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  4. Nelson v Commissioner of Police - [2022] QDC 191

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Nelson v Commissioner of Police[2022] QDC 191

Nelson v Commissioner of Police[2022] QDC 191

DISTRICT COURT OF QUEENSLAND

CITATION:

Nelson v Commissioner of Police [2022] QDC 191

PARTIES:

SHANE WILLIAM NELSON

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

D58/2022

DIVISON

Appellate

PROCEEDING:

Application for an extension of time within which to appeal

DELIVERED ON:

2 August 2022 (ex-tempore)

DELIVERED AT:

Maroochydore

HEARING DATE:

2 August 2022

JUDGE:

Cash QC DCJ

ORDERS:

  1. 1.The application for an extension of time is refused; and
  2. 2.The appeal is dismissed.

CATCHWORDS

CRIMINAL LAW – MAGISTRATES – APPEALS FROM AND CONTROL OVER MAGISTRATES – appeal from the Magistrates Court – costs orders – where charge is dismissed – power of Magistrate to award costs – Magistrate refused to award costs to appellant upon dismissal

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY MAGISTRATES – JURISDICTION – GENERAL MATTERS – OTHER PARTICULAR CASES – where the applicant complained the charge was not known to law – sufficiency of description – particulars – requirements for the description of an offence

LEGISLATION:

Justices Act 1886 (Qld), s 47, s 88, s 158, s, 158A, s 222

CASES:

Commissioner of Taxation v MacPherson [2000] 1 Qd R 496, [12]

Coulter v Ryan [2007] 2 Qd R 302, [18]

John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, 528-529

Johnson v Miller (1937) 59 CLR 467, 482 and 486

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 distinguished

Latoudis v Casey [1990] 170 CLR 534

R v Tait [1999] 2 Qd R 667

Smith v Stone; Guli v Stone; Mount Isa Mines Ltd v Stone [2020] ICQ 6

APPEARANCES:

Mr C van der Weegen instructed by Nightingale Law for the appellant.

Mr M O'Brien instructed by the Queensland Police Service Legal Unit for the respondent.

  1. [1]
    HIS HONOUR: On 4 June 2021 the applicant, Shane William Nelson, was charged by police with one alleged offence of unlawful stalking. It is not clear from the Magistrates Court file whether the applicant was arrested and charged or issued with a notice to appear in accordance with the Police Powers and Responsibilities Act 2000 (Qld). But it is clear that the proceeding was not commenced by way of a complaint in writing. On 5 July 2021 the applicant appeared before a Magistrate at Nambour and the charge was entered into a bench charge sheet. The charge alleged

That between the 3rd day of June 2020 and the 31st day of March 2021 at West Woombye in the State of Queensland one Shane William Nelson unlawfully stalked Timothy Ashby.

  1. [2]
    The applicant was admitted to bail and the proceeding adjourned.
  2. [3]
    The charge was for an indictable offence contrary to section 359E(1) of the Criminal Code (Qld), but it was one that had to be heard and decided summarily unless the applicant informed the Magistrates Court he wished to be tried by a jury.[1]  There is no indication that the applicant so informed the Magistrates Court and the notations on the court file are consistent with the matter proceeding in a summary way.
  3. [4]
    On 8 March 2022 the applicant, through his lawyers, filed an application to “strike out [the] complaint of unlawful stalking against the applicant as a nullity”. Written submissions were filed, and the matter came before a Magistrate on 11 March 2022. Before the Magistrate heard argument on the application, the police prosecutor indicated that they intended to withdraw the charge of unlawful stalking and substitute a different charge. The applicant raised no objection to the presentation of the new charge.[2] The applicant was charged with the new offence, after which the prosecutor asked for the stalking charge to be “withdrawn and struck out”. The Magistrate ordered that charge be dismissed and the applicant was discharged.
  4. [5]
    The applicant then applied for an award of costs concerning the stalking charge that had been dismissed. There were two bases advanced in support of the application, each of which I will discuss further. The first, section 158(2) of the Justices Act 1886 (Qld), provides

When a complaint is before a Magistrates Court which the court has not jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the defendant such costs as to the court seem just and reasonable.

