Murray v Magistrate CJ Callaghan
[2011] QSC 414
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- Notable Unreported Decision
- Murray v Magistrate CJ Callaghan[2011] QSC 414
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Murray v Magistrate CJ Callaghan[2011] QSC 414
Murray v Magistrate CJ Callaghan[2011] QSC 414
SUPREME COURT OF QUEENSLAND
CITATION: | Murray v Magistrate CJ Callaghan & Another [2011] QSC 414 |
PARTIES: | ERIC JAMES MURRAY v MAGISTRATE CJ CALLAGHAN DIRECTOR OF PUBLIC PROSECUTIONS |
FILE NO/S: | 10331 of 2011 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 21 December 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 December 2011 |
JUDGE: | Ann Lyons J |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – Orders in the nature of Prerogative Writs – Certiorari – Error of law STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – Where applicant is refused a committal on the basis that proceedings were not commenced before the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 came into effect – whether an arrest warrant constitutes an ‘information’ for the purposes of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 Acts Interpretation Act 1954, s 14C, s 36 Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010, s 276, 277 Judicial Review Act 1991, s 41 Justices Act 1886 s 4, s 42, s 57, s 83A Police Powers and Responsibilities Act 2000, s 369, s 370, s 371 Craig v South Australia (1995) 184 CLR 163 John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 Pearn v Yates [1986] VR 690 R v A Stipendiary Magistrate at Brisbane, ex parte Kornhauser [1992] 2Qd R 150 R v Hull (1989) 16 NSWLR 385 R v The Stipendiary Magistrate at Southport, ex parte Gibson [1993] 2 Qd R 687 Schiavo v Anderton [1987] 1 QB 20 The Commissioner of the Qld Police Service v Cornack Magistrate & Anor [2003] QSC 26 The Commissioner of the Qld Police Service v Cornack Magistrate & Anor [2003] QCA 383 Wright v Moonie [1966] VR 225 |
COUNSEL: | P E Smith for the applicant L M Reibelt for the first respondent D L Meredith for the second respondent |
SOLICITORS: | Aboriginal & Torres Strait Islander Legal Service Qld for the applicant GR Cooper Crown solicitor for the first respondent Office of Director of Public Prosecutions for the second respondent |
This application
- The applicant seeks a prerogative order in the nature of certiorari pursuant to s 41 of the Judicial Review Act 1991 removing to this court a decision made by Magistrate CJ Callaghan on 26 August 2011.
- His Honour determined that the matter before him was a matter where the originating step had occurred after the 1 November 2010 commencement of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (the ‘Moynihan Reforms’) and there was therefore no entitlement to cross examination of witnesses at the committal unless it is established that there were special reasons in the interests of justice why that should occur. The applicant is entitled to apply under s 83A(5AA) of the Justice Act 1886 (“JA”) for a direction allowing limited examination of witnesses.
Background Facts
- Eric James Murray (“the applicant”) was serving a lengthy sentence of imprisonment in the Northern Territory. That sentence does not expire until 2022 when he will be 75 years of age. Mr Murray is aboriginal and he has previously made a number of unsuccessful attempts to transfer to Queensland to be near his family.
- On 30 July 2010 he provided a statutory declaration stating that in return for transfer to Brisbane he would plead guilty to the murder of a woman which had occurred in Brisbane in 1996.
- On 9 September 2010 the Queensland Police Service (“QPS”) applied for a warrant for his arrest.
- An arrest warrant was issued by Magistrate Daley at Brisbane dated 9 September 2010.
- On 16 February 2011 the Magistrates Court at Alice Springs made an order to transfer the Applicant from the Northern Territory to the Brisbane Correctional Centre.
- On 25 February 2011 the applicant was removed from the Brisbane Correctional centre and taken to the Brisbane Watch House where the arrest warrant was executed upon him and he was charged with the murder of June Florence Quinton.
- The applicant subsequently appeared before the Brisbane Magistrates Court on 2 March 2011.
