Criminal and Domestic Violence – no “double jeopardy”
Queensland Police Service v DLA  QMC 6 (7 May 2015)
Last Updated: 12 May 2015
MAGISTRATES COURTS OF QUEENSLAND
QPS v DLA  QMC 6
7 May 2015
10 March 2015
Permanent stay – Breach DVO
CRIMINAL LAW – Operation of and interaction of s138 of Domestic
and Family Violence Protection Act 2012 and s 16 Criminal Code –
Whether s 138 contains an express provision for double punishment –
Fundamental Legislative Principles
Domestic Violence and Family Protection Act 1989 (Q) s 62
Domestic and Family Violence Protection Act 2012 s 138
Pearce v R HCA 57
R v MKW QDC 300
Ashley v Marinov NTCA 1
Ridgeway v Parravicini QDC 38
The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QMC/2015/6.html?stem=0&synonyms=0&query=criminal%20code
This is a matter where the defendant Mr DLA has pleaded guilty to two charges, one being an offence under s 474.17(1) of the Criminal Code Act (Cwlth) 1995, Using a carriage service to menace or harass or cause offence, and the other charge being a breach of a protection order made under the provisions of the Domestic and Family Violence Protection Act 2012.
 The facts relating to each of the charges are that Mr DLA posted various Facebook entries in relation to the aggrieved named in the protection order to which he is the respondent, thus in contravention of that order by not being of good behaviour towards the aggrieved, and further that those entries of themselves constituted an offence under the Criminal Code Act (Cwlth) 1995 with which he has been charged.
 This matter has come before me in an unusual way in that two separate prosecutors have appeared, that is one prosecutor from the Commonwealth DPP in relation to the Commonwealth offence and another police prosecutor appearing on the contravention of the Domestic Violence order.
 I raised with both prosecutors as to whether the same act or omissions constituting the offences were the same, and if so how Mr DLA could be punished for both offences given s16 of the Queensland Criminal Code .
 Both prosecutors confirmed that the same act, that is the posting of the Facebook entry, was the act relied upon in each of the charges.
 Section 16 of the Criminal Code is as follows:
“16 Person not to be twice punished for same offence
A person cannot be twice punished either under the provisions of this code or under the provisions of any other law for the same act or omission, except…”
 The High Court considered a similar provision in the decision of Pearce v R  HCA 57; and at paragraph 40 of that decision stated:
“40. To the extent to which two offences of which an offender stands convicted contain common elements it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt the general principle may yield to any contrary legislative intention, (my emphasis) but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.”
 Both prosecutors in this matter rely upon Section 138 of the Domestic and Family Violence Protection Act 2012 and assert that in particular, Section 138(4) allows a defendant to punished more than once for the same act in relation to two or more criminal offences.
 Section 138 of the Domestic and Family Violence Protection Act 2012 is as set out below:
“138 Concurrent criminal proceeding
(1) An application under this Act may be made, and a court may deal with the application, even if a person concerned in the application has been charged with an offence arising out of conduct on which the application is based.
(2) However, if a person is charged with an offence arising out of conduct on which an application under this Act is based, a reference to any of the following is admissible in the trial of the person for the offence only with leave of the court-…
(3) To remove any doubt, it is declared that, subject to this section, an application, proceeding or other order under this Act in relation to the conduct of a person does not affect-
(a) any proceeding for an offence against the person arising out of the same conduct; or
(b) any civil liability of the person.
(4) The person may be punished for the offence mentioned in subsection (3)(a) despite any order made against the person under this Act.”
 Given that Section 16 gives statutory effect to a long standing right, that is not to be punished more than once for the same act, and where on the face of it there appears to be some ambiguity in interpreting the meaning of s 138, then reference may be made to the Explanatory Notes to assist in the interpretation of s 138 of the Domestic and Family Violence Protection Act 2012.
 In considering the Explanatory Notes I am also mindful to take in to consideration any indication that a provision in the Bill may represent a departure from the Fundamental Legislative Principles.
 A Queensland Parliament Factsheet 3.23 titled: “Fundamental Legislative Principles sets out that:
“Fundamental legislative principles (FLPS) require that legislation (both Bills and subordinate legislation) should have sufficient regard to the rights and liberties of individuals and to the institution of Parliament”
 Effect is given to this in the Legislative Standards Act 1992 and in particular s 4 of that Act.
 Given the longstanding right contained in s 16 of the Criminal Code and its predecessors in common law, one would expect to find the displacement of such a fundamental right (such as not being liable to a double punishment in relation to the same act or omission) to be addressed in the Explanatory Notes.
 Those notes from page 10 through to page 29 address various provisions in the Bill concerning the Bill’s consistency with fundamental legislative principles.
