Fullard v Vera[2007] QSC 50

SUPREME COURT OF QUEENSLAND

HIS HONOUR:  This is an application under section 41 subsection (2) of the Judicial Review Act 1991 as amended for a prerogative order directed to the first respondent, a stipendiary Magistrate, requiring him to hear and determine a charge under section 339 of the Criminal Code against the applicant.

The first respondent has been given leave to withdraw.  He has adopted the customary approach in a case of this kind of abiding the Court's order.  The second respondent appears to resist the application.

The applicant has been charged with the offence of assault occasioning bodily harm with a circumstance of aggravation, namely that she was in company.

She has entered a plea of guilty and has made it clear that she wishes the matter to be determined summarily.

An issue arose as to whether the charge was one which could be dealt with summarily and the first respondent, in what has been described as a directions hearing pursuant to section 83A of the Justices Act 1886, heard argument about the matter.

He ruled that he had no jurisdiction to deal with the matter.

Section 339 of the Code provides as follows:

(1)Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime, and is liable to imprisonment for seven years.

(2)... ... ... ... ... ...

(3)If the offender does bodily harm, and is or pretends to be armed with any dangerous or offensive weapon or instrument or is in company with one or more other person or persons, the offender is liable to imprisonment for 10 years.

Section 552B provides for those indictable offences which can or must (in certain circumstances) be dealt with summarily.  It provides as follows:

(1) This section applies to a charge before a Magistrates Court of any of the following indictable offences -

(a)an offence of stealing, fraud, receiving or other dishonesty, or of making anything moveable with intent to steal it, and the value of the property, benefit or detriment is not more than $5000;

(b)an offence against section 406;

(c)an offence relating to damage to or destruction of

(d)an offence relating to an animal, skin or carcass or part of an animal, skin or carcass;

(e)an offence against section 419 or 421, if-

(i)the offence involved stealing or an intent to steal or an intent to destroy or damage property or the damage or destruction of property; and

(ii)the offender was not armed or pretending to be armed when the offence was committed; and

(iii)the value of any property stolen,       damaged or destroyed was not more than $1000;

(f)an offence against section 425;

(fa)an offence against section 427;

(g)an offence against section 408A;

(h)an offence of a sexual nature without a circumstance of aggravation where the complainant was 14 years of age or over at the time of the alleged offence and the defendant has pleaded guilty;

(ha)an offence against section 339(1);

(i)an offence involving an assault, other than an offence against section 339(1), if

(i)the assault is -

(A)without a circumstance of aggravation; and

(B) is not of a sexual nature; and

(C)is not an assault mentioned in section 552A; and

(ii)the maximum penalty for the offence is not more than seven years;

(ia)an offence against section 316A;

(j)an offence against section 328A(1) or (2);

(k)an offence of unlawful stalking without a circumstance of aggravation;

(ka)an offence against chapter 14, chapter division 2;

(l)an offence against chapter 22A;

(m)an offence against chapter 42A;

(n)an offence of attempting to commit any of the above offences;

(o)an offence of counselling or procuring the commission of any of the above offences;

(p)an offence of becoming an accessory after the fact to any of the above offences.

(2)A charge of an offence mentioned in subsection (1)(a) to (e) or a charge of attempting to commit, or of counselling or procuring the commission of, or of becoming an accessory after the fact to, any of those offences must be dealt with summarily, unless the defendant informs the Magistrates Court that he or she wants to be tried by a jury.

(3)Also, if-

(a)the defendant admits that he or she is guilty of an offence to which subsection 92) applies; and

(b)the Magistrates Court considers the offence is of a nature that the defendant may be adequately punished on summary conviction; the charge must be dealt with summarily under subsection (2) whether or not the value of any property in relation to which the offence was committed is less than the value mentioned in subsection (1)(a) to (e).

(4)For subsection (3), it is immaterial that the defendant could be charged with an offence that the Magistrates Court has no jurisdiction to hear and decide because of the value of the property in question.

(5)A charge of an offence mentioned in subsection (1)(f) to (m), or a charge of attempting to commit, or of counselling or procuring the commission of, or of becoming an accessory after the fact to, any of those offences, must be dealt with summarily, unless the defendant informs the Magistrates Court that he or she wants to be tried by jury.

(6)This section is subject to section 552D.

