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  • Unreported Judgment

Gant v Magistrate Kucks

 

[2013] QSC 285

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Gant v Magistrate Kucks & Anor [2013] QSC 285

PARTIES:

CHARLES GANT
(applicant)
v
MAGISTRATE KUCKS
(first respondent)
SHEREE KATHLEEN RAWSON
(second respondent)

FILE NO/S:

11269 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application for judicial review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 October 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

25 September 2013

JUDGE:

Martin J

ORDER:

Application dismissed

CATCHWORDS:

MAGISTRATES – HEARING – CONDUCT OF MAGISTRATES – POWER AND DUTY OF MAGISTRATE GENERALLY – where the applicant was involved in an altercation with a woman – where the first respondent conducted the committal proceeding – where the creditability and reliability of the applicant and another witness was called into question – where the first respondent dismissed the complaints – whether the magistrate erred in dismissing the complaints

Criminal Code (Qld), s 686

Judicial Review Act 1991 (Qld)

Justices Act 1886 (Qld), s 104

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, considered

Buck v Bavonne (1976) 135 CLR 110, considered

Purcell v Vernados (No 2) [1997] 1 Qd R 317, considered

Sankey v Whitlam (1978) 142 CLR 1, considered

COUNSEL:

Litigant in person

Amicus curiae – G del Villar for the Attorney-General

SOLICITORS:

Litigant in person

Amicus curiae – G R Cooper Crown Solicitor

  1. The applicant seeks orders under the Judicial Review Act 1991 (“the JR Act”) with respect to committal proceedings against the second respondent (Ms Rawson). The first respondent, Magistrate Kucks, was given leave to withdraw. Ms Rawson did not appear. Mr del Villar appeared on behalf of the Attorney-General as amicus curiae.

Background

  1. In July 2009 Mr Gant and Ms Rawson were involved in an altercation which resulted in Mr Gant being stabbed in the right hand. It was a serious injury requiring hospitalisation. The history of the proceeding from that time was recorded in the reasons given by Magistrate Kucks on 25 June 2012 as follows:

“This matter has a rather chequered and lengthy history that I shall briefly recount. [Ms Rawson] was originally charged by the Police and when the matter came before this court for criminal proceedings the complainant Mr Gant and another witness Mr Crinis did not attend. The charge was then struck out by the court. The police prosecution corps apparently declined to recharge [Ms Rawson] and Mr Gant commenced proceedings by way of private complaint. In early 2011, that complaint came before this court and an application to make amendments was refused and the complaint struck out as not revealing any offences. The day after that order [Mr Gant] filed this complaint which contains the wording of the proposed amendments which had been disallowed the day before. In December 2011 an application was brought by [Ms Rawson] for a permanent stay of proceedings. I declined to make such an order and set the matter for committal. As this now comes under the ‘Moynihan amendments’ the matter was to proceed as a hand up committal with cross-examination of [Mr Gant] and Mr Crinis being agreed to by the prosecution. The agreement included cross-examination as to credit of each of these witnesses. No other witnesses were required for cross-examination.”

  1. Magistrate Kucks conducted the committal proceedings on 28 May 2012. Mr Gant was represented by Mr Brandon, a solicitor. Mr Brandon called both Mr Gant and Mr Crinis for the purposes of cross-examination and, later in the proceeding, tendered statements of witnesses, which had originally been obtained by the police for the purposes of the previous proceedings. Both Mr Gant and Mr Crinis were cross-examined at length about matters relating to the incident and to issues affecting their credibility.
  1. The magistrate, in dismissing the complaints, said the following about Mr Gant:

“His credit as a witness is squarely in issue. It cannot be said that he is an honest and frank witness. His evidence was vague in many areas, but also very definite in areas that would be beneficial to his case, such as his recollection of advice given to him by a former Victorian police officer shortly after he arrived at hospital, but no recall that he signed in Sergeant Saunders’ notebook that he did not want to make a complaint, which occurred about the same time.

