Queensland Police Service v McCracken
[2010] QDC 514
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Queensland Police Service v McCracken[2010] QDC 514
- Add to List
Queensland Police Service v McCracken[2010] QDC 514
Queensland Police Service v McCracken[2010] QDC 514
[2010] QDC 514
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE IRWIN
Longreach Appeal No 1 of 2009
QUEENSLAND POLICE SERVICE | Applicant |
and |
|
LEIGH DAVID McCRACKEN | Respondent |
LONGREACH
DATE 03/12/2010
ORDER
HIS HONOUR: This application relates to an appeal by the Queensland Police Service under section 222 of the Justices Act.
The respondent was charged with obstructing a police officer in the performance of the officer's duties on 9 August 2008. The matter was heard in the Emerald Magistrates Court on the 18th of May 2009. On 29 September 2009 the Magistrate found the respondent not guilty and awarded costs of $6,100. The proceedings before the Magistrate took place on agreed facts. During the proceedings it was sought to tender an instrument of approval on behalf of the police officer whom it was alleged was obstructed. That was an instrument of approval under the hand of a former police Commissioner, Mr O'Sullivan, dated the 3rd of January either 2000 or 2001 depending on whether the outline of submission is relevant.
The Magistrate found the instrument of approval was not admissible. The grounds of appeal include that the Magistrate erred in finding that the instrument of approval was inadmissible and/or relevant and the prosecution did not provide sufficient evidence to prove that the relevant police officer was acting in the performance of his duties.
The appeal was filed either on the 21st of October 2009 or the 27th of October 2009. It appears from the outline of submissions that although the Registry stamp shows the latter date as the date of filing, that the Director of Public Prosecutions of Queensland, who was then representing the appellant, contends that the document was filed by electronic means via facsimile at Longreach on 21 October 2009. That is a matter of some relevance because it is only if it was filed on that date that the appeal was filed within the time limit and no extension of time in which to lodge the appeal would be required.
Outlines have been filed subsequent to the first appearance on this matter on the 16th of November 2009 which was an application for extension of time to file documents, the appellant at that stage not having filed documents, as I would understand it, in accordance with the Practice Directions in relation to that matter. The application for extension of time was granted and the appellant's outline was filed on 23 December 2009.
The matter was then heard before Judge Britton in the Longreach District Court on the 15th of March 2010 for further directions. On that occasion it was directed that the respondent file and serve an outline of argument by 29 March 2010 and there were directions about the applicant filing and serving any reply and the matter was listed for hearing at the August sittings of the District Court at Longreach.
The file shows that the outline was received, that is to say the outline on behalf of the respondent, in Longreach on 1 April 2010. That is a couple of days beyond the date required, but no point seems to have been taken about that. The matter did not proceed at the August sittings because there was an adjournment by consent firstly on the basis that Mr Johnson, counsel for the respondent, was unavailable during that sittings and also that the Crown had not yet provided a transcript of the costs argument before the Magistrate. That transcript is still not available and due to reasons outside the control of the appellant may never be available. However, in any event, it is clear that the agreement to the adjournment was not solely on the basis that Mr Johnson was unavailable.
The hearing of the appeal was then adjourned to the current sittings of the Longreach District Court that commenced on 29 November 2010. At that stage the Director of Public Prosecutions, Queensland, was still representing the appellant and a directions hearing was held in Brisbane in the week or two before the sittings was to commence where Mr Morters appeared on behalf of the Director of Public Prosecutions and it was made clear at the time that this appeal would proceed at 9 a.m. today. Mr Morters did indicate that he was giving some advice to the appellant and my understanding is that that advice was that there was no substance in the grounds of appeal and that the matter would not proceed. However, that position remained unresolved and accordingly I left the listing as it was for the matter to proceed to hearing today.
On Tuesday of this week, 30 November 2010, fortuitously Mr Johnson was before the Court by phone in relation to an unrelated issue in respect of the trial that I am currently presiding over. Mr Morters was the Prosecutor at the trial. I took the opportunity to inquire of both parties as to what the position was in relation to the appeal. Mr Morters advised at that stage that the matter was still unresolved. He had advised me to the same effect at a callover that I held for the sittings on 29 November 2010 at 9.30 a.m. As a result, the matter remained listed.
I brought the matter on for mention again at 4.30 pm on 1 December 2010 so that Mr Morters could make a submission that the appeal be adjourned because the situation was that he had received advice from the appellant that on the advice of the Crown Solicitor the appellant was rejecting his advice and the appeal was to proceed, but because of the late change of instructions and the need to file an amended outline of submissions on behalf of the appellant it would be necessaryto seek an adjournment. I brought the matter on at half past 4 so that Mr Johnson was in a position to know whether he wasrequired to travel to Longreach to hear the appeal on this date. Accordingly at that time Mr Morters made the adjournment application for the reasons I have mentioned. Mr Johnson opposed that application, indicating that he had filed his outline of submissions and despite the fact that hestill was not in possession of the transcript of the costs argument, which Mr Morters wrongly, it seems, believed had been e-mailed to his instructing solicitor prior to that date, he was prepared to proceed with the appeal. He drew my attention to the fact that this appeal, by this time, was in the vicinity of 13 and a half, perhaps 14 months in duration since it had been filed and that it was an important matter to his client because this unresolved issue had remained over his head since that time, including the collection of his costs which had been awarded in his favour and also if the appeal was to be decided against him it would mean that over two and a half years since the offence was alleged to have occurred he would be in jeopardy of the matter being remitted for further hearing before the Magistrates Court if the appeal was successful.
