury of the person, a child of the person, or someone else” (emphasis added).

24. [24]
    Section 8(1)(f) then, when read in its entirety, requires: behaviour by the perpetrator towards the aggrieved, which controls or dominates the aggrieved, and causes the aggrieved to fear for her own safety or wellbeing or that of someone else. Assaults committed upon LK may well have caused JN to fear for her own safety or that of LK. However, to comply with the requirement of the provision, that assault must also be behaviour which was directed towards JN and controlled or dominated her. It is no doubt possible to assault someone for the purpose of causing another person to be fearful and to control or dominate them. However, no such allegation was made in the submissions to the Magistrate. What was described in reciting the facts included:

The witness involved in this matter has then attempted to intervene, and has yelled at the respondent to stop. As a result, the respondent has then thrown both the aggrieved and the witness to the floor, and has straddled them and commenced punching them both in the face numerous times with a closed fist, causing the extensive injuries to the face of the aggrieved. The aggrieved and the witness have then managed to escape…

25. [25]
    It appears from that description the applicant responded to the attempt to intervene by LK by also assaulting her. I am not satisfied the described assault upon LK was behaviour directed towards JN, or that it controlled or dominated JN. That conduct could not therefore have amounted to domestic violence against JN, pursuant to s 8(1)(f), and could not be a basis of contravention of the protection order.

26. [26]
    Behaviour that amounts to domestic violence includes the examples listed in s 8(2). That subsection commences with the words “Without limiting subsection (1), domestic violence includes the following behaviour”.  Paragraph (e) specifies “threatening a person with the death or injury of the person, a child of the person, or someone else” (emphasis added) as behaviour that will qualify as domestic violence. Subsection (2) should not to be read as listing definitions of domestic violence on its own, but simply as providing examples of behaviour that can amount to domestic violence. Subsection (2) does not remove the requirement in subsection (1) that domestic violence is relevant behaviour by a perpetrator towards an aggrieved. It follows, in order to amount to domestic violence, threatening an aggrieved with the death of, or injury to, someone else must be behaviour directed towards the aggrieved. In this case, based upon the description of events given to the Magistrate, it cannot be said the applicant directed behaviour towards JN, which amounted to a threat to JN of death or injury to LK. As set out above, all that was alleged was that when LK attempted to intervene, the applicant also assaulted her. Section 8(2)(e) therefore, does not provide any basis to conclude the assault upon LK amounted to domestic violence against JN, and could not be a basis of contravention of the protection order.

27. [27]
    On the basis of the facts related to the Magistrate, the assault upon LK cannot amount to associated domestic violence against the children named in the order (see s 9 DFVPA). Nor could it amount to exposing the children to domestic violence.

28. [28]
    The applicant contends the sentence imposed by the Magistrate took account of the violence directed towards LK as part of his contravention of the protection order. I conclude those acts, in the present circumstances, could not amount to a contravention of that order. It follows those acts were strictly irrelevant to the proceedings before the Magistrate and should not have been relied upon. Since that conduct disclosed discreet offending apart from the charge for which the applicant was to be sentenced, the Magistrate was required to ignore those facts in determining the appropriate sentence.^[19] The respondent contends they were provided to explain the “broader context to the offence”. No such submission was made to the Magistrate, and in any event, consistent with R v D, that approach would be improper.  The Magistrate was not asked to exclude those facts from consideration. If these facts were of only limited use, or if it was not intended they be taken into account in determining penalty, then a clear submission to that effect should have been made. I conclude the Magistrate did take those circumstances into account in sentencing the applicant, albeit in error. This is an issue to which I shall return.

29. [29]
    The detail placed before the Magistrate included acts of violence against both JN and LK. The details of the relevant facts recounted by the prosecutor are set out above at [12]. In respect of JN, the Magistrate was informed the applicant:

• woke her when she was on the lounge;
• yelled abuse at her which included calling her a “piece of shit”;
• pulled her off the couch;
• threw her against a book cabinet;
• threw her to the floor;
• straddled her;
• punched her in the face numerous times with a closed fist, causing extensive injuries to her face.

30. [30]
    The particulars of the acts relied upon as the basis of each of the counts in the indictment is set out above at [6]. In respect of count 1, assault occasioning bodily harm to JN, it is alleged the applicant:

• pushed her, causing her to fall and strike her head on a cabinet;
• kicked her to the head;
• straddled her;
• punched her repeatedly to the head and chest.

31. [31]
    The conduct allegedly committed upon JN which involves the same acts in each offence, is: causing her to strike her head on the cabinet (whether by a push or throw), straddling her, and punching her repeatedly to the head. To the extent the charge of contravening the protection order relied upon these acts, it seems to me the applicant has already been punished for those acts. The prosecution however also particularises other acts as the basis of the charge of assault occasioning bodily harm. These are: a kick to the head and punching to the chest. The applicant has not been punished for those acts since they did not form any part of the facts placed before the Magistrate. It follows the charge of assault occasioning bodily harm, based on those allegations, does not offend against s 16 of the Code.

32. [32]
    The respondent argues that, by reason of the operation of s 138(3) of DFVPA, a specific exclusion of s 16 of the Code is created, so that a person might be convicted and punished, both for an offence of contravening a protection order and specific counts of assault which form the basis of the contravention. Reliance is placed upon the decision in R v MKW^[20] as authority for that argument. The applicant submits that decision should not be followed. In the present circumstances, I do not find it necessary to consider whether that decision is correct. Here, I conclude there is a proper basis for the charge of assault occasioning bodily harm upon JN separate to the acts for which the applicant has already been punished. In that case, the extent to which the applicant has already been punished for specific conduct will be a matter for a sentencing court to consider, in the event the applicant is convicted of the offence.

