Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • {solid} Appeal Determined (QCA)

Upton v Commissioner of Police

 

[2012] QCA 88

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

DELIVERED ON:

Orders delivered ex tempore on 3 April 2012

Reasons delivered on 13 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2012

JUDGES:

Fraser and White JJA and A Lyons J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore 3 April 2012:

1. Grant leave to appeal;

2. Allow the appeal;

3. Set aside the order made in the District Court on 9 November 2011;

4. The proceeding is remitted to the Gladstone Magistrates Court to proceed according to law; and

5. The respondent is to pay the applicant’s costs of the application for leave to appeal and of the appeal.

CATCHWORDS:

Criminal lawAppeal and new trialObjections or points not raised in court belowMisdirection and non-directionwhere counsel for the defendant at his hearing at first instance made a no case submission and this was accepted by the magistrate – where the District Court judge on appeal concluded that the magistrate had erred, recorded aconviction and remitted the matter back to the Magistrates Court for sentence – where the defendant was not advised of his rights and had not elected to give or call evidence – whether a conviction should have been recorded

Criminal Code 1899 (Qld), s 618

District Court of Queensland Act 1967 (Qld), s 118

Justices Act 1886 (Qld), s 145, s 146, s 148, s 225

Police Powers and Responsibilities Act 2000 (Qld), s 418, s 431

Police Powers and Responsibilities Regulation 2000 (Qld), r 34, r 38

Evgeniou v The Queen (1964) 37 ALJR 508; [1965] ALR 209, cited

Fawkes and Schadwell; Ex parte Schadwell [1966] Qd R 20, cited

Power v Heyward [2007] 2 Qd R 69; [2007] QSC 26, cited

R v Doolan [1962] Qd R 449, cited

COUNSEL:

A Hoare for the applicant

S P Vasta for the respondent

SOLICITORS:

Boe Williams as town agent for V.A.J. Byrne & Co Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

[1] FRASER JA: I agree with the reasons of Ann Lyons J for the orders pronounced by the Court on 3 April 2012.

[2] WHITE JA: On 3 April 2012 the Court pronounced the orders set out at [3] in the reasons of Ann Lyons J.  I joined in those orders for the reasons given by her Honour.

[3] ANN LYONS J: At the hearing of the appeal the Court made the following orders:

1. Grant leave to appeal;

2. Allow the appeal;

3. Set aside the order made in the District Court on 9 November 2011;

4. The proceeding is remitted to the Gladstone Magistrates Court to proceed according to law; and

5. The respondent is to pay the applicant’s costs of the application for leave to appeal and of the appeal.

These are the reasons for those orders.

[4] Trevor Upton, the applicant for leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld), was charged on 15 January 2010 in relation to two offences alleged to have occurred on 1 January 2010 of assaulting or obstructing police in the performance of their duty.

[5] The factual circumstances surrounding those charges are not strictly relevant to the appeal but essentially related to an altercation on Curtis Island on New Years Day 2010.  Two officers had been sent to the island to maintain law and order.  Tyres on a police vehicle were found to be deflated and an investigation into that occurrence turned volatile.  Police were jostled and menaced.  It was alleged that Mr Upton began yelling in an officer’s face and that he shoved and hit Constable Carmichael in the head, knocking a torch from his hat.  That was particularised as the assault on the officer.  That caused him to lose control over the person he was interviewing and that was the basis of the obstruction charge.

[6] The Bench Charge Sheets indicate that the matter was first mentioned in the Gladstone Magistrates Court on 4 February 2010 and proceeded through a series of mentions until 23 July 2010 when the matter was set down for hearing.

[7] A two-day hearing took place in the Gladstone Magistrates Court on 15 and 16 November 2010.  The major issue before the magistrate was whether the constable had a person in his lawful custody at the time the altercation with Mr Upton occurred.  The Bench Charge Sheets indicate that no pleas were taken at any stage in relation to the charges.

[8] At the conclusion of the prosecution case Mr Upton’s counsel made a ‘no case’ submission.  The learned magistrate ultimately accepted that submission and on 24 November 2010 dismissed the charges.