  1. [6]
    The second basis, section 88 of the Justices Act, permits an award of the costs thrown away by an adjournment. After hearing brief arguments, the Magistrate declined to make a costs order. It is against this decision the applicant now seeks to appeal, though for reasons that will become apparent the applicant limits his challenge to the refusal to award costs pursuant to section 158(2).
  2. [7]
    The notice of appeal was filed about ten days late. As such the applicant needs an extension of time. In accordance with longstanding authority,[3] it is appropriate to consider the merits of the proposed appeal to decide if an extension of time should be granted.
  3. [8]
    The proposed appeal is expressed as being brought pursuant to section 222 of the Justices Act. Relevantly, section 222 provides

222 Appeal to a single judge

  1. (1)
    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.

…

  1. (2)
    However, the following exceptions apply—
  1. (a)
    a person may not appeal under this section against a conviction or order made in a summary way under the Criminal Code, section 651;
  2. (b)
    if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs;
  3. (c)
    if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.
  1. [9]
    The jurisdiction of the District Court to hear an appeal from a decision pursuant to section 222 is limited. Relevantly, it is limited to an appeal against “an order made … on a complaint for an offence”. This has been regarded by the Court of Appeal as referring to “orders (including costs orders) made by way of final disposition of the complaint”.[4] That would include a decision about costs made at the time of an order dismissing a complaint, whether pursuant to section 158 or some other provision. Section 222, however, does not permit an appeal against a decision about costs made pursuant to section 88 of the Justices Act, such decisions being interlocutory in nature.[5] To the extent that the Magistrate entertained and refused an application for costs pursuant to section 88, no appeal lies to this court. No doubt this explains the applicant’s reliance upon section 158 of the Justices Act as providing the basis for the order of the Magistrate and, in turn, the jurisdiction of this court.
  2. [10]
    I am prepared to proceed on the basis that the applicant’s proposed appeal, subject to an extension of time and so far as it challenges a decision made pursuant to section 158, is competent.
  3. [11]
    The nature of an appeal pursuant to section 222 is settled. It is by way of rehearing on the material before the Magistrate and it remains necessary for the applicant to demonstrate that the decision was affected by error. The decision to award or refuse costs being in the discretion of the court, it is necessary for the applicant to show that the Magistrate erred by considering something that was irrelevant, ignoring something that was, or that the decision is unreasonable or plainly unjust. The mere demonstration of error is not alone sufficient.  If, on the material before this court, the court is of the view that the order made was the correct one, then the appeal ought to be dismissed. 
  4. [12]
    The essence of the applicant’s complaint is that the Magistrate dismissed the charge on the request of the prosecutor and without hearing and deciding the application for it to be struck out “as a nullity”. This, it is said, improperly deprived the applicant of reliance upon section 158(2) to obtain costs. It may be correct that the Magistrate did not give any real consideration to the applicant’s attempt to have the charge struck out. But in my view that could not have affected the outcome of the application for costs.  Before explaining why that is so it is necessary to say something of the application in the Magistrates Court.
  5. [13]
    The application was expressed as being made in reliance upon section 158(2) of the Justices Act, the terms of which I have already set out but repeat in part for clarity.

When a complaint is before a Magistrates Court which the court has not jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction…

  1. [14]
    There seems to be few decided cases concerning the power conferred by this provision. Those I have found concern matters where a defendant alleged the complainant was not authorised in law to make the complaint. Smith v Stone; Guli v Stone; Mount Isa Mines Ltd v Stone [2020] ICQ 6 is an example of such a case. In that case Martin J concluded that the complainant lacked the necessary delegation to give him authority to commence the proceedings. As the complaints were improperly commenced, the Magistrates Court lacked jurisdiction to decide them, and they were struck out. It may be that one can imagine other circumstances where a defect in the proceeding is such as to deprive the Magistrates Court of jurisdiction.
  2. [15]
    The argument which the applicant wished to present to the Magistrate, as set out in the written outline filed by his barrister on 8 March 2022, was that the charge set out in the bench charge sheet was “one that is not known to law”. If that was correct, it may be that the Magistrates Court was deprived of jurisdiction. In support of the argument the applicant’s barrister submitted that for the charge to be properly described, it was necessary to set out the “essential factual ingredients” or “the acts or omissions that would constitute the offence”. Reliance was placed on section 43 of the Justices Act and the decision of the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
  3. [16]
    Section 43 may be dealt with briefly.  It does not support the applicant’s arguments. It deals with the joinder and the severance of multiple offences in a single complaint.
  4. [17]
    The passage from Kirk cited by the applicant is concerned with the common law requirement to make a defendant aware of the substance of a charge that he is required to meet.  In Kirk, the plurality of the Court (French CJ with Gummow, Hayne, Crennan, Kiefel, and Bell JJ) said this at paragraph 26:

