R v RJM[2021] QDCPR 58

DISTRICT COURT OF QUEENSLAND

Introduction 

1. [1]
   The applicant is charged with three charges; one of wilful damage and two of common assault.  All are domestic violence offences.  The offences occurred on 10 February, 20 February and 21 February 2020.
2. [2]
   The Crown allege that on 10 February 2020 the complainant was at home with the defendant when she received a phone notification.  The defendant asked if that was her other boyfriend and she showed him the phone indicating that the notification was from a game.  She then put her phone on charge in the kitchen.  The defendant demanded to see her phone and she refused so he grabbed her, grabbed the phone from her hand and threw the phone at the floor, shattering the screen and breaking it into four pieces.  This represents the charge of wilful damage.
3. [3]
   On 20 February 2020 the complainant and defendant were at home when the defendant accused the complainant of upsetting him.  He started yelling at her and calling her names.  She asked him to stop and he pushed her, forcing her off-balance and she fell down a set of nine stairs, hurting her right ankle and shoulder.  This represents a charge of common assault, count 2 on the indictment.
4. [4]
   Later that night police arrived at the home and the complaint indicated she did not want to provide a statement or go to the station because she thought the defendant had calmed down.  At approximately 6.00am the next morning, the complainant was in the front doorway of the house waiting for a mutual friend to come over because she had started to fear the defendant again. The defendant started looking for his cigarettes and asked her if she had any.  She said no.  He said he was going to check the pockets of her jumper.  He reached for her pockets and she brought her knees up to block him and told him not to touch her.  He then grabbed the hood of her jumper, dragged her inside the house and threw her backwards down two stairs into the garage where she hit her head on the concrete floor.  She yelled for help and he got on top of her and put his hands over her nose and mouth telling her to be quiet.  She tried to escape.  He forced her towards the back wall and punched her in the face a number of times.  This represents the charge of common assault, count 3 on the indictment.

5. [5]
   Immediately after these events the defendant was charged with breaching domestic violence orders and was sentenced on 28 February 2020 on charges of contravening a domestic violence order on 21 February 2020, contravening a police protection notice on 10 February 2020 and 21 February 2020 as well as obstruct police on 22 February 2020.  He was sentenced to 18 months’ probation.  
6. [6]
   The facts put forward in relation to those breaches to which he pleaded guilty are briefly that on 10 February the defendant was watching TV in the lounge.  The complainant’s phone made a noise that it received a notification.  He asked if it was her other boyfriend and she said it was a game and showed him.  She then walked into the kitchen with her phone and he approached her from behind, grabbed her with one arm around her chest, grabbed the phone and attempted to unlock her mobile phone; when he couldn’t, he threw it to ground and it shattered.
7. [7]
   Further, the police submitted that on 21 February 2020 at 6.15 in the morning she was sitting on the front verandah with the doors open.  He asked her if she wanted soup or coffee; she stated she did not.  He stood behind her with the jug and started tipping the water towards her and threatening to pour it over.  He then started to look for his cigarettes, was unable to locate them and accused her of having them.  She said she did not.  He further accused her of having them.  This continued for a while, then he tried to forcefully check her jumper.  She tried to block him, asking him not to touch her.  He then grabbed her, pulled her backwards by the hood of the jumper into the garage, pushed her down two stairs and she hit her head on the concrete. She started calling out for help.  He got on top of her to cover her mouth.  She was thrashing around.  She stood up and tried to open the garage door.  He moved her into the laundry tub, forced her to the ground, telling her to “shut-up” and then punched her a number of times.  He then hid from the police when they came looking for him the next day.

