Chisholm v Williams[2010] QDC 68

[2010] QDC 68

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

Appeal No 4 of 2009

SOUTHPORT 

DATE 23/02/2010

ORDER

HIS HONOUR: This is an appeal by Mr Chisholm. Its validity was questioned in the registry from the time of filing. He's self-represented. The Court is grateful for the attendance at Court of Mr Dixon from the legal aid office to clarify matters in respect of Mr Chisholm's prospects of obtaining legal aid.

Due to some apparent confusion in the office, a letter which Mr Dixon hadn't signed, dated the 5th of February 2010, went out following a letter dated two days earlier, which I accept Mr Dixon had signed, refusing legal aid. The later letter, from what the Court has heard of it, is based on the easy assumption that Mr Chisholm was the defendant in criminal proceedings wishing to appeal under section 222 of the Justices Act 1886. That is not the case.

Mr Chisholm is the victim of offending by someone else - he says Bianca Williams. The offending was the stealing of his wallet and the contents which are said to be $2,500 in cash.

Mr Dixon informs the Court that the letter he signed went out after he had conferred with Mr Chisholm and was fully aware of his status and the relevant circumstances. Notwithstanding that Mr Chisholm is presenting himself as a person who may yet get legal assistance to prosecute this appeal, there's no basis for entertaining any prospect of that kind.

The registrar's misgivings about the appeal, which Mr Chisholm insisted be accepted - and it was accepted - may be found in Judge O'Brien's decision, Bromage v Sherrett, District Court Townsville, 11 July 1995, appeal number 5 of 1995. The circumstances are similar to those here in that the appeal was brought by the victim of the relevant offence. There was a conviction. The appellant was disappointed that no order for compensation in his favour had been made pursuant to section 35 of the Penalties and Sentences Act 1992.

His Honour had to determine whether or not Bromage was an “aggrieved person" within section 222 of the Justices Act. He concluded that the interest, which the victim of a crime has in the outcome of proceedings, is not of itself sufficient to constitute him or her an aggrieved person within the doctrine of authorities, which are referred to in the unpublished reasons.

But for the well established line of authority in referred to, one can readily accept that the victim of an offence who is disappointed at the outcome of the prosecution in respect of it is an aggrieved person. That was the view of a Tasmanian Judge in Xiong v McCarthy [1992] 62 A Crim R 319, a case which Judge O'Brien considered but declined to apply.

Arguments are available both ways, and Cox J, as his reasons show, went to considerable lengths in consultation of authorities, and arriving at a reasoned decision.

My view is that considerations of practicality and the traditions of our criminal justice system point to Judge O'Brien's approach being the one to be preferred. That’s the position that Mr Mitchell, for the respondent complainant, represented by the DPP, has taken.

In this context, there is room for some confusion given the terminology which is adopted in some contexts of using the term "complainant" to refer to the victim of alleged offence, whereas in the context of proceedings on complaint and summons in the Magistrates Court, "complainant" refers to the Prosecutor. That was certainly the situation in Mill v Scott; ex parte Mill [1955] St R Qd 210, which Cox J referred to, apparently in support of his conclusion, as deciding that "A complainant in a child assault case was a person aggrieved by a manifestly inadequate sentence imposed on the defendant." Reference to the report confirms that the "complainant" there was a sergeant of police.

The second possibility which section 222(1) gives Mr Chisholm of having a right to appeal is that he is covered by the words "or otherwise" in the expression "If a person feels aggrieved as complainant, defendant or otherwise." 

Some meaning has to be given to "or otherwise."  There's some guidance available in the note in Kennedy Allen, The Justices Act (Queensland) (3^rd) at page 474 where it is said, "These words embrace non-parties, thus a witness who has been fined for non-attendance under section 79 may be a person aggrieved within the meaning of this section at least where the fine is imposed on the application of the party who has subpoenaed him, and who is, therefore, 'interested in maintaining the order'."

