Brown v Latter [2016] QDC 35

DISTRICT COURT OF QUEENSLAND CITATION: Brown v Latter [2016] QDC 35 PARTIES: TIM BROWN (appellant) v STEVEN DALE LATTER (respondent) FILE NO/S: 1949/15 DIVISION: Civil PROCEEDING: Section 222 Appeal ORIGINATING COURT: Magistrates Court Caboolture DELIVERED ON: 3 March 2016 DELIVERED AT: Brisbane HEARING DATE: 19 February 2016 JUDGE: Butler SC DCJ ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – DOUBLE JEOPARDY – Where the magistrate ordered a permanent stay of proceedings – Where the applicant seeks to have the stay set aside – Whether a permanent stay based on section 16 Criminal Code was justified – Whether the “same punishable acts or admissions” test was satisfied. COUNSEL: C.B. Farnsworth appeared for the appellant There was no appearance for the respondent SOLICITORS: The Director of Public Prosecutions for the appellant There was no appearance for the respondent [1] The respondent appeared before the Caboolture Magistrates Court on 13 April 2015 and entered a plea of guilty to each of two charges of contravening a police direction or requirement in breach of s 791(2) of the Police Powers and Responsibility Act 2000 (PPRA). After the entry of the guilty pleas the Magistrate suggested to the prosecutor that the two charges ought to be amalgamated into the one charge in order to avoid a contravention of s 16 of the Criminal Code (1899). After obtaining instructions the prosecutor declined to take this course and his Honour ordered a permanent stay of the second charge. -- 1 of 6 -- 2 [2] The appellant submits that learned Magistrate erred in law in imposing a permanent stay of proceedings on the second charge. The appellant submits that this Court should set aside the order made in the Caboolture Magistrates Court on 13 April 2015 and remit the matter back to the Magistrates Court to be dealt with according to law. The charges [3] The respondent appeared before the Magistrate on 13 April 2015 in the Caboolture Magistrates Court on two charges of stealing, one of public nuisance and the two charges relevant to this appeal. Firstly, a charge of failing to attend to provide identifying particulars and secondly a charge of failing to attend to provide a sample of DNA. [4] The exact terms of the relevant charges as appears from the bench charge sheet is as follows: Charge One “That between the 17th day of March 2015 and the 26th Day of March 2015 at the Magistrates Court District of Caboolture in the State of Queensland one Steven Dale Latter without reasonable excuse contravened a requirement given by a police officer, namely Samuel Miller, under the Police Powers and Responsibilities Act (2000), namely to attend to Caboolture Police Station within seven days after the issue of an Identifying Particulars Notice to provide his identifying particulars.” Charge Two “That between the 17th day of March 2015 and the 26th day of March 2015 at the Magistrates Court District of Caboolture in the State of Queensland one Steven Dale Latter without reasonable excuse contravened a requirement given by a police officer, namely Samuel Miller, under the Police Powers and Responsibilities Act (2000), namely to attend to Caboolture Police Station within seven days after the issue of an DNA sample notice to provide a sample of his DNA.” [5] It appears from the facts placed before the learned Magistrate that on 18 March 2015 the defendant presented himself to the counter at the Caboolture Police Station in relation to another matter and was issued with the relevant notices to appear. The appeal was conducted on the basis that the respondent was issued with two separate notices by the same police officer on the one occasion. Both notices required the defendant to present himself within seven days. He failed to attend during that period. The prosecutor accepted that the information on the QP9 alluded to the fact that the defendant did eventually appear, although not within the specified period. [6] Following the entry of pleas of guilty by the defendant to these charges the learned Magistrate inquired of the prosecutor: “Just before we go on, the two charges – the first two charges, Ms Sheridan, there – there joined by day, time and place aren’t they? … He was obviously given a notice to attend for two reasons. And his failure to attend constitutes the act for both charges, doesn’t it?” -- 2 of 6 -- 3 [7] His Honour invited submissions as to why, if the two matters were not incorporated into the one charge, he should not order a permanent stay on the second charge. The prosecutor declined to combine the charges and his Honour stayed the second charge. The appeal [8] This is an appeal under s 222 of the Justices Act (1886) (QLD). The principles applicable in dealing with such an appeal were conveniently