I have had the benefit of written and oral submissions from both parties.  These written submissions canvassed the history of the legislation.  I have also been referred to a number of cases.

Section 552B, which forms part of chapter 58A of part 8 of the Criminal Code, was introduced into the Criminal Code in 1997 as one of a number of amendments.  At the time of the amendments the Attorney General and Minister for Justice in his second reading speech said in relation to chapter 58A (which itself was introduced by the amendments) that its purpose was to consolidate the law relating to the summary determination of indictable offences which were at that time to be found in a number of provisions.  The Attorney General said:

"The types of categories of offences which may or must be dealt with by a Magistrate will generally remain the same as in the current Code."

It appears that thereafter some doubts arose as to whether section 552B, as it was enacted, permitted the Magistrates Court to deal with a charge under section 339(1) namely assault occasioning bodily harm.

As a result paragraph (ha) was introduced.  The explanatory notes which accompanied this amendment relate that chapter 58A "was not intended to substantially change the jurisdiction of Magistrates Court with the exception ---."

The exception is not relevant for present purposes.

The statement goes on to relate that an unintended consequence of the terms in which section 552B was expressed was to give rise to what is described as an ambiguity regarding the Magistrates Court jurisdiction to deal with an offence under section 339(1).

The statement goes on to relate that the amendment "removes the ambiguity and makes it plain that a Magistrates Court can deal with these offences."

It is clear then from the explanatory material to which the Court is entitled to have regard pursuant to section 14B of the Acts Interpretation Act that neither section 552B when introduced in 1997 or section 552B(ha) when introduced in 1999 was intended to alter the power of the Magistrates Court to deal with summary matters by restricting the matters which can be dealt with summarily.

The Court of Appeal in Herpich v. Martin (1995) 1 QdR 359 had to consider the effect of section 339 and in particular the effect of a charge under subsection (1) with one of the circumstances of aggravation provided for in subsection (3).  The Court was concerned with the legislation relating to the summary disposition of indictable offences as it stood prior to the introduction of chapter 58A.  At page 36 McPherson and Davies JJA said:

"As regards the present matter, section 339 in chapter XXX makes it an offence carrying a penalty of up to three years' imprisonment to assault another and do him bodily harm; the penalty is increased to seven years if the offender is in company with one or more other persons.  Section 341 in chapter XXXI provides that a person who assaults another may be convicted summarily.  Section 343A says that a person who assaults and thereby does bodily harm to another is liable on a summary conviction to imprisonment for two years.  That section is expressed to be subject to section 342, which provides that the Justices are required to abstain from dealing with the case summarily if the assault was accompanied by an attempt to commit a crime 'or if for any reason the Justices are of opinion that the charge is a fit subject for prosecution by indictment.'

Contrary to the submission advanced before us on appeal, the addition to a charge of assault occasioning bodily harm under section 339 of a circumstance of aggravation mentioned in the third paragraph of that section does not alter the nature of the offence or turn it into a different or distinct offence.  A comparable argument has been rejected in the case of aggravated assault under section 344: see Cronin v. Hamilton-Smith, ex parte Hamilton-Smith [1958] Queensland Reports 24 approved in Ross v. the Queen (1979) 141 CLR 432, 427.  The same conclusion follows perhaps with even greater force in the case of an assault occasioning bodily harm under section 339: cf. Ross v. the Queen (1979) 141 CLR 432, 438-439."

Fitzgerald P agreed.

Thus it is clear that prior to the 1997 amendments the Magistrates Court had power to deal summarily with an offence under section 339 subsection (1) where that offence was accompanied by a circumstance of aggravation under section 339 subsection (3).  Such an offence is an offence of assault occasioning bodily harm with a circumstance of aggravation.  The addition of the latter does not alter the fact that the offence is the offence of assault occasioning bodily harm for which section 339 subsection (1) provides.

The first respondent, in coming to the conclusion that he did not have jurisdiction to deal with the matter, said that if the argument of the applicant (and a co-accused) was correct, the draftsman has adopted an inconsistent drafting practice when one has regard to other provisions of the section, namely 552B(f),(fa) and (g).  This is because the reference to the provisions of the Code in these instances were not limited in the way section 552B(ha) is limited in its reference to section 339 by adding the reference to subsection (1) thereof.

