R v MD - [2016] QDC 61

DISTRICT COURT OF QUEENSLAND

CITATION:

R v MD [2016] QDC 61

PARTIES:

THE QUEEN

v

MD

(defendant)

FILE NO/S:

1954/15

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

24 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2016

JUDGE:

Smith DCJA

ORDER:

The Crown is permitted to amend the indictment.

CATCHWORDS:

CRIMINAL LAW- INDICTMENTS- Whether amendments under the Criminal law (Domestic Violence)Amendment Act 2015 (Q) are retrospective- whether procedural or substantive

Criminal Code 1899 (Q) ss 1, 564, 572

Criminal law (Domestic Violence)Amendment Act 2015 (Q)

Domestic and Family Violence Protection Act 2012 (Q) ss 8, 13

Penalties and Sentences Act 1991 (Q) s 12A

R v Carlton [2010] 2 Qd R 340

R v Koster (2012) 226 A Crim R 247

Rodway v R (1990) 169 CLR 515

COUNSEL:

Mr. H. Cremin for the defendant.

Ms A. Loode for the Crown.

SOLICITORS:

Denovo Solicitors for the Defendant.

Officer of the Director of Public Prosecutions for the Crown.

Introduction

This is an application by the Crown to amend the indictment presently before the Court.

The defendant is charged with a number of counts alleging assaults on his wife on 11 February 2015. The Crown applies, pursuant to s 572(1A) of the Criminal Code, to amend the indictment to allege that each of the offences is also a domestic violence offence.

The Crown submits that the amendment should be permitted as the provisions of the Criminal Law (Domestic Violence) Amendment Act 2015 (Q) are retrospective. The defence, on the other hand, submits that the amendments are substantive and are, therefore, not retrospective and the amendment ought not to be permitted.

Discussion

It is common ground between the parties that the complainant and the defendant were husband and wife. They separated about 12 months prior to the offences. The allegations involve various assaults by the defendant on the complainant at her home.

The assaults allegedly occurred after the two of them were drinking wine together and discussing their relationship.

The Criminal Law (Domestic Violence)Amendment Act 2015 (Q) commenced on 1 December 2015. A number of pieces of legislation were amended thereby.

Section 564(3A) of the Criminal Code provides:

“An indictment for an offence may also state the offence is a domestic violence offence.”

Section 572(1A) of the Criminal Code provides:

“Without limiting subsection (1) if the court considers the offence charged the indictment is also a domestic violence offence, the court may order that the indictment be amended to state that the offence is also a domestic violence offence.”

The consequence of a matter being a domestic violence offence is set out in s 12A of the Penalties and Sentences Act 1991 (Q). This section provides:

“Convictions for offences relating to domestic violence
(1) Subsection (2) applies if—
(a) a complaint or an indictment for a charge for an offence states the offence is also a domestic violence offence; and

(b) the offender is convicted of the offence; and
(c) a court is…

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 R v MD

Details

AGLC: R v MD [2016] QDC 61
Case: [2016] QDC 61
Decision Date: 24 February 2016

CaseChat Overview and Summary

The appellant, MD, was indicted on various charges under the Criminal Code 1899 (Q), including assault occasioning bodily harm, and intimidation in the context of domestic violence. The Crown sought to amend the indictment to include additional charges under the Domestic and Family Violence Protection Act 2012 (Q), based on amendments introduced by the Criminal Law (Domestic Violence) Amendment Act 2015 (Q). The primary issue before the court was whether these amendments could be applied retrospectively, and if the amendments constituted procedural or substantive changes to the law.

The court examined the nature of the amendments and their applicability to the appellant's case. It considered the principle that retrospective application of criminal laws is generally impermissible, but noted that procedural changes could be applied retrospectively if they do not alter the substantive rights of the accused. The court assessed whether the amendments introduced by the 2015 Act were substantive or procedural in nature. It found that the amendments did not substantively change the elements of the offences or the penalties, but rather clarified definitions and procedures related to domestic violence offences.

The court concluded that the amendments were procedural and therefore could be applied retrospectively without contravening the principle against retrospective legislation. It relied on previous decisions such as R v Carlton, R v Koster, and Rodway v R, which established the distinction between procedural and substantive changes. The court held that the Crown was permitted to amend the indictment to include the additional charges under the 2012 Act, as the amendments did not substantively alter the appellant's rights or the nature of the offences.

The final orders of the court allowed the Crown to amend the indictment to include the additional charges under the Domestic and Family Violence Protection Act 2012 (Q), as amended by the Criminal Law (Domestic Violence) Amendment Act 2015 (Q). The court's decision affirmed the ability to apply procedural changes retrospectively, provided they do not alter the substantive elements of the offences or the rights of the accused.

Orders

Orders of the court

The Crown is permitted to amend the indictment.

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 MD [2016] QDC 61
PARTIES:	THE QUEEN v MD (defendant)
FILE NO/S:	1954/15
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	24 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2016
JUDGE:	Smith DCJA
ORDER:	The Crown is permitted to amend the indictment.
CATCHWORDS:	CRIMINAL LAW- INDICTMENTS- Whether amendments under the Criminal law (Domestic Violence)Amendment Act 2015 (Q) are retrospective- whether procedural or substantive Criminal Code 1899 (Q) ss 1, 564, 572 Criminal law (Domestic Violence)Amendment Act 2015 (Q) Domestic and Family Violence Protection Act 2012 (Q) ss 8, 13 Penalties and Sentences Act 1991 (Q) s 12A R v Carlton [2010] 2 Qd R 340 R v Koster (2012) 226 A Crim R 247 Rodway v R (1990) 169 CLR 515
COUNSEL:	Mr. H. Cremin for the defendant. Ms A. Loode for the Crown.
SOLICITORS:	Denovo Solicitors for the Defendant. Officer of the Director of Public Prosecutions for the Crown.