Robertson v Robertson[2023] QDC 106

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   The first to third respondents were charged with offences including serious assault, deprivation of liberty, demanding property with intent to steal and burglary and commit indictable offence alleged to have occurred on 26 November 2018. The victim in relation to each of the offences is the applicant, the father of the first to third respondents.

2. [2]
   The chronology of the court proceedings below in relation to the offences is as follows:

1. (i)
    A trial listing in November 2019 was de-listed to allow the matter to be referred to adult restorative justice conferencing;

2. (ii)
    A trial listing in July 2021, following the unsuccessful referral to adult restorative justice conferencing, was de-listed due to issues relating to COVID-19;

3. (iii)
    The prosecution made an application on 16 November 2021, the day the matter was next listed for trial, for an adjournment which was unsuccessful. The application was made on the basis that the applicant was overseas and the arresting officer was on long leave and neither were able to attend the trial that day.^[1] The application for adjournment was opposed. The learned magistrate refused the application and provided reasons for same.^[2] No evidence was offered in relation to all charges and the learned Magistrate issued a certificate of dismissal in relation to each of the first to third respondents purportedly pursuant to s 149 of the Justices Act 1886 (Qld) (Justices Act).

3. [3]
    On 9 August 2022 the applicant filed an Application for extension of time                             within which to appeal and a Notice of Appeal pursuant to s 222 of the                                           Justices Act. Affidavit material was filed under the hand of the applicant                                           swearing to matters including the following:

1. (a)
   The reasons why he was unable to attend court on the day the matter was listed for trial on 16 November 2021;
2. (b)
   his reasons for the delay in bringing the appeal;
3. (c)
   his reasons for bringing the appeal namely that he wants to  commence a private prosecution against the first to third respondents               and the issuing of the certificates of dismissal have prevented him               from doing so.

Principles on extension of time applications

4. [4]
   The applicant has brought an application for an extension of time within which to appeal as his appeal is out of time. As detailed above, the decision to issue the certificates occurred on 16 November 2021. The Notice of Appeal was not filed until 11 August 2022.  I have a discretionary power to extend the time within which the applicant can appeal.  Relevant to the exercise of the discretion to extend time is –

1. (a)
   whether there is a good reason for the delay; and

2. (b)
   whether it is in the interests of justice to grant the extension.

5. [5]
   In R v Tait (1999) 2 Qd R 667 at 668, the Court stated the approach, when considering whether to extend time in criminal appeals, is to:

“examine whether there is any good reason shown to account for the delay and consider overall where it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal and take that into account in deciding whether it is a fit case for granting the extension”.

The applicant’s position on the application

6. [6]
   The applicant accepts that the appeal is out of time. The applicant submits that good reason is shown for the delay and he has a strong case on appeal such that the application for an extension of time within which to appeal should be granted and the appeal allowed.

7. [7]
   The applicant submits that he is not “a complainant” but has standing to appeal pursuant to s 222(1)(a) of the Justices Act as he is a person who “feels aggrieved” by the order and falls within the definition of “feels aggrieved…or otherwise”.

8. [8]
   The applicant explains why he is a person “aggrieved” by the issuing of the certificates of dismissal namely that the certificates of dismissal operate to prevent him from commencing a private prosecution against the first three respondents.

9. [9]
   The applicant explains further that the right infringed is his right to commence a private prosecution which is a “longstanding and fundamental public right”.^[3] The applicant submits that this fundamental right has been statutorily enshrined to ensure that a person who is aggrieved by criminal conduct always has recourse to have that criminal conduct determined by the Court and the present case is a prime example of why the right to institute a private prosecution is so important as failure by the police and police prosecution have led to the alleged crimes of the first three respondents not being prosecuted to trial. The right to commence a private prosecution ensures that the applicant has the ability to commence a prosecution so that the crimes he alleges may be determined on the merits. The issuing of the certificates of dismissal operate to prevent the applicant from exercising his legal right to prosecute the first three respondents.^[4]

10. [10]
    The applicant submits that there was no power to issue the certificates pursuant to s 149 of the Justices Act as there was no hearing on the merits and the order to issue the certificates should be set aside on appeal.

