Court of Appeal (Qld)|2001-10-12|Before: McMurdo P, Davies and Thomas JJASeparate reasons for judgment of each, member of the Court, each concurring as to the order made
McMurdo P, Davies and Thomas JJASeparate reasons for judgment of each, member of the Court, each concurring as to the order made
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE
PERSON – ASSAULTS – GRIEVOUS BODILY HARM - where
appellant's punch
dislodged an artificial lens inserted into the complainant's eye resulting in a
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THEPERSON – ASSAULTS – GRIEVOUS BODILY HARM - whereappellant's punchdislodged an artificial lens inserted into the complainant's eye resulting in aconviction for grievous bodilyharm – appeal against conviction - whereconflicting pre-trial rulings under s 592A Criminal Code as to whether anartificiallens implant in the eye constituted a "defect weakness orabnormality" for the purposes of s 23(1A) Criminal Code CRIMINAL LAW– JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OFPROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS– ABUSE OF PROCESS - whetherthe re-opening of the initial pre-trial ruling was an abuse of process –where the re-openingof a pre-trial ruling should not be lightly undertaken– where 'substantial disagreement' with earlier ruling not enough tore-open - where a special reason is necessary before a pre-trial ruling under s592A Criminal Code may be re-opened – where
the unusual circumstances
involving the interpretation of an uncertain and important point of the law with
no clear authority constituted
a 'special - reason' and allowed the Judge to
re-open – where no forum shopping or abuse of
processINTERPRETATION – GENERAL RULES OF CONSTRUCTION - where the
meaning of the words "weakness, defect or abnormality" are a question
of
statutory construction – where the legislature did not intend to limit
these words – where the words should be given
their current meaning
consistent with changing technology – where s 23(1A) Criminal Code is not
restricted in its operation
to abnormalities naturally caused.Acts
Interpretation Act 1954 (Qld), s 14A, s 14BAppeal Costs Fund Act
1973 (Qld)Criminal Code s 23, s 23(1A), s 23(1)(a), s 23(1)(b), s 592A, s
592A(2)(e), s 592A(3), s 592A(4), s 594, s 669A, s 669A(2)
Mamote-Kulang of Tamagot v The Queen [1964] HCA 21
(1963-1964) 111 CLR 62,
consideredR v Amituanai [1995] QCA 80
CA No 524 of 1994, 28 March
1995, consideredR v Bennett and Bennett [1999] QCA 46
CA Nos 443 and
449 of 1998, 26 February 1999, referred toR v Camm [1999] QCA 101
CA
No 431 of 1998, 1 April 1999, referred toR v Charles [2001] QCA 320
CA No 66 of 2001, 2 August 2001, referred toR v Francisco [1999] QCA
212
CA No 59 of 1999, 8 June 1999, referred toR v Hansen [1964] Qd R
404, consideredR v Hooper [1999] QCA 310
(1999) 108 A Crim R 108, referred
toR v Kennedy [2000] QCA 48
CA No 355 of 1999, 28 February 2000,
referred toR v Martyr [1962] Qd R 398, consideredRogers v The
Queen [1994] HCA 42
(1994) 181 CLR 251, consideredThe Council of the Shire of Lake
Macquarie v Aberdare County Council (1970-71) 123 CLR 327, referred
toVan den Bemd v The Queen [1994] HCA 56
(1993-1994) 179 CLR 137,
consideredWalton v Gardiner (1992-1993) 177 CLR 378, referred
toWard v R [1972] WAR 36, referred to
Judgment (22 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULTS - GRIEVOUS BODILY HARM - where appellant's punch dislodged an artificial lens inserted into the complainant's eye resulting in a conviction for grievous bodily harm - appeal against conviction - where conflicting pre-trial rulings under s 592A Criminal Code as to whether an artificial lens implant in the eye constituted a "defect weakness or abnormality" for the purposes of s 23(1A) Criminal Code
[2]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - ABUSE OF PROCESS - whether the re-opening of the initial pre-trial ruling was an abuse of process - where the re-opening of a pre-trial ruling should not be lightly undertaken - where 'substantial disagreement' with earlier ruling not enough to re-open - where a special reason is necessary before a pre-trial ruling under s 592A Criminal Code may be re-opened - where the unusual circumstances involving the interpretation of an uncertain and important point of the law with no clear authority constituted a 'special - reason' and allowed the Judge to re-open - where no forum shopping or abuse of process
[3]
INTERPRETATION - GENERAL RULES OF CONSTRUCTION - where the meaning of the words "weakness, defect or abnormality" are a question of statutory construction - where the legislature did not intend to limit these words - where the words should be given their current meaning consistent with changing technology - where s 23(1A) Criminal Code is not restricted in its operation to abnormalities naturally caused.