The application for a direction pursuant to the Justices Act
- The applicant filed an application pursuant to section 83A of the Justices Act 1886 (“the JA”) for a direction in relation to the about the conduct of the proceeding.
- Section 83A provides that at a direction hearing, a magistrate may give a direction he or she is entitled to make at law about any aspect of the conduct of the proceeding. Section 83A(6) then provides that a direction is binding unless a magistrate, for special reason, gives leave to reopen the direction and subsection 7 provides that a direction must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.
- The direction sought was for a determination by a magistrate of the date that the ‘originating step’ occurred in relation to that charge of murder. Such a determination affects whether the matter is a ‘pre-Moynihan matter’ or not and depends on whether the originating step took place on a date before or after 1 November 2010. If the originating step occurred before 1 November 2010 the matter is a ‘pre-Moynihan matter’ and the amendments do not apply. That means that there is an entitlement to cross examination of the witnesses. If the amendments apply then all the written statements are to be tendered and the witnesses will only be produced to give evidence or be cross examined if either the Director of Public Prosecutions consents or the Magistrate considers there are substantial reasons in the interests of justice why that should occur.
- The application for a direction pursuant to s 83A of the JA was heard on 26 August 2011 in the Magistrates Court at Brisbane by Magistrate CJ Callaghan (“the First Respondent”) with counsel for the applicant arguing that such an originating step was taken on 9 September 2010 when the arrest warrant was issued.
- The Office of the Director of Public Prosecutions (“the Second Respondent”) opposed the application, arguing that the originating step occurred after 1 November 2010.
- The First Respondent refused the application, indicating that the originating step occurred after 1 November 2010.
- Magistrate Callaghan delivered an ex tempore decision and the signed record of the decision dated 26 August 2011 is as follows:
“I find that the originating step in the proceeding took place on or about 1/3/11 when the defendant was arrested pursuant to the warrant issued by Magistrate Daley on 9/9/10 and therefore the amendments to the ‘Justices Act 1886’ made by the ‘Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010’ apply. Reasons on oral record.”
- I note that his Honour specifically indicated that his reasons were “on oral record”. In those ex tempore reasons his Honour noted that the application for the arrest warrant pursuant to the Police Powers and Responsibilities Act 2000 (“PPRA”) fully outlined the offence alleged to have been committed as well as the history of the matter. His Honour also noted that the application concluded with the applicant declaring that the ‘information’ set out in the application was true and correct. However his Honour found that the originating step in the proceeding took place when the defendant was arrested pursuant to the warrant and therefore amendments to the JA made by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (“CCJRMAA”) applied. His Honour indicated in his oral reasons that whilst s 4 of the Justices Act 1886 defined ‘complaint’ to include other terms such as ‘information’, ‘information and complaint’ and ‘charge’, in his view “the term information has a more restrictive meaning than would normally be ... given to the word information, because of the placement of it in quotes”.
- His Honour considered that whilst the police made an application to a justice to issue a Justices Act warrant for the person to be arrested pursuant to the PPRA, he considered that the procedure for the arrest warrant under s 370 of the PPRA was not an ‘originating step’ for the purposes of s 276 of the CCJRMAA. He stated that he did not consider that the two matters are interchangeable, “that is to say the complaint under section 57 to issue a JA warrant is not interchangeable with the application in section 370 of the PPRA, to issue an arrest warrant. They are two different things in my view”. He considered that the facts set out in the application did not constitute an ‘information’ as the word is referred to in s 4 of the JA.
The order sought
- The applicant seeks an order in the nature of ‘certiorari’. The first question however which needs to be addressed is whether the remedy is indeed available pursuant to the JRA in relation to the direction made by the first respondent. I note that whilst the applicant filed an application for a direction pursuant to s 83A of the JA as outlined above, at the hearing before the first respondent Counsel for the applicant indicated that his application was an application “made generally” and was not an application in fact brought pursuant to the JA. It would seem from the transcript that that amendment to the nature of the application was allowed despite objection by the Crown. If the application was not in fact made pursuant to s 83A of the JA then arguably the restrictions on appeal contained in that section would not apply.