The first to third respondents’ position on the application

11. [11]
    The first to third respondents did not file any written submissions but were represented by Counsel at the hearing of the application for extension of time. Their position was to adopt the position taken by the fourth respondent.^[5]

The fourth respondent’s position on the application

12. [12]
    The fourth respondent submits that the applicant’s application for leave for extension of time should be dismissed as he has failed to demonstrate a good reason for the delay and it is not in the interests of justice to grant the extension.

13. [13]
    It is submitted that the applicant was the “complainant” in the matter and s 222(2)(b) of the Justices Act operates such that he has no right of appeal. 

14. [14]
    It is accepted by the fourth respondent that the learned Magistrate erred in issuing certificates of dismissal pursuant to s 149 of the Justices Act. There was no hearing on the merits of the case which is required for the issuance of a certificate of dismissal. Nonetheless, the position of the fourth respondent is that there is no jurisdiction for this appeal due to the operation of s 222(2)(b) of the Justices Act.

Relevant provisions of the Justices Act

15. [15]
    Section 149 provides:

“ If the justices dismiss a complaint, they may, if required so to do, and if they think fit, make an order of dismissal, and give the defendant a certificate thereof, which certificate shall upon production and without further proof be a bar to any subsequent complaint for the same matter against the same person.”

16. [16]
    Section 222 (1) 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.”

17. [17]
    Section 222 (2)(b) provides:

“(2) However, the following exceptions apply –

…

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;”

18. [18]
    The term “order” is defined in section 4 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, but does not include any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the last mentioned case, whether or not the justices are sitting as a Magistrates Court or to hear an examination of witnesses in relation to an indictable offence.”

Discussion

Delay

19. [19]
    Whilst there was delay in commencing the appeal in this matter, it is explained in affidavit material filed by the applicant. The applicant was waiting on legal advice as to whether the appeal was the appropriate mechanism for relief. It is unnecessary to detail with any further precision the reasons provided by the applicant for the delay, as, if this appeal was a viable one, I would have granted the extension of time in all the circumstances including that the fourth respondent accepts that the Magistrate was in error in issuing the certificates of dismissal.

The appeal is not a viable one - the applicant does not have standing to appeal

The order made pursuant to s 149 of the Justices Act is one that falls within s 4 of the Justices Act

20. [20]
    As the applicant made clear from the outset in oral submissions, it is only the order issuing the certificates of dismissal which are the subject of the appeal. Counsel for the applicant noted that “it’s no part of my client’s appeal… to upset that order dismissing the [complaint].”^[6]

21. [21]
    The written outlines of the parties do not address whether the order made pursuant to s 149 of the Justices Act to issue the certificates of dismissal is one that falls within    s 4 of the Justices Act. In oral submissions, the applicant submitted that it was an “order” or the “granting of any application” or “a determination of whatsoever kind”.^[7] The fourth respondent did not make any submission to the contrary.

22. [22]
    I am satisfied that the order made pursuant to s 149 of the Justices Act to issue the certificates of dismissal is an “order” within the definition of that term in s 4 of the Justices Act.

23. [23]
    The matter was listed to proceed as a summary trial of the first to third respondents. As such, the indictable charges were to be dealt with summarily under Part 6 of the Justices Act.  I agree with the now Chief Judge when he stated in Gibson v Canniffee; Kidd v Baragan; Slabon v Moore [2008] QDC 319 at [61]:

“The provisions of the Justices Act fit nicely with Chapter 58A of the Criminal Code. It is clear from the terms of Code s 552D that once an “election” is made under either ss 552A or 552B and the court acts upon that election, the proceedings are summary proceedings under Part 6 of the Justices Act unless and until the Court abstains from exercising that jurisdiction. Only then would the (summary, judicial) proceeding be conducted as a committal proceeding, pursuant to s 552D.”

