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- Unreported Judgment
MAGISTRATES COURTS OF QUEENSLAND
Queensland Police Service v TES  QMC 4
QUEENSLAND POLICE SERVICE
Ruling in contested facts hearing
Mackay Magistrates Court
5th March 2020
4th October 2019, 1st November 2019
Acting Magistrate J M Aberdeen
CRIMINAL PROCEDURE – Magistrates – contested facts hearing – adjournment – power to adjourn – reasons for adjournment – abandonment of hearing – whether failure to “hear and determine” complaint – Justices Act 1886, section 145.
MAGISTRATES – “incapable of sitting” – direction to Acting Magistrate cancelled prior to date listed for resumption of contested facts hearing – Magistrates Act 1991, section 49A.
Mr R Beamish (for Queensland Police Service)
Mr P Clark (Solicitor) (for Defendant) (Strutynski Law)
QUEENSLAND POLICE SERVICE
- Mr TES (the Defendant) is before the Court charged with one (1) breach of a Domestic Violence Order, committed on the 27th July 2019.
- The Defendant entered a plea of Guilty to this charge on the 29th July 2019. On this date, the Defendant’s solicitor also advised the Court that the facts constituting the offence, as alleged by the prosecution, were not agreed.
- In the light of this indication, the matter was listed for a Contested Facts Hearing on the 26th August 2019.
- On 26th August 2019, the matter came before Acting Magistrate LUXTON, who was then performing a period of relieving duty in this Court.
- On that day, the hearing was commenced, and evidence was taken from one witness, a Ms LN. In view of what later occurred, it should be noted that the witness’ evidence was quite brief: Ms LN’s evidence in chief was of 7 minutes duration, while her cross-examination occupied the equivalent of one page of transcript.
- At that point in his cross-examination, Mr Clark, for the Defendant, called for the production of a 000 recording alleged to have been made by the witness.
- The Police Prosecutor, Mr Beamish, indicated that the item had not been previously requested by the Defendant to be available at the hearing. Mr Beamish also advised that it would take some time to access the recording, and have it available.
- His Honour Acting Magistrate Luxton then stated:
“I think the most prudent course of action might be, in the circumstances then, to vacate this hearing and to start afresh. Given I’m only here for a period of five to six weeks, I think I finish the 4th October – I’m in arrest court as of next – the first of the month as I understand it, or the 2nd September and I may be conducting some hearings towards the latter part of the week towards the 4th October. I would assume that there’s already hearing dates set at that time. So I don’t think I’ll be able – you will probably need to be allocated and start afresh, I would think in that circumstance.”
- His Honour then addressed the witness, Ms LN:-
“…Now, witness Ms LN, unfortunately, this matter is not going to be finalised and determined today. There’s further material that’s required by Mr TES’s legal representatives. So what I’ll do in the circumstances is abandon this hearing because there’s no prospect it will be able to be dealt with today. And likewise, there’s little prospect that I’ll be able to hear and determine the matter…”
“…there still may be a prospect that I can dispose of the matter before the 4th of October…”
“I just want to explain to you if there’s some prospect this matter can be heard and determined by me, although I’ve abandoned the hearing today, if there is a prospect, then the evidence that you’ve already given can still be taken into consideration. You’re still subject to cross-examination by Mr Clark at this point…”
“Now, as I said, you will be contacted by the prosecution. There may be some prospect that I can hear and determine the matter without the necessity for it to be abandoned. And if that is the case, then as I’ve said, the evidence you’ve already given can be taken into consideration by me…”
- I note that no objection was taken to the course proposed by his Honour at that time.
- His Honour then endorsed the Court File as follows:-
“Matter proceeds to contested facts hearing. Hearing abandoned – Further Disclosure required. Adj to 9am on 9/9/2019”.
- On 9th September 2019, the matter was mentioned briefly for the purpose of allocating a new hearing date. The Court File was noted by his Honour Magistrate Nolan “to allocate new hearing date before A/Mag Luxton”, and the matter was adjourned to the following day, the 10th September 2019.