In argument before me attention was also drawn to the way in which section 552B(1)(j) is expressed.  However, without finding it necessary to express any concluded view on the matter it seems to me that that reference may be explained by the fact that indeed, separate offences are provided for under the two subsections of section 328.  The terms in which the subsections are expressed are consistent with the provision of an offence and circumstance of aggravation.  However, what appears to me be of greater importance here is the subsections are expressed to create a misdemeanour and a crime respectively.

The first respondent also made reference to what is described as an editor's note to the Criminal Code under section 339.  The editor's note includes the following:

"The penalty in relation to the offence defined in subsection (3) increased from seven years to 10 years."

Whilst expressing some reservations as to whether section 14B permitted him to have recourse to an editor's note, the first respondent nonetheless seems to have done so, although it does not seem to me that he reached the conclusion that there were two separate offences provided for in section 339. 

In my view it is plain from the judgment of the Court of Appeal that I have referred to that there are not two separate offences created by section 339(1) and (3) respectively.  Such a conclusion would be contrary not only to that judgment but earlier cases referred to in it.

The conclusion which the first respondent ultimately reached was that the reference to section 339(1) in subparagraph (ha) of section 552B(1) should be construed as a reference to the offence of assault occasioning bodily harm and not to that offence with a circumstance of aggravation such as is alleged here.

This, it seems to me, is the issue.  It is not a question of whether there are two separate offences provided for under section 339.  There are plainly not two separate offences on the authorities.

If consideration is confined solely to the terms of paragraph (ha) of subsection 552B(1)(ha) then in my view it is clear that this matter falls within that provision.  The only offence for which section 339 provides is that in section 339(1) and that is what the applicant is charged with.

There is, in my view, nothing in the remainder of section 552B or in any other part of chapter 58A or elsewhere which would lead to a different conclusion.

It may be accepted that there is some inconsistency in the drafting, as the first respondent pointed out.  However, it might with as much validity be said that if the conclusion of the first respondent is correct there is also an inconsistency in the drafting of the subsection.  Where the draftsman has, elsewhere, sought to achieve the result which the first respondent's decision affords to subparagraph (ha) in this case, namely to distinguish, for the purposes of summary jurisdiction, between an offence and that offence with a circumstance of aggravation, he has done so expressly.  See subclause (A) of clause (i) of paragraph (ha).  It is also apparent that if the draftsman wished to exclude from the ambit of paragraph (ha) an offence under section 339(1) with a circumstance of aggravation it would have been a simple mater to do so.

In my view the combined effect of the authority to which I have referred, the intrinsic material to which recourse is permissible as to the effect of the amendments and the terms of the amendments themselves is to compel the conclusion that the matter is one that the first respondent had jurisdiction to deal with.

It does not follow, however, that he can be compelled by an order of the Court to proceed to hear and deal with the matter.  Section 552D confers upon a Magistrates Court a discretion to refrain from dealing with the matter.  It provides as follows:

(1)A Magistrates Court must abstain from dealing summarily with a charge under section 552A or 552B if satisfied, at any stage, and after hearing any submissions by the prosecution and defence, that because of the nature or seriousness of the offence or any other relevant consideration the defendant, if convicted, may not be adequately punished on summary conviction.

(2)If the Court abstains from jurisdiction, the proceeding for the charge must be conducted as a committal proceeding.

The appropriate course, it seems to me, to take is to make a declaration that the charge against the applicant under section 339(1) with a circumstance of aggravation is one which the Magistrates Court has jurisdiction to deal with and to order that the first respondent proceed to consider whether he should abstain from dealing with the matter in the exercise of the statutory discretion for which section 552D provides.

The formal orders of the Court will be:

(a)I make a declaration that the first respondent has jurisdiction to hear and determine the charge of assault occasioning bodily harm with the circumstance of aggravation that the applicant was in company that the applicant with charged with;

(b)I order that the first respondent proceed to consider whether he should abstain from exercising the Court's jurisdiction to hear and determine the matter having regard to the provisions of section 552D(1).

...

HIS HONOUR:  I do not propose to make an order for costs.  I think that the matter is one in which there was a significant public interest.  The conclusion the first respondent reached was not absurd or not without any rational basis.  There are plainly some unusual features in the way in which the draftsman drafted 552B and in the result I think the appropriate course to take is to make no order for costs.