- Both counsel argued the application for judicial review on the basis that this court had jurisdiction to determine the application and Counsel for the second respondent specifically indicated that he took no issue as to the availability of judicial review.
- In the decision of The Commissioner of the Qld Police Service v Cornack Magistrate & Anor[1] Wilson J discussed the Supreme Court’s jurisdiction in relation to the JRA as follows:
[8] The Court may make a prerogative order in the nature of certiorari if it had jurisdiction to grant certiorari before the commencement of the Judicial Review Act: s 41(2). Certiorari was a discretionary remedy available wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, [acted] in excess of their legal authority”: R v Electricity Commissioners; ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 205. That is, it was available to correct jurisdictional errors. It was also available to correct errors of law on the face of the record, but “the record” has been narrowly defined for this purpose, and does not include the transcript of proceedings or the reasons for decision unless expressly incorporated into the record: Craig v South Australia (1994 - 1995) 184 CLR 163 at 181.
[9] In Hot Holdings Pty Ltd v Creasy (1995 – 1996) 185 CLR 149 at 159 Brennan CJ, Gaudron and Gummow JJ considered what is meant by the determination of questions affecting the rights of subjects. They said -
‘Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing. This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently ‘affects rights’ in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently ‘determines’ or is connected with that decision.’”
- In that decision Wilson J noted that there was a real question as to whether prerogative remedies are available to review committal proceedings because committal proceedings are administrative rather than judicial in character. That decision concerned a ruling during the course of a committal proceeding and on appeal the Court of Appeal[2] proceeded on the basis that “there is a class of exceptional cases where this court will intervene in committal proceedings by way of prerogative writ.” Reference was also made to an earlier decision of R v The Stipendiary Magistrate at Southport, ex parte Gibson[3] where Williams J discussed the extent to which this Court should interfere in committal proceedings and he endorsed his previous view as expressed in R v A Stipendiary Magistrate at Brisbane, ex parte Kornhauser[4] that the court should interfere in committal proceedings and the prerogative writs might be used other than where jurisdiction was strictly involved provided that there was “an error which vitiates the decision and cries for the intervention of the superior court for correction in the interests of justice”.
- It would seem to me that in the current proceedings the determination of the application for a direction by the First Respondent affected the issue as to whether a committal proceeding would occur. In my view however that ruling was not of itself part of the committal proceeding. In my view it was a ruling which purported to finally determine the question as to whether Mr Murray had a right to a committal based on the interpretation of a statute. I consider such a determination was judicial in nature. I consider therefore that it is possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing pursuant to an application for a prerogative order in the nature of certiorari.
- Even if I am wrong in this regard and the ruling was made in the course of committal proceedings it would seem that in some circumstances the Court will nevertheless intervene in committal proceedings.
- A further difficulty arises in relation to an application for judicial review involving an ‘error on the record’. What in fact constitutes the record? In Craig v South Australia[5] the Court discussed what constitutes the record and held that normally the record would not include introductory or merely incidental reference to reasons but would include so much of the reasons or transcript of proceedings as is referred to in the formal order in a way which brings about its incorporation as an integral part of that order and “the record”. The Court held:
“The determination of the precise documents which constitute “the record” of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that ‘[o]rdinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication.”’
- I consider however in this case that those difficulties are overcome given the magistrate’s specific adjudication on the record that the originating step in the proceeding took place on or about 1/3/11 when the defendant was arrested. If there is an error in that adjudication I consider that such an error would be an error on the face of the record.
- The recent High Court decision of Kirk v Industrial Relations Commission of New South Wales[6] discussed the circumstances in which an order in the nature of certiorari is available. The court held that the errors in construction of the occupational health and safety legislation in New South Wales required the grant of relief. The Court discussed the distinction between jurisdictional error and error on the face of the record.