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter, or thing alleged as the foundation of the charge.  In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed.  In more recent times, the rationale of that requirement has been seen as lying in the necessity of informing the Court of the identity of the offence with which it is required to deal, and in providing the accused with the substance of the charge which he or she is called upon to meet.  The common law requirement is that an information, or an application containing a statement of offences, “must at least condescend to identifying the essential factual ingredients of the actual offence”.  These facts need not be as extensive as those which a defendant might obtain on an application for particulars (footnotes omitted).

  1. [18]
    As I have noted, the charge alleged

That between the 3rd day of June 2020 and the 31st day of March 2021 at West Woombye in the State of Queensland one Shane William Nelson unlawfully stalked Timothy Ashby.

  1. [19]
    The terms of the allegation are consistent with the terms of the offence-making provision in section 359E(1) of the Criminal Code. Because the proceeding was not commenced by way of a written complaint, it was necessary for “particulars of the charge against the defendant [to] be entered on the bench charge sheet”.[6]  Presumably this was what occurred at the applicant’s first appearance before the Magistrates Court, and it is from the bench charge sheet that I have taken the terms of the charge.
  2. [20]
    Sections 42 to 47 of the Justices Act set out the requirement for a complaint. In particular, section 47 provides for what is a sufficient description of an offence in a complaint.

47 What is sufficient description of offence

  1. (1)
    The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.
  1. [21]
    At first blush it may be thought this provision is sufficient authority for the proposition that the charge as alleged was a good charge in law.  But the applicant relies upon a passage from the decision of the High Court in Kirk. In that decision the plurality said at paragraph 29:

In Smith v Moody, it was held that such a provision did not dispense with the common law rule.  In Ex parte Lovell re: Buckley, Jordan CJ doubted that earlier authorities such as Smith v Moody could be regarded as binding, and that the object of the rule could be secured only by the requirement of particulars on the face of the information.  Nevertheless, in Johnson v Miller, Dixon J appears to have applied the common law rule and to have held that a statutory provision like that made by section 11 of the Criminal Procedure Act 1986 “relates only to the nature of the offence, and does not dispense with the necessity of specifying the time, place, and manner of the defendant’s acts or omissions.”

  1. [22]
    The statement of Sir Owen Dixon quoted by the plurality in Kirk was made in a case involving a “question of considerable difficulty”, arising in part because of “the peculiar characteristics of the substantive offence forming the subject of the proceedings”.[7]  The result of the facts in Johnson v Miller was a latent ambiguity in the complaint.  The complaint was dismissed by a Special Magistrate in reliance upon a statutory provision requiring the dismissal of a complaint where no offence or matter of complaint was disclosed.  It was against this background that Sir Owen referred to a provision analogous to section 47 of the Justices Act before making the statement above and citing Smith v Moody.  I doubt that Sir Owen, by a single reference to Smith v Moody, intended to convey that it is always necessary for a complaint to include details of every act or omission said to constitute an offence.
  2. [23]
    I am fortified in this conclusion having regard to the passage from Kirk that I have just read, which seems to me hardly a ringing endorsement of the authority of Smith v Moody. That is especially so in light of the decision of so eminent a judge as Sir Frederick Jordan in Ex parte Lovell, and a decision of the High Court in John L Pty Ltd v Attorney-General (NSW),[8] which was referred to in a footnote to the passage from Kirk.  In John L Pty Ltd v Attorney-General (NSW), Brennan J observed of the decision of Johnson v Miller the following:

The majority in Johnson v Miller, including Evatt J, were not concerned to decide whether Smith v Moody should be followed insofar as it requires a complaint which lacks particulars as to time, place, or acts constituting the offence charged, to be dismissed.  They were concerned to determine what were the consequences of the prosecutor’s failure in that case to furnish particulars.  The reference by Dixon J to Smith v Moody was merely for the purpose of showing that there was authority for the proposition that the following of the words of the statute does not necessarily eliminate the obligation to furnish particulars.