8. [8]
   The application is for a permanent stay of proceedings on the basis that to proceed would offend s 16 of the Criminal Code 1899 (Qld) which provides that “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”.  It is submitted that the facts of the earlier prosecution and the current prosecution are identical.  
9. [9]
   At the hearing of this matter, it was submitted by the Crown that whatever the outcome, the facts that were put before the Magistrate did not include the facts of the assault of 20 February 2020.  Mr Kissick for the defendant argued that it was all part of the same offending and that it was simply a mistake that 20 February 2020 was not charged.  I do not accept that argument.  The facts of the common assault on 20 February 2020 were not put before the Court at all and there was no charge related to that date.  The argument in relation to s 16 of the Act does not apply to that charge. 
10. [10]
    The question remains however whether s 16 applies to the remainder of the charges, particularly where s 138 of the Domestic and Family Violence Act 2012 (Qld) (‘the Act’), the Crown submits, specifically provides for breaches of domestic violence to be charged on the same basis as the criminal offences.
11. [11]
    I accept that the law in relation to s 16 of the Criminal Code is enunciated in R v Dibble; ex-parte Attorney-General Queensland [2014] QCA 8, namely that where there is a unity of time and place, at least in the punishable acts or omissions, that s 16 applies.  Further, I accept that the factual basis of Counts 1 and 3 are essentially the factual basis put before the Magistrates Court for the charges heard in that Court.
12. [12]
    Mr Kissick argues that s 138 of the Domestic and Family Violence Act 2012 (Qld) should not be interpreted to include proceedings of criminal offences.  
13. [13]
    Section 138 of the Act is found in Part 5 of the Domestic Violence and Family Protection Act which confers jurisdiction.  Section 136 of the Act provides:

“Conferral of jurisdiction

1. (1)
   A court has jurisdiction—

   1. to hear and decide any application made to the court under this Act; and
   2. to perform any other function or exercise any other power conferred on the court under this Act.”
2. (2)
   Despite any other law or rule of court, a Magistrates Court in any district may hear and decide a proceeding that has been started in a Magistrates Court in any other district.”

14. [14]
    Section 137 of the Act provides a Magistrates Court constituted by two or more justices may deal with applications.  
15. [15]
    Section 138 provides: 

“Concurrent criminal proceeding

1. (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.
2. (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. the existence of the application;
   2. the existence of any proceeding relating to the application; 
   3. the making of a refusal to make any order relating to the application; 
   4. the making of, or the refusal to make, any variation of any order relating to the application; 
   5. the fact that evidence of a particular nature or context 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. any proceeding for an offence against the person arising out of the same conduct; or 
   2. any civil liability of the person.
4. (4)
   The person may be punished for the offence mentioned in subsection (3)(a) despite any order made against the person under this Act.”

16. [16]
    The defence submit that s 138 only refers to applications for domestic violence orders and not criminal proceedings under the Act.  It is submitted on behalf of the defence that s 181 of the Act which provides for the mechanism of prosecution of offences, simply defines that the proceedings should be under the Justices Act 1886 (Qld) and that a proceeding for an offence is not under the Act but under the Justices Act 1886 (Qld), the Criminal Code or the Criminal Practices Rules 1999 (Qld).  
17. [17]
    The Crown relies on the decision of Chief Judge O'Brien (as he then was) in R v MKW [2014] QDC 300 where his Honour found that s 138 applies to criminal proceedings taken under the Act.  His Honour analysed the matter from [13] as:

“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. 

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. 

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).”

18. [18]
    In my view this analysis is sound.  Section 30 allows a police officer to charge someone with an offence under the Act but s 181 establishes the procedure by which that charge can be prosecuted.  Nonetheless the offence itself and the penalty is contained wholly within the Act.  Section 177 provides for contravention of a domestic violence order with penalties imposed and in sub-section 6 talks about proceedings for the offence.  Section 178 provides for contravention of a police protection notice and provides the penalty.  Sub-section 3 of that section talks about “a court hearing proceedings for the prosecution of an offence”.  Section 181 of the Act merely provides the procedure for the proceedings to take place, whether it be under the Justices Act 1886 (Qld) or the Criminal Code.  Section 182 further provides that a proceeding for an offence under this Act must be heard in a summary way under the Justices Act 1886 (Qld).  There is a difference between, in my view, the procedure to be followed and a proceeding under this Act, which is the Act that confers the jurisdiction to charge for breaches of its orders.
19. [19]
    Furthermore, a proceeding under the Acts Interpretation Act 1954 (Qld) is defined as “a legal or other action or proceeding”.^[1]  In my view there is no reason to go beyond the plain meaning of the word and the plain meaning of the word as used in the Act.  The meaning of the section is clear and that is that criminal proceedings can run concurrently with proceedings for breaches of the order or applications for an order under the Act

Order

[20]  The application is dismissed.