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EFN v Lehmann QSC 77
SUPREME COURT OF QUEENSLAND
EFN v Lehmann & Anor  QSC 77
Mr R. Lehmann, Acting Magistrate
Senior Constable Annette Murdock
Application for Review
Supreme Court, Townsville
9 May 2017
13 April 2017
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where applicant sought review of decision made by First Respondent that the matter could not be heard summarily – where First Respondent held there was no jurisdiction to hear and determine a charge under s 315A Criminal Code 1899 – where First Respondent held s 552B does not apply
STATUTE – ACTS OF PARLIAMENT – INTERPRETATION – s 315A Criminal Code 1899 – s 552B Criminal Code 1899 – meaning of “an offence involving an assault” – whether assault an element of offence
Criminal Code 1899 s 315A, s 552B
Fullard v Vera & Byway  QSC 050
Kaporonovski v R (1973) 133 CLR 209
R v Knutsen  Qd R 153
Pickering v R  HCA 17
Project Blue Sky Inc & Ors v The Australian Broadcasting Authority (1998) 194 CLR 355
Ms G E Johnston (sol) for the applicant
No appearance for the first respondent
Mr S McLeod for the second respondent
Anderson Fredericks Turner Lawyers for the applicant
C Capper, QPS Legal Unit for the second respondent
- NORTH J: The enacting of the Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015, inserted into the Criminal Code a new offence of choking, suffocation or strangulation in a domestic setting. Consequently s 315A of the Criminal Code 1899 (the Code) provides:
“315A Choking, suffocation or strangulation in a domestic setting
(1) A person commits a crime if –
- the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and
- either –
- the person is in a domestic relationship with the other person; or
- the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012.
Maximum penalty – 7 years imprisonment.
(2) An assault is not an element of an offence against subsection (1).”
- The applicant is charged with an offence under this section. When the matter was mentioned before the first respondent on 28 September 2016, a submission was made that he should hear and determine the matter summarily but, and this is common ground, his Honour held that s 552B of the Code did not apply to an offence issuant to s 315A with the consequence that the offence had to be prosecuted on indictment.
- Pursuant to s 43 of the Judicial Review Act 1991 (Qld), the applicant seeks to challenge the ruling and seeks orders which would have the effect of securing a summary trial and determination in the Magistrates Court. The nature or terms of the orders sought were not precisely articulated in either the application or the outline filed on behalf of the applicant. But at the hearing, and again this was common ground, a declaration and order similar to those made by Cullinane J in Fullard v Vera & Byway were contended for.
- The offence created by s 315A is expressly said to be a crime. Consequently, s 3 of the Code applies so that the offence is an indictable offence and an offender cannot “unless otherwise expressly stated” be prosecuted or convicted except upon indictment. Chapter 58A of the Code contains a number of provisions which expressly identify offences which must, but subject to s 552D, be heard and decided summarily. Section 315A is not, in terms, mentioned in any of them. But the applicant points to s 552B(1)(c) and submits that the provision covers the offence created by s 315A with the consequence that, subject to s 552D, the charge must be heard and determined summarily unless the applicant elects for a trial by jury.
- Section 552B relevantly provides:
“552B Charges of indictable offences that must be heard and decided summarily unless defendant elects for jury trial
- This section applies to a charge before a Magistrates Court of any of the following indictable offences –
- This section applies to a charge before a Magistrates Court of any of the following indictable offences –
- an offence involving an assault, other than an offence against section 339(1), if –
- the assault is –
- without a circumstance of aggravation; and
- is not of a sexual nature; and
- the maximum term of imprisonment for which the defendant is liable is more than 3 years but not more than 7 years; and
- a charge of the offence is not a charge to which section 552A applies;
- A charge to which this section applies must be heard and decided summarily unless the defendant informs the Magistrates Court that he or she wants to be tried by jury.
- This section is subject to section 552D.”
