Fraser v Commissioner of Police
[2011] QDC 345
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- Fraser v Commissioner of Police[2011] QDC 345
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Fraser v Commissioner of Police[2011] QDC 345
Fraser v Commissioner of Police[2011] QDC 345
[2011] QDC 345
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE REID
No 2945 of 2011
No 3378 of 2011
No 3615 of 2011
No 3758 of 2011
RAELENE MAREE FRASER | Appellant |
and | |
COMMISSIONER OF POLICE | Respondent |
BRISBANE
DATE 19/10/2011
ORDER
HIS HONOUR: I have before me, four appeals by Raelene Fraser against decisions of a number of different Magistrates made earlier this year.
In order to understand the nature of the appeals, and subsequent applications which have been made by the Commissioner of Police to strike each of them out, it's necessary to briefly recount the history of the matter.
The charge in question arose from the complainant's alleged use of a mobile phone whilst driving a motor vehicle on the 15th of July, 2009. She was originally convicted and fined when she did not appear on the return date of the complainant and summons on the 4th of December, 2009. In circumstances that are not entirely clear to me, the conviction appears to have been overturned and the matter was re-listed on the 15th of September, 2008, and has proceeded slowly thereafter.
After a number of adjournments, the matter came before Magistrate Sarra on the 28th of June, 2011. It seems there must have been issues between Ms Fraser and Magistrate Sarra, because on that day he excused himself from further consideration of the matter on the basis of apprehended bias. I've been informed by Ms Fraser that there were in fact proceedings in the Supreme Court in relation to that allegation, but that these have been disposed of without resolution, perhaps by discontinuance of the application in circumstances where he excused himself.
In any case, after excusing himself, he ordered that the matter be transferred to the Brisbane Magistrates Court for mention on the 29th of August, 2011. The appellant before me has appealed against that decision on the basis that having excused himself he ought not to have made an order transferring the matter to Brisbane, as I have indicated he did. Ms Fraser agreed with me that whether the matter was heard in Brisbane or Wynnum was of no real importance.
On the 29th of August, the matter came before Magistrate Previtera. On that day, she set the matter down for hearing on the 12th of September. The appellant appeals that decision.
In my view, it is useful to consider the transcript of proceedings before the Magistrate on that day, because of an assertion by the appellant that the real issue causing unfairness in this case was that she has been unable to obtain access to a number of documents which she believed were in the possession of the Queensland Police.
Sergeant Lane, who appeared for the prosecution before Magistrate Previtera, indicated to the Court that, "The defendant asks for certain documentation that doesn't form part of the Crown case. She was advised how to go about obtaining these documents. The prosecution is objecting to them". Subsequently he said, "The defendant has been advised that she may subpoena those documents through the QPS solicitor and through our Administration Branch. They will become available to the Court, on the Court file, and the legal argument can then ... take place with respect ... making them available to the defendant".
In response to that allegation, the appellant before me, who was the defendant in the Magistrates Court, said that she had a matter before the Supreme Court for judicial review, but conceded before me that because of Magistrate Sarra's excusing himself from hearing the matter, that was then of no real importance.
Subsequently, Magistrate Previtera indicated to the appellant as follows:
"They're saying they are not providing it because it's not relevant...and so they suggested that you subpoena the documents so that this matter can go to hearing. There can be a legal argument about whether or not you would be permitted to have those documents admitted into evidence, however, even if they are admitted into evidence, how they are going to help you, is a question I'd like to be there to see answered."
Having provided that assistance to the complainant about how she might obtain the necessary documents, Magistrate Previtera then set the matter down for hearing on the 12th of September, 2011. That order too was one that is the subject of an appeal.
On the 12th of September, the matter came before Magistrate Lee. I'm unaware exactly what occurred on that occasion, but it seems he did no more than again adjourn the matter; this time for hearing on the 20th of September. That order too is appealed.
On the 20th of September, 2011, the matter came before Magistrate Kilmartin. I am informed by the appellant that she had not subpoenaed the documents I have referred to. It seems that these included a site safety plan in respect of the police operation, and copies of infringement notices issued immediately before and immediately after that issued to the appellant. It's in respect of those documents that Magistrate Previtera offered her advice about the relevance of them.