33. [33]
    In respect of LK, the prosecutor informed the Magistrate the applicant:

• threw her to the floor;
• straddled her;
• punched her to the face numerous times with a closed fist.

34. [34]
    In respect of the assaults upon LK charged in the indictment, it is alleged the applicant:

• grabbed her hair and hit her head on the floor (count 2);
• choked her with both hands around her neck (count 3);
• attempted to gouge her eyes (count 4).

35. [35]
    None of the acts relied upon as the basis of the counts in the indictment formed any part of the facts placed before the Magistrate. On that basis no issue arises, under s 16 of the Code, of the applicant being twice punished for the same acts allegedly committed upon LK. However, as I have already concluded, the Magistrate did punish the applicant for the conduct committed upon LK as was outlined to the court. That conduct included punching her to the face repeatedly, during the same episode in which the acts relied upon as the basis of the counts on the indictment occurred. That seems to me a significant circumstance if the applicant comes to be sentenced for the present offences.

36. [36]
    The applicant also complains that the conduct of the police and/or prosecution is oppressive, unfair, and undermines public confidence in the administration of justice, such that proceedings should be permanently stayed. As I have explained above, prosecution of the applicant for the present offences is lawful. That does not mean that the course followed in this case is satisfactory. It is clear the lawyers acting for the applicant, consistent with the applicant’s wishes, sought to have the expected further charges resulting from this incident expedited. That would have allowed the applicant the benefit of being able to make decisions about whether or not to defend any of the charges, with full knowledge of what he was facing. It would also have allowed for sentencing by a single court with full knowledge of all relevant facts, and allowed for a declaration of pre-sentence custody in relation to all charges. To that extent, I conclude the course of events has resulted in unfairness to the applicant.

37. [37]
    Although the lawyers acting for the applicant made attempts to have the further charges preferred before he was dealt with in the Magistrates Court, I am not satisfied that any promise was made to the applicant that he would not be further charged. That was not the terms of the emails of 19 or 26 July 2016. Those communications confirmed only that the applicant had not then been charged with any other offences. Upon the police prosecutor discovering the intention to charge further offences, by way of the investigator’s response to her of 28 July, that information should have been conveyed to the applicant’s lawyers. That failure seems to me to have been an oversight. The position as stated by the applicant’s lawyer before the Magistrate was not corrected as it should have been.

38. [38]
    However, no valid explanation is given for the delay in preferring the further charges. The claim by the investigator that he was unaware of the applicant’s whereabouts because he was then in custody, seems to me not credible. The applicant was in custody as a result of the investigator’s arrest and charging of him. Counsel for the respondent properly conceded the accounts provided as explanation of the delay were inconsistent. I have not heard from these witnesses; I am therefore unable to make any finding as to the reason for delay in bringing the further charges.

39. [39]
    The applicant contends the circumstances require that proceedings on the indictment should be permanently stayed. It is beyond doubt the court has power to order a permanent stay of proceedings which amount to an abuse of the processes of the court.^[21] This power coincides with the public interest in the due administration of justice. The court is empowered to protect its integrity by ensuring its processes are used fairly.  Public confidence is reinforced by the court acting to prevent its processes being utilised to cause oppression and injustice.^[22]

40. [40]
    An order permanently staying criminal proceedings should only be made in extreme or exceptional circumstances.^[23] It will be appropriate to order a permanent stay of proceedings where any trial will result in injustice, vexation, oppression or unfairness, thereby undermining public confidence and bringing the administration of justice into disrepute.^[24] The category of cases where a permanent stay will be justified are not closed.^[25]

41. [41]
    Determining whether in any given case a permanent stay should be ordered requires weighing of competing considerations of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.^[26]  

42. [42]
    Applying these principles in the present case, I am not satisfied that a permanent stay of proceedings should be ordered. No basis is advanced upon which to conclude that any trial of the applicant on these charges will be unfair. The unfairness pointed to is concerned with questions as to punishment if convicted. Whilst I accept the delay in charging these offences resulted in unfairness to the applicant, I am satisfied that unfairness can be remedied in structuring of any sentence upon conviction. In this context, I note the submissions of the respondent that no further actual imprisonment would be appropriate upon conviction.  

43. [43]
    The delay in charging, in circumstances where the applicant through his lawyers made appropriate effort to expedite matters, might be regarded as oppressive and potentially undermine public confidence in the justice system. In the circumstances here explained, I am not satisfied those features outweigh the public interest in having these charges determined by a court. It may well be that, if convicted, the applicant does not suffer any further significant punishment. That will remain a matter for a court to determine, if and when necessary. The charges, however, are serious and involve the infliction of significant physical violence upon two alleged victims. In my view, it remains in the public interest that the applicant be tried for those serious allegations. In my view any loss of public confidence in the due administration of justice by reason of the course of events disclosed in this case, is not such as outweighs the public interest in the charges being determined at trial.

44. [44]
    For these reasons the application should be refused.

Order

45. [45]
    The order of the court is:

1. The application by WKT that further proceedings on the indictment be permanently stayed is refused.