- In both written submissions and argument, the focus was upon the phrase “an offence involving an assault” where it appears in s 552B(1)(c). This focus was in response to or because of the express stipulation in s 315A(2) that assault is not an element of the offence created by the section. On behalf of the applicant it was noted that the terms “choking”, “suffocation” and “strangulation” were not defined, with the consequence that their natural and ordinary meaning should apply. Noting that s 315A did not provide a circumstance of aggravation nor was it “of a sexual nature” contemplated by s 552B(1)(c), the applicant submitted that for a person to offend against s 315A it would necessarily involve the application of force to another person as contemplated by s 245 of the Code which defines assault. The applicant pointed to the Explanatory Notes to the Bill as offering an explanation for s 315A(2), that is to render the defence of provocation under s 268 and s 269 inapplicable. Thus, it was submitted that the use of the broad term “involving” in s 552B(1)(c) caught a variety of offences that “involved” an assault, regardless of whether assault was an element of the offence.
- Counsel for the second respondent pointed to the legislative history of s 552B which was inserted into the Code in 1997. Referring to the Second Reading Speech, the respondent submitted that the intention of the new Chapter 58A was to consolidate the law relating to the summary determination of indictable offences but the types of offences which may or must be dealt by a magistrate were generally to remain as it had been. Noting some minor subsequent legislative amendments in the years since to clarify particular ambiguities, counsel referred to the reasons of Cullinane J in Fullard v Vera & Byway where his Honour, after considering the 1997 provisions and a subsequent amendment in 1999, observed that it was “clear … that neither [the 1997 nor the 1999 amendments were] intended to alter the power of the Magistrates Court … by restricting the matters which [could] be dealt with summarily.” Counsel drew attention to the phrase “an offence of a sexual nature” used in s 552B(1)(a) and s 552B(1)(c)(i)(B), and contrasted it with the phrase “an offence involving an assault” in s 552B(1)(c), and submitted that had the Parliament intended that offences which, of their “nature” involved assault, then that word or phrase would have been used. Rather, it was submitted the use of the words “involving an assault” pointed to an intention to restrict the ambit of s 552B(1)(c) to offences which have “assault” as an element. In support of this submission he pointed out that “assault” is a defined term in the Code and to Chapter 30 which has a heading “Assaults” and contains five offences each of which have the term “assault” as an element. By contrast, s 315A is found in Chapter 29, “Offences endangering life or health”, which contain a number of offences which do not have, as an element, “assault”. Counsel pointed to offences such as “kidnapping” (s 354) and “wounding” (s 323) both of which might be said to “involve” an assault but neither of them which had, as an element, “assault” as defined. He pointed out that neither of these offences had hitherto been thought to come within s 552B(1)(c). Finally, counsel submitted that s 315A was a serious offence, and, with a maximum penalty of seven years imprisonment, and, he submitted, it was unlikely the Parliament intended that it be one that could be heard and determined summarily in which case the maximum penalty that could be imposed is three years imprisonment. In support of this he directed attention to the “Explanatory Memorandum” and to the amendment of the Penalties Sentences Act 1992 by the insertion into s 9 of the new subsection (10A) which requires a court to treat the fact that an offence is a “Domestic Violence” offence as an aggravating factor.
- The contending submissions with respect to the interpretation of the phrase “offence involving an assault” suggest, at least in the minds of the parties, some ambiguity as to its meaning. The resolution of such an ambiguity involves, as it does when there are inconsistent provisions in legislation, the arrival at an interpretation consistent with the language and purpose of all the provisions of the statute. A statute must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals, and where a conflict appears to arise from the language of particular provision it must be alleviated so far as possible to achieve a result which it will best give effect to the purpose of the language of the provisions while maintaining the unity of the statutory provisions.
