Knell v Somma; ex parte

[1996] QCA 289

IN THE COURT OF APPEAL	[1996] QCA 289
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No.1451 of 1996
[Knell v. Somma]
BETWEEN:

SUZANNE MARGARET MARY KNELL

(Appellant) Appellant

AND:

RICKY SCOTT SOMMA

(Respondent) Respondent

EX PARTE: SUZANNE MARGARET MARY KNELL

Fitzgerald P. Derrington J. Mackenzie J.

Judgment delivered 23/08/1996

Separate reasons for judgment of all members of the Court, all concurring as to the order made.

ORDER NISI FOR REVIEW DISCHARGED WITH COSTS TO BE TAXED.

CATCHWORDS:  CRIMINAL LAW - JURISDICTION - MAGISTRATES COURT Whether a Magistrate has jurisdiction to summarily determine charges

under s.340(2) of the Criminal

Code of resisting a police officer while acting in the course of his duty.

Criminal Code 245, 337, 340, 341, 342, 343, 343A, 350,
Police Service Administration Act s.10.20A

Acts Interpretation Act s.35C

R v Bond	CA 48/1994
R. v. Bottomley	CA 113/1991
R v Coleman	CA 32/1994

R. v. McKay ex parte McNee [1989] 1 Qd.R 559

Counsel:	M. Byrne QC for the Appellant. D Richards for the Respondent.
Solicitors:	Queensland Director of Public Prosecutions for the Appellant. Legal Aid Office for the Respondent.

Hearing date:13 August 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 1451 of 1996
Brisbane
Before	Fitzgerald P. Derrington J. Mackenzie J.

[Knell v. Somma]

BETWEEN:

SUZANNE MARGARET MARY KNELL

(Appellant) Appellant

AND:

RICKY SCOTT SOMMA

(Respondent) Respondent

EX PARTE: SUZANNE MARGARET MARY KNELL

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 23/08/1996

I agree with the reasons for judgment of Mackenzie J.

Bottomley (C.A. No. 113 of 1991, unreported, delivered 12 May 1992) is a decision of this Court

which is precisely in point and wholly consistent with the definition of assault in s. 245 of the Criminal

Code. It is plainly to be preferred to Coleman (C.A. No. 32 of 1994, unreported, delivered 21 April

1994) if there is a conflict between them, which is not entirely clear, since the charge of obstructing a

police officer in Coleman might have been prosecuted in the Magistrates Court under s. 10.20A of the

Police Service Administration Act 1990; in any event, Coleman does not expressly deal with jurisdiction.

Even if the concession in Bond (C.A. No. 48 of 1994, unreported, delivered 21 April 1994) had been

correctly made, it would not assist the applicant, and, being in my opinion incorrect, it does not do so.

Nor does the decision in R. v. McKay; ex parte McNee [1989] 1 Qd.R. 559, or the dicta relied on by

the prosecution when read in context.

I agree that the application for review should be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 1451 of 1996
Before: Fitzgerald P

Derrington J Mackenzie J

[Knell v. Somma]

BETWEEN:

SUZANNE MARGARET MARY KNELL

Appellant

AND:

RICKY SCOTT SOMMA

Respondent

JUDGMENT - DERRINGTON J

Judgment delivered 23 August 1996.

I agree with the reasons of both Fitzgerald P and Mackenzie J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No.1451 of 1996 (O.S.C. No. 15 of 1995)
Before	Fitzgerald P. Derrington J. Mackenzie J.

[Knell v. Somma]

BETWEEN:

SUZANNE MARGARET MARY KNELL

(Appellant) Appellant

AND:

RICKY SCOTT SOMMA

(Respondent) Respondent

EX PARTE: SUZANNE MARGARET MARY KNELL

REASONS FOR JUDGMENT - MACKENZIE J.

