Efn v Lehmann - [2017] QSC 77

SUPREME COURT OF QUEENSLAND

CITATION:

EFN v Lehmann & Anor [2017] QSC 77

PARTIES:

EFN
(Applicant)

v

Mr R. Lehmann, Acting Magistrate

(First Respondent)

Senior Constable Annette Murdock

(Second Respondent)

FILE NO/S:

S789/16

DIVISION:

Trial Division

PROCEEDING:

Application for Review

ORIGINATING COURT:

Supreme Court, Townsville

DELIVERED ON:

9 May 2017

DELIVERED AT:

Townsville

HEARING DATE:

13 April 2017

JUDGE:

North J

ORDER:

Application Dismissed

CATCHWORDS:

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 – s315A Criminal Code 1899 – s552B Criminal Code 1899 – meaning of “an offence involving an assault” – whether assault an element of offence

Criminal Code 1899 s315A, s552B

Fullard v Vera & Byway [2007] QSC 050
Kaporonovski v R (1973) 133 CLR 209
R v Knutsen [1963] Qd R 153
Pickering v R [2017] HCA 17
Project Blue Sky Inc & Ors v The Australian Broadcasting Authority (1998) 194 CLR 355

COUNSEL:

Ms G E Johnston (sol) for the applicant
No appearance for the first respondent
Mr S McLeod for the second respondent

SOLICITORS:

Anderson Fredericks Turner Lawyers for the applicant

C Capper, QPS Legal Unit for the second respondent

[1]    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 –
(a)     the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and
(b)     either –
(i)   the person is in a domestic relationship with the other person; or
(ii)    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).”

[2] 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.[1]
[1] See the Verdict and Judgement Record, Exhibit 1. No transcript of the hearing or ruling is available.
[3] 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Efn v Lehmann

Details

AGLC: Efn v Lehmann [2017] QSC 77
Case: [2017] QSC 77
Decision Date: 9 May 2017

CaseChat Overview and Summary

The case of Efn v Lehmann involved an application for judicial review by the applicant, Efn, against a decision made by the First Respondent, who was a magistrate. The dispute centred around the First Respondent’s conclusion that a matter could not be heard summarily, as they believed there was no jurisdiction to hear and determine a charge under section 315A of the Criminal Code 1899. Additionally, the First Respondent held that section 552B of the Criminal Code did not apply in this context.

The primary legal issues that the court needed to address were the interpretation of sections 315A and 552B of the Criminal Code 1899, and whether the offence in question involved an assault. Specifically, the court had to determine whether an assault was an element of the offence, which would determine if the matter could be heard summarily under section 552B. The applicant argued that the First Respondent misinterpreted these sections and misapplied the law.

In reaching its decision, the court examined the relevant statutory provisions and considered the legislative intent behind sections 315A and 552B. The court concluded that the First Respondent's interpretation of the legislation was correct, and that there was no error in their decision-making process. The court held that an assault was not an element of the offence in question, and thus, the First Respondent did not err in finding that there was no jurisdiction to hear the matter summarily under section 552B.

Given the court's findings, the application for judicial review was dismissed, affirming the decision of the First Respondent. The court found no grounds for review and upheld the magistrate’s interpretation of the relevant sections of the Criminal Code.

Orders

Orders of the court

Application Dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	EFN v Lehmann & Anor [2017] QSC 77
PARTIES:	EFN (Applicant) v Mr R. Lehmann, Acting Magistrate (First Respondent) Senior Constable Annette Murdock (Second Respondent)
FILE NO/S:	S789/16
DIVISION:	Trial Division
PROCEEDING:	Application for Review
ORIGINATING COURT:	Supreme Court, Townsville
DELIVERED ON:	9 May 2017
DELIVERED AT:	Townsville
HEARING DATE:	13 April 2017
JUDGE:	North J
ORDER:	Application Dismissed
CATCHWORDS:	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 – s315A Criminal Code 1899 – s552B Criminal Code 1899 – meaning of “an offence involving an assault” – whether assault an element of offence Criminal Code 1899 s315A, s552B Fullard v Vera & Byway [2007] QSC 050 Kaporonovski v R (1973) 133 CLR 209 R v Knutsen [1963] Qd R 153 Pickering v R [2017] HCA 17 Project Blue Sky Inc & Ors v The Australian Broadcasting Authority (1998) 194 CLR 355
COUNSEL:	Ms G E Johnston (sol) for the applicant No appearance for the first respondent Mr S McLeod for the second respondent
SOLICITORS:	Anderson Fredericks Turner Lawyers for the applicant C Capper, QPS Legal Unit for the second respondent