- On 10th September 2019, the matter came again before Magistrate Nolan.Both legal representatives appeared. Magistrate Nolan endorsed the Court File thus:-
“I advise the parties that I am unable to hear the contested facts hearing on 4/10/19. In the circumstances the Contested Facts Hearing remains listed for 4/10/19 hearing to be heard afresh in the circumstances.”
- I note that on this occasion also, there was no objection from either party to this course.
- On 4th October 2019, the matter came before myself, as Acting Magistrate. On that day, Mr Beamish, for the prosecution, outlined an objection to the matter commencing afresh before me, on the grounds that Acting Magistrate Luxton was still seized of the matter, and that he was obliged, as a matter of law, to continue to “hear and determine” the matter. His failure to do so constituted a failure to exercise his jurisdiction in the matter.
- It was inherent in the submission provided by Mr Beamish that I had no jurisdiction to embark upon a fresh hearing of the matter.
- In the circumstances, I ordered the parties to prepare written submissions encapsulating their arguments, and I adjourned the matter for mention to 1st November 2019.
- On 1st November 2019, the matter again came before me. Mr Beamish provided his written submissions. No submissions were handed up, and no oral submissions made, by Mr Clark, for the Defendant. I then adjourned the matter, to a date to be fixed and advised to both parties, to allow me to consider fully the implications of the Defendant’s submissions.
- Further, on the 1st November 2019, I drew Mr Beamish’s attention to the fact that I had received from the Regional Coordinating Magistrate, dated 1st October 2019, a direction at act as Magistrate in Mackay on the 4th October 2019. In the same email, I also received a copy of a cancellation to Acting Magistrate Luxton cancelling a previous direction to his Honour to act as Magistrate in Mackay on 4th October 2019.
- It follows that Acting Magistrate Luxton had no direction to act as Magistrate in Mackay on the 4th October, 2019, and accordingly had no jurisdiction to do so.
- I drew Mr Beamish’s attention to Acting Magistrate Luxton’s cancellation of direction in respect of the 4th October 2019, however Mr Beamish advised that it did not, in his opinion, change the submissions he had already handed up.
- For the purpose of clarity, I have marked the following exhibits:-
Exhibit 1 - Transcript of proceedings on 26/08/2019
Exhibit 2 - Submissions of the Prosecution (undated)
Exhibit 3 - Direction (Aberdeen AM) dated 01/10/2019
Exhibit 4 - Cancellation of Direction (Luxton AM) dated 01/10/19
- It is necessary to determine, firstly, precisely what orders were made by Acting Magistrate Luxton in the earlier proceedings in this matter.
- In this case, Acting Magistrate Luxton has used the term “vacate” on one occasion, and the expression “abandon” on four occasions (see the quotations extracted above). These statements, admittedly, are made in the course of conversation within the Court - on three occasions with a witness then under cross-examination. But provided that the order sought to be made is clear, there is no necessity for a formal order such as “I hereby abandon this hearing; I adjourn the matter to…”. I am unable to see any impediment to giving effect to his Honour’s intention, especially with the even clearer indication arising from his endorsement of the Court File.
- His Honour has also contemplated the possibility that he may be able to resume the hearing in person; and has indicated that if that course were to be possible, he would proceed in that way, thus avoiding the necessity for the witness Ms LN to commence her evidence from the beginning.
- I have been unable to identify any authority dealing with this discrete point, i.e. an abandonment of a hearing, with a reservation that, if the original Magistrate can continue such hearing, he will do so.
- I don’t draw any inference from the absence of such authority, e.g. that the absence of authority against such a proposition may provide some semblance of legitimacy. But I must admit to being unable to contemplate any sound reason why such an intention cannot be recognised as appropriate if indeed the original Magistrate is able to resume the hearing. It would appear to me that it can only lead to a conservation of the resources of this Court, an end to be favoured; provided that neither party is placed in a position of disadvantage.
- I should also add, for completeness, that I do not read section 145 of the Justices Act 1886 as in any way prohibiting the course proposed by the learned Acting Magistrate.
- Where a Magistrate has embarked upon the hearing of a matter, and has heard evidence, that hearing, if adjourned, should not be continued before a different Magistrate. It would have been inappropriate for me, in this case, to purport to resume the hearing at the point where it was abandoned by Acting Magistrate Luxton. This is especially the case where (as seems to be this case) there may be credibility issues involving the witness/s heard by the initial Magistrate.