Judgment Delivered 23 August 1996

This is an order to review a decision of a Magistrate that he had no jurisdiction to deal summarily

with charges under s.340(2) of the Criminal Code of resisting a police officer while acting in the

execution of his duty. Notwithstanding s.10.20A of the Police Service Administration Act 1990

which creates a summary offence of assaulting or obstructing a police officer in the performance of the

officer's duty and, as the record shows, despite reservations on the part of the police prosecutor about

the jurisdiction of the Magistrate's Court to deal summarily with an offence of resisting a police officer

under s.340(2), the Director of Public Prosecutions' Office required the matter to be argued before the

Magistrate with the object of creating an opportunity to argue that the decision of the Court of Appeal in
R. v. Bottomley (C.A. 113/91) was wrong.

Mr Byrne Q.C. for the appellant also asked for a resolution of the conflict between R. v. Bond

(CA 48/1994) and R. v. Coleman (CA 32/94). In Bond the applicant had been charged with two

counts of assaulting police officers in the execution of their duty under s.340 and two charges of assault

occasioning bodily harm arising from the same incident. During the course of argument counsel for the

Crown conceded that offences of assaulting a police officer in the execution of his duty could not be

dealt with summarily by a Magistrate. The decision of the Full Court in R. v. McKay ex parte McNee

(1989) 1 QdR 559 to which reference will be made below, was not referred to.

The decision in Coleman proceeded on the assumption that the Magistrate had jurisdiction to deal

with the offence of assaulting a police officer in the execution of duty and obstructing a police officer in

the execution of duty. The question of jurisdiction was not raised and counsel for the Crown was not

called upon.

The critical provisions of the Criminal Code are found in Chapter 31.

Section 340 relevantly provides as follows:-

"Any person who - ... (b) assaults resists or wilfully obstructs a police officer while acting
in the execution of the officer's duty ...

is guilty of a misdemeanour and is liable to imprisonment for 3 years."

Section 341 says the following:-

"Any person who unlawfully assaults another may, subject to the provisions of this

Chapter, be summarily convicted before two justices."

Section 342 says the following:-

"If the justices find that the assault complained of 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, they are required to abstain from dealing with the case summarily."

Sections 343 and 343A prescribe penalties for summary convictions for common assault and

assault occasioning bodily harm respectively. Section 344 provides for a higher penalty where justices

are of opinion that the assault is of such an aggravated nature that the offender cannot be sufficiently

punished under s.343 and a circumstance of aggravation relied on is stated in the charge. Section 343 is
therefore concerned with cases where common assault with a circumstance of aggravation is charged.

Chapter 30 of the Code creates a variety of offences (some quite serious) of which assault is an

element as well as offences which do not necessarily involve an assault. These comprise resisting or

wilfully obstructing a police office in the execution of the officer's duty, and the offence of procuring

another to commit or witness an act of gross indecency (s.337(1)(b)), which was inserted in Chapter 30

in 1989 at the same time as the then existing offences of indecent assault on a male and a female

respectively in ss.337 and 350 were combined into s.337(1)(a).

In Bottomley the appellant had been convicted by a Magistrate of resisting a police officer.

There was an admission by the Crown, which Pincus J.A. (with whom Davies J.A and Derrington J.

agreed) said was correctly made, that the Magistrate was in error in assuming jurisdiction to deal with

that offence summarily. Pincus J.A. said:-

"Section 341 to which we have been referred permits of summary conviction for unlawful assaults and there seems to have been a misapprehension (to which, perhaps, the prosecution contributed) on the part of the Magistrate who thought that she had jurisdiction to deal with the matter in the way in which she did; the appellant was not charged with assault."

In support of the argument that Bottomley should be overruled Mr Byrne Q.C. submitted that the

decision had been arrived at without reference to the decision of the Full Court in R. v. McKay ex parte

McNee (1989) 1 QdR 559. In McKay the charge was unlawful and indecent assault under s.337 (as it

was before amendment in 1989). Because, as Thomas J. said, the Magistrate "belatedly considered that

he had lacked jurisdiction to deal with this matter summarily" the Court was required to consider the

question directly.