He was also very evasive when it was suggested that he and Crinis had colluded at some point.”

  1. With respect to Mr Crinis (who was the other witness called), the magistrate said that he:

“was not physically present when the altercation between [Mr Gant] and [Ms Rawson] took place. He was however on the other end of a phone call with [Mr Gant] who had his phone on ‘handsfree’ or ‘speaker’ phone mode. The highest that Mr Crinis’ evidence can be, is that he heard an argument on the other end of the phone and then Mr Gant yell, ‘she has fucking stabbed me. Call an ambulance.’ He is not in a position to verify the truth of this statement.”

  1. The magistrate, in his reasons, referred to the decision of Ambrose J in Purcell v Vernados (No 2)[1] where his Honour referred to the ability of magistrates to consider the credibility and reliability of witnesses when determining whether the evidence placed before the court upon committal proceedings was strong enough to commit.
  1. It is obvious that the magistrate had those statements in mind when he concluded his reasons with this statement:

“[Mr Gant’s] version of events, at its highest, does not exclude accident and when combined with his credibility issues, together with the credibility issues of Mr Crinis cause me to form the opinion that no properly instructed jury could find the respondent guilty of an indictable offence.”

  1. Magistrate Kucks then dismissed the complaint and discharged Ms Rawson.
  1. Following the dismissal of the complaint Mr Gant appealed to the District Court, but that appeal was dismissed on the basis that it was incompetent. He now comes before this court seeking statutory review under the JR Act.

Reviewable error?

  1. Mr Gant’s written submission alleges a number of errors on the part of the magistrate. Doing the best I can, they appear to be the following:
  1. The magistrate erred in his assessment of the credibility of the witnesses;
  1. The magistrate failed to give proper weight to other witnesses;
  1. The magistrate took into account irrelevant matters; and
  1. The magistrate failed to take into account the seriousness of the crime.

The nature of the committal

  1. Section 104 of the Justices Act 1886 provides for the examination of witnesses in committal proceedings. So far as is relevant, it states:

104 Proceedings upon an examination of witnesses in relation to an indictable offence

(1) The examination of witnesses in relation to an indictable offence—

(a) may be conducted by a single justice; and

(b) subject to the provisions of section 40, shall be conducted in the presence and hearing of the defendant, if the defendant is required to be present, and of the defendant’s lawyer (if any).

(2) When, upon such an examination all the evidence to be offered on the part of the prosecution has been adduced and the evidence, in the opinion of the justices then present, is not sufficient to put the defendant upon trial for any indictable offence, the justices shall order the defendant, if the defendant is in custody, to be discharged as to the charge the subject of that examination, but if in the opinion of such justices (or if there be more justices than 1 then present, in the opinion of any 1 of such justices) the evidence is sufficient to put the defendant upon trial for an indictable offence then the justices or 1 of them shall—

(a) save, with respect to a particular defendant, in relation to evidence given during the absence of that defendant pursuant to the provisions of section 104A, cause to be read to the defendant the deposition of the witnesses who may have given evidence at the examination in the defendant’s absence; and

(b) address to the defendant the following words or words to like effect—

‘You will have an opportunity to give evidence on oath before us and to call witnesses for the defence. But first I am going to ask you whether you wish to say anything in answer to the charge. You need not say anything unless you wish to do so and you are not obliged to enter any plea; and you have nothing to hope from any promise, and nothing to fear from any threat that may have been held out to induce you to make any admission or confession of guilt. Anything you say will be taken down and may be given in evidence at your trial. Do you wish to say anything in answer to the charge or enter any plea?’.”

