Mathews v The Commissioner of Police
[2011] QDC 246
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Mathews v The Commissioner of Police[2011] QDC 246
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Mathews v The Commissioner of Police[2011] QDC 246
Mathews v The Commissioner of Police[2011] QDC 246
DISTRICT COURT OF QUEENSLAND
CITATION: | Mathews v The Commissioner of Police [2011] QDC 246 |
PARTIES: | RUSSELL GORDON HAIG MATHEWS V THE COMMISSIONER OF POLICE |
FILE NO/S: | Brisbane 3095 of 2010 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 21 June 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 May 2011 |
JUDGE: | K J O'Brien DCJA |
ORDER: | The appeal is dismissed |
CATCHWORDS: | APPEAL – committal proceedings – order of Magistrate to refer proceedings to superior court under s 20B Crimes Act 1914 (Cth) – whether order was appealable Justices Act 1886 (Qld) s 222 Criminal Code Act 1995 (Cth) s 474.17 Crimes Act 1914 (Cth) ss 20B(1) – (3), 20BA, 20BB and 20BC Higgins v Comans [2005] QCA 234 Schneider v Curtis [1967] Qd R 300 Paulger v Hall [2002] QCA 353 Coulter v Ryan [2006] QCA 567 Mathews v Cabrera [2010] QCA 300 |
COUNSEL: | The appellant in person Mr S R Hunter for the respondent |
SOLICITORS: | The appellant in person Commonwealth Director of Public Prosecutions for the respondent |
- [1]This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld) against an order made by a Magistrate at Brisbane on 24 September 2010. The order was made during the course of committal proceedings and the present appellant was the defendant in those proceedings.
Background
- [2]The appellant had been charged with four offences against s 474.17 of the Criminal Code Act 1995 (Cth) of using a carriage service to menace, harass or cause offence. He had chosen to represent himself in committal proceedings which commenced on 24 June 2010. The appellant attended the proceedings on the first three days of the committal hearing and cross examined a number of witnesses called by the prosecution. On the fourth day, 29 June 2010, he did not appear and advised the Court that he had a medical appointment. The matter was then adjourned to 30 June 2010 when he again did not appear, advising the Court that he was “too ill”. He failed to appear on some six further mentions of the matter between 1 July 2010 and 22 September 2010. During that time he did communicate with the Court by email advising, in effect, that he had a disability in the form of a brain injury which affected his ability to properly concentrate and question witnesses in the Court environment. On 9 July 2010, the Magistrate raised the issue of the appellant’s capability “of understanding the nature of the charges against him”. This issue was again raised by the Magistrate at mentions on 8 September 2010 and 15 September 2010. On none of these occasions was there any appearance by the appellant. Ultimately, on 24 September 2010, and notwithstanding the objection of the prosecution, the Magistrate expressed the view that the appellant by his “correspondence and what he had to say in Court has raised the issue of his fitness to be tried”.
- [3]Acting then under s 20B(1) of the Crimes Act 1914 (Cth) the Magistrate referred the question of the appellant’s fitness to be tried to the District Court. That section provides as follows:-
“(1) Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person's fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person's legal representative, the Magistrate must refer the proceedings to the Court to which the proceedings would have been referred had the person been committed for trial.”
- [4]It is clear from the section that once the question of a person’s fitness to be tried is raised, then a referral by the Magistrate becomes mandatory. If the Court to which the proceedings have been referred finds the person charged to be fit to be tried, the Court must remit the proceedings to the Magistrate and proceedings for the commitment must be continued as soon as practicable (s 20B(2)). If the Court finds the person unfit for trial, then various other consequences may follow upon proof of the existence of a prima facie case (ss 20B(3), 20BA, 20BB, 20BC).
