Lane v Nowitzki (No 2)[2010] QDC 427

[2010] QDC 427

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN

No 965 of 2009

BRISBANE 

DATE 07/10/2010

JUDGMENT

HIS HONOUR:  On the 12th of August 2010, an order was made allowing Virginia Caroline Lane's appeal against her conviction by a Magistrate of an offence of common assault alleged to have occurred in the security area at the entrance to the Family Court in Brisbane on the 19th of June 2007.

The sealed final order of the court of that date records the Magistrates Court orders of the 10th of March 2009 and the District Court's orders as "Appeal allowed. Set aside conviction and other orders."

On the 12th of August 2010 there was consideration of what ought to occur further, if anything. Ordinarily, in circumstances such as this, an appeal court would send the matter for retrial upon setting aside a conviction, for good reason, perhaps with an intimation that the prosecuting authorities should consider whether the further pursuit of a charge is warranted in all the circumstances, or alternatively, order an acquittal.

My view was and remains that s 225 of the Justices Act gives the District Court Judge a discretion as to making or not making any of the orders referred to in the section. The situation was reached where the Magistrate's orders were set aside so that sub-s (2) applied. As warrant for exercising the discretion inherent in use of "may" by declining to make any order sending the matter back to the Magistrates Court, I would rely on an analogy which I think exists with s 147 of the Penalties and Sentences Act 1992. My approach and that of other first instance Judges, I don't suggest all, is that if the position was reached of it being considered that serving the whole of the balance of a suspended sentence would be unjust, the court had the option of making one of the alternative orders indicated in the section or no order at all.

I haven't been able to locate any example of the Court of Appeal endorsing that approach, but would respectfully rely on Fryberg J's view in R v Holley; Ex parte Attorney-General [1997] 2 Qd R 407 at 431 that it's open to the court to make no order. It was inconsistent with that of Lee J at page 418 and following, which was to the effect that the court ought to make a choice from alternatives stated in the legislation. Although in some places, such as the sentencing manual, I've seen it indicated that de Jersey J, as the Chief Justice then was, agreed with Lee J, perusal of his Honour's reasons indicates that what was agreed in was the set of orders opposed by Lee J, rather than the reasons expressed by him.

The matter has been brought on today at the request of the respondent, the Director of Public Prosecutions, which has been representing the Queensland Police Service. Exhibit 1 is a letter from the QPS to the DPP explaining the view taken by the QPS that this court's order is incomplete in not making any further order "to finalise the matter and the matter strictly remains open."

It's stated in the letter that the District Court registry has advised that the incomplete order will cause administrative problems as the file will be sent back to the Magistrates Court where they will not be sure what action to take as no decision has been made regarding "any future prosecution action."

It was suggested there might be some problems in relation to Ms Lane's criminal history. My experience in the court over the years suggests that her criminal history will record the outcome in the Magistrates Court, but also the outcome in this court, setting the former aside.

On the 12th of August, my understanding, which I think was shared by counsel, was that if the court made no orders, other than setting aside the Magistrate's orders under s 225, it would be open to the prosecution to proceed further against Ms Lane. That approach is consistent with Conlin v Patterson [1915] 2 IR 169, which can be found noted in Kennedy Allen's, “The Justices Acts Queensland” (Third Edition) at 543. The circumstances of the Irish case were special, but the outcome there (that the accused might be put on trial again on the same charge following the setting aside or quashing of a conviction on appeal) was the one that was conceived to be applicable last August.

It might be noted that any further prosecution must occur within the present proceeding, given the 12 months' time limitation on commencing a prosecution in s 52 of the Justices Act. Although the assault charge is an indictable offence, it's a "simple offence" within s 52, given the definition of that expression in s 4.

Notwithstanding the view that's been taken by the participants in this appeal, the Queensland Police Service appear to take the view that it isn't open to proceed further without express warrant from this court. As the transcript of what occurred on the last occasion makes clear, I think, this court's approach was to give no encouragement to the prosecution to devote further trouble and resources to the prosecution of what appeared to me a trifling matter owing much to the complainant's provocative attitude in her attendance and actions at the Family Court on the relevant day.

