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Middleton v Queensland Police Service[2016] QDC 83

Middleton v Queensland Police Service[2016] QDC 83

DISTRICT COURT OF QUEENSLAND

CITATION:

Middleton v Queensland Police Service [2016] QDC 83

PARTIES:

Lee Middleton

(appellant)

And

Queensland Police Service

(respondent)

FILE NO/S:

4809 of 2015

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

6 April 2016 – ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2016

JUDGE:

RS Jones DCJ

ORDER:

  1. The appeal is dismissed

SOLICITORS:

Public Service Business Agency for the respondent

  1. [1]
    HIS HONOUR: The appellant in this matter has appealed, it would appear, against reasons or decisions made in the Magistrates Court by Her Honour the learned Magistrate Cull on 17 November 2015. The notice of appeal alleges that the magistrate had no “personal jurisdiction”.
  1. [2]
    The grounds of appeal are as follows: (1) this was and has been a denial of natural justice; (2) this matter coram Cull is thus ultra vires. It is finished. It is finalised; (3) I cannot be required to continue in a farce that is a nullity and ultra vires as any purported decision cannot be other than void ab initio; (4) the procedures that were required by law to be observed in relation to the conduct have not been observed; (5) that the refusal of making the proposed decision was an improper exercise of the power conferred by the enactment under which the decision was purported to be made; (6) that an error of law has been committed in the course of making the decision; (7) the decision has been affected by fraud; (8) that the making of the decision was otherwise contrary to law.
  1. [3]
    What occurred before the learned magistrate on 17 November 2015 was as follows: the appellant was present at court, at that time facing a charge of obstructing police in the course of their duty. The prosecutor was Sergeant Gorman. He indicated to the court as follows:

“Just for the record, Mr Middleton was pulled up in the Gateway Motorway at Murarrie.  He was charged with obstruct.  That’s not in the Brisbane District Magistrates Court District.  It should’ve gone to Wynnum.”

  1. [4]
    The Bench then intervened and says, “Right.” And Sergeant Gorman continues:

“He’s therefore here today at the incorrect jurisdiction.  I’ve advised Mr Middleton of this and invited him to form an opinion as to whether he should waive that and allow jurisdiction to occur here today or not waive that in which case the matter would be struck out today and re-instigated in Wynnum.”

  1. [5]
    The Bench then addresses the appellant in the following way:

“All right.  So Mr Middleton, unless you agree to me hearing this matter here, I am going to dismiss the charge.”

  1. [6]
    The appellant then asked whether he could raise a number of questions. The magistrate at that stage indicated that what was required was to know whether or not the appellant was going to enter a plea of guilty or not guilty. What then followed after some further exchange was that the prosecution elected to present no evidence in respect of the obstruct charge and as a consequence of that, the learned magistrate dismissed the charge.
  1. [7]
    Leading up to that decision, there was an exchange between the appellant and the Bench concerning a certificate under section 149 of the Justices Act. The Bench indicated that the appellant had been discharged because no evidence had been offered by the Crown. And again, the learned magistrate later reiterated that the obstruct charge had been dismissed because no evidence had been presented to support that charge.
  1. [8]
    What has occurred since then is that on 10 February 2016, the Queensland Police Service wrote to the appellant advising as follows:

“On the 7th December 2015 to 7th December 2015, a charge of obstruct police was discontinued against you.  In place of that charge, please find attached an infringement notice for fail to enable the safe exercise of power (S83 of the Police Powers and Responsibilities Act).  Please note the notice may be referred to the State Penalties Enforcement Registry if no action is taken within 28 days.  You may also elect to have the matter heard in court as per the instructions on the third page on the infringement.”

  1. [9]
    So essentially, what has occurred is that the obstruct charge was dismissed and in lieu thereof, the Crown now intends to prosecute the appellant for the failure to enable the safe exercise of a power offence in the Wynnum Magistrates Court. In the appellant’s written submissions, he concluded as follows:

“My appeal should be allowed and order of Magistrate W.C. Cull set aside.  I was denied a notice pursuant to section 149, Justices Act 1886 and furthermore, I requested a notice pursuant to section 149, Justices Act 1886 and certificate form 34 was issued.”

  1. [10]
    As I understand it, the appellant’s position today is that he is no longer pursuing a notice pursuant to section 149 of the Justices Act. When asked to particularise exactly what it was he wanted me to do today, the appellant responded by saying, first, that he wanted me to quash the orders made the learned magistrate on 17 November 2015 and second, in effect, to make some sort of declaration or give a direction to the effect that the police and other persons in authority had somehow been acting in an entirely untoward way and, in effect, were unduly harassing and maliciously prosecuting the appellant.
  1. [11]
    As to the first of those matters, there is nothing left for me to quash. The offence before the court on that occasion was that of obstructing a police officer in the course of his or her duty. That charge was dismissed. As to the second matter, on the material before me – and I acknowledge that it is somewhat limited, but nonetheless, there is nothing before me which would indicate that the authorities have conducted themselves in the manner asserted by the appellant. I should also note here that a number of the complaints made by the appellant to the effect that these charges have been fabricated, those would be matters which he would be entitled to pursue with the prosecuting police officer when the new charge is being dealt with.
  1. [12]
    For the reasons given, I feel that I have no alternative but to dismiss the appeal. I will reserve the right to tidy up these reasons in due course if I consider it necessary.
Close

Editorial Notes

  • Published Case Name:

    Middleton v Queensland Police Service

  • Shortened Case Name:

    Middleton v Queensland Police Service

  • MNC:

    [2016] QDC 83

  • Court:

    QDC

  • Judge(s):

    Jones DCJ

  • Date:

    06 Apr 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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