- The prosecution asserts - while it does not dispute that his Honour had the power to adjourn the case – that he had no authority to order that the proceeding be commenced de novo.
- In my opinion, in the present case, the power to adjourn the hearing, and the power to vacate or abandon the hearing which had commenced, are inextricably intertwined. The situation is further complicated by the fact that Acting Magistrate Luxton was in Mackay pursuant to a Direction to act for only a limited period of time.
The power to adjourn:
- In R v Wiltshire JJ, Lord Ellenborough said:-
“…I hold, without any doubt, that the Court who are to try the appeal have an incidental authority to adjourn it, when once properly lodged, if it be necessary for the advancement or convenience of justice; and that the sessions are to judge of the proper occasion for doing so.”
- This common law power of adjournment was not abrogated by section 88 of the Justices Act 1886. In R v Southampton JJ, ex parte Lebern, Phillimore J stated:-
“The magistrates are, if not common law officers, at any rate officers of very great antiquity. They had a great number of powers before the Summary Jurisdiction Act or the Indictable Offences Act, or any of the Acts regulating their jurisdiction which were passed in the course of the last century; and, unless those Acts have taken away that jurisdiction, it remains. I conceive every court has a common law power of adjourning for a reasonable time, and upon reasonable grounds, and I see nothing in [the 21st] section of the Indictable Offences Act to take away the power of adjournment where the adjournment is the adjournment of a summons and the man has never surrendered in custody or been detained in custody.”
- Lebern’s case was cited with approval, and a similar view taken, by the Full Court of Queensland in Boettcher v Boettcher.
- The usual formulation of the basis for an adjournment is that it is “for a reasonable time, and upon reasonable grounds”. What is a reasonable time and what are reasonable grounds must depend upon the circumstances of each case.
- In the present case, evidence – in the form of the 000 recording of the call made by the witness LN – was not before the Court. The Defendant’s solicitor, when the evidence was not produced upon his call, stated:-
“From my perspective, your Honour, it’s extremely probative of what [this] witness said at the time [of the call].”
- His Honour, as he was entitled to do, has accepted this assertion as to probative value by the Defendant’s solicitor. It is with a view to enabling the production of this evidence at trial that the Court has then proceeded to make the orders which have been challenged.
- Charges of breaching Domestic Violence Orders, for good reason, are treated as serious criminal offences. It is common to have a number of acts involved in an inter-personal transaction containing domestic violence. Indeed, it is often necessary, in my experience, to seek from the prosecutor appearing on such matters precise particularisation of what, from a number of acts or words, is said to constitute the specific offence charged. The appropriate penalties for this type of offence may well, and often do, include a term of imprisonment.
- With these considerations in mind, the decision to give priority to the production of the subject evidence could not, to my mind, be seen as unreasonable. While it is to be hoped that the legal representatives engaged in such matters will have settled, well before the commencement of the hearing, what evidence should be available to hand, a failure to do so, through oversight, lack of foresight, or an erroneous assumption that it would be available, should not prejudice a Defendant to a criminal charge which may carry a heavy penalty.
- In Myers v Myers, Jackson J (as he then was) stated:-
“To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. But where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted. These principles are laid down in Maxwell v Keun  1 KB 645 ;  All ER Rep 335, and Walker v Walker  1 All ER 412.”
Failure to “hear and determine”:
- The prosecution maintains that Acting Magistrate Luxton, by his actions, has failed to “hear and determine” the matter before him, contrary to section 145 of the Justices Act.
- Substantial reliance is placed upon the decision of his Honour Mr Justice Jones in Re Blandford.
- In Blandford, the Defendant was charged with two offences – (i) wilfully damaging a motor vehicle, and (ii) being in charge of a motor vehicle while under the influence of liquor. Both offences arose out of the same incident. In respect of the wilful damage offence, trial upon indictment was elected. A summary trial for the traffic offence commenced, and all of the evidence was heard. The Defendant was unrepresented. At the conclusion of the evidence, the learned magistrate expressed concern that the indictable offence was still to go to trial in the District Court. The magistrate believed that there was a potential for inconsistent findings – as between the Magistrates Court, and the District Court – in that there could be different findings of fact, and law, as between the two courts, upon the same facts.