There is also, although it didn't feature in the argument on the 12th of August, the unfortunate aspect of the impact the current proceeding and its outcome might have in the prosecution on indictment in this court of more serious alleged offences at an earlier time by Ms Lane's former spouse, in which she is the chief witness. The court's reasons on the 12th of August make some reference to those proceedings involving Mr Lane. It seems an oddity that this minor matter involving Ms Lane is being prosecuted while the other is on hold.

It has to be conceded that Ms Lane's giving evidence, which she ought not to have given, was the cause of a trial last year being aborted. After anxious reflection about it, I think that the court ought to be sympathetic to the difficulties adverted to in Exhibit 1, notwithstanding that they seem to be of an administrative nature, essentially. From one point of view, doing nothing by way of further punishment of an offender under s 147 of the Penalties and Sentences Act is more defensible than leaving a prosecution in limbo, which was never this court's intention nor, in my view, the effect of its orders. I accept that that is apparently seen to be its effect by others who regard themselves as in an embarrassing situation.

Exhibit 1 asks that Ms Meisenhelter, who has represented the respondent today, approach the court seeking that it "reopen the matter and complete the Order by either resentencing the appellant, acquitting her of the charge or remitting the matter back to the Magistrates Court for final determination."  Ms Meisenhelter has made it clear that the DPP regard the issue today as one of administration and press for no particular one of the alternatives offered in the passage quoted. I took the DPP's understanding to be that the Queensland Police Service is adopting a similar neutral attitude rather than one pressing for the matter to be sent back to the Magistrates Court for final determination.

There is a serious question whether the court can do anything at all or is functus officio. For the view that it's open to the court to revisit its orders, Ms Meisenhelter refers to

R v Allen [1994] 1 Qd R 526 which was certainly rather dramatic, changing a decision dismissing an appeal against conviction to one allowing appeal and ordering a retrial.

Reference was also made to R v Pettigrew [1996] QCA 235, in particular to what the President said at pages 8 and 9 and page 15. Although Mackenzie J dissented in the result, he did not dispute the appropriateness of the Court of Appeal revisiting and, indeed, changing its earlier refusal of leave to appeal against sentences.

More recently in R v Ali [2008] QCA 39, again in most unusual circumstances, the Court of Appeal appears to have limited the scope of the two decisions last mentioned. It ought also be acknowledged that this court is not a superior court of record.

Ms Freeman, representing the appellant, also referred the court to Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 and Deputy Commissioner of Taxation v Healy [2003] WASC 38 for the proposition that acting under the slip rule depends crucially on identifying a slip made by the court or the parties to correct some accidental slip or omission or mistake.

It's not possible to identify anything that was accidental or a slip or mistake here except that it appears, with hindsight, that the implications of what the court did for the taking of future steps in the prosecution of the appellant should only be desired to be taken were not appreciated. If this court does nothing that may commit the parties to a further appeal which would hardly reflect well on the justice system.

After the anxious consideration which I've referred to, I have concluded that the court should treat itself as having a wide inherent jurisdiction to deal with the administrative difficulties referred to. I'm not convinced in the circumstances that a slip or omission has to be identified, although at a pinch it could be said that those involved on August the 12th failed to appreciate the difficulties that the court's order would create.

Ms Freeman, while arguing that the court had no further role which it was able to play, revived her application of the 12th of August to have an acquittal of her client entered. In the end, as a way of resolving a difficult situation, I have determined that that ought to occur. I have read all the evidence in the proceeding, as the court is nowadays obliged to do, recognising that a s 222 appeal is one way by way of rehearing on the evidence. That reading occurred last August.

While I was of the view that the prosecution, whose conduct in the matter merits no criticism except perhaps in the long delay before proceedings started, had evidence available capable of supporting a conviction, which explains my acceptance on the last day of the possibility of a retrial, although I was far from anxious to see that, the circumstances are ones in which the evidence was essentially the complainant's words against the appellant's.

The only reason which has emerged, or been suggested, for the appellant's evidence to be rejected was the insupportable one based on application of the rule in Brown v Dunn to assume, contrary to the proved facts, that the appellant's evidence consisted of recent inventions.

In those circumstances, where it's uncertain where the truth lies and there's no basis for rejecting the appellant's evidence, it is appropriate, in the exceptional context of the QPS to which this court had been willing to entrust the decision as to new trial or now showing any inclination to press on to bring finality to the situation now, as the parties desire, by an order that the appellant be acquitted of the charge.