I think the basic premise that section 222 concerns persons whose legal situation is directly affected continues to apply here. Of course, while not affected by the circumstances of an offence, those who run the prosecution of it by virtue of that role are directly affected, and undoubtedly have standing. See Owen v Edwards [2006] QCA 526 at [23].

I think the criminal justice system would become unworkable if under section 222 "or otherwise" brought in non-parties interested but not directly affected by an order, or if an "aggrieved" or anyone who was upset or disappointed by a decision - even the victim of the offence being prosecuted. If the victim is let in, there might be a witness not a victim who considered that the Magistrate had unfairly made adverse findings as to credit,  resulting in a particular outcome of a complaint.

In the present circumstances, under section 222(2)(b), which is applicable, the order being one of a Magistrate "dealing summarily with an indictable offence, the complainant aggrieved by the decision may appeal...only against sentence or an order for costs."

That provision has the effect of precluding the complainant complaining about a dismissal of the complaint. It would be astounding if the alleged victim of the offence were able to appeal under section 222 so as to provide a back door way of the prosecution appealing.

I think the consequence of the views expressed above is that the appeal must be dismissed. It shouldn’t be thought that the Court takes lightly Mr Chisholm's complaints.

The charge was that exactly two years ago today Bianca Williams stole his wallet and contents, specifically the cash amount, opportunistically doing so when he was at her premises. He tells the Court he went to police straight away. It was six months at least before they spoke to Bianca Williams about it, having called on her in relation to some other matter. Presumably their computer records alerted them to Mr Chisholm’s matter as well.

On the evidence of the police given before the Magistrate at the summary trial for the stealing charge, the complainant evinced knowledge of the name of Mr Chisholm and of the amount which had gone missing. It seems that she volunteered to him that the wallet had been located by somebody else, presumably devoid of its important contents.

Given the defendant's denials and the circumstances, the case was a circumstantial one. The Magistrate's reasons indicate that he was uncertain who to believe. There were aspects that struck him as unsatisfactory in the evidence of both Mr Chisholm and Ms Williams, and in those circumstances, bearing in mind the standard of proof, the complaint was dismissed.

Mr Chisholm's dissatisfaction with the outcome also focuses on the prosecution's failure to place before the Court evidence which he had of electronic messages which he says indicate that he was still at the premises around 8.30 a.m. on the relevant day, whereas Ms Williams' story was that she had thrown him out almost immediately on his arrival some three and a-half hours earlier.

Mr Chisholm tells the Court that in his handwritten statement to police he had indicated that he had material revealing contacts with her by telephone, but they never asked for them. He says they were offered at the hearing to the police Prosecutor who made no use of them. They would have changed the complexion of the case, as assessed by the Magistrate in Mr Chisholm’s view. They also, in his view, establish that Ms Williams perjured herself before a Magistrate.

Mr Chisholm's concerns are proper ones even if one disregards the mere prospect he had of a compensation order following if there had been a conviction. (That was by no means a certainty given the impecuniosity of most defendants, compensation orders are probably less likely to be made in like situations before the Magistrates than likely). Cox J acknowledged the interest all citizens have in the laws being enforced.

I have endeavoured to explain to Mr Chisholm the avenues that might be available for having a charge of perjury to be separately made and prosecuted against Ms Williams if he has the evidence to present – and the possibilities of a complaint of an administrative nature against the police authorities if he wishes to pursue a complaint about not using evidence which was volunteered in tangible form, assuming that it was in tangible form then, at the hearing.

There's also, as I've made clear to him, and as Judge O'Brien's decision and Justice Cox's decision make clear, a right to pursue a claim civilly against Ms Williams. Dismissal of the complaint by the Magistrate is no barrier to pursuit of a civil claim in which the standard of proof would be the easy one of the balance of probabilities.

It would be astounding if Mr Chisholm could have the dismissal of the complaint set aside and a new trial: I did not take him to be urging a conviction. These are circumstances in which even if the appeal were a valid one I think it would inevitably fail. Accordingly, appeal dismissed.