R v MKW

[2014] QDC 300

DISTRICT COURT OF QUEENSLAND

CITATION:

R v MKW [2014] QDC 300

PARTIES:

THE QUEEN
(respondent)

v

MKW
(applicant)

FILE NO:

District Court Townsville Indictment DC42 of 2014

DIVISION:

Criminal

PROCEEDING:

Pre-trial argument – s 590AA of Criminal Code

ORIGINATING COURT:

District Court, Townsville

DELIVERED ON:

18 June 2014

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

22 May 2014

JUDGE:

O’Brien DCJA

ORDER:

1.   Application dismissed

CATCHWORDS:

CRIMINAL LAW – ABUSE OF PROCESS – STAY OF INDICTMENT – whether s 16 of the Criminal Code is enlivened - whether the prosecution of the applicant for the offence against the Domestic and Family Violence Protection Act 2012 (Qld) constituted a “proceeding” under that Act - where the applicant was convicted in the Mount Isa Magistrates Court for a breach of domestic violence order under the Domestic and Family Violence Protection Act 2012 (Qld) - where the applicant was sentenced to an effective term of 12 months imprisonment with parole release after serving four months – where the applicant struck the complainant with a collapsible chair – where a subsequent indictment has charged the applicant with unlawfully doing grievous bodily harm – where the conduct the subject of the alleged unlawful grievous bodily harm is the same conduct which amounted to the breach of domestic violence order – where the applicant is seeking a permanent stay of the indictment.

Criminal Code 1899 (Qld), s 16

Domestic and Family Violence Protection Act 2012 (Qld), s 23(3), s 37, s 138, s 177, s 181.

Domestic and Family Violence Protection Bill 2011 (Qld)

R v Dibble [2013] QDC 120

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

R v Gordon;ex parte Attorney-General [1975] Qd R 301

R v Harris; ex parte Attorney-General [1999] QCA 392

R v Tricklebank [1994] 1 Qd R 330

COUNSEL:

Ms C J McKinnon for the applicant
Mr D P Jones for the respondent

SOLICITORS:

Anderson Telford Lawyers for the applicant
Director of Public Prosecutions for the respondent

1. There is presently an indictment before the court charging the defendant MKW with an offence of unlawfully doing grievous bodily harm to one RRB. By way of pre-trial argument pursuant to s 590AA of the Criminal Code, the applicant/defendant now seeks an order for a permanent stay of proceedings on that indictment on the ground that continued prosecution would constitute an abuse of process. Specifically, it is argued that the applicant has already been punished for the same act which gives rise to the present charge, and that continued prosecution would therefore be in contravention of s 16 of the Criminal Code, thereby constituting an abuse of process.

1. To properly understand this application it is necessary to make some reference to the history of the matter.  On the afternoon of 3 February 2013, the applicant had been drinking alcohol at an address in Mount Isa with a group of people which included the complainant, RRB.  RRB was in fact the applicant’s de facto partner at the time.…