Mbuzi v Roper[2008] QDC 164

[2008] QDC 164

DISTRICT COURT

CIVIL JURISDICTION

JUDGE BOTTING

No 2628 of 2007

BRISBANE 

DATE 25/03/2008

ORDER

HIS HONOUR: Yes.  Well, in this matter the appellant who appears on his own behalf to argue his case on his own behalf has filed a notice of appeal under section 222 of the Justices Act against a decision of a learned Magistrate sitting at Brisbane, that decision having been made, as I understand it, on the 12th of September last year.

As I understand what I have been told and also from a perusal of the notice of appeal filed by the appellant that decision was one by the learned Magistrate refusing to disqualify herself from further hearing a complaint brought against the appellant.

The objection has been taken, a point perhaps I should say has been made by the respondent that in those circumstances it is not open to the appellant to appeal to this Court pursuant to the provisions of section 222 of the Justices Act.

The appellant, in addressing me, has made clear his view that her Honour's decision was wrong and was made in such circumstances as he finds it difficult to have any confidence in her ability to adjudicate the trial fairly and to essentially give him a fair hearing.

That, of course, is not the question which I have to resolve so far as the preliminary objection that is made.  The question is simply one of law, that is, is this appeal competent pursuant to the provisions of section 222 of the Justices Act.  That Act provides, or that section, I should say, provides that if a person feels aggrieved as complainant, defendant or otherwise, by an order made by Justices or a Justice in a summary way on a complaint for an offence or a breach of duty the person may appeal within one month after the date of the order to a District Court Judge.

On the face of it that language is very wide.  It refers to a person simply being aggrieved by an order made on a complaint for an offence.

The language is even wider.  If one looks at the definition of "order" which is contained in section 4 of the Act, under that definition section, "order" includes any order, adjudication, grant or refusal of any application or any determination of whatsoever kind made by a Magistrates Court and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it.  Again, the language, I would observe, is very wide.

The problem, however, which I think faces the appellant in this matter is that this issue has been looked at previously and in particular by the Full Court in the case of Schneider v Curtis [1967] QR 300.  In that case a defendant in the Magistrates Court felt aggrieved by a ruling made by a Magistrate that there was a case to answer, that ruling having made at the conclusion of the prosecution case.  The aggrieved defendant appealed to the District Court and the matter came on before his Honour Judge Andrews, who of course was then the Chairman of this Court.  His Honour stated a special case for the Full Court asking for a ruling as to whether the ruling of the Stipendiary Magistrate that there is a case for the appellant to answer is a "order" within the meaning of that term in sections 4 and 222 of The Justices Act.

I should observe that although The Justices Act has been amended since 1967, as I perceive it no changes to either section 222 or to section 4, in any material way, affect the reasoning of the Full Court in Schneider v Curtis.

The decision in that Court was an unanimous one, the Court being constituted by Mr Justice Wanstall, as he then was, by Mr Justice Gibbs, as he then was, and by Mr Justice Hart.  Essentially, his Honour Mr Justice Gibbs who gave the leading judgment, held that the section gives a right of appeal not from any order but only from "any order made upon a complaint for an offence or breach of duty".  He went on to hold that the section does not give a right of appeal from any order made in proceedings commenced by complaint but only from an order made upon complaint.  He went on to rule that the references to "order" in the sections refer to an order disposing of the complaint itself and do not include an order upon an application made during the course of the proceedings.

It seems to me that I am bound by the decision of the Full Court.  As I say, I am unable to discern any material change in the language of the sections and it must be presumed that the Parliament, being aware of the ruling of the Full Court, has chosen to keep the language in substantially the same terms as it was when that decision was made.

It follows, then, that in my view I must hold that the appeal before me is not competent in the sense that there is no right to appeal against the decision of the learned Magistrate refusing to disqualify herself.  That, of course, is not to say that at the end of the day some such argument may not be successfully advanced.  I have not embarked upon any consideration at all of the merits of the appellant's case.

In the event that he may be convicted of this offence, it will then be open for him, as I understand it, to bring an appeal to this Court on any ground that may be properly open and that would seem to me to include a ground based upon her Honour's refusal to disqualify herself.  That, it seems to me, can only happen in the event that he is convicted of the offence charged against him in these proceedings.

In the circumstances, therefore, I must dismiss this appeal.