 At page 10 of those Notes the following is contained:
“Consistency with fundamental legislative principles
The Bill is generally consistent with fundamental legislative principles. Potential breaches of fundamental legislative principles are addressed below.”
 Nowhere in pages 10 to 29 of those Notes is section 138 mentioned, either when considering any departure from being consistent with any fundamental legislative principle, or at all.
 Further at page 4 of the Notes the following is set out:
“The provisions dealing with the objects of the Act, the guiding principles and the preamble will bring the Queensland legislation in line with the domestic and family violence legislation in other jurisdictions. They are also consistent with recommendations made by the Australian Law Reform Commission in its Family Violence – A National Legal Response report…”
 The Australian Law Reform Commission in its Report considered s 62 of the previous legislation, being the Domestic and Family Violence Protection Act 1989 and in particulars 62(4) and (5) of that Act:
62 Concurrent and other proceedings
(4) To allay any doubt, it is declared that, subject to this section, an application, proceeding or other order under this Act in relation to the conduct of the person does not affect any proceeding for an offence against the person arising out of the same conduct.
(5) The person may be punished for the offence mentioned in subsection (4) despite any order made against him or her under this Act.
 I note s 62(5) is identical to s 138(4) of the current legislation.
 The Commission when referring to that particular provision said at paragraph 11.39 of its Report:
“11.39 the Commission’s intention in extending the ambit of the recommendation to civil (my emphasis) liability is to cover, for example, instances where a person using family violence may be sued for torts against the person, namely the torts of battery, assault and false imprisonment.”
 The Explanatory Notes themselves at page 78 of those Notes reinforce this notion of extending liability to concurrent civil proceedings where they state that:
Clause 138 refers to situations where there are civil proceedings under the Act which are related to criminal proceedings in that they both arise out of the same conduct.
 Reliance has been placed on a recent District Court decision of R v MKW  QDC 300.
 It was submitted that this decision is authority for the view that Section 138(4) of the Domestic and Family Violence Protection Act allows for a Defendant to be punished more than once for two or more criminal offences arising from the same conduct.
 It was further submitted that convicting, but not further punishing the defendant on one of the charges could be a suitable way to proceed.
 In the decision of R v MKW the Judge in that decision referred to the recent Queensland Court of Appeal decision of R v Dibble; ex party Attorney General (Qld) 2014 QCA 8where His Honour at paragraphs 16 and 17 of his decision said:
“ In Dibble, the primary Judge had ruled that, because the indictable offence there charged was based upon the same “basic act” as had constituted the summary offence of which the defendant had previously been convicted, to allow the indictment to proceed would be contrary to s16 of the Code and, as such, constitute an abuse of process. In the present case however, where the Act specifically authorises the continuation of the proceedings, there can be no such abuse of the court’s process. Accordingly, the application to stay the indictment should be dismissed.”
“ I should add that, if my tentative view (my emphasis) of Section 138(4) of the legislation is correct and if the applicant were to be convicted of the indictable offence, then the question remains as to whether Section 16 of the Code prohibits him from being further punished for that offence. At the very least, I would consider that ordinary and well-established sentencing principles would require that regard be had to the penalty imposed in the Magistrates Court for the breaching offence.”
 I note that His Honour, in paragraph 17 of his decision was simply expressing his “tentative” view in relation to the operation of and the interaction of Section 138 of theDomestic and Family Violence Protection Act with Section 16 of the Criminal Code .
 I also note Section 45 of the Acts Interpretation Act 1954.
 That section is as follows:
“Offence Punishable Only Once
(1) If an act or omission is an offence under each of two or more laws, the offender may be prosecuted and punished under any of the laws, but the offender may not be punished more than once for the same offence.
(2) Subsection (1) applies to a law, unless an act otherwise expressly (my emphasis) provides.
In this section –law includes the common law.”
 It is clear from both the Acts Interpretation Act, together with a consideration of s16 of the Criminal Code and when considering the comments made by their Honours in the High Court decision of Pearce, that any provision which allows for an offender to be punished more than once for the same act or omission (so far as it relates to two or more criminal offences) requires an express provision in the legislation to bring about this result.
 Section 138 of the Domestic and Family Violence Protection Act 2012 does not expressly provide that an offender can be punished more than once for the same act or omission in relation to two or more criminal offences.
 The Northern Territory Court of Appeal in its decision of Ashley v Marinov  NTCA 1, considered a case where the double-jeopardy rule applied in circumstances similar to the one before me.
 In that decision the Appellant was charged in the Court of Summary Jurisdiction with two (2) charges, one being a breach of a Domestic Violence Order and the other charge being an unlawful assault. The decision makes it clear that the facts alleged in relation to both counts were the same.