Because of the nature of the charge, the focus in McKay was on offences of which assault is an

element, as most of the offences in Chapter 30 are. Thomas J. said (563):-

"Chapter XXX contains a statement of numerous offences of which unlawful assault is an element. In my opinion the reference in Ch. XXXI (s.341) to "any person who unlawfully assaults another" is prima facie a reference to a person who commits any of the unlawful assaults that are specified in Ch. XXX, subject of course to the provisions of Ch. XXXI. The former chapter formulates the offences whilst the latter chapter makes provision both general and specific to permit summary hearing of such offences and of some additional matters. The treatment is not entirely logical and is partly the result of patchwork amendment. The above analysis takes the patchwork as it stands, and produces a workable result, consistent with the knowledge that there are very many unlawful assault cases that can effectively be dealt with summarily. The present unlawful assault on a male person is a good example of such a case.

The unlawful assaults comprehended by s.341 are not limited to common assault and the other offences specified in Ch. XXXI."

Derrington J. also referred (563) to "logical contradictions" in possible constructions that had

been proposed but concluded:-

"... when s.341 in Ch. XXXI says: "Any person who unlawfully assaults another may ... be summarily convicted before two justices", then, in respect of each of the provisions of Ch. XXX which define an offence by reference to an assault, whether with circumstances of aggravation or not, it may be said that the person guilty of it has unlawfully assaulted another within the meaning of s.341 even though there may also be such circumstances of aggravation. The criterion laid down in s.341, "Any person who unlawfully assaults another", is intended to be extensive so as to encompass all the offences contained in Ch. XXX, which, it might be repeated, is entitled "Assaults"."

The words "which define an offence by reference to assault" create the context which governs

later expressions in Derrington J.'s judgment which were relied on by Mr Byrne Q.C. as supporting the

proposition that all offences in Chapter 30 could be dealt with summarily pursuant to s.341 as "assaults".

Read in context Derrington J's. reasons are concerned with offences defined by reference to assault and

are not decisive of the question of the application of s.341 to the offence of resisting a police officer or

obstructing a police officer, both of which, according to the circumstances, may or may not involve an

assault. Kneipp J. agreed with both judgments.

McKay is therefore a decision that where one of the offences in Chapter 30 which is defined by

reference to an assault is charged there is summary jurisdiction to deal with the matter. It was not

submitted that that the decision should be departed from, but that it applied to all offences defined in

Chapter 30. Accordingly R. v. Bond insofar as it suggests that the offence of assaulting a police officer

in the execution of duty cannot be heard summarily, should be treated as having been decided per

incuriam because of the incorrect concession made by counsel for the Crown. Insofar as it was

assumed in Coleman that there was jurisdiction to deal summarily with the offence of assaulting a police

officer in the execution of duty, it is correctly decided.

If the appellant's argument that McKay applies to cases where the offence is resisting a police

officer in the execution of duty is to succeed, the word "assaults" in s.341 must be treated as equivalent

to "commits an offence defined in Chapter 30" irrespective of whether an assault is actually committed or

not. No compelling reason was advanced why the concept of assault as defined in s.245 should not

apply to the expression in s.341. However Mr Byrne Q.C. submitted that because the subject matter of

Chapter 30 is described as "assaults" in the heading to the Chapter (which may be taken into account by

virtue of s.35C of the Acts Interpretation Act) all of the offences, whether they require proof of an

element of assault, or an actual assault or do not require proof of an assault at all should be treated as

assaults for the purposes of s.341.

The Court in Bottomley pointed out that the offence of resisting a police officer in the execution of

the officer's duty did not require proof of an assault and held that summary jurisdiction was not conferred

by s.341 for that offence. Notwithstanding Mr Byrne Q.C.'s argument, I am not persuaded that we

should depart from that view. It must be conceded that there is a degree of illogicality in any view taken

of the matter, but there is a simple means of avoiding the consequences of Bottomley, by charging cases

which are not serious enough to warrant indictable proceedings as a simple offence under the Police

Service Administration Act. Alternatively, if it is thought that the present state of the law is

inconvenient, it is a matter to which the legislature might give attention. To the extent that the assumption

in Coleman supports the view that an offence under s.340 of obstructing a police officer in the execution

of duty may be heard summarily, it is inconsistent with this decision and should not be followed.

As the decision of the Magistrate was correct, the order nisi to review is discharged with costs to

be taxed.