Mathews v Commissioner of Police
[2014] QDC 256
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- Unreported Judgment
- Appeal Determined (QCA)
- Mathews v Commissioner of Police[2014] QDC 256
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Mathews v Commissioner of Police[2014] QDC 256
Mathews v Commissioner of Police[2014] QDC 256
DISTRICT COURT OF QUEENSLAND
CITATION: | Mathews v Commissioner of Police [2014] QDC 256 |
PARTIES: | RUSSELL GORDON HAIG MATHEWS (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | BD115/14 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 21.11.14 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Farr SC DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | APPEAL – where magistrate refused to refer matter of alleged official misconduct to the Crime and Misconduct Commission – where Crime and Misconduct Act 2001 had no application – where s 222 Justices Act 1886 had no application – where appeal dismissed. |
REPRESENTATION: | The appellant was self-represented Mr S R Hunter of counsel for the respondent |
SOLICITORS: | Commonwealth Director of Public Prosecutions for the respondent |
- [1]The appellant was charged on 28 August 2009 with four offences of using a carriage service to menace, harass or cause offence, which were laid pursuant to the provisions of s 474.17 of the Commonwealth Criminal Code. The dates of the alleged offences were:
- Charge 1: between 26 July 2008 and 18 July 2009
- Charge 2: between 21 August 2006 and 18 July 2009
- Charge 3: between 22 February 2007 and 18 July 2009
- Charge 4: between 12 June 2009 and 18 July 2009
- [2]The committal proceeding for these charges commenced on 24 June 2010. The appellant, who was self-represented, attended the committal for the first three days and questioned witnesses. On day 4 (29 June 2010), the appellant advised the court by email that he would not be appearing as he would be consulting his psychiatrist. In September 2010 the learned magistrate referred the issue of the appellant’s fitness to be tried to the District Court pursuant to s 20B of the Crimes Act 1914 (Cth).
- [3]Over the next two and a-half years, the appellant instituted numerous appeals and applications to the District Court, Court of Appeal and the High Court, concerning the charges and the conduct of the case generally. All were dismissed.
- [4]During that period, the appellant did not attend court in person other than in November 2012 when the trial of his fitness to be tried was conducted in the District Court at Brisbane where he was found, by a jury, to be fit to be tried.
- [5]Two further applications to the Court of Appeal were instituted by the appellant after the jury’s finding. Both were dismissed.
- [6]Consequent upon the jury’s finding, the committal proceedings were remitted to the Magistrates Court for completion. Despite several mentions of the matter in the second half of 2013, the committal hearing was not advanced.
- [7]On 10 January 2014 counsel for the respondent at a mention of the matter advised the magistrate that it was no longer in the public interest for the charges to be pursued and that the prosecution therefore intended to not present any further evidence. The magistrate thereupon discharged the appellant in respect of all charges.
- [8]Earlier that same day at 7.26 a.m. the appellant had emailed an application to the court which relevantly requested the following:
“I require you … pursuant to the Crime and Misconduct Act 2001, section 38 and/or otherwise to notify the CMC of what must be at least a suspicion of official misconduct or likewise or worse in this information, complaint matter before (… Kluck).”
- [9]The email referred to evidence that had been given during the course of the committal hearing in June 2010.
- [10]After the magistrate discharged the appellant, he then considered and rejected the appellant’s application. It is the magistrate’s refusal to refer the matter to the Crime and Misconduct Commission that is the subject of this appeal, which has purportedly been brought pursuant to the provisions of s 222 of the Justices Act 1886 (“the Act”).
Grounds of appeal
- [11]The Notice of Appeal listed the grounds as follows:
- Appeal allowed
- As an appointment of the Qld Government and in the pay of the Qld Government, Magistrate Kluck refused to refer other public sector employees for criminal prosecution, when he had the conclusive evidence being admissions by policeman Henri Elias Rantala.
- (b) that procedures that were required by law to be observed in relation to the conduct have not been, observed;
- (c) that the refusal of making of the proposed decision was an improper exercise of the power conferred by the enactment under which the decision was purported to be made;
- (d) that an error of law – has been committed in the course of making the decision;
- (e) the decision has been affected by fraud;
- (f) that the making of the decision was otherwise contrary to law.
(I have reproduced these grounds as they appear in the Notice.)
- [12]The Notice of Appeal also details the appellant’s reasons as to why his appeal should be allowed. It states:
“This was done in this way to PERVERT the course of justice, and to conceal the armed robbery of me by the police per Henri Elias Rantala and the Brisbane City Council on 29th November 2004, 30th November 2004, to and including 1st December 2004.