  1. [24]
    In my view, the applicant’s challenge to the charge as not being within the jurisdiction of the Magistrates Court because it was insufficiently particular was bound to fail.  It is sufficient, at least for a charge governed by the Criminal Code and presented pursuant to the provisions of the Justices Act, to allege a form of words consistent with the offence-making provision, subject to the qualification that it may be necessary and appropriate to deliver particulars of that charge.  Those being the circumstances, it was not necessary for the charge of stalking to allege on its face the particulars of the offence, or which limb of section 359B of the Criminal Code was said to be engaged. 
  2. [25]
    As such, section 158(2) was not engaged, and the occasion to award costs did not arise for consideration.  But if I am wrong about that, in my view the applicant has still not demonstrated that he should have been awarded costs upon the dismissal of the stalking charge.  If the applicant made good his argument that the charge should have been struck out pursuant to section 158(2), the discretion to award costs was governed by section 158A in conjunction with section 158B.  These provisions are set out in full below.

158  Costs on dismissal

  1. (1)
    When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.
  2. (2)
    When a complaint is before a Magistrates Court which the court has not jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the defendant such costs as to the court seem just and reasonable.

158A Exercise of discretion in relation to an award of costs

  1. (1)
    Despite section 158 (1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.
  2. (2)
    In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example—
  1. (a)
    whether the proceeding was brought and continued in good faith; and
  2. (b)
    whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and
  3. (c)
    whether the investigation into the offence was conducted in an appropriate way; and
  4. (d)
    whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and
  5. (e)
    whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and
  6. (f)
    whether the defendant unreasonably declined an opportunity before a charge was laid—
  1. (i)
    to explain the defendant’s version of the events; or
  2. (ii)
    to produce evidence likely to exonerate the defendant;

and the explanation or evidence could have avoided a prosecution; and

  1. (g)
    whether there was a failure to comply with a direction given under section 83A; and
  2. (h)
    whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and
  1. (i)
    whether the defendant was acquitted on a charge, but convicted on another.
  1. (3)
    If an order for costs under section 158 is made against a complainant who is a police officer or public officer (within the meaning of this subsection), the clerk of the court is to give to the defendant a certificate signed by the clerk showing the amount of costs awarded.
  2. (4)
    Subject to subsection (5), the defendant is entitled to be paid by the State the amount shown in the certificate within 2 months after payment is claimed.
  3. (5)
    If an appeal against an order for costs is made under section 222 —
  1. (a)
    payment of the amount shown in the certificate is stayed until the appeal is decided; and
  2. (b)
    payment is to be made of the amount (if any) ordered or confirmed by further order made on the appeal.
  1. (6)
    In subsection (3) —

"public officer" does not include—

  1. (a)
    an officer or employee of the public service of the Commonwealth; or
  2. (b)
    an officer or employee of a statutory body that represents the Crown in right of the Commonwealth; or
  3. (c)
    an officer or employee of a local government.

158B Costs for division

  1. (1)
    In deciding the costs that are just and reasonable for this division, the justices may award costs only—
  1. (a)
    for an item allowed for this division under a scale of costs prescribed under a regulation; and
  2. (b)
    up to the amount allowed for the item under the scale.
  1. (2)
    However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.
  1. [26]
    While section 158 confers the discretion to award costs, one has to read that in light of section 158A.  The discretion to award costs is, in my view, subject to 158A.  This was a provision enacted in the early 1990s in response to the decision of the High Court in Latoudis v Casey [1990] 170 CLR 534.[9]
  2. [27]
    In my view, the only sensible way to read sections 158, 158A, and 158B of the Justices Act is in a manner that has 158A governing the exercise of the costs discretion – whether it arises under section 158(1) or section 158(2).  To construe the legislation otherwise would produce the odd result that 158A would apply only to the first limb of 158, and if an occasion arises where the Court has the discretion to award costs pursuant to section 158(2), that is to be guided by the principals enunciated by the High Court in Latoudis v Casey. That would be an odd result in light of the acknowledgement that 158A was a legislative response to Latoudis v Casey, and was described by MacPherson J in the decision of Commissioner of Taxation v MacPherson[10] as being a virtual codification of the factors to be considered in deciding whether costs should be awarded against a police officer or a public officer whose complaint is dismissed by justices. 
  3. [28]
    Considering all of sections 158, 158A, and 158B together, it is my view that one must read 158A as applying to section 158(2).  That is, the opening provision at 158A should be read as if it said:

Justices who dismiss or strike out a complaint may make an order as to costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.

