Sarhan v Sarra[2010] QSC 301

SUPREME COURT OF QUEENSLAND

HIS HONOUR:  The applicant, Hussein Sarhan, was charged with an offence under section 16 of the Summary Offences Act 2005, namely that on 15 April 2009 at Carindale he unlawfully possessed a thing reasonably suspected of being stolen or unlawfully obtained.

The trial of this charge came on in the Magistrates Court on 28 January 2010 before the first respondent (who has, as is conventional, played no part in this proceeding and has indicated an intention to be bound).  Mr Sarhan was represented at that summary trial by counsel.  The police prosecutor called a number of witnesses, who were cross-examined, and then closed the prosecution case.

Counsel for Mr Sarhan then made an application for his client to be discharged on the basis that there was no case to answer.  The learned Magistrate heard and engaged in argument with counsel for Mr Sarhan and then, without hearing from or even calling upon the police prosecutor to make submissions on the no case application, segued into giving reasons as to why Mr Sarhan should be discharged.  The learned Magistrate's reasons concluded with the statement: "...I think in relation to the no case, I think the prosecution have failed to reach the standard given that the standard of proof is beyond reasonable doubt and...on that basis, the prosecution has failed."

The learned Magistrate then, on an application by counsel for Mr Sarhan, declined to make an order for costs but did order that the arresting police officer pay Mr Sarhan the sum of $810 (being the value of the item seized from Mr Sarhan as the subject of the offence and then returned by the police officer to Woolworths) and further ordered that this sum be paid within two months and in default of payment, the officer be imprisoned for 16 days.

Both counsel who appear before me were unable to identify any statutory or lawful authority for the Magistrate making these punitive orders.

On 25 February 2010, having previously ordered, as I have said, that Mr Sarhan be discharged, the Magistrate purported to re-open the case against Mr Sarhan and set aside the orders he had made on 25 January 2010.  He listed the matter for further review in May 2010.

The present proceedings were instituted by Mr Sarhan making application pursuant to the Judicial Review Act for an order to set aside the orders made by the Magistrate on 25 February 2010.

When the matter was called before me today, counsel for the second respondent (the police officer) properly conceded that there was no basis to oppose the relief sought.  The actions and the making of the purported orders on 25 February 2010 were clearly ultra vires the Magistrate - Mr Sarhan had been discharged.  The Magistrate's conduct was not within the limited scope of cases contemplated by section 147A of the Justices Act.  The learned Magistrate simply did not have power to do what he purported to do on 25 February 2010.

For completeness, I should say that to the extent it is necessary, I would allow Mr Sarhan such extension of time (if any) as may be required for this application.  That application for extension of time is also quite properly not opposed by counsel for the second respondent.

The applications remaining for determination then are by the second respondent.  They are, in effect, for orders to be made under the Judicial Review Act quashing the Magistrate's decision on 28 January 2010 to discharge Mr Sarhan and to quash the consequential orders which require the police officer to pay restitution (with a penal default order) and also for the time to be extended for those applications to be brought.

Counsel for the second respondent argued:

1. that the Magistrate's decision to discharge was infected by jurisdictional error for a failure to accord procedural fairness to the prosecution;
2. alternatively that the decision ought be set aside because the Magistrate applied the wrong test on the no case submission. 

In the course of argument with counsel I queried whether these matters were properly the subject of an application for judicial review or ought be the subject of an appeal to the District Court under section 222 of the Justices Act.

Having regard, however, to section 13 of the Judicial Review Act and bearing in mind the expense to the public and the parties of requiring the parties to pursue the avenue of review available under the Justices Act, I am satisfied that, at least in respect of the first of the contentions advanced by the second respondent, it is appropriate for me to deal with the application in this forum.

The High Court has recently reiterated the notion that the line between jurisdictional error by an inferior Court and an error in the exercise of jurisdiction is difficult to define precisely, if it can be defined at all - Kirk v. Industrial Court (NSW) (2010) 239 CLR 531 at [71]-[73].  That being said, the duty on an inferior Court to accord procedural fairness to the parties is fundamental to our system of justice.

In the circumstances of the present case, in which a Magistrate simply failed to observe that duty, I would have no hesitation in finding that he committed a jurisdictional error (see for comparison Re Refugee Review Tribunal Ex Parte Aala (2000) 204 CLR 82).

Counsel for the applicant pointed me to several passages in the transcript of the hearing before the learned Magistrate in which, during the course of the evidence, the Magistrate engaged with the prosecutor on a number of occasions in relation to the quality of the evidence and the ability of that evidence to sustain the charge being faced by Mr Sarhan.  The Magistrate may indeed have gone so far as to intimate his thinking as to whether the evidence, as it was unfolding, was sufficient to sustain the charge. But those exchanges were not, in my opinion, sufficient to constitute an opportunity for the prosecutor to be heard on the no case application.  As I have already said, when that application was made, the prosecutor was not only not heard, he was not even called on.

Counsel for Mr Sarhan sought to rely on Reid v. Director of Public Prosecutions (Qld) [2008] QCA 123 and particularly the observation of Keane JA at [38] that: "The entitlement to procedural fairness is concerned with ensuring the opportunity to be heard: it does not encompass an obligation on the part of the decision maker to insist that the opportunity be availed of".

Reid's case was quite different to the present.  That case concerned proceedings before the Mental Health Court in which, so it was asserted, the appellant was taken by surprise by certain psychiatric evidence tendered to the Court. Ultimately the question in that case was whether counsel for the appellant, who did not address the Court on critical aspects of the psychiatric evidence, had been denied the opportunity to be heard or whether he had, in effect, been lulled into some false sense of security which had led him to believe that such submissions were not necessary.  That case, however, is a far cry from the present in which, as I have said, the prosecutor was not even given the opportunity to be heard on the no case application.

In view of my conclusions on the first argument, it is unnecessary for me to make findings on the second.  I would, however, merely observe that having regard to the Magistrate's application of what was clearly the wrong test on a no case submission (see the final sentence of his judgment which I have quoted above), I would have thought that an appeal against that decision would have been close to a formality. It is, however, unnecessary for me to say anything further on this.

As to the restitutionary orders made on 28 January 2010, these were, as I have already said, clearly beyond the Magistrate's power and ought also be quashed. I would give the necessary extensions of time for the second respondent's applications to be brought.  Mr Sarhan suffers no prejudice by the matters being dealt with here rather than going back to wind through the appeal process under the Justices Act.

There will be the following orders:

1.  That each party have such extensions of time as may be required for the filing by the applicant and the second respondent of their respective applications for relief under the Judicial Review Act.

2.  The orders and directions made by the first respondent on 25 February 2010 are set aside.

3.  The order made by the first respondent on 28 January 2010 discharging the applicant is set aside.

4.  The orders made by the first respondent on 28 January 2010 against the second respondent are set aside.

5.  There will be no order as to costs.

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