Herpich v Martin

[1994] QCA 18

IN THE COURT OF APPEAL [1994] QCA 018

SUPREME COURT OF QUEENSLAND

C.A. No. 419 of 1993

Before The President
Mr Justice Davies
Mr Justice McPherson

[R. v. Martin]

BETWEEN:

T H E Q U E E N

v.

ROBERT FRANCIS MARTIN

Appellant

Fitzgerald P.
Mr Justice Davies

Mr Justice McPherson

Judgment delivered 4/03/94

Joint reasons for judgment of McPherson & Davies JJ.A. Separate concurring reasons of Fitzgerald P.

APPEAL DISMISSED.

CATCHWORDSCRIMINAL LAW - ASSAULT - Bodily harm - In company - Whether magistrate has jurisdiction - Construction of ss.339, 342, 343A Criminal Code (Qld.).

CounselP. Alcorn for the appellant

P. Rutledge for the respondent

Solicitors: Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date: 1 March 1994

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 04/03/94

The circumstances and issues in this appeal are set out in the judgment of McPherson J.A.. I agree with his Honour's conclusions and with his reasons. I mention one matter solely for the purpose of emphasis.

There is no express reference in Chapter XXXI of the Code to the precise charge against the appellant, which included as a circumstance of aggravation that at the time of the assault upon the complainant the appellant was in company with other persons.

Nonetheless, such an offence is within section 343A, which is concerned with all offences of assault causing bodily harm, with or without such a circumstance of aggravation. Where, as here, there is a circumstance of aggravation, that bears upon the decision whether or not to proceed summarily which is required by section 342, but if the assault was not accompanied by an attempt to commit a crime and the magistrate is not of opinion "that the charge is a fit subject for prosecution by indictment", a summary proceeding is permissible.

JOINT REASONS FOR JUDGMENT - McPHERSON & DAVIES JJ.A.

Judgment delivered the Fourth day of March 1994

The appellant was charged in the magistrates court with assaulting the complainant and doing him bodily harm. It was also charged as a circumstance of aggravation that at the time of commission of the offence the appellant was in company with other persons. The magistrate convicted the appellant and sentenced him to imprisonment for six months. In the reasons he gave for his decision, the magistrate said that there was

evidence before him that two other persons Freeman and Hedger

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had assaulted the complainant "conjointly", and that he (the magistrate) was satisfied that each of those three was in company with the other at the time of the assault on Smith.

At the hearing the appellant's application for leave to

appeal against sentence was dismissed after being withdrawn by
counsel. This is his appeal against conviction.

The ground taken in the notice of appeal is that the conviction was wrong in that the evidence did not support the magistrate's finding that the offence was committed in company.

The assault took place in the exercise yard at Wacol prison,
where the complainant was on remand at the time. At the

hearing, the complainant testified that he was approached by

five or six of the other inmates. The appellant hit him first;

then he said Freeman started "laying into me". Although dazed

by the blows he said he recalled hearing Freeman telling the

appellant to keep going.

Several other witnesses confirmed the general thrust of the complainant's account, although no single one of them saw all of what occurred. For example, at least two witnesses saw the appellant striking the complainant; another saw Freeman hitting him; yet another saw both Freeman and Hedger assaulting the

complainant. This is more or less what might be expected from witnesses who saw different parts of what happened, or saw it from differing angles. What is plain from all the evidence is

that, whether the various assaults took place simultaneously or,

as is more likely, in a sequence, the complainant was confronted at one stage by the appellant and two or more other persons who

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were intent on seeing him punished for being, as the appellant called him, a "dog". The magistrate was on the evidence plainly justified in convicting the appellant of the offence charged and

in finding that the aggravating circumstance of being in company

was proved.

A second ground, although not taken in the notice of appeal or the appellant's written outline of argument, was that there was no jurisdiction in the magistrate to hear and determine the offence in this case because the charge included the circumstance of aggravation of being in company with others. The structure of the relevant parts of the Criminal Code has

been examined on several occasions notably by the High Court in

Ross v. The Queen (1979) 141 C.L.R. 432. Chapter XXX of the

Code comprising ss.335 to 340 defines various kinds of assault

and fixes penalties for committing them. Chapter XXXI (ss. 341- 346) makes provision in defined circumstances for the summary conviction and punishment of persons who commit those offences.

As regards the present matter, s.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 s.342, which provides that the

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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 the 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 s.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 s.344 : see Cronin v. Hamilton-Smith ex parte Hamilton-Smith [1958] Qd.R. 24, approved in Ross v. The Queen

(1979) 141 C.L.R. 432, 437. The same conclusion follows perhaps

with even greater force in the case of an assault occasioning bodily harm under s.339 : cf. Ross v. The Queen (1979) 141

C.L.R. 432, 438-439. Equally, as might be expected, the nature

of the offence is not changed by the provision in s.343A enabling it to be tried and punished summarily. "The manner of trial", said Barwick C.J. in Ross v. The Queen "does not alter

the relevant statutory nature of the offence" (141 C.L.R. 432, 433). Gibbs J. in the same case said the words of s.343A were not themselves apt to create an offence (141 C.L.R. 432, 437).

The result in a case like this is as follows. Under s.339

the appellant was liable to be charged, as he was, with the

offence of assault occasioning bodily harm; and under the third paragraph of that section he was liable also to be charged, as

he was, with the aggravating circumstance that he had committed

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the offence in company with another or others, so attracting a

potential penalty of imprisonment for seven years. The offence

under s.339 being one of assault, the appellant became liable under s.341 to be convicted and punished summarily. If summarily convicted of the offence of assault occasioning bodily harm, the maximum penalty for which he would become liable was

restricted by s.343A. So far as relevant here, it was imprisonment for two years. Since the sentence imposed was

imprisonment for only six months, it did not exceed the

permitted maximum on a summary conviction under s.343A.

The key to applying the summary conviction provisions of chapter XXXI in a case like the present is s.342. Assuming the matter is one where there is no attempt to commit a crime, it rests with the justices or magistrate to decide whether the charge should be dealt with summarily or on indictment : Ross v. The Queen (1979) 141 C.L.R. 432, 439. It is then only if under

s.342 they are of the opinion that the charge is a fit subject for prosecution by indictment that they are required by that

section to abstain from dealing with it summarily. There is no indication that any such opinion was formed by the magistrate in

this case, and there was nothing in the circumstances before him

that required him to form such an opinion.

The ground of appeal based on jurisdiction, which appears

to have been a late afterthought by counsel, is without

foundation. The appeal against conviction should be dismissed.

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