  1. [29]
    Section 158A(2) then provides a list of considerations to which a court must have regard when asked to make an order for costs against a police officer.  A consideration of this non exhaustive list does not suggest that there was a basis for awarding costs to the applicant in this case. There was no established misconduct by the police, and if successful in the application, pursuant to section 158(2), the applicant would have succeeded in securing dismissal on “technical grounds”.
  2. [30]
    As well, there is the consideration that the dismissal did not bring an end to criminal proceedings against the defendant. That is, it is to be remembered that another charge was substituted with the consent of the defendant. It follows that it would have been inappropriate at that point to award the applicant all of his costs up until that time.  At best, and I do not consider even this would have been appropriate, the applicant might have been awarded the costs thrown away as a consequence of the change in allegation.
  3. [31]
    It is also to be kept in mind that costs are awarded to indemnify a party, not to punish or deter the other party. The submission to the contrary advanced in the applicant’s submissions at paragraph 30 of his outline of 19 July 2022 is, in my view, wrong in law. 
  4. [32]
    The salient circumstances before the Magistrate in March of this year were as follows.  The applicant faced the charge of unlawful stalking. He had pointed out to the prosecuting authorities some alleged deficiencies in that allegation.  In response, the prosecutor advised the court the charge of stalking was to be discontinued and a new charge preferred. No objection was raised to the new charge. That allegation was made and adjourned, and the first charge of stalking was dismissed. In practical effect, the allegation of criminal conduct arising from the same set of circumstances continued.  It was a situation most unlike a case where a charge is withdrawn, dismissed, or struck out, and that ends all proceedings against a defendant.  The events here were most analogous to a situation where a charge is amended and there is a continuation of the allegation.
  5. [33]
    There was, in my view, no proper occasion for the making of a costs order in favour of the applicant.  It follows that even if the Magistrate erred by not hearing full argument from the applicant about his challenge to the form of the charge, the result would not have been different.  The appropriate orders are that the application for an extension of time be refused, and the appeal dismissed. Those are the orders of the court.

Footnotes

[1] Criminal Code (Qld), section 552(1)(h) and (2).

[2] Transcript of hearing 11 March 2022, T.1-5.25-40.

[3] R v Tait [1999] 2 Qd R 667.

[4] Coulter v Ryan [2007] 2 Qd R 302, [18].

[5] Ibid.

[6] Justices Act, section 42.

[7] Johnson v Miller (1937) 59 CLR 467, 482.

[8] (1987) 163 CLR 508, 528-529.

[9] Commissioner of Taxation v MacPherson [2000] 1 Qd R 496, [12]. 

[10] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Nelson v Commissioner of Police

  • Shortened Case Name:

    Nelson v Commissioner of Police

  • MNC:

    [2022] QDC 191

  • Court:

    QDC

  • Judge(s):

    Cash QC DCJ

  • Date:

    02 Aug 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Coulter v Ryan[2007] 2 Qd R 302; [2006] QCA 567
2 citations
Jump To
Cite 1 - [2007] 2 Qd R 302
Cite 2 - [2007] 2 Qd R 302
John L Pty Ltd v The Attorney-General for the State of New South Wales (1987) 163 CLR 508
2 citations
Jump To
Cite 1 - (1987) 163 CLR 508
Cite 2 - (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
2 citations
Jump To
Cite 1 - (1937) 59 CLR 467
Cite 2 - (1937) 59 CLR 467
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
2 citations
Jump To
Cite 1 - (2010) 239 CLR 531
Cite 2 - (2010) 239 CLR 531
Kirk v Industrial Relations Commission of NSW (2010) HCA 1
2 citations
Jump To
Cite 1 - (2010) HCA 1
Cite 2 - (2010) HCA 1
Latoudis v Casey (1990) 170 CLR 534
2 citations
Jump To
Cite 1 - (1990) 170 CLR 534
Cite 2 - (1990) 170 CLR 534
MacPherson v Commissioner of Taxation[2000] 1 Qd R 496; [1998] QCA 396
2 citations
Jump To
Cite 1 - [2000] 1 Qd R 496
Cite 2 - [2000] 1 Qd R 496
R v Tait[1999] 2 Qd R 667; [1998] QCA 304
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 667
Cite 2 - [1999] 2 Qd R 667
Smith v Stone [2020] ICQ 6
2 citations
Jump To
Cite 1 - [2020] ICQ 6
Cite 2 - [2020] ICQ 6

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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