- On that basis, the summary charge was adjourned to a fixed date, for the purpose of a hearing de novo before a different Magistrate, after the District Court charge had been determined.
- Upon Review by the Supreme Court, Justice Jones examined the individual nature of each of the charges, and the evidence to be adduced, and formed the view that the elements of the offences were not “inextricably tied”, and that there was no risk of inconsistent decisions.
- While acknowledging the prudence, on the part of an inferior Court, to stay its proceedings while the same issue/s are pending before a superior Court, his Honour said that:-
“…the learned stipendiary magistrate has used his assessment of similarity of issues not merely to adjourn but to refuse to determine whereby a new trial would be necessary.”
- His Honour continued:-
“…the learned stipendiary magistrate has gone further than merely adjourning a case and he has done so taking into account irrelevant considerations as I have outlined above…”
“In those circumstances it seems to me that the magistrate has wittingly or unwittingly declined jurisdiction. It is proper to make absolute the order nisi and call upon the learned stipendiary magistrate to determine according to law the charge against the defendant which he has commenced to hear.”
- The prosecution’s reliance upon the Blandford decision illuminates the reasoning behind the prosecution’s expressed view that it is not the adjournment which is the cause of complaint, but rather the abandonment of the hearing on 26th August 2019.
- The circumstances prevailing in this matter are very different to those which presented themselves in Re Blandford, and the decision is clearly distinguishable from the present case.
The abandonment of the hearing:
- If the matter had not been abandoned on 26th August, it would have been necessary to list it for continuation before his Honour Acting Magistrate Luxton on some future date, after the requested evidence had been procured, and was available for the hearing. Acting Magistrate Luxton had already received a direction to act as Magistrate in Cairns for a lengthy period of time, which would have meant a delay of some months in completing the hearing.
- Had a relevant objection been taken at the time his Honour indicated an intention to abandon the hearing, it may have been that the situation could have been dealt with to the satisfaction of both parties. It may have been possible to re-organise the Courts’ calendars to allow Acting Magistrate Luxton, during his period of relieving in Mackay, to take a day sitting in the second Magistrates Court.
- The effect of the matter not being raised until 4th October 2019 – after his Honour had completed his relieving sittings in Mackay – makes the situation, in my opinion, effectively irretrievable; the matter must proceed de novo, as a Contested Facts Hearing, at the earliest available hearing date.
- Taking into account (i) the extent to which his Honour had entered upon the Contested Facts Hearing (i.e. ten minutes of evidence); (ii) the consideration that the evidence sought was (as he was advised by Mr Clark) important for the Defendant in the presentation of his case; and (iii) that to have returned to Mackay to complete the hearing before him would necessarily have involved (a) some delay; and (b) additional expense to the Magistrates Courts Service, I am unable to see his Honour’s decision to vacate the hearing as anything other than a reasonable decision based upon the aforementioned considerations.
- On this basis, I do not believe that his Honour failed to hear and determine the matter before him, as has been contended.
- It follows that I have jurisdiction to deal with this matter de novo, and I intend to take action accordingly.
Section 49A of the Magistrates Act 1991:
- The prosecution has contended that section 49A of the Magistrates Act 1991 has no application to the present case. I do not agree.
- Section 49A was inserted by the Civil Proceedings Act 2011. Similar provisions were introduced for the Supreme Court (section 188), and for the District Court (section 121). Each of these provisions had as their ancestor section 297 of the Supreme Court Act 1995 [now repealed].
- Where a Magistrate is “incapable of acting”, that fact may be certified by the Chief Magistrate, or a Deputy Chief Magistrate. The prosecution points out that there is no such certificate in evidence in this matter. That is so.
- However, section 49A goes further. Subsection (4)(a) deals with the case where there is an “incapacity certificate”. Subsection (4)(b), which immediately follows, commences “In any other case…”, and sets out a procedure for such a case.
- I find that section 49A deals with the situation where a Magistrate is “incapable of sitting” either through the issue of the relevant certificate, or in other cases where, although no certificate has been issued, it is clear that the Magistrate is “incapable of sitting” within the meaning of the section.