“78Ordinarily, the conclusion that jurisdictional error is shown makes consideration of whether there is an error of law on the face of the record superfluous. But in order to understand the extent to which privative provisions may validly deprive a State Supreme Court of the supervisory jurisdiction exercised by the grant of relief in the nature of prohibition and certiorari, something more must be said here about error of law on the face of the record.
79The continued vitality of the principle that certiorari will lie for error of law on the face of the record may seem incongruous. Why should the availability of the remedy turn to any extent upon a question of form, if the motive for allowing the remedy is the marking and maintenance of boundaries of power?
80These reasons will explain that there is continued utility in maintaining the distinction between certiorari for error of law on the face of the record and certiorari for jurisdictional error. The utility of the distinction lies in constitutional considerations. Before identifying those constitutional considerations, it is necessary to say something further about error of law on the face of the record and, in particular, about what constitutes the "record".”
- In Kirk the Court held that the errors made by the Industrial Court were errors of law on the face of the record given the particular expanded definition of ‘record’ in that legislation. I also note the important statements of principle in that decision as to the supervisory jurisdiction of Supreme Courts as follows:
“98The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and enforcement of the limits on the exercise of the State executive and judicial power by persons and bodies other than the Supreme Court.”
- I will therefore proceed to determine the application.
Relevant Legislation
- Section 42 of the JA provides that except when a defendant has been arrested without a warrant all proceedings are commenced by a complaint in writing.
“42 Commencement of proceedings
(1) Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.
(1A) However, where a defendant is present at a proceeding and does not object, a further charge or an amended charge may be made against the defendant and be proceeded with although no complaint in writing has been made in respect thereof.
(2) Where a defendant has been arrested on any charge and no complaint in writing has been made and in a case to which subsection (1A) applies particulars of the charge against the defendant shall be entered on the bench charge sheet.”
- “Complaint” is then defined in s 4 as follows:
“4 Definitions
In this Act—
complaint includes the terms ‘information’, ‘information and complaint’, and ‘charge’ when used in any Act, and means an information, complaint or charge before a Magistrates Court.”
- The Acts Interpretation Act 1954, s 36 also includes information within the definition of indictment as follows; “indictment includes information, inquisition and presentment.”
- Section 14C of that Act also provides as follows:
“14C Changes of drafting practice not to affect meaning
If—
(a)a provision of an Act expresses an idea in particular words; and
(b)a provision enacted later appears to express the same idea in different words for the purpose of implementing a different legislative drafting practice, including, for example—
(i)the use of a clearer or simpler style; or
(ii)the use of gender-neutral language;
the ideas must not be taken to be different merely because different words are used.”
- Section 57 of the JA provides:
“57 Cases in which warrants may be issued
If a complaint is made before a justice—
(a)that a person is suspected of having committed an indictable offence within the justice’s jurisdiction; or
(b) that a person charged with committing an indictable offence elsewhere within the State is suspected of being within the justice’s jurisdiction; or
(c) that a person charged with committing an indictable offence on the high seas, or elsewhere outside the State, of which notice may be taken by the courts of the State, is suspected of being within the justice’s jurisdiction; the justice may issue a warrant—
(d)to apprehend the person; and
(e) to have the person brought before justices to answer the complaint and to be further dealt with according to law.”
- Sections 369 and 370 of the PPRA also provide:
“369 Arrest under warrant
(1) It is lawful for a police officer acting under a warrant issued under any Act or law to arrest the person named in the warrant.
(2) In this section—
arrest includes apprehend, take into custody, detain, and remove to another place for examination or treatment.”
“370 Arrest warrant application
(1) A police officer may apply to a justice for a warrant to arrest a person for an offence (arrest warrant).
(2) The police officer may apply for the warrant whether or not a proceeding has been started against the person by complaint and summons or notice to appear.
(3)The application must be sworn and state the grounds on which the warrant is sought.
(4) If the application—
(a) relates to an offence other than an indictable offence; and
(b) is made because the applicant reasonably believes proceeding or continuing to proceed against the person named in the application by complaint and summons or notice to appear would be ineffective;
the application must state the belief and the reasons for the belief.
