Flynn v Queensland Police Service
[2012] QDC 99
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- Unreported Judgment
- Flynn v Queensland Police Service[2012] QDC 99
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Flynn v Queensland Police Service[2012] QDC 99
Flynn v Queensland Police Service[2012] QDC 99
DISTRICT COURT OF QUEENSLAND
CITATION: | Flynn v Queensland Police Service [2012] QDC 99 |
PARTIES: | JOANNE LAURA FLYNN (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | BD 4892 of 2011 |
DIVISION: | Crime |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 18 May 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 May 2012, with written submission received up to 13 May 2012 |
JUDGE: | Rackemann DCJ |
ORDER: | No order as to costs |
CATCHWORDS: | CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – COSTS – where a defendant to a charge of common assault appealed their conviction to the District Court – where the appellant had their conviction quashed and matter remitted to Magistrates Court to be retried according to law – whether appellant is entitled to costs arising from the appeal to the District Court – whether common assault is an “indictable offence” for the purposes of the Justices Act 1886 (Qld) |
LEGISLATION: | Criminal Code Act 1899 (Qld) s 3, s 335, s 552A, s 552B, s 552BA, s 552D, s 561 Justices Act 1886 (Qld) s 4, s 222, s 226, s 232 |
CASES: | Forsyth v Deputy Commissioner of Taxation [2007] HCA 8 Wentworth Securities Limited v Jones [1980] AC 74 Metroplex Management Pty Ltd v Brisbane City Council and Ors [2010] QCA 333 |
COUNSEL: | Mr T. Ryan for the appellant Mr B. White for the respondent |
SOLICITORS: | Howden Saggers Lawyers for the appellant Director of Public Prosecutions for the respondent |
INTRODUCTION
- [1]On 7 November 2011 the defendant was convicted, in the Magistrates Court, of one count of common assault. On 4 May 2012 the conviction was quashed and the matter remitted to the Magistrates Court to be retried according to law. The successful appellant thereupon sought an order for costs of the appeal. That was opposed, on the basis that there is no power to make such an order. The parties subsequently made written submissions about the jurisdictional issue.
THE COSTS POWER
- [2]Section 226 of the Justices Act 1886 (Qld) provides a general discretion as to costs. That is, however, qualified by s 232(4) which provides:
“(4) No order as to costs may be made on—
- (a)the hearing or determination of an appeal in relation to an indictable offence that was dealt with summarily by justices; or
- (b)any proceeding preliminary or incidental to an appeal mentioned in paragraph (a).”
THE ISSUE
- [3]The question is whether this appeals falls within s 232(4)(a). The issue, in that regard, is whether the offence, which was dealt with summarily, is an “indictable offence” for the purpose of that provision.
- [4]It is common ground that the offence of assault is an indictable offence for the purposes of the Criminal Code Act 1899 (Qld). Counsel for the appellant contends however, that it has a different meaning for the purposes of s 323(4) of the Justices Act.
’INDICTABLE OFFENCE’ FOR THE PURPOSES OF THE JUSTICES ACT
- [5]Section 4 of the Justices Act defines an indictable offence as follows:
“indictable offence means an offence which may be prosecuted before the Supreme Court, the District Court, or other court having jurisdiction in that behalf, by indictment in the name of the Attorney-General or other authorised officer.”
- [6]I accept that if the offence fails to come within the definition of an indictable offence for the purpose of the Justices Act, then s 232(4) is inapplicable, even if the offence is an indictable offence for the purposes of the Criminal Code.
IS COMMON ASSAULT AN INDICTABLE OFFENCE?
- [7]Counsel for the appellant contended that the offence, in this case, does not meet the definition of an indictable offence in the Justices Act because, by reason of s 552BA(2) of the Criminal Code, it was one which was required to be heard summarily in the Magistrates Court, rather than one which may be heard on indictment.
- [8]Section 552BA(2) of the Criminal Code proceeds relevantly as follows:
“Charges of indictable offences that must be heard and decided summarily
- (1)This section applies to a charge before a Magistrates Court of any indictable offence against this Code if the offence is a relevant offence.
- (2)A charge to which this section applies must be heard and decided summarily.
- (3)This section is subject to section 552D.
- (4)In this section—
Relevant offence means—
- An offence against this Code, if the maximum term of imprisonment for which the defendant is liable is not more than three years; or
- …… ”
- [9]The offence, in this case, was a ‘relevant offence’ and so, on the face of sub-section (2), was required to be heard summarily. The introduction of this section created a new category of indictable offences which must be heard summarily, without the need for an election by the prosecution (compare s 552A) or the absence of a contrary election by the defendant (compare s 552B).