Grounds of Appeal
- [5]The Notice of Appeal sets out some 72 grounds of appeal. These are often confusing and repetitive but appear to involve two principle complaints. The first is that the appellant’s “special needs” had not been accommodated in the Magistrates Court with the result that his ability to concentrate had been “greatly diminished”. As a consequence, he says, he was denied “due process of a fair trial and a fair hearing”. The proceedings before the Magistrates Court, he claims, were a “nullity” and the Magistrate therefore had no jurisdiction to make the referral the subject of this appeal. The second complaint alleges what the appellant terms “an abuse of process”. In brief he claims a history of unlawful treatment and harassment at the hands of certain police officers and public officials which, he maintains, has led to the present “vexatious” and “frivolous” charges.
Discussion
- [6]At a very early stage in the proceedings, on 9 June 2010, the appellant had applied to have the Magistrate strike out the proceedings on grounds which included, effectively, an alleged abuse of process such as he alleges here. The application was refused by the Magistrate who drew the appellant’s attention to the decision of the Court of Appeal in Higgins v Comans [2005] QCA 234. The Court there held that the Magistrates Court has no power to order a permanent stay of a committal proceeding. Keane JA, at para [38], concluded that whether or not proceedings on indictment should be stayed as an abuse of process is a decision for the Court which tries the matters charged on indictment.
- [7]The appellant’s complaint in this regard provides no basis for allowing this appeal. It is clear in my view that the power to stay on the grounds of an abuse of process is one that may only be exercised following the completion of the committal proceedings, and then, at least initially, only by the Court to which the defendant has been committed.
- [8]The record of proceedings below indicates that the Court made every effort to accommodate the appellant’s so called “special needs” though not, it seems, to the appellant’s satisfaction. The appellant maintains that he did not expressly raise the issue of his fitness for trial. The Magistrate however took the view that he had done so by his conduct, specifically, “by his conduct and what he said in Court”. As indicated above, the decision to refer the matter to the District Court was made over the objection of the prosecuting counsel. The appellant had cross examined witnesses over the first three days of the hearing and had asked questions designed to establish what he saw as a possible defence to the charges. Prosecuting counsel had submitted that the medical evidence was scant and that the appellant’s conduct was not such as to raise any issue of his fitness for trial. In my view, it would have been clearly open to the Magistrate to continue with the committal hearing. He had ample power to compel the attendance of an uncooperative defendant.
- [9]In this appeal however, the appellant has not sought to challenge the evidentiary basis for the Magistrate’s decision to order the referral under s 20B(1) of the Crimes Act 1914 (Cth). There is, in any event, a fundamental difficulty which confronts him in arguing this appeal. In Schneider v Curtis [1967] Qd R 300 the Full Court held that an appellable order for the purposes of s 222 of the Justices Act 1886 (Qld) means an order which has the effect of disposing of a complaint as distinct from an interlocutory order made during the course of proceedings. In that case Gibbs J with whom Wanstall and Douglas JJ agreed, said at p 306:-
“In my opinion the legislature did not intend that the wide powers of control over the proceedings of Magistrates which this Court may exercise by an order to review should also be available on an appeal under s 222. Such an appeal in my opinion only lies from an order which disposes of a complaint, for example by dismissing it, or by entering a conviction and imposing a penalty. It does not lie from a Magistrate’s ruling, given at the close of the complainant’s case, that there is a case for the defendant to answer, for although such a ruling may amount to a refusal of an application, and may be regarded as an order within the meaning of s 4, it is made upon an incidental application during the hearing of the complaint and is not an order made upon the complaint.”
- [10]The authority of Schneider v Curtis has been upheld in a number of cases including Paulger v Hall [2002] QCA 353, Coulter v Ryan [2006] QCA 567 and Mathews v Cabrera [2010] QCA 300.
- [11]In the present case the order made under s 20B(1) of the Crimes Act 1914 (Cth) did not have the effect of finally disposing of the complaints. The referral was made during the course of the committal hearing but the proceedings themselves remain afoot. Should the appellant be judged fit for trial then those proceedings will continue before the Magistrate.
- [12]The consequence in my view is that the order made by the Magistrate on 24 September 2010 is not an appellable order for the purposes of s 222 of the Justices Act 1886 (Qld). Accordingly this appeal should be dismissed.