summarised by the Court of Appeal in White v Commissioner of Police:1 the judge is required to make his or her own determination on relevant facts and issues from the evidence, while giving a good deal of weight to the Magistrate’s view. The Magistrate’s decision [9] The learned Magistrate in his reasons for imposition of the permanent stay said: “I note that two of these charges are comprised of the same act. That is, to contravene directions. Two charges of contravene direction, one relating to a failure to attend for the provision of a DNA sample, another two – a failure to attend during the same period for an identify particulars notice. There is well tried authority in relation to s 16, including the High Court decision of Pearce.2” [10] His Honour went on to quote from the decision of R v S; R v L3 a decision of Richards DCJ delivered on 27 March 2015. The learned Magistrate sighted references to R v Hull (No 2)4 and R v Dibble: ex parte Attorney-General.5 His Honour expressed a view that the present case was a much clearer example than in R v S; R v L of a situation where the operation of s 16 should apply. His Honour then ordered a permanent stay of the second charge the failure to provide the DNA sample. He proceeded to sentence the respondent on the other offences before the Court including the charge of failure to appear to provide particulars. In respect to the charge of contravening a direction to provide particulars the respondent was convicted but not further punished. The conviction was recorded. In respect of the remaining offences the respondent was ordered to perform 60 hours of unpaid community service. The offences [11] The relevant offences each involved a charge under s 791(2) of the PPRA. The subsection relevantly provides as follows: “ (2) A person must not contravene a requirement or direction given by a police officer, including an requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse.” [12] The first charge related to a failure to comply with a direction given under s 470 of the PPRA. That section relevantly provides: “(1) A police officer may, by written notice (identifying particulars notice) given to the person, require the person – 1 [2014] QCA 121 at [6]. 2 (1998) 194 CLR 610. 3 [2015] QCHC 3. 4 [1902] St R Qd 53. 5 [2014] QCA 8. -- 3 of 6 -- 4 (a) to report to a police officer at a stated police station or police establishment within 7 days after the issue of the notice to enable a police officer to take or photograph all or any of the persons identifying particulars; …” Identifying particulars is defined in schedule 6 as meaning any of the following: palm prints, finger prints, hand writing, voice prints, footprints, a photograph of the person, a measurement of any part of the person’s body. [13] Charge two related to contravention of a requirement made under s 482 of the PPRA. That section relevantly provides: “(2) a police officer may, by written notice (DNA sample notice), require the person to report to a police officer at a stated police station or police establishment to enable a DNA sampler to take a DNA sample from the person.” [14] Section 483 of the PPRA says: “a DNA sample notice – (a) must require the relevant person to report to a police officer at a stated police station or police establishment – (i) within 7days after the issue of the notice; …” Section 16 of the Criminal Code [15] Section 16 of the Criminal Code provides: “A person cannot be twice punished under the provisions of this Code or under the provisions of any other law for the same act or omission…” [16] In 1902, Griffith CJ in the decision of R v Hull (No 2)6 said: “I think it is only necessary to look at the words, “the same act or omission”, to say that when it is alleged that acts referred to in two indictments are the same, there is implied a unity, at least, of time and place.”7 [17] In R v Dibble, ex parte Attorney-General8 the Court of Appeal adopted the following reasoning in R v Gordon; ex parte Attorney-General:9 “The same punishable acts or omissions test has been consistently adopted and applied in Queensland since its formation. The test was not the subject of challenge in this appeal. To the contrary, both sides made submissions on the footing that it is the prevailing test. In my view, it ought to be adopted and applied for this appeal. I would add that it is in no sense inconsistent with the observations of Griffith CJ in Hull (No 2). The test speaks of a unity of time, manner and place, at least, in the punishable acts or omissions. Thus those observations are consistent with it.” Appellant’s submissions 6 [1902] St R Qld 53. 7 At 57. 8 [2014] QCA 8. 