24. [24]
    As such, this was not an order expressly excluded under s 4 namely “any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence..." as that relates to proceedings under Part 5 of the Act which is an administrative not a judicial function.^[8]

25. [25]
    Schneider v Curtis  [1967] Qd R 300 is authority for the proposition that no appeal lies under s 222 of the Justices Act 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”.

26. [26]
    In Couter v Ryan [2006] QCA 567, Holmes JA, after referring to Schnedier v Curtis, said “… one can regard a costs order made at, and in consequence of, the disposition of a complaint as one of the orders disposing of the complaint, or as it was put in Owen v Cannavan^[9] as “referable to a complaint””.^[10]

27. [27]
    Here, the order made pursuant to s 149 of the Justices Act, was one of the orders disposing of the complaint. It could also be worded, with the same practical outcome, as the appeal is against that part of the order of dismissal where the s 149 order was given.

The applicant is not the “complainant”

28. [28]
    The applicant contends that he is not the “complainant” as that term is defined in s 222 of the Justices Act. That contention is, in my view, correct and I do not accept the submission of the fourth respondent that the applicant is the “complainant”. 

29. [29]
    As Jones J stated in Owen v Edwards [2006] QCA 526 (with Keane JA and Douglas J agreeing) (Owen v Edwards) when considering s 222(1) of the Justices Act “only the parties can properly be referred to as either complainant or defendant”.^[11] The applicant was the victim but was not a party to the proceeding. In the context of the Magistrates Court, “complainant” refers to the prosecutor. 

30. [30]
    I agree with the statement of Robin QC DCJ in Chisholm v Williams [2010] QDC 68 (Chisholm v Williams):

“in this context, there is room for some confusion given the terminology which is adopted in some contexts of using the term “complainant” to refer to the victim of the alleged offence, whereas in the context of proceedings on complaint and summons in the Magistrates Court, “complainant refers to the prosecutor””.^[12]

31. [31]
    The fourth respondent attempted to distinguish Owen v Edwards and Chisholm v Williams on the basis that those cases were considering summary offences and the present case involved indictable offences dealt with summarily.^[13] The fourth respondent’s ultimate submission was that a victim is a party to the offence when the offence is indictable and, it follows, that the victim is the “complainant”. The submission is incorrect and, as the respondent conceded, is not supported by any appellate authority. There is no reason in the present case to distinguish Owen v Edwards. The applicant is not aggrieved as “complainant”.

The applicant is not a person “aggrieved… otherwise” and has no standing to appeal

32. [32]
    The applicant’s contention is that he is a person who “feels aggrieved…otherwise” within s 222(1)(a) of the Justices Act. I do not accept this contention.

33. [33]
    In Owen v Edwards, it was stated at [27] that “a party who feels aggrieved…otherwise” is clearly a reference to someone who is not a party to the ordinary proceedings. Reference was made to Day v Hunter [1964] VR 845 where the court held at pp 847-848 that:

“…it will not be established merely by the applicant swearing that he “feels aggrieved” for if that were the case a stranger to the proceedings, with no real or direct interest therein, could bring himself within the words by so swearing. These words were clearly intended to exclude from the operation of the section the common informer and other busybodies, who have no real or direct interest in the proceedings in which the decision sought to be reviewed was given, and to prevent them from intermeddling officiously therein… Whether he can bring himself within these words depends on the facts of the case, and whether he is able to show that he is really and directly interested in the proceedings.”  (underlining added)

34. [34]
    I agree with the statement of Judge Robin QC in Chisholm v Williams that “but for the well established line of authority…one can readily accept that the victim of an offence who is disappointed at the outcome of the prosecution in respect of it is an aggrieved person.”^[14]

