R v Dibble; ex parte Attorney-General (Qld) - [2014] QCA 8

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dibble; Ex parte Attorney-General (Qld) [2014] QCA 8

PARTIES:

R
v
DIBBLE, Samyal James
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 167 of 2013
DC No 501 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal Against Stay of Prosecution by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2013

JUDGES:

Fraser and Gotterson JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY & CAPACITY – DOUBLE JEOPARDY – AVAILABILITY OF DEFENCE – where the respondent was observed by police swinging punches at the complainant – where the police intervened and charged the respondent with committing public nuisance – where the complainant wished to make a formal complaint against respondent – where the respondent in the Magistrates Court pleaded guilty to public nuisance and fined – where afterwards the police charged the respondent with causing grievous bodily harm – where the respondent sought a permanent stay of grievous bodily harm proceedings based on s 16 Criminal Code 1899 (Qld) (“Code”) – where the District Court judge ordered a permanent stay – where the appellant appealed against the stay pursuant to s 669A(1A) Code – whether the “same punishable acts or omissions” test was satisfied – whether the defendant’s punishment for the public nuisance offence was a bar to prosecution for grievous bodily harm

Criminal Code 1899 (Qld), s 16, s 669A

Connolly v Meagher (1906) 3 CLR 682; [1906] HCA 20, considered
R v Donnelly (1920) 14 QJPR 62, considered
R v Gordon, ex parte Attorney General [1975] Qd R 301, applied
R v Harris; ex parte Attorney General[1999] QCA 392, considered
R v Hull (No 2) [1902] St R Qd 53, considered
R vTricklebank [1994] 1 Qd R 330; [1993] QCA 268, considered

COUNSEL:

M R Byrne QC for the appellant
A Vasta QC, with K Payne, for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Fraser Power Lawyer and Notary Public for the respondent

FRASER JA: I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.

GOTTERSON JA: Samyal James Dibble who is the respondent to this appeal was charged on indictment in the District Court at Roma on one count alleging an offence against s 320 of the Criminal Code (Qld) (“Code”) in that on 30 December 2011 at Roma, he unlawfully did grievous bodily harm to William Colbran. The indictment was presented on 15 November 2012 and the matter was adjourned. It was adjourned again in February 2013 for hearing in the June 2013 sittings of the District Court at Roma.

In the meantime, a pre-trial hearing was convened in Brisbane for 16 May 2013 at which the respondent applied…

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.

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Details

Case: [2014] QCA 8
Decision Date: 11 February 2014

CaseChat Overview and Summary

In the matter of R v Dibble; ex parte Attorney-General (Qld), the appellant sought to appeal a decision made by a District Court judge to permanently stay proceedings against the respondent, who had been charged with causing grievous bodily harm. The respondent had previously pleaded guilty to an offence of public nuisance in the Magistrates Court and was fined. The appellant argued that the respondent’s punishment for the public nuisance offence should bar prosecution for grievous bodily harm under section 16 of the Criminal Code 1899 (Qld). The court was required to determine whether the “same punishable acts or omissions” test was satisfied, and whether the respondent’s punishment for the public nuisance offence constituted a bar to prosecution for grievous bodily harm.

The court considered the legal issues surrounding the “same punishable acts or omissions” test and the principle of double jeopardy. It was established that the test requires consideration of the similarity between the two offences and whether they were the same in substance, character and form. The court also considered whether the punishment for the public nuisance offence constituted an absolute bar to prosecution for grievous bodily harm. The court held that the respondent’s punishment for the public nuisance offence did not constitute an absolute bar to prosecution for grievous bodily harm, as the offences were not the same in substance, character and form. The court found that the public nuisance offence was not a necessary predicate for the grievous bodily harm offence, and that the respondent’s punishment for the public nuisance offence did not constitute a bar to prosecution for grievous bodily harm.

The court dismissed the appeal, holding that the respondent’s punishment for the public nuisance offence did not constitute an absolute bar to prosecution for grievous bodily harm. The court found that the public nuisance offence was not a necessary predicate for the grievous bodily harm offence, and that the respondent’s punishment for the public nuisance offence did not constitute a bar to prosecution for grievous bodily harm. The court held that the “same punishable acts or omissions” test was not satisfied, as the offences were not the same in substance, character and form. The appeal was dismissed, and the respondent was not permanently stayed from being prosecuted for causing grievous bodily harm.

Orders

Orders of the court

Appeal 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Dibble; Ex parte Attorney-General (Qld) [2014] QCA 8
PARTIES:	R v DIBBLE, Samyal James (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 167 of 2013 DC No 501 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal Against Stay of Prosecution by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 2013
JUDGES:	Fraser and Gotterson JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY & CAPACITY – DOUBLE JEOPARDY – AVAILABILITY OF DEFENCE – where the respondent was observed by police swinging punches at the complainant – where the police intervened and charged the respondent with committing public nuisance – where the complainant wished to make a formal complaint against respondent – where the respondent in the Magistrates Court pleaded guilty to public nuisance and fined – where afterwards the police charged the respondent with causing grievous bodily harm – where the respondent sought a permanent stay of grievous bodily harm proceedings based on s 16 Criminal Code 1899 (Qld) (“Code”) – where the District Court judge ordered a permanent stay – where the appellant appealed against the stay pursuant to s 669A(1A) Code – whether the “same punishable acts or omissions” test was satisfied – whether the defendant’s punishment for the public nuisance offence was a bar to prosecution for grievous bodily harm Criminal Code 1899 (Qld), s 16, s 669A Connolly v Meagher (1906) 3 CLR 682; [1906] HCA 20, considered R v Donnelly (1920) 14 QJPR 62, considered R v Gordon, ex parte Attorney General [1975] Qd R 301, applied R v Harris; ex parte Attorney General[1999] QCA 392, considered R v Hull (No 2) [1902] St R Qd 53, considered R vTricklebank [1994] 1 Qd R 330; [1993] QCA 268, considered
COUNSEL:	M R Byrne QC for the appellant A Vasta QC, with K Payne, for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Fraser Power Lawyer and Notary Public for the respondent