  1. The task of a magistrate under this section is well settled. A magistrate must, when considering evidence, determine its reliability, including if necessary findings as to credibility, in order to arrive at a decision as to whether or not there is a prima facie case against the defendant.[2]
  1. In other words, a magistrate has to determine, on the basis of the written evidence and any oral evidence, whether a reasonable jury properly instructed could return a verdict of guilty.[3] If, after completing that task, the magistrate forms the opinion that a verdict of guilty could not be returned in those circumstances, then the magistrate is obliged to discharge the defendant.

Test to be applied

  1. Section 104 of the Justices Act requires the magistrate to form an opinion. The reviewability of this type of decision was considered by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation,[4] where he said:

“But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.”[5]

  1. The restricted nature of the capacity to review a decision to commit or not commit was identified by Gibbs J in Buck v Bavonne,[6] when he said:

“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”[7] (emphasis added)

Were there any reviewable errors?

Did the magistrate err in his assessment of the credibility of the witnesses?

  1. The opinion formed by the magistrate as to the credibility of the prosecution witnesses was open to him. He had before him the applicant’s criminal history as well as that of the only other witness who was cross-examined. Of more importance, he was able to observe both the applicant and Mr Crinis when they were giving evidence and had the forensic advantage that that bestows. Mr Gant had changed his version of the circumstances of the injury after he learned that his relationship with the second respondent was over. He admitted in cross-examination that it was possible that he had said to one of the police officers that, because the relationship was over, he wanted to make a complaint. Further, the applicant’s answers when cross-examined about his criminal history were either vague or evasive. The view taken by the magistrate as to Mr Gant’s credibility was clearly open. The same comments can be made about Mr Crinis.

Did the magistrate fail to give proper weight to the evidence of other witnesses?

  1. The magistrate stated that he had taken into account all the evidence put before him. That evidence included all the statements obtained from the police brief. There is nothing to suggest that he had overlooked anything of relevance. The real complaint here is that the magistrate did not believe Mr Gant. That, of itself, is not an error.

Did the magistrate take into account irrelevant matters?

  1. No irrelevant matter was shown to have been taken into account. The reference to Purcell v Vernados (No 2) demonstrates that the magistrate addressed himself to the correct tests to be applied.

Did the magistrate fail to take into account the seriousness of the crime?

  1. The applicant argued that:
  1. the magistrate did not take into account the seriousness of the offence, and
  1. because of the seriousness of the alleged crime, it could only be heard and determined by a jury and, for that reason, the magistrate should have committed Ms Rawson.

That is inconsistent, of course, with the means by which a criminal trial will ordinarily come to be heard. In any event, it was clear that the magistrate understood the nature of the offence as he quoted the charged in the complaint during his reasons.

Conclusion on grounds of error

  1. No reviewable errors have been demonstrated by the applicant. Section 48(1)(a) of the JR Act confers a general discretion on this Court to dismiss an application if it considers that it would be “inappropriate” to grant the application. In circumstances where none of the matters sought to be made out were made out, and where no other matters that might give rise to a review have been identified, it is appropriate that the application be dismissed.
  1. In addition, there is also the consideration that it is open to a person who wishes to pursue the prosecution of another person for a criminal offence to seek the leave of this court to present an information against that person under s 686 of the Criminal Code. I do not, though, by referring to that, suggest that there is any ground for doing so.

Order

  1. The application is dismissed.

Footnotes

[1] [1997] 1 Qd R 317

[2] Sankey v Whitlam (1978) 142 CLR 1 at 22, 82

[3] Purcell v Vernados (No 2) [1997] 1 Qd R 317 at 322

[4] (1949) 78 CLR 353

[5] Ibid at 380

[6] (1976) 135 CLR 110

[7] Ibid at 118-119

Close

Editorial Notes

  • Published Case Name:

    Gant v Magistrate Kucks & Anor

  • Shortened Case Name:

    Gant v Magistrate Kucks

  • MNC:

    [2013] QSC 285

  • Court:

    QSC

  • Judge(s):

    Martin J

  • Date:

    23 Oct 2013

Litigation History

No Litigation History

Appeal Status

No Status