Criminal Law – Magistrates Court Jurisdiction Confirmed

Section 552B of the Criminal Code sets out the matters which the defendant may elect to have dealt with by the Magistrate.  In particular s. 552B(1)(ha) provides for an “offence under s. 339(1)” which by s. 552B(5) must be dealt with by a Magistrate if a plea of guilty is to be entered. 

It has been the common past practice of Magistrates and prosecutors to read s. 552B(1)(ha) as limited to an offence of assault occasioning bodily harm simpliciter.  Cullinane J has declared that assault occasioning bodily harm with a circumstance of aggravation is within the meaning to be ascribed to the words “an offence under s. 339(1) (see Fullard v Mr Verra a Magistrate and Senior Constable Byway [2007] QSC 050).  His Honour held that interpretation was consistent with authority (Herpich v Martin [1995] 1 Qd R 359 and cases cited therein) and with the intrinsic material used to interpret s. 552B.

Cullinane J noted the drafting issues raised by the parties and the Magistrate at first instance, but took the view that historical considerations (such offences had been the subject of summary proceedings under the Criminal Code before the introduction of s. 552B in 1997) and the Explanatory Material (which noted an intention not to alter the jurisdiction of the Magistrates Court), were more useful in the interpretation of the section.  His Honour said:

“It is also apparent that if the draftsman wished to exclude from the ambit of paragraph (ha) an offence under s. 339(1) with a circumstance of aggravation it would have been a simple matter to do so” (p. 12 ln 37- 45).

The jurisdiction to determine on a plea, an aggravated AOBH charge is not at large.  Magistrates will still be required to put their mind to the matters set out in s. 552D — that is whether or not the penalty that can be imposed (3 years imprisonment or $7,500) will be an adequate punishment on summary conviction.  Further the offender would not be exposed to criminal compensation implications through the Criminal Offences Victims Act 1995 though compensation is still possible (see s. 35(1)(c) Penalties and Sentences Act 1992).

This matter proceeded by way of an application for orders under s. 41(2) of the Judicial Review Act 1991 (formerly a mandamus application).  No order for costs was made.  The cost regime under the Judicial Review Act does not automatically allow for costs to follow the cause and His Honour held there was a strong public interest in having the matter resolved.

There are implications for workloads in the Magistrates Courts from this decision and persons having to make sentencing submissions in the Magistrates Court, as well as for funding from Legal Aid for instances where the client wishes to have the matter tried by a jury.  A term of imprisonment remains a high possibility for such matters.

Darin Honchin

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