(5) The justice may refuse to consider the application until the police officer gives the justice all the information the justice requires about the application in the way the justice requires.”
- Section 371 of the of the PPRA provides that the justice may issue an arrest warrant only if satisfied there are reasonable grounds for suspecting that the person has committed the offence.
- The “Moynihan reforms” were introduced pursuant to the CCJRMAA and s 277 provides that the amendments apply in “relation to a charge for an offence only if an originating step for the proceeding for the charge is taken on or after the commencement of this section”. Section 276 provides the definitions for the division:
“276 Definitions for div 5
In this division—
amending Act means the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.
originating step, for a proceeding, means—
(a) the arrest of the defendant in the proceeding; or
(b) the making of a complaint under the Justices Act 1886, section 42 in relation to the defendant in the proceeding; or
(c) the serving of a notice to appear on the defendant in the proceeding under the Police Powers and Responsibilities Act 2000, section 382.”
Submissions of the Applicant
- The applicant submits that the first respondent, in arriving at his decision on 26 August 2011 in relation to an application pursuant to section 83A of the JA, made an error of law by failing to treat the applicant’s matter as a “pre-Moynihan” matter because:
- Proceedings are commenced by a complainant in writing pursuant to section 42 of the JA.
- The definition of “complaint” in section 4 of the JA includes the term ‘information before a Magistrates Court’.
- In support of the arrest warrant filed on 9 September 2010 a document that gave particulars of the offence was placed before the magistrate and was sworn by Senior Constable Neil Hansen.
- The material placed before the magistrate was in fact an “information” which constitutes the “complaint”.
- The originating step was taken on 9 September 2010 when the arrest warrant was issued by Magistrate Daley; and
- These steps occurred before 1 November 2010.
- Mr P E Smith on behalf of the applicant submits that the issue for the court is whether what occurred on 9 September 2010 was an “information” and that if it was an “information” it follows that it was a complaint and accordingly the originating step occurred on 9 September 2010.
- It is argued that the meaning of information has some historical context and is not defined in the JA. It is argued that the term is to be given a wide meaning.
- Counsel for the Second Respondent argues that “an information” is a document which commences proceedings and is not simply “knowledge communicated or received”. It is argued that allegations are not in fact “an information” for the purposes of the definition of “complaint”. Counsel also argues that there are procedures under the JA where a warrant is issued and a complaint has been sworn or at least is in existence but that is not the procedure under s 370 of the PPRA. It is argued that s 370 specifically provides for a situation where there is no existing complaint and does not require one to come into existence.
- Counsel for the First Respondent advised that the First Respondent would abide the order of the Court.
Was the document before the Magistrates Court on 9 September 2010 an “information”?
- It is clear that consideration has been given to the meaning of the word “information” in a number of cases. In R v Hull[7] Gleeson CJ considered the meaning and historical context of “information” as follows:[8]
“It was accepted by senior counsel for the Crown that, subject to the context, the word "information", can comprehend an indictment: cf R v Slator (1881) 8 QBD 267; R v Woolcott Forbes (1944) 44 SR (NSW) 333; 61 WN (NSW) 219 and Fraser v The Queen (No 2) (1985) 1 NSWLR 680. This is undoubtedly correct.
In Fraser v The Queen, McHugh J said (at 689-691):
‘... The term 'information' is most frequently understood in New South Wales to be the initiatory step before a magistrate in proceedings of a criminal nature which may be disposed of summarily or later on indictment after committal. But the term has an older meaning. In R v Slator (1881) 8 QBD 267 at 274 Bowen J referred to this other meaning of 'information':
' ... The distinction between an indictment and an information is one founded in the history of the law and liberties of this country. There are two great ways of proceeding against and bringing to trial a person accused of a crime; one is by proceeding against him before a grand jury, and time out of mind that proceeding has been known as an "indictment"; the other mode is by proceeding without a grand jury upon an information, which is initiated either by the law officers of the Crown or by a private prosecutor with the leave of the Court.'