9 [1975] Qd R 301 at [23]. -- 4 of 6 -- 5 [18] The appellant does not dispute the existence of a power in an appropriate case for the Magistrates Court to order a stay to prevent abuse of its own processes. The appellant also accepted that the appropriate test is whether the charges involved “the same punishable acts or omissions”. [19] It was submitted on behalf of the appellant that the subject charges referred to two distinct and separable punishable omissions which stem from different statutory obligations. The first charge rests on the punishable omission to provide identifying particulars, while the second charge rests on the punishable omission to attend a police station and provide a DNA sample. It was submitted that though the notices were issued by the same officer at the same time the obligations were independent of each other and derived from separate notices sourced from different sections of the PPRA. [20] Accordingly it was submitted that the learned Magistrate misapplied the legal test and his order should be set aside. Discussion [21] There can be no doubt following R v Dibble; ex parte Attorney-General10 that the test to be applied under s 16 is whether the same punishable acts or omissions are involved in each charge [22] It will not always be easy to determine, even in cases where there is a unity of time and place, whether the punishable acts or omissions are the same as between the two charges. [23] R v Dibble is an example of a fact situation where the act of landing a punch which resulted in grievous bodily harm was held to be “part of the punishable acts” which constituted the public nuisance offence for which the defendant had already been punished. [24] On the other hand, punishable acts of driving under the influence of liquor were held not to be the same punishable acts as those constituting dangerous driving on the same occasion in the decisions of Queensland appeal courts in R v Gordon; ex parte Attorney-General11 and R v Tricklebank.12 [25] While recognising the distinction is not always easy to draw and will turn on the facts of each case, I am not persuaded by the appellant’s contention that s 16 of the Criminal Code has no application in this case. [26] The gravamen of each of the two charges was a failure to attend at the Caboolture Police Station. It is true that in each instance the notice directed attendance for a different purpose. It is also true that attendance at any time within the seven day period was sufficient. Nevertheless, in each case the charge fixes on the failure to attend as the requirement contravened. As a matter of common sense a single attendance by the respondent at the Police Station during the specified seven day period would have satisfied his obligations under both orders. 10 [2014] QCA 8. 11 [1975] Qd R 301. 12 [1994] 1 Qd R 330; (1993) 69 A Crim R 351. -- 5 of 6 -- 6 [27] It is instructive to have regard to the approach of identification of an act as common to two charges which was commended by the High Court in Pearce v the Queen:13 “It should… be emphasised that the enquiry is not to be attended by ‘excessive subtleties and refinements’. It should be approached as a matter of common sense, not as a matter of semantics.” [28] Accordingly, in my view the punishable omission in relation to each charge was a failure to attend the Police Station during the period specified. Punishment of the person for one such failure constituted punishment for the same omission for which he was liable to be punished under the second charge. It follows that his Honour was correct to conclude that s 16 applied. [29] It should be observed that the learned Magistrate had the option of dealing with the prohibition on double punishment through the way he sentenced rather than by staying the charge. In R v Elhusseini14 there were separate charges of supplying heroin, possessing heroin and possessing money which were all particulars of the charge of trafficking. Williams J said: “In my view s 16 would operate so that, whilst the guilty verdicts on each of the counts would be recorded, the sentencing judge would impose sentence on the trafficking count, but not with respect to the others which involved ‘the same act or omission’.”15 [30] In R v Kolodziej16 the Court of Appeal followed the course adopted in R v Elhusseini and convicted without further punishment on a charge of wilful damage when the act of damaging property was an element of the charge of robbery for which the defendant was also being sentenced. [31] Although that option was available, there was no error in his Honour proceeding as he did to stay prosecution of the charge. In my respectful opinion, the learned Magistrate’s discretion did not miscarry when he ordered a stay of proceedings on the second charge. Order [32] The appeal is dismissed. 13 (1998) 194 CLR 610 at [42]. 14 [1988] 2 Qd R 442. 15 At [40]. 16 [2008] QCA 184. -- 6 of 6 --