Police v Luca

[2011] QMC 34

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Luca [2011] QMC 34

PARTIES:

POLICE

(prosecution)

v

CHRISTIAN LUCA

(defendant)

FILE NO/S:

MAG92349/11(0)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge – Application to stay proceeding

ORIGINATING COURT:

Magistrates Court at Beenleigh

DELIVERED ON:

10 June 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

30 May 2011

MAGISTRATE:

McDougall J

ORDER:

The charge is permanently stayed.

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – STAY OF PROCEEDING – abuse of process

Criminal Code (Qld), s 119B

R v Ensbey; ex parte A-G (Qld) [2004] QCA 335

Doonan –v- McKay [2002] QCA 514

COUNSEL:

Longhurst (Constable) for prosecution

Crowley for defendant

SOLICITORS:

Prosecution appeared on own behalf

Legal Aid Queensland for defendant

Reasons for Decision

1. On 17 August 2009 the Police charged the defendant Christian Luca with the following charge:

   That on the 16^th day of August 2009 at Eagleby in the State of Queensland one Christian Luca did an act namely threaten violence which act was likely to cause Jessica Garland to fear bodily harm to herself.

2. On 30 May 2011 the prosecution offered no evidence on that charge and the charge was struck out.

3. On 30 May 2011 the prosecution sought to substitute the above mentioned charged with the following charge:

   “That on the 16^th day of August 2009 at Eagleby in the State of Queensland one Christian Luca without reasonable cause threatened to cause detriment to one Jessica Maree Lang a witness for intimidation because of evidence which may lawfully done(sic) by one Jessica Maree Garland in a judicial proceeding namely a criminal trial.”

4. Leaving aside the grammatical incoherence of that charge, counsel for the defence Mr Crowley made application to the Court for a permanent stay of prosecution on this charge. The reason given for the application was that the charge did not reflect the state of the law as contained in section 119B(b) of the Criminal Code as at 16 August 2009.

5. Section 119B of the Criminal Code was introduced to the Code by the Criminal Law Amendment Act 2002. The wording of the charge at that time was as follows:

   “119B Retaliation against judicial officer, juror, witness or family.
   A person who, without reasonable cause, causes, or threatens to cause, any injury or detriment to a judicial officer, juror, witness or member of the family of a judicial officer, juror or witness in retaliation because of –

   (a)anything lawfully done by the judicial officer as a judicial officer; or

   (b)anything lawfully done by the juror or witness in any judicial proceeding;

   Is guilty of a crime.”      

6. “Judicial proceeding” is defined in section 9 of the Criminal Law Amendment Act 2002 as follows:

   “Judicial proceeding” includes any proceeding had or taken in or before any Court, Tribunal or person, in which evidence may be taken on oath.”

7. As at 16 August 2009 there had been nothing done by Jessica Garland (presumably a witness) in any judicial proceeding. The Criminal Organisation Amendment Act 2009 commenced on the date of ascent…