In the same case Hawkins J said (at 272):
'A well-defined distinction exists and has long existed between an indictment and an information. An indictment is "an accusation found by an inquest of twelve or more upon their oath" ... whilst an information is a proceeding by the Attorney-General of his own motion without the intervention of a grand jury.'”
- His Honour continued:
“In short, in the case of summary offences the laying of an information is the ordinary way of making the accusation which initiates the prosecution. In the case of indictable offences also the prosecution is ordinarily commenced by the laying of an information before a magistrate, but this is not the exclusive method of commencement. In any event when a person comes for trial before a jury for an indictable offence an information (using the term in its wider sense) in the form of an indictment, which may or may not be ex officio, will be presented against him. Both in its wider and its narrower sense an information is a written accusation of crime used (depending on the circumstances) either to initiate or carry forward a prosecution. It is argued that the historical distinction between information and an indictment was that there were two ways to bring proceedings against a person for a crime, either before a jury or without a jury. (my emphasis)
- Similarly in Wright v Moonie[9] Winneke CJ indicated that an information “is a document by which proceedings are initiated, and which takes the form of a statement of the offence as distinct from a direct charge of the offender himself”. He continued and stated that “the basal characteristics of the information is that it informs that an offence is alleged to have been committed”.
- In Schiavo v Anderton[10] Watkins LJ identified that an information was a deliberate act which commences a prosecution and ultimately has the effect of bringing an offence and offender before the court.
- In Pearn v Yates[11] the defendant was charged by information presented to a justice of the peace on 3 June 1985 with speeding on 21 June 1984. He was convicted on 28 November 1985. It was argued that that the information had not been ‘laid’ within 12 months as required by the Act. It was held by Gray J that an information is ‘laid’ when the document containing the details of the charge were given to the justice:
“I can see no basis for selecting the point at which the defendant comes before the Court. This interpretation would produce a capricious result if the defendant’s appearance before the Court was delayed for one reason or another. If one is required to select a point in the present proceedings when the information was laid, I would unhesitatingly select the point when the document, which included the information, was presented to the justice on 3 June 1985. This step represented the point at which the present proceedings were instituted and it is this point with which s 165 is concerned.”
- In the decision of John L Pty Ltd v Attorney-General (NSW)[12] Mason CJ, Deane and Dawson JJ discussed the meaning of “an information”:
“14.The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both 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 is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence" (Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153, at p 166). The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 11 & 12 Vict. c.43, ss.1 and 3 and the Summary Jurisdiction Act 1879 42 & 43 Vict. c.49, s.39) was substantially adopted in New South Wales (see the discussion in Ex parte Lovell; Re Buckley, at pp 167-174 and, in particular, Justices Act 1902 (N.S.W.), ss.65 and 145A). One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence (see, e.g., Smith v. Moody (1903) 1 KB 56, at p 60; Johnson v. Miller [1937] HCA 77; (1937) 59 CLR 467, at pp 486-487, 501; Ex parte Graham; Re Dowling (1968) 88 WN (NSW) 270, at p 280). It is, however, unnecessary to pursue that particular question here since, putting to one side s.6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J. was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.”
- Toohey J held:
“17.At common law the laying of an information was necessary before a magistrate had jurisdiction to deal with a person summarily upon a criminal charge. In The Queen v. Hughes (1879) 4 QBD 614, at p 625 Hawkins J. commented:
‘The information, which is in the nature of an indictment, of necessity precedes the process; and it is only after the information is laid, that the question as to the particular form and nature of the process can properly arise.
Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place (unless under special statutory enactment).’”
- The meaning of an information was also discussed in Kirk where the majority held;
“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) (1987) 163 CLR 508; [1987] HCA 42, 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 the 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. In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged".”