The judge in the district court should order that this whole matter of ARMED ROBBERY, improper use of police powers and abuse of the bail provisions used by police to keep me from my home while the Brisbane City Council stripped it of all my property, plus the perversion of the course of justice by Magistrate Walter Harvey Erich, police solicitor Colin John Schofield and all other officers of the Supreme Court of Queensland then representing parties before Magistrate Erich, including Counsel for John Leslie Morgan and counsel for the Brisbane City Council should be referred to the CMC and/or the DPP.
The Brisbane City Council did this because the Brisbane Diocese of the Anglican Church [BDAC] aka the Corporation of the Synod Diocese of Brisbane [CSDB] was secretly ‘purchasing’ the legal title to my home beneficially owned by me with the intention of defrauding me for the benefit of the CSDB and The Qld Government in the division being The University of Queensland.”
(I have reproduced this as it appears in the Notice of Appeal.)
Section 38 of the Crime and Misconduct Act 2001
- [13]Section 38 of the Crime and Misconduct Act 2001 (now s 38 Crime and Corruption Act 2001), which is the legislative basis upon which the appellant relied in his application before the magistrate, stated:
“38Duty to notify commission of official misconduct
- (1)This section applies if a public official suspects that a complaint, or information or matter (also a complaint), involves, or may involve, official misconduct.
- (2)The public official must notify the commission of the complaint, subject to section 40.”
- [14]Schedule 2 of the Crime and Misconduct Act 2001 defined “public official” as:
- (a)the ombudsman; or
- (b)the chief executive officer of a unit of public administration, including the commissioner of police; or
- (c)a person who constitutes a corporate entity that is a unit of public administration.
- [15]Hence, the learned magistrate in this matter was not a ‘public official’ and s 38 of the Crime and Misconduct Act 2001 had no application. It follows that the “application” brought by the appellant had no statutory basis pursuant to that provision.
- [16]In fact, examination of that act reveals no statutory basis whatsoever that would allow for the making of the application that was brought before the magistrate. The respondent has submitted that the application was a legal nullity, and I agree.
Applicability of s 222 Justices Act1886
- [17]Section 222(1) of the Act provides:
“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”
- [18]“Order” is defined in s 4 of the Act to include:
“… any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it…”
- [19]The respondent has submitted that the words “an order … on a complaint” in s 222(1) have repeatedly been held to refer only to those orders that finally dispose of a complaint. Despite that being an uncontroversial submission, the respondent has nevertheless helpfully referred to case law authority in support of that submission.
- [20]In Schneider v Curtis[1] the defendant to a summary prosecution submitted to the magistrate that there was no case to answer, and then purported to appeal the magistrate’s ruling rejecting that submission. Gibbs J held, at 304-5:
“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’. These words … in my opinion refer to an order disposing of the complaint itself and do not include an order upon an application made during the course of proceedings instituted by the complaint….”
- [21]In Owen v Canavan & Anor[2] the applicant appealed pursuant to s 222 against an order of a magistrate refusing to transfer summary proceedings from Brisbane to Gympie. The correctness of the decision in Schneider was raised in the Court of Appeal. The court held that:
“No basis has been shown for regarding Schneider as other than an authoritative decision correctly applied …”
- [22]In Paulger v Hall[3] the court accepted the correctness of Schneider v Curtis. Holmes J (with whom McMurdo P and Mackenzie J agreed) said at [26]-[27]:
“Schneider v Curtis 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’. …
Quite apart from the construction question addressed in Schneider v Curtis, there is much to be said on policy grounds for prohibiting the bringing of appeals under s 222 against interlocutory rulings. Such appeals may lead to fragmentation of the criminal process, may in the long run prove to have been pointless, and are capable of being misused to exhaust the resources of a less well-heeled opponent. But an appellant may in an appeal against a final judgment properly raise the issue of the correctness of an interlocutory order ‘which affected the final result’. …”
- [23]In my view, the magistrate’s refusal to refer matters to the Crime and Misconduct Commission as requested by the appellant was not “an order on a complaint” as it was not an “order” that finally disposed of the complaint.
- [24]In fact, the complaint was already at an end prior to the consideration of the “application”, the learned magistrate having already discharged the appellant in respect of all charges before going on to consider the appellant’s application.
- [25]It follows that this is not a matter to which s 222(1) of the Act has application and does not “fall within the compass of what may be appealed under s 222”.[4]
Order
- [26]The appeal is dismissed.