- [10]It was pointed out, on behalf of the respondent, however that, by reason of subsection (3), the requirement for the offence to be heard and decided summarily is expressly subject to s 552D of the Criminal Code, which stipulates circumstances under which the Magistrates Court must abstain from dealing with a relevant offence summarily. It provides as follows:
“552DWhen Magistrates Court must abstain from jurisdiction
- (1)A Magistrates Court must abstain from dealing summarily with a charge under section 552A, 552B or 552BA if satisfied, at any stage, and after hearing any submissions by the prosecution and defence, that because of the nature or seriousness of the offence or any other relevant consideration the defendant, if convicted, may not be adequately punished on summary conviction.
- (2)A Magistrates Court must abstain from dealing summarily with a charge under section 552BA if satisfied, on an application made by the defence, that because of exceptional circumstances the charge should not be heard and decided summarily.
Examples of exceptional circumstances—
- 1There is sufficient connection between the offence the subject of the charge, and other offences allegedly committed by the defendant and to be tried on indictment, to allow all the offences to be tried together.
- 2There is an important issue of law involved.
- 3An issue of general community importance or public interest is involved, or the holding of a trial by jury is justified in order to establish contemporary community standards.
- (3)If the court abstains from jurisdiction, the proceeding for the charge must be conducted as a committal proceeding.”
- [11]There is no basis to conclude that these circumstances applied in this case, such as to have required the Magistrates Court to abstain from hearing the matter summarily. Counsel for the appellant relied upon the inapplicability of s 552D, in the circumstances of the case, to contend that the present charge is not one which could have been prosecuted on indictment. On the other hand, while s 552D might not have been triggered in this case, the offence preferred against the appellant was of a kind which may be prosecuted on indictment, subject to the circumstances in s 552D being determined to exist.
- [12]It is, however, unnecessary for me to express a final view on whether the offence was an “indictable offence” by reason of s 552D since, as counsel for the prosecution pointed out, the offence is, in any event, one which may be prosecuted on indictment in the District Court by way of the presentation of an ex officio indictment. Section 561(1) of the Criminal Code provides:
“561Ex officio indictments
- (1)A Crown Law Officer may sign and present an indictment in any court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.”
- [13]Since it is common ground that the offence of common assault is an indictable offence for the purposes of the Criminal Code, it follows that it is an offence to which s 561 applies and is therefore an offence which may be brought, on indictment, in any court of criminal jurisdiction. I appreciate that this charge was not brought by ex officio indictment, but the issue for the purposes of the definition of “indictable offence” in the Justices Act, is whether it is an offence which may be prosecuted on indictment. It answers that description.
- [14]Section 232(4) of the Justices Act predates the amendments to the Criminal Code and, it was submitted, on behalf of the appellant, that it is predicated on the existence of a right of election, by either the prosecution or defence, of the kind provided for in ss 552A and 552B and is inapplicable to the new category of case in s 552BA which was created by the amendments. It might be that s 232(4)(a), when enacted, was directed at those indictable offences which were subject to a right of election but, in the absence of an amendment to s 232(4) consequent upon the amendment of the Criminal Code which introduced s 552BA, the provisions of the Justices Act are to be construed as having continuing and ambulatory effect.
- [15]While there may be circumstances in which it can be inferred that the Legislature did not intend a provision to have an ambulatory effect,[1] there is no sufficient warrant for so concluding with respect to s 232(4). My attention was not directed to anything which suggested a legislative intent to create a dichotomy between the status of a ‘relevant offence’ as an indictable offence for the purposes of the Criminal Code, but not for the purposes of the Justices Act. Further, my attention was not drawn to anything which suggested a different legislative intent for the availability of costs in respect of indictable offences (for the purposes of the Criminal Code) which are heard summarily by virtue of ss 552A, 552B or 552BA. I do not consider that s 232(4) should be interpreted as if it related only to those categories of indictable offences heard summarily which existed prior to the amendments; an ambulatory, rather than fixed-time, meaning is to be preferred.
- [16]To construe the Justices Act in the way contended by the appellant would, in effect, require words of qualification to be read into either s 232(4)(a) or the definition of an indictable offence so that an indictable offence was regarded as one which may be prosecuted on indictment other than by way of an ex officio indictment or in the circumstances provided for in s 552D of the Criminal Code. I do not consider that such an interpretation is warranted. It would involve an impermissible reformulation, rather than a process of construction of the words actually used.[2]
CONCLUSION
- [17]The amendments to the Criminal Code, which introduced s 552BA as a new category of indictable offences to be heard summarily did not, in my view, have the effect of depriving common assault of its status as an indictable offence for the purposes of the Criminal Code or for the purposes of the Justices Act. The offence remains one which may be prosecuted on indictment, although, given its new status as a “relevant offence” for the purpose of s 552BA, there are greater statutory restrictions upon how or in what circumstances that may occur.
- [18]This appeal therefore relates to an indictable offence which was heard summarily. The application for costs is dismissed on the basis that the Court has no power to make such an order.