The appeal to the District Court

[9] The complainant, Constable Drew Carmichael, appealed that decision.  Mr Upton filed a separate appeal in relation to the Magistrate’s refusal to award costs upon dismissing the charges.  The appeal was heard on 7 November 2011.

[10] The complainant argued that the learned magistrate erred in fact and in law in determining that the elements of the charges were not made out.  The orders sought were that:

(a) The order of the magistrate dismissing the charges be vacated;

(b) The matter be remitted to the Magistrates Court at Gladstone to be determined according to law and in accordance with the reasons of the court; and

(c) The respondent pay the costs of the appellant of the appeal.

[11] The essential issue before the District Court judge related to the magistrate’s conclusion that, because of the constable’s non-compliance with sections 418 and 431 of the Police Powers and Responsibilities Act 2000 (Qld) and regulations 34 and 38 of the Police Powers and Responsibilities Regulation 2000 (Qld), the prosecution was unable to prove an essential element of each of the charges brought against Mr Upton.

The decision of 9 November 2011

[12] On 9 November 2011 the learned District Court judge published her reasons and concluded that the police breaches of the Police Powers and Responsibilities Act, when viewed in context, did not change the essential character of the constable’s conduct and did not make the detention unlawful.  Her Honour concluded that Constable Carmichael was performing his lawful duty and, in the course of those activities, he did not do anything outside of the ambit of his duty.  She considered that the constable was acting in the performance of his duties at the time he was hit and obstructed by the defendant.  Her Honour concluded that the magistrate erred in his finding to the contrary.

[13] Significantly, her Honour also concluded “He should have convicted the defendant of both offences because he found all other elements of both charges proved”.  Her Honour then made no order as to costs.  Her Honour adjourned the sentence and remitted the matter back to the magistrate for sentence.

[14] The formal orders were as follows:

‘1.The appeal against the dismissal orders is allowed.

2.The Magistrate’s order of 24 November 2011 (sic) dismissing the charges is set aside.

3.Convictions are entered for the offences of assaulting a police officer in the performance of his duties and obstructing a police officer in the performance of his duties contrary to s 790(1) of the Police Powers and Responsibility (sic) Act 2000 (Qld).

4.No order as to costs.

5.The matter is remitted back to the magistrate for sentence. Reasons given.’

Grounds of appeal to this Court

[15] On 7 December 2011 Mr Upton appealed the decision of the District Court judge.  Whilst the appellant has listed three grounds of appeal, reliance is only placed on grounds 2 and 3, namely:

(a) the learned Judge erred in entering a conviction against the appellant; and

(b) the learned Judge erred in remitting the appellant to the Magistrate’s Court for sentence rather than for a further hearing.

Should the learned District Court judge have entered the convictions?

[16] Section 145 of the Justices Act 1886 (Qld) requires the defendant to be asked to plead.  No formal plea was taken in this matter however it is clear from the record that the matter was listed for a summary trial and such a plea was clearly implied.

[17] The summary trial then proceeded before the magistrate in accordance with s 146 of the Justices Act, which provides:

146 Where defendant pleads not guilty

(1)If the defendant pleads not guilty then the court may—

(a)proceed to hear the complainant and the complainant’s witnesses, and the defendant and the defendant’s witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant’s general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require…”

[18] Section 148 of the Justices Act also provides for the conduct of summary proceedings and states that the procedure in the Magistrates Court in relation to the conduct of summary proceedings should be, as far as possible, in accordance with the practice in the Supreme Court as follows:

148 Conduct of summary proceedings regulated

The practice before justices upon the hearing of a complaint of a simple offence or breach of duty shall, in respect of the examination and cross-examination of witnesses and the right of addressing the justices upon the case in reply or otherwise, be in accordance as nearly as may be with the practice for the time being of the Supreme Court upon the trial of an issue of fact in an action at law.”

[19] Section 618 of the Criminal Code 1899 (Qld) contains the following provision:

“At the close of the evidence for the prosecution the proper officer of the court shall ask the accused person whether the person intends to adduce evidence in the person's defence.”

