Fullard v. Vera & Byway - [2007] QSC 50

SUPREME COURT OF QUEENSLAND

CITATION:

Fullard v Vera & Byway [2007] QSC 050

PARTIES:

Fullard

(Applicant)

Mr. L. Verra, Magistrate

(First Respondent)

Senior Constable Terry Byway

(Second Respondent)

FILE NO/S:

S8/06

DIVISION:

Trial Division

PROCEEDING:

Application for Review

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

5 March 2007

DELIVERED AT:

Townsville

HEARING DATE:

5 March 2007

JUDGES:

Cullinane J

ORDER:

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

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – DECISION MADE UNDER CRIMINAL CODE ACT –Where applicant sought review of decision made by the First Respondent that he had no jurisdiction to hear and determine a charge under s 339 of the Criminal Code Act against the applicant – whether the First Respondent was right in coming to the conclusion that he did not have jurisdiction to hear the matter under s 552B (ha) of the Criminal Code Act..

STATUTE – INTERPRETATION – Whether s 339 (1) and s 339 (3) of the Criminal Code Act are to be treated as 2 separate offences – whether reference to s 339 (1) in s 552B(1)(ha) extended to refer to the offence of assault occasioning bodily harm and not the offence with a circumstance of aggravation.

Acts Interpretation Act 1954, s14 Criminal Code Act 1899, s 339, s 552B, and s 552D Judicial Review Act 1991, s 41(2)

Herpich v Martin (1995) 1 Qd R 359, followed. Cronin v Hamilton-Smith, Ex parte Hamilton-Smith [1958] Qd.R. 24, cited. Ross v The Queen (1979) 141 C.L.R. 432, cited.

COUNSEL:

Mr Honchin for the Applicant

Mr W Pennell for the Second Respondent

SOLICITORS:

LA WARD Legal for the Applicant

Queensland Police Service Solicitor for the Second Respondent

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

CULLINANE J

No S8 of 2006

ALLISON GAYLE FULLARD	Applicant
and
MR L VERRA MAGISTRATE	First Respondent

and

CONSTABLE T BYWAY Second Respondent

TOWNSVILLE

..DATE 05/03/2007

JUDGMENT

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…

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 Fullard v. Vera & Byway

Details

AGLC: Fullard v Vera and Byway [2007] QSC 50
Case: [2007] QSC 50
Decision Date: 5 March 2007

CaseChat Overview and Summary

In the case of Fullard v. Vera & Byway, the applicant, Fullard, sought judicial review of a decision made by the First Respondent, Vera, who was a Magistrate. Fullard contested the First Respondent's determination that he lacked the jurisdiction to hear and decide a charge under section 339 of the Criminal Code Act against the applicant. The crux of the dispute was whether the First Respondent correctly concluded that he did not have jurisdiction to hear the matter under section 552B(1)(ha) of the Criminal Code Act.

The central legal issue before the court was the interpretation of sections 339 and 552B of the Criminal Code Act. Specifically, the court had to determine whether sections 339(1) and 339(3) should be treated as separate offences, and if the reference to section 339(1) in section 552B(1)(ha) extended to encompass the offence of assault occasioning bodily harm, including the circumstance of aggravation. The court also needed to clarify whether the First Respondent's jurisdiction under section 552B(1)(ha) included the authority to hear and determine the charge of assault occasioning bodily harm with the circumstance of aggravation that the applicant was in company.

The court found that the First Respondent erred in concluding that he lacked jurisdiction to hear and determine the charge. It was held that sections 339(1) and 339(3) should not be treated as separate offences, and that the reference to section 339(1) in section 552B(1)(ha) did extend to the offence of assault occasioning bodily harm with the circumstance of aggravation. Consequently, the First Respondent had jurisdiction to hear and determine the charge. However, the court also ordered that the First Respondent 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.

Orders

Orders of the court

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fullard v Vera & Byway [2007] QSC 050
PARTIES:	Fullard (Applicant) Mr. L. Verra, Magistrate (First Respondent) Senior Constable Terry Byway (Second Respondent)
FILE NO/S:	S8/06
DIVISION:	Trial Division
PROCEEDING:	Application for Review
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	5 March 2007
DELIVERED AT:	Townsville
HEARING DATE:	5 March 2007
JUDGES:	Cullinane J
ORDER:	I (a) Declare 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 and (b) order that the first respondent consider whether he should abstain from exercising the court's jurisdiction to hear and determine the matter having regard to the provisions of s.552D.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – DECISION MADE UNDER CRIMINAL CODE ACT –Where applicant sought review of decision made by the First Respondent that he had no jurisdiction to hear and determine a charge under s 339 of the Criminal Code Act against the applicant – whether the First Respondent was right in coming to the conclusion that he did not have jurisdiction to hear the matter under s 552B (ha) of the Criminal Code Act.. STATUTE – INTERPRETATION – Whether s 339 (1) and s 339 (3) of the Criminal Code Act are to be treated as 2 separate offences – whether reference to s 339 (1) in s 552B(1)(ha) extended to refer to the offence of assault occasioning bodily harm and not the offence with a circumstance of aggravation. Acts Interpretation Act 1954, s14 Criminal Code Act 1899, s 339, s 552B, and s 552D Judicial Review Act 1991, s 41(2) Herpich v Martin (1995) 1 Qd R 359, followed. Cronin v Hamilton-Smith, Ex parte Hamilton-Smith [1958] Qd.R. 24, cited. Ross v The Queen (1979) 141 C.L.R. 432, cited.
COUNSEL:	Mr Honchin for the Applicant Mr W Pennell for the Second Respondent
SOLICITORS:	LA WARD Legal for the Applicant Queensland Police Service Solicitor for the Second Respondent