35. [35]
    In both Chisholm v Williams and Bromage v Sherret (1995) QDC 259 (Bromage v Sherret), the appellant was the victim who was dissatisfied with the sentence below not including any component of compensation. In both cases it was held that the victim was not a person “aggrieved otherwise”. In the present case, the applicant places emphasis, and attempts to distinguish the facts, submitting he is aggrieved by the order to issue the certificates of dismissal because the order was bad in law and that order infringes upon his longstanding and fundamental right to commence a private criminal prosecution against the first to third respondents.^[15] He submits he is a “person aggrieved because the erroneous issuing of the certificates of dismissal wrongfully deprives him of the ability to exercise his lawful right to take a prosecution against the respondents in circumstances where that right has not been extinguished through a determination of the charges on the merits.”^[16] In essence, the applicant submits his legal rights or interests are affected by the issuing of the certificates of dismissal in a manner which is different to the public at large and he is not a “mere” victim who is only “disappointed at the outcome” such as in Chisholm v Williams and Bromage v Sherret.

36. [36]
    Whilst there is, at first blush, merit in the applicant’s submission, neither statutory construction nor statements of principle support it.

37. [37]
    The charges subject to the proceedings on 16 November 2021 were indictable offences^[17] heard summarily. Section 222(2)(b) operates “if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence”. When s 222(2)(b) operates, a “complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs”. Section 222(2)(b) has the effect of precluding the “complainant” appealing the issuing of a certificate of dismissal (whether wrong in law or not) where it is an indictable offence dealt with summarily. I agree with Robin QC DCJ when he stated, “it would be astounding if the alleged victim of the offence were able to appeal under section 222 so as to provide a back door way of the prosecution appealing”.^[18]

38. [38]
    In Ex parte Sidebotham (1879) 14 Ch.D 458 (Ex parte Sidebotham) Bramwell, L.J said^[19] that the general rule is that an appeal must be by the party who has endeavoured to maintain the contrary of that which has taken place and, in that case, it was determined that no one but the Comptroller was entitled to appeal. In the present case, s 222(2)(b) expressly prevents the prosecution (complainant), the party contrary of that which has taken place, to appeal. A victim should not then be entitled to appeal in a way of “getting around” the legislation.

39. [39]
    The applicant provided detailed written and oral submissions as to the meaning that has been given to “aggrieved” in other contexts. I agree with the applicant’s submission that whether a person is “aggrieved” by the order will turn on the facts of the case. Ultimately, it is my view that the cases relied upon by the applicant do not assist him here.

40. [40]
    In R v Keepers of the Peace and Justices of County of London,^[20] (London Justices) Lord Coleridge CJ stated:

“Is a person who cannot succeed in getting a conviction against another person ‘aggrieved’?  He may be annoyed at finding that what he thought is a breach of law is not a breach of law; but is he ‘aggrieved’ because some one is held not to have done wrong?  It is difficult to see that the section meant anything of that kind.  The section does not give an appeal to anybody but a person who is by the direct act of the magistrate ‘aggrieved’ – that is, who has had something done or determined against him by the magistrate.” (underlining added)

41. [41]
    In the present case, the applicant has not had “something done or determined against him” by the Magistrate. The applicant submits that London Justices can be readily distinguished from the present case as this is not a situation where there has been an acquittal and an attempt by the prosecutor (or some other person) to appeal the acquittal. The applicant submits that the “…appeal relates to the order to issue a certificate of dismissal which is accepted to have been made in error…Here, there has been no hearing on the merits. The [applicant] is not aggrieved by the acquittal; he is aggrieved by the order issuing the certificate. London Justices has no application to the present case”.^[21] In my view, the statement of principle in London Justices does provide some guidance in the present case. The applicant is not ‘aggrieved’. The issuing of the certificate of dismissal did not result in something “done or determined against him”.

42. [42]
    The note in Kennedy Allen, The Justices Act (Queensland) (3^rd) at page 474 provides an example of when a person could be considered to be “aggrieved… otherwise”:

“These words embrace non-parties, thus a witness who has been fined for non-attendance under section 79 may be a person aggrieved within the meaning of this section at least where the fine is imposed on the application of the party who has subpoenaed him, and who is, therefore ‘interested in maintaining the order’.”