[20] It is clear from a perusal of the transcript that counsel for Mr Upton made the ‘no case’ submission immediately after the close of the prosecution case on 16 November 2010, before Mr Upton had been informed of his right to give or call evidence and before he made any election in relation to whether he would give or call evidence.

[21] On 24 November 2010 the learned magistrate published his decision and ruled that the prosecution was unable to prove an essential element of each of the charges, namely that Constable Carmichael was acting in the performance of his duties at the time he was assaulted and the obstruction occurred and that in the circumstances the charges were dismissed.

[22] The current Supreme Court practice in a criminal trial, where it is submitted on behalf of the accused at the close of the evidence for the prosecution that there is no case to answer, is that the trial judge should rule on the submission without requiring the defence to elect whether to call evidence or not.[1]  Significantly, in Fawkes and Schadwell; Ex parte Schadwell[2] the Full Court held that the same practice should be followed by magistrates when they are sitting in the criminal jurisdiction.  Gibbs J (as he then was) stated:

“The well-established practice in criminal trials is that at the conclusion of the case for the prosecution the defendant may submit that there is no ease to answer, and the Court must rule on this submission without requiring the defence to elect whether to call evidence or not. (See Evgeniou v The Queen (1964) 37 ALJR 508, at p 510 and p 515.)

We were not referred to any authority that directly decides that the same practice is to be applied on the hearing of a charge before Magistrates, but it appears from what was said by the High Court in May v O'Sullivan (1955) 92 CLR 654, at p 657 to p 659, and also from the Practice Note in (1962) 1 WLR 227 that the same rule does apply, and, in my opinion, the practice set out in Evgeniou v The Queen (supra) should be followed when an accused person is charged with a criminal offence before a Magistrate.”

[23] Accordingly the transcript makes it clear that the hearing before the magistrate on 16 November 2010 had reached the stage where the complainant and the complainant’s witnesses had been examined.  However, the defendant had not been advised of his rights or even been given an opportunity to elect to give evidence or call witnesses.  This was because the usual practice in the Supreme Court was followed as required which was that that the magistrate was asked to rule on the submission without requiring the defence to elect.  It is also clear that s 146 specifically allowed the defendant to call evidence.  That did not occur in this case.  Neither had the matter proceeded to a stage where the complainant and witnesses in reply had been called upon as allowed by s 146.

[24] The legislative regime in relation to the conduct of the complaint hearings in the Magistrates Court was discussed in the decision of Power v Heyward,[3] where Byrne SJA held that the Magistrates Court has the powers reasonably necessary to enable it to act effectively within its jurisdiction.  Significantly his Honour held:

“The more important of these are, ‘subject to the rules of Court and to statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures ...’, and to prevent an abuse of its process.”

[25] Furthermore in the decision of R v Doolan[4] the court held that it was essential that an accused person should be informed of his right to adduce evidence, that is, to give evidence himself and to call witnesses.  In that case it was held that there was a mistrial as the accused person had not been informed of his rights.  Townley J held “Although it does not clearly appear that he did desire to call evidence at his trial it also does not appear that he did not desire to do so.”

[26] Accordingly there was simply no indication that Mr Upton was advised of his rights and furthermore there was simply no evidence that he had elected not to give or call evidence.

[27] Section 225 of the Justices Act sets out the powers of a District Court judge on hearing an appeal;

225 Powers of judge on hearing appeal

(1)On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

(2)If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.

(3)For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.

(4)An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.

[28] There was no power under s 225 to convict the applicant.

Footnotes

[1] Evgeniou v The Queen [1965] ALR 209.

[2] [1966] Qd R 20.

[3] [2007] 2 Qd R 69.

[4] [1962] Qd R 449.

Close

Editorial Notes

  • Published Case Name:

    Upton v Commissioner of Police

  • Shortened Case Name:

    Upton v Commissioner of Police

  • MNC:

    [2012] QCA 88

  • Court:

    QCA

  • Judge(s):

    Fraser JA, White JA, A Lyons J

  • Date:

    13 Apr 2012

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QDC
Appeal Determined (QCA) [2012] QCA 88 13 Apr 2012 -

Appeal Status

{solid} Appeal Determined (QCA)