- In the present case, Acting Magistrate Luxton had his direction to sit on the 4th October 2019 cancelled by Co-ordinating Magistrate Press on the 1st October 2019. I have no doubt at all that, on the 4th October 2019, Acting Magistrate Luxton was “incapable of sitting” in this Court within the meaning of section 49A.
- I intend to make Orders under section 49A of the Magistrates Act 1991. As no party has applied to me for directions, pursuant to section 49A(3), I intend to act on my own initiative, as expressly permitted under subsection (4).
- I order that –
- This Contested Facts Hearing be heard and determined afresh;
- I order that a hearing date be listed for hearing at the earliest possible date available, having regard to the Courts’ existing calendar.
- I order that the Defendant’s bail be enlarged to that date.
J M Aberdeen
5th March 2020.
 See AUSCRIPT Transcript pp 1-3 to 1-6; evidence in chief = 12:00 noon to 12:07 pm.
 See Transcript pp 1-6 to 1-7.
 Mr Beamish requested a period of two weeks to provide the requested material: T/s p 1-8 .
 T/s pp 1-7 to 1-8.
 T/s at 1-9 [0-6].
 T/s p 1-10 .
 T/s p 1-10 .
 T/s p 1-10 .
 See eg R v Justices of Sussex (1768) 2 Bott (6th Ed) 770 (KBD), cited in R v Westmoreland JJ (1868) LR 3 QB 457 at 461, per Cockburn LCJ; Barnsley v Marsh (1947) 63 TLR 399 (KBD) per Goddard LCJ: “It is not necessary for the purpose of adjourning a case to use any particular form of words. All that is necessary is to look at what the Court does.”
 See In re Guerin (1889) 58 LJMC 42; 16 Cox CC 596; R v Londonderry JJ  2 IR 283 at 291-2, per Gibson J, delivering the judgment of the Court; R v Smith and Perda, ex parte Stellino  QWN 37; R v Schwarten, ex parte Wildschut  Qd R 276. There may be circumstances where a second Magistrate may take over the proceedings: see O’Brien v McSkimin (1992) 101 NTR 1 (Martin CJ); Martinuzzi v Fair Work Ombudsman (2012) 205 FCR 106 (Logan J); Preston-Stanley v ACT Magistrates Court  ACTSC 313 (Mossop M). The last-mentioned case involved a Special Magistrate whose appointment finished after he had found a Defendant guilty, but before sentence had been imposed. In that case, it was held that the imposition of sentence, being a separate and distinct part of the proceeding, could be taken over by a different Magistrate. But where evidence of one witness has been partly-heard, and the credibility of that witness is likely to be challenged, there should not, in my opinion, be any change in the constitution of the Bench which hears the evidence.
The common law background to the “rule of practice” that a different Bench should not continue a hearing without having heard all of the evidence was discussed by the Hon Sir Robert McGarry in A Second Miscellany -at-Law (1973) at 53-58, and Sir Robert’s treatment of the subject was sufficiently authoritative to warrant reference to the Miscellany by the White Practice: see Martinuzzi (cited above) at . In Carra v Hamilton (2001) 3 VR 114 at , Balmford J, in dealing with a related problem, observed:
“All of the authorities which I have cited indicate that there are, as the High Court said in Brennan, ‘grave objections’ to a judicial officer completing a matter heard in part by another judicial officer without rehearing the evidence heard by the first judicial officer; or to a judicial officer making a further order when the substance of the matter has been dealt with by another judicial officer. However, it is clear from those authorities that in the end, where the interests of justice and the necessity of the case dictate, that is the procedure which must be adopted, even in the absence of a relevant statutory provision...”.
I am not sure that Queensland law, as it presently stands - based upon the Stellino case, and the Wildschut case – would permit the degree of flexibility suggested by his Honour’s observations.
 Prosecution submission, paras  and .
 (1811) 13 East 352 [104 ER 406]. See also R (Sullivan) v County Cork JJ (1885) 18 LR Ir 99 at 103; R v Westmoreland JJ (1868) LR 3 QB 457 at 460-461 per Cockburn LCJ: “”…as to a matter once before a court it is perfectly clear that there must be necessarily inherent in the court of quarter sessions a power of adjourning any matter of which they may be seized, to any time at which they may consider they will be in a better position to decide upon it.”