- There are, in my view, two textural or interpretive factors and one important feature of criminal court procedure that favour the interpretation intended for by the second respondent. The first concerns the use of the word “assault” for the second time in s 552B(1)(c)(i) after the phrase “involving an assault”. The term “assault”, where it occurs for the second time, points to the term defined by s 245. Adopting a preferred consistent meaning to the defined word indicates that the phrase used earlier should be interpreted as meaning an offence of which an assault, as defined, is an element. This, in turn, points to the second textural or interpretive fact. Section 315A(2) expressly provides that assault is not an element of the offence it stipulates. Many serious offences found within the Code might loosely speaking usually be committed by acts involving an assault as that term is defined. Two of them, “wounding” and “kidnapping”, have not hitherto been treated as coming within s 552B(1)(c). The interpretation contended by the applicant would result in a significant change in practice because, I infer, the phrase in issue has hitherto been understood to have the meaning contended for by the second respondent. There is no indication that the Parliament when it introduced s 315A intended to make these consequential changes.
- The third consideration, is, to my mind, decisive. Before articulating this consideration, it is important to keep steadily in mind the trite but fundamental distinction between, on the one hand, the proof beyond reasonable doubt of the facts alleged at a trial, duly convened, of an offence and, on the other, the jurisdiction of a court to hear, try and determine the offence alleged. The interpretation favoured by the applicant would require a magistrate to exercise jurisdiction upon a hypothetical assumption because it requires in effect a determination of what the offence alleged circumstantially “involves” before any evidence is called. The section gives the defendant a right of election that must be made before any trial can commence. The magistrate who might have to hear and summarily determine the matter acquires jurisdiction only following an election exercised by a defendant. How can that magistrate, who has not heard the evidence, nor seen the witnesses, in point of principle, be confident what the offence “involves” and thereby be assured of jurisdiction to summarily try and determine the offence? By contrast the interpretation submitted by the second respondent provides for more certainty of jurisdiction and also consistent with fundamental principle that the Magistrates Court is not a court of inherent jurisdiction but a court with jurisdiction conferred by statute. The right of election, and with it jurisdiction, to summarily determine an alleged offence, is conferred “objectively” under the Code by the elements of the charged offence. Thus, where an offence is charged which has as one of its elements “assault” as it is defined then, subject to the other matters stipulated in s 552B(1)(c), it must be heard and determined summarily unless the defendant elects to be tried by jury.
- The interpretation contended for by the second respondent is to be preferred. The ruling by the first respondent was correct. The applicant did not have a right of election to be tried summarily. The application therefore should be dismissed.
- At the hearing it was common ground that whatever the outcome of the application, there should be no order as to costs.
 See the Verdict and Judgement Record, Exhibit 1. No transcript of the hearing or ruling is available.
  QSC 50.
 See s 552B(2)-(3).
 This contention might usually be correct. It is possible however to imagine a circumstance of a person being lured into and locked within an airless chamber causing suffocation without an assault within s 245.
 As to the concept of “element” in the context of the Code see Kaporonovski v R (1973) 133 CLR 209, 217 and Pickering v R  HCA 17 (3 May 2017) at .
 See Criminal Law Amendment Act 1997 and Qld, Parliamentary Debates, Legislative Assembly, for December 1996, p 4874 (Denver Beanland, Attorney-General).
  QSC 50.
  QSC 50, at p8, line 40.
 See s 245.
 As to “wounding” see R v Knutsen  QdR 153, 164 per Philp J, and Kaporonovski v R (1975) 133 CLR 209, 233. Indeed as Kaporonovski v R demonstrates, there are a number of serious offences found in the Code which do not have as an element “assault” as defined but which loosely speaking might be said to “involve” an assault.
 Explanatory Memorandum, Criminal Law (Domestic Violence) amendment Bill (No. 2) 2015, 3.
 See Project Blue Sky Inc & Ors v The Australian Broadcasting Authority (1998) 194 CLR 355 at .
 See s 552(B)(2) Criminal Code 1899 (Qld).
 As to the importance of the identification of the “elements” of an offence and the concept of offences of which “assault” is an element see: Pickering v R  HCA 17 (3 May 2017) at , -.
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 77  1 Qd R 126||09 May 2017||North J.|