Because I considered that it was unrealistic with the change of solicitors and legal representation on behalf of the appellant and the indication that an amended outline may have to be filed for the matter to proceed to hearing before me this morning and because of the need to make that decision so that Mr Johnson and his instructing solicitors did not throw away further costs by being required to travel to Longreach today only to be met with a successful application for an adjournment, I made the decision at that stage to adjourn this appeal for mention today rather than for hearing with a view to setting a new date for the appeal which could be heard in Brisbane at an earlier time if the parties agreed so that directions as to the filing of further outlines of submissions could be made, if required, and also so that the application for costs of this adjournment could be heard and decided. It is that issue which presently is before me for consideration against that background.
It is clear from the summary that I have just given that the first that Mr Johnson was definitely aware that this matter would not proceed to hearing today as listed was after 4.30 p.m. on Wednesday, 1 December 2010. As indicated, he was arguing that the matter should nonetheless proceed today because his client was ready to proceed. The situation is different to the last adjournment which was by consent.
Today I have indicated that I will make an order adjourning the appeal to the Brisbane Registry for hearing on 7 February 2011, that being approximately five or six weeks earlier than such a hearing could be expected to take place in Longreach. I have also made orders for the filing of amended outlines of submissions to advance this matter.
Mr Johnson is seeking costs of this adjournment not on the standard basis in accordance with the schedule under the Justice Regulations, which would allow $1,500 by way of costs for instructions and preparations for today, but the costs of his appearance on the previous adjournment application on 1 December 2010 and in addition his fees thrown away today at $3,300 on the basis that he had set, as is necessary, the whole of today aside to travel from Brisbane to Longreach and to appear on the hearing of this appeal. I note that he is not claiming for any further time that may have been lost by having to travel to Longreach as is necessarily the case on the preceding day.
In support of his application Mr Johnson makes the point that this matter was set down for hearing some months ago. Certainly it would have been the intention of Judge Searles when the matter was adjourned to this sittings that the matter would proceed for hearing at a date to be fixed in that sittings and that is the basis on which I have proceeded in listing the matter for that purpose today. He makes the point that he was told two or three weeks ago that the matter would be heard today and he had made his arrangements to be available for today on that basis.
Although I do not have my records in front of me in Longreach as to the dates on which this matter was previously mentioned before me in Brisbane or the dates of other communications that I had with the then representative for the appellant as to the day on which I would expect the hearing to occur, it would be accurate to say that this matter was definitely listed at about that time, namely two or three weeks ago, for hearing today.
Mr Johnson also makes the point that it was not until very late in the day, that is 1 December 2010, that an adjournment application was made. He refers to the fact that this appeal involves an important issue for resolution both in relation to his client and the Queensland Police Service.
Mr Kelly, on the other hand, submits that although the decision of McGill DCJ in Durrant v. Gardner (2000) QDC 198 allows for costs above the standard basis to be allowed in relation to more difficult and complex matters and while this may be a matter of importance, so far as its effect on the QPS is concerned this is not a complex matter as identified by Judge McGill.
In the course of discussions with Mr Kelly prior to this argument in which he confirmed that he had given instructions for the Queensland Director of Public Prosecutions to ask for the adjournment on 1 December 2010, he indicated that the reason that this had occurred was that in late November Mr Morters had provided him with a view as to prospects of success which the QPS did not share and as a consequence sought an opinion from the Crown Solicitor which supports the Queensland Police Service position. He said in the course of those discussions that the case involves an important point of statutory interpretation, in particular, as I understand it from reading the outlines of submission, the application involving section 14 of the Police Powers and Responsibilities Act and its consequent effects upon the operation of the Queensland Police Service.
Having considered the submissions that have been made and the outline of submissions, I consider that the contest which has been joined between the parties and the fact that the Queensland Police Service by its own admission has received conflicting advice as to the prospects of success on this point of appeal from two highly reputable and experienced sources, one the Queensland Director of Public Prosecutions and the other the Crown Solicitor, demonstrates that the point is not only of some importance, but is a point that involves some complexity and difficulty of resolution. My reading of both of the outlines that have been provided to date confirm that that is the case.
Furthermore, through no fault of the respondent, notwithstanding the passage of time during which this appeal has remained pending and the fact that the matter was listed prior to the commencement of this week for hearing today, an application for adjournment has been made and allowed at a late stage in circumstances where not unreasonably counsel has set time aside from his diary to travel to Longreach to conduct the appeal.
It seems to me that in the circumstances a fee for the adjournment application of $250 for 1 December 2010 is not unreasonable and I don't understand that to be contested by Mr Kelly.
I also consider that for an appeal of this nature where a senior member of the junior Bar has been briefed, the fee sought for today is reasonable given that even more time than one day would be lost from his diary in any event to travel to Longreach for this proceeding.
Given all of those circumstances - in summary, the complexity of the point, the fact that a day has been set aside from Mr Johnson's diary for this matter, and the fact that the adjournment application was made only two days ago and then after normal Court hours and that until that time Mr Johnson was entitled to believe that the matter would proceed in Longreach today and given that he has limited his request for costs to his own fees and not any other fees that may have been incurred in the preparation of this matter by his instructors, I allow the application.
My orders will be:
- (1)I adjourn this appeal to the Brisbane Registry for hearing at 10 a.m. on 7 February 2011;
- (2)The appellant file an amended outline of submissions by 4 p.m. on 10 December 2010;
- (3)The respondent file any amended outline of submissions in reply by 4 p.m. on 17 December 2010;
- (4)That the appellant pay the respondent's costs thrown away by the adjournment of today's proceedings in the sum of $3,550 being the costs of the adjournment application incurred in relation to Counsel on 1 December 2010 ($250) and the fee on brief for counsel of $3,000 plus GST making $3,300 in respect of today's proceedings.