I'm informed by the appellant that after Magistrate Kilmartin had commenceded the matter, and the police evidence had been heard, that he asked her whether she intended to give evidence. She said that she did not wish to do so, motivated by a belief that she had been denied justice because the documents I have been referring to had not been provided to her. As I indicated during argument, it seemed to me that her inability to see those documents, and to have the relevance of them determined, was really determined by her decision not to subpoena them as both Magistrate Previtera and Sergeant Lane had suggested.
The up-shot of the hearing was that Magistrate Kilmartin convicted the appellant of the offence, and fined her $300, after refusing her earlier application to adjourn the matter. There were also some orders in respect of costs.
That decision by Magistrate Kilmartin not to adjourn the matter is also the subject of an appeal. It is noted that the notice of appeal does not appeal against the decision to convict, but is one against the interlocutory order to proceed with the hearing.
In particular, the appellant relied before Magistrate Kilmartin, and before me, on the assertion that because of the earlier appeals against the decisions of the 28th of June, the 29th of August, and the 12th of September, to which I have referred, that Magistrate Kilmartin, ought not have proceeded on the 20th of September.
The Commissioner of Police has brought applications to strike out all four appeals on the basis that they were appeals against interlocutory orders, and so not competent. In support of that submission, Ms Shaw, who appeared on behalf of the Police, referred me to Schneider v. Curtis [1967] QDR 300. In that case, at page 304, Gibbs J (as he then was), with whom Wanstall and Douglas JJ, agreed, said, after referring to section 222 of the Justices Act:
"That 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'. The section does not give a right of appeal from any order made in proceedings commenced by a complaint but only from 'an order made upon a complaint'."
His Honour continued at page 305:
"Serious inconvenience could result if litigants could appeal from any decision on any interlocutory application made during the course of a case, including an application for a ruling on an incidental question that arose during the trial, and the Court had no discretion to refuse to entertain such appeals."
At page 306, his Honour continued:
"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 way of order to review should also be available on an appeal under section 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 a complainant's case, that there is a case for the defendant to answer, for although such a ruling may amount to the refusal of an application, and may be regarded as an order within the definition 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."
In Pulger v. Hall [2002] QCA 353, the Court also held that on an appeal under section 222 against the dismissal of a complaint, the appellant could properly raise the issue of the correctness of an interlocutory order which affected the final result.
At [26], Holmes J, as she then was, said:
"Schneider v. Curtis [1967] Qd R 300 is authority for the proposition that no appeal lies under s. 222 from a ruling made on an incidental application during the hearing of the complaint: the right of appeal is given only from 'any order made...upon a complaint', and those words refer to an order 'disposing of the complaint itself'."
In my opinion, such consideration clearly militate in favour of the application by the police to strike out the appeals in respect of the first three of the orders.
Similarly, the complaint in respect of the fourth appeal appears to me to be an appeal against an interlocutory order.
I discussed with the appellant the possible grounds for any appeal from a decision of the Magistrate to convict and fine her, with a view to possibly allowing amendment of the notice of appeal, to allow the matter to proceed as an appeal against the decision to convict and fine her, if there was any basis for belief that there were grounds for any such appeal.
After discussing the matter with the appellant, it seemed to me that on the basis that she had not subpoenaed the documents, and had elected to give no evidence before the Magistrate that to have allowed, in the exercise of a discretion, any application to amend the notice of appeal, so as to effectively appeal against the decision convicting her, would be groundless, since the police evidence was entirely uncontradicted by any evidence called by the defendant. In the circumstance, it seems to me that the application by the Commissioner to strike out the appeal in respect of the fourth matter, should also be allowed.
In the circumstances, the orders I make are that each of the appeals be struck out.
...
What I propose to do about costs is to allow the appellant five days to make any written submissions in respect of costs. I direct that any documentation you rely on from the Crown by way of a representation from them, that they would not be seeking costs, should be attached to that written submission. That is to be done by 4 o'clock on the 24th of October.
I will give you my Associate's email address, and you can send them to her, but you should in any case file them in the Court as well and you should serve them on the Crown. I will then give the Crown five days to make any written submissions in reply.
...
I will give you in fact till 4 o'clock on Monday 31st to put in any submissions in response.