 R (Sullivan) v County Cork JJ (1885) 18 LR Ir 99 at 103 per O’Brien J;
 (1907) 96 LT 697, at 700.
  St R Qd 73. The same opinion has been expressed in relation to the relevant legislation in New South Wales: Ex parte Morrison; re Finlay (1957) 74 WN (NSW) 402 (SC), per Maguire J: “The power in a magistrate to grant an adjournment is not to be found exclusively in the express terms of the Justices Act 1902-1955 relating to adjournments. In Boettcher v Boettcher, Macrossan ACJ held that in addition to the powers conferred on justices by statute, they have at common law power to adjourn for a reasonable time and upon reasonable grounds.”
 Lebern’s case, above.
 Boettcher v Boettcher, cited above, at 76 per Macrossan ACJ.
  WAR 19, at 21. See also O’Donnell v Chambers  VLR 43 at 45 per Madden CJ, noting that the wide power of adjournments granted to justices had been provided inter alia for the protection of defendants.
 (1998) 27 MVR 417 (QSC).
 At 419 .
 At 420 . See eg Tutty v Tutty (1880) Qld Digest (1926) 971; Goldsmith v Pinnock (1890) 4 QLJ 17; A D & M D Graham and L G Lukin, Justices’ Civil Jurisdiction (1925) at pp 7-8; Concrete Developments v Qld Housing Comm  Qd R 356, at 364-365 per Philp J; Moore v Devanjul Pty Ltd (No 3)  QSC 355, at  per McMeekin J.
 At 421 .
 I note that there is nothing in the report of Blandford’s case to indicate that the learned magistrate in that case would not be available (i.e., in Cairns, and “sitting”) so as to facilitate the conclusion of the proceedings by judgment – perhaps an important distinction.
 On the other hand, the respective Court Diaries may have been full. Mackay operates two full-time Magistrates Courts, No 1 Court and No 2 Court. A change in the terms suggested would necessarily involve a specific Direction for that day, in that Directions are specific to the duties of the Magistrate who is being relieved.
 Compare R v Horan  VLR 249, 251.
 The expression “hear and determine” is used in s. 144, and s. 146 (Where defendant pleads not guilty), but does not appear in s. 145 (re arraignment, and plea of guilty). Having regard to the long-standing practice of the Court, and s. 132C of the Evidence Act 1977, I am of the opinion that the expression “hear and determine” accurately and appropriately describes the duty of the Court in a “Contested Facts Hearing”, and I have proceeded on that basis.
 See Annexure “A” to this Ruling. Exhibits 3 and 4 are also attached as Annexures “B” and “C” respectively.
 See Explanatory Notes to Civil Proceedings Bill 2011 at p 56; see also Queensland Hansard for 29 November 2011, at p. 3886 (Civil Proceedings Bill 2011 - in Committee).
 Which includes an Acting Magistrate: see s. 6(8) Magistrates Act 1991.
 Section 49A(2), Magistrates Act 1991 – an “incapacity certificate”.
 Prosecution submission para .
 Exhibit 4.
 I have been unable to locate any authority dealing with the Queensland “incapable of sitting” provisions. In In re May’s Will Trusts  Ch 109, Crossman J was reluctant to hold that a testator’s widow, living in Belgium at the time of the German invasion, was “incapable of acting” as a trustee (although he also found it was nevertheless appropriate to appoint a new trustee in her place). In R v Kelman  NZLR 904, a juror was found “incapable” of continuing to perform his duty where his wife had died during the course of the trial. The basis for the incapacity, it seems to me, could be temporary or permanent; and, I believe, could involve physiological or legal incapacity. This is a case of the latter. In Preston-Stanley v ACT Magistrates Court  ACTSC 313, at , it was said that the corresponding ACT provision was ”a facultative provision designed to provide additional powers and flexibility to the Court”. I believe such a description is also applicable to s.49A, and that the section should not be given an unnecessarily-restrictive interpretation.
- Published Case Name:
Queensland Police Service v TES
- Shortened Case Name:
Queensland Police Service v TES
 QMC 4
05 Mar 2020