- The affidavit of Katherine Power sworn 14 November 2011 exhibits the Arrest Warrant Application sworn by Neil Hansen on 9 September 2010. That application sets out the details of the offence the applicant was alleged to have committed and provided that pursuant to s 300 and s 302 of the Criminal Code Qld the applicant was alleged to have murdered June Quinton between 24 January 1996 and 31 January 1996. That three page application was in the form of a statutory declaration and set out in considerable detail the circumstances of the offence including the nature of the deceased’s injuries and the cause of death. It also outlined in detail the contents of a Record of Interview dated 17 August 2010 which outlined the admissions made by the applicant in relation to the alleged offence.
- The affidavit of Katherine Power also sets out the contents of the Bench Charge Sheet and the QPS QP9 Court Brief dated 2 March 2011 which were generated in respect of the applicant’s appearance before the Magistrates Court on 2 March 2011. The Bench Charge Sheet and the Court Brief are a one page summary of the three pages of information before Magistrate Daley.
- The transcript of the proceedings on 26 August 2011 also indicates that Counsel for the Crown conceded that normally proceedings should be commenced by way of complaint and summons as opposed to a warrant being issued, to bring offenders to court. In the present case however as Mr Murray “was in lawful custody for unrelated offences and serving a sentence, it would have been impractical”.
- Having considered the historical cases referred to by the applicant and which were not available to be placed before the magistrate, I consider that the meaning of “an information” is intended to retain its broad character as being the act of deliberately informing a magistrate with a statement of the offence which particularises the identity of the offence and provides the accused with the substance of the charge.
- In my view the legislature had no intention of narrowing or limiting the meaning of information and intended to retain the broad character of “an information” as being the act of deliberately informing a magistrate with a statement of an offence. This is supported by s 14C of the Acts Interpretation Act 1954. I consider that in the circumstances of this case the material placed before the magistrate on 9 September 2010 setting out the statement of the offence and the details of the proposed charge was in fact “an information” as that term is understood in its historical context. As a result of the satisfaction by the magistrate that there were reasonable grounds for suspecting the accused had committed the offence the magistrate issued a warrant for the arrest of the accused. There is no doubt having viewed the material that the material before the magistrate was ‘sufficient’ to found a ‘complaint.’ A different course was adopted because of the applicant’s existing incarceration.
- That step also triggered a number of consequences that led to the applicant’s transfer to Queensland and to his being brought before the court for trial. In my view in the circumstances of this case the placing of that documentary material before the magistrate constituted the step that commenced the proceedings and was therefore “an information”. That does not necessarily mean that an application for a warrant will always be sufficient to fulfil the requirements necessary to constitute “an information” as discussed by the High Court in Kirk. In the present case the material before the magistrate was clearly sufficient to constitute an “information” as defined above.
- I also note that s 370(2) of the PPRA specifically provides that a police officer “may apply for the warrant whether or not a proceeding has been started against the person by complaint and summons or notice to appear.” In my view that does not mean that a proceeding can only start by means of a complaint and summons or notice to appear, given the definition of ‘complaint’ in the JA. In my view in the circumstances of this case, as the proceeding had not already started by complaint and summons, it in fact started when the warrant was issued by the magistrate.
- I consider that the originating step occurred on 9 September 2010 when such material was placed before the magistrate and the warrant was issued based on that material.
- Accordingly I am satisfied that there was an error on the face of the record.
- I consider therefore that:
- The decision of the first respondent made on 26 August 2011 determining the originating step should be set aside.
- There should be a declaration that the originating step in the charge of murder against the applicant occurred on 9 September 2010.
- The matter should be remitted to the First Respondent for determination in accordance with the law.
- I will hear from Counsel as to the form of the order and as to costs.
Footnotes
[1] [2003] QSC 26.
[2] The Commissioner of the Qld Police Service v Cornack Magistrate & Anor [2003] QCA 383.
[3] [1993] 2 Qd R 687.
[4] [1992] 2 Qd R 150.
[5] (1995) 184 CLR 163 at 182.
[6] [2010] HCA 1.
[7] (1989) 16 NSWLR 385.
[8] At 388.
[9] [1966] VR 225 at 227.
[10] [1987] 1 QB 20.
[11] [1986] VR 690.
[12] [1987] HCA 42.