 In paragraph 13 of that decision, it was said:
“ The way the matter proceeded in the Court of Summary Jurisdiction, the breach of the domestic violence order that the learned Magistrate found proved was that the appellant assaulted Monita Wilfred. The learned Magistrate found that this allegation had been proven because provocation was not a defence to a regulatory offence and a breach of the domestic violence order is a regulatory offence whereas the offence of assault with the circumstances of aggravation alleged in this case is a crime. Consequently, s34(1) of the Criminal Code , which provided that the defence of provocation was open in relation to the crime of assault did not apply to the regulatory offence of breaching the domestic violence order. The learned Magistrate did not base his decision on whether or not the Appellant had “caused personal injury to Monita Wilfred.
 In our opinion, the offence of breaching the domestic violence order was in the circumstances of this case a similar offence to the offence of aggravated assault because the conduct impugned is substantially the same or includes the conduct impugned in the offence of aggravated assault.
 The same conclusion was reached in the case of Haywood v Dodd (Thomas J, unreported 24 October 1997). On that occasion, the Court of Summary Jurisdiction reserved a question of law for the Court’s consideration as to whether a conviction for aggravated assault raises a defence pursuant to s 18 of the Criminal Code in respect of a subsequent prosecution for failure to comply with a domestic violence order where the same conduct founded both charges and the domestic violence order restrained the respondent from “causing or threatening to cause personal injury to the applicant”. In that case the respondent was convicted of the charge of aggravated assault in the Supreme Court, but the learned Magistrate dismissed the complaint relating to the breach of the domestic violence order holding that s 18 applied to the circumstances of the case. Thomas J held that because the conduct alleging the breach of Domestic Violence Order was the same conduct as constituted the aggravated assault the provisions of Section 18 applied.
 The only real point of distinction between the present case and Haywood v Dodd is that in that case the defendant was convicted of the charge of aggravated assault whereas in the present case the appellant was acquitted of that charge. The distinction is of no legal significance because the defence of Section 18 is available to accused persons who have been found guilty or acquitted of a similar offence.
 The conclusion we have reached in this case does not necessarily mean that a person dealt with for an assault cannot be convicted also of an offence of breaching the terms of a domestic violence order. Much will depend on the precise terms of the order said to be breached, the facts relied upon to constitute the breach and whether or not, even if a defence under s 18 is not open, the court should nevertheless stay the prosecution as an abuse of process: see for example R v Carroll (2002) 213 CLR 635”.
 I am not satisfied that Section 138 of the Domestic and Family Violence Protection Act 2012 expressly provides that an offender may be punished more than once for two or more criminal offences based on the same act or omission.
 The decision of the R v MKW is of no assistance in deciding the matter before me, as only a tentative view as how Section 138(4) operates in relation to s16 of the Criminal Code was reached in that decision.
 Further, to simply convict and not further punish the defendant, (as was suggested in this case) does provide for an offender to be punished more than once for the same act.
 I note that as a consequence of a conviction being entered in relation to the breach of the protection order, the defendant would be liable for an increased penalty if he committed a subsequent offence of a breach of a protection order.
 In the decision of Ridgeway v Parravicini  QDC 38 consideration was given to the issue as to whether a conviction is a punishment.
 Her Honour said at paragraph 58:
“ Once the conclusion is reached that by pleading guilty to and being punished for the indictable offence the respondent in this case could not be further punished for the summary offence, what then is the appropriate course for the Court to take?
 It is the appellant’s contention in this case that the respondent should be convicted without further punishment. The provisions of TORUM would, in that case, render the respondent automatically liable to disqualification of his driver’s licence for six months, (s 86(1)). As noted by Wall DCJ in Grannigan a conviction without further punishment would nevertheless appear on the respondent’s criminal or traffic history and could be used as a basis for a heavy penalty if there was subsequent offending. That disqualification would date from the actual conviction. Accordingly, in this case, if a conviction was recorded the respondent would suffer a real penalty.
 In Grannigan Wall DCJ discussed the options available to a court upon reaching a conclusion that it would be an abuse of process to proceed on the summary offence and noted the options of dismissing the complaint or ordering a permanent stay of the proceedings on that charge. In this case the Magistrate made the decision to permanently stay the proceedings and I can see no reason why that was not an appropriate decision in the circumstances. The appeal is accordingly dismissed.”
 I find that to convict the defendant of both offences would be contrary to the provisions of Section 16 of the Criminal Code .
 I order a permanent stay of the offence of the breach of the domestic violence order, on the basis that the offence under the Commonwealth Criminal Code Act 1995 carries a heavier penalty than that provided for under the domestic violence legislation and that to convict the defendant of both offences would be contrary to law.