Whilst recognising that it is merely an example in a text, it does exemplify the application of the statement of principle in London Justices. A witness who has been fined is, by the direct act of the magistrate ‘aggrieved’, as the witness has had something done or determined against him by the magistrate namely fined for non-attendance. That can be contrasted with the applicant where the issuing of the certificates of dismissal did not result in any determination against him pecuniary or otherwise.

43. [43]
    The applicant, in both written and oral submissions, took the Court to other cases where it was said that statements of principle support his position. I do not agree:

1. (i)
    In Owen v Edwards, the respondent was a Detective Sergeant of Police, the person responsible for progressing the prosecution which was the subject of the appeal.^[22] As such, it was determined that he “currently stands in the shoes of the complainant for the purpose of pursuing the prosecution [and] is clearly a person who is in a position to ‘feel aggrieved’.^[23] That can be contrasted with the applicant who, in the prosecution, is the victim not the “complainant” or a person standing “in the shoes of the complainant.” To my mind, it is important to note the distinction between the position of the applicant in the order subject to appeal (where he was the victim) not some possible private prosecution that he desires to commence in the future.

2. (ii)
    In Ex parte Sidebotham, it was held  by James, L. J  at 465-466:

  “But the words “person aggrieved” do not really mean a man who is                             disappointed of a benefit which he might have received if some other                             order had been made. A “person aggrieved” must be a man who has                             suffered a legal grievance, a man against whom a decision has been                             pronounced which has wrongfully deprived him of something, or                                           wrongfully refused him something, or wrongfully affected his title to                             something…In the present case no one is prejudiced by the refusal of                             the Court to act on the Comptroller’s report, except in so far as he has                             lost any benefit which he might have obtained if an order had been                                           made; there is  nothing to embarrass him in any proceedings which                             he may wish to take against the trustee. ” [24]

  Ultimately, it was determined in that case that the bankrupt did not have an entitlement to appeal and the statement of James, L.J must be considered with that lens. There is a distinction between “any person affected by the order” and “any person aggrieved by the order.”^[25] Here, the issuing of the certificate of dismissal did not wrongfully deprive the applicant himself of anything as he was not even a party to the prosecution.

44. [44]
    Whilst it has been held that “the words person aggrieved” are of wide import and should not be subjected to a restrictive interpretation,^[26] it is only an indirect consequence or affect of the issuing of the certificates of dismissal namely the wrong or “embarrassment” of not being able to commence a private prosecution that is the grievance in the present case. It is not as Judge O'Brien said in Bromage v Sherret a case of someone “whose legal rights are directly affected by the decision in question or whose interests have been really and direct[ly] affected by the order made.”^[27] Rather, the applicant “is discontented or annoyed at the decision or is adversely affected in some indirect manner by the decision.”^[28] In my view, “aggrieved…otherwise” should not be interpreted as broadly as the applicant contends in this particular statutory context  including that it would result in a victim having the right to appeal where the “complainant” does not.

45. [45]
    I have determined that the applicant does not have standing to appeal pursuant to s 222 of the Justices Act as he is not a person who “feels aggrieved as complainant, defendant or otherwise” by the order issuing the certificates of dismissal against each of the first to third respondents. As such, the appeal is not a viable one. It is not in the interests of justice to grant the extension of time.

46. [46]
    It shouldn’t be thought that the court takes lightly what has occurred here. The fourth respondent concedes that the learned Magistrate did not have the power to issue the certificates of dismissal. The applicant is represented by experienced counsel and co-counsel who will, no doubt, advise him of other avenues if they are thought to be available. One is identified in the supplementary submissions of the applicant at paragraph 18 and supported in the supplementary submissions of the fourth respondent at paragraphs 2.2 and 2.3.

Order

47. [47]
    The orders of the court are as follows:

1. The application for an extension of time within which to appeal is refused; and

2. The appeal is dismissed.