Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Commissioner of Police Service v Magistrate Spencer[2013] QSC 202

Reported at [2014] 2 Qd R 23

Commissioner of Police Service v Magistrate Spencer[2013] QSC 202

Reported at [2014] 2 Qd R 23

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Commissioner of Police Service v Magistrate Spencer and Ors [2013] QSC 202

PARTIES:

COMMISSIONER OF POLICE SERVICE (QLD)
(applicant)
v
MAGISTRATE SPENCER
(first respondent)
ACTING MAGISTRATE HEGGIE
(second respondent)
MATTHEW JAMES NICOLAOU
(third respondent)

FILE NO/S:

SC No 3 of 2013

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

6 August 2013

DELIVERED AT:

Cairns

HEARING DATE:

20 June 2013

JUDGE:

Henry J

ORDER:

  1. Application dismissed.
  1. I will hear the parties as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the third respondent pleaded guilty and was sentenced to failing to stop motor vehicle when directed under s 754 of the Police Powers and Responsibilities Act 2000 (Qld) – where first Magistrate ordered a reopening of the sentence – where first Magistrate found the conviction and sentence was a nullity and relisted the matter for rehearing – where the third respondent pleaded guilty and was resentenced – where applicant contends the decisions to reopen the proceeding, find the sentence orders made a nullity and sentence afresh involved error – where applicant seeks a review of those decisions pursuant to s 43 of the Judicial Review Act 1991 (Qld) – whether it is appropriate for the application for judicial review to be granted  

CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the first Magistrate fined the third respondent $5,500 and disqualified him from driving for two years – where the first Magistrate and legal representatives perceived that the imposition of a fine was mandatory – whether the imposition of a fine was mandatory under s 754 of the Police Powers and Responsibilities Act 2000 (Qld) and the Penalties and Sentences Act 1992 (Qld)  

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where applicant contends the decision of the first Magistrate to order and conduct a reopening of the sentence initially imposed on the third respondent pursuant to s 188 of the Penalties and Sentences Act 1992 (Qld) involved an error of law – where applicant contends the first Magistrate erred in holding that s 145 of the Justices Act 1886 (Qld) had not been complied with because the third respondent was not asked how he pleaded and did not voice his guilty plea – where applicant contends the proceedings were complete and the first Magistrate was functus officio – whether the first Magistrate erred

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN APPLICATION – EXISTENCE OF OTHER REVIEW OR APPEAL RIGHTS – where the third respondent contends it is not appropriate to grant the application for review due to the operation of ss 12, 13, and 48 of the Judicial Review Act 1991 (Qld) – whether alternative provisions for review are available – whether it is inappropriate to grant relief

Judicial Review Act 1991 (Qld) ss 12, 13, 43, 48

Justices Act 1886 (Qld) ss 4, 144, 145, 146A, 147A, 222, 225

Penalties and Sentences Act 1992 (Qld) ss 12, 91, 180A, 188

Police Powers and Responsibilities Act 2000 (Qld) ss 754, 60

Australia Meat Holding Pty Ltd v Higgs [2006] QDC 81, considered

BM alliance Coal operations Pty Ltd v BGC Contracting Pty Ltd and Ors (No 2) [2013] QSC 67, cited

Burrell v The Queen (2008) 238 CLR 218, applied

Clampett v Magistrate Cornack [2012] QSC 123, considered

Daly v Barlow [1969] Qd R 237, considered

Maxwell v R (1995) 184 CLR 501, applied

Munday v Gill (1930) 44 CLR 38, considered

Nelson v Q-Comp [2004] QSC 167, considered

Owen v Cannavan and Anor [1995] QCA 324, considered

Paulger v Hall [2003] 2 Qd R 294, considered

Power v Heyward (2007) 2 Qd R 69, considered

Rowen v Strophair (1967) 61 QJPR 33, considered

R v Allen [1994] 1 Qd R 526, considered

R v Cassar, ex parte Attorney-General [2002] 1 Qd R 386, cited

Schneider v Curtis [1967] Qd R 300, considered

Stubberfield v Webster [1996] 2 Qd R 211, cited

Stubberfield v Kilner [1997] 1 Qd R 668, cited

Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall and Ors [2013] QSC 130, considered

Todhunter v Zacka, ex parte Zacka [1965] Qd R 515, applied

COUNSEL:

S. McLeod on behalf of the applicant

Appearance of the first and second respondents excused

J. Allen on behalf of the third respondent

SOLICITORS:

Qld Police Service Solicitor on behalf of the applicant

Appearance of the first and second respondents excused

Legal Aid Qld on behalf of the third respondent

  1. On 2 October 2012, Matthew Nicolaou, the third respondent, pleaded guilty in the Cairns Magistrates Court to failing to stop a motor vehicle when directed, contrary to s 754 of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”).  The sentencing Magistrate, the first respondent (“the first Magistrate”), disqualified Mr Nicolaou from driving for two years and fined him $5,500, wrongly believing that the imposition of a fine was mandatory under s 754.  Later that day the first Magistrate ordered a reopening of the sentence.
  1. The sentence was reopened on 22 October 2012. The first Magistrate found his sentencing order of 2 October 2012 was a nullity and the matter was relisted for hearing before another Magistrate.
  1. On 24 October 2012, Mr Nicolaou pleaded guilty before the second respondent (“the second Magistrate”), who disqualified him from driving for two years and placed him on probation for six months.
  1. While not complaining of the adequacy of the eventual sentence outcome the applicant takes issue with the irregular process through which it was achieved in the Magistrates Court.  The applicant contends the initial sentence outcome should not have been interfered with below and submits the decisions to reopen the proceeding, find the sentence order made was a nullity and to in due course sentence afresh all involved error. 
  1. The applicant seeks a review of those decisions pursuant to s 43 of the Judicial Review Act 1991 (Qld).

Background

  1. Mr Nicolaou committed six offences on 9 September 2012.
  1. His motor vehicle stalled when he was approaching a traffic incident where the police were located. The vehicle he was driving was unregistered in breach of s 11 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld) and uninsured in breach of s 20(1) of the Motors Accident Insurance Act 1994 (Qld).  He fled the vehicle. 
  1. The police noticed the vehicle in its abandoned state. They pushed it to the side of the road and removed its number plates. Mr Nicolaou later returned to the motor vehicle and drove it without number plates in breach of s 127(2)(e) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation
  1. Police later saw the vehicle being driven and directed it to stop by activating their police lights and siren. Mr Nicolaou failed to stop the motor vehicle in breach of s 754 of the PPRA and sped off.  He crashed his vehicle into a wall.  His second act of driving the vehicle again involved offences of driving an unregistered vehicle and driving an uninsured vehicle.
  1. In an interview with police Mr Nicolaou admitted the offences. He explained he panicked and he was remorseful. He was 17 years of age and his only previous conviction involved a $66 traffic fine relating to a light reflector fitting.

The first sentence proceeding of 2 October 2012

  1. When Mr Nicolaou came before the Magistrates Court on 2 October 2012 his solicitor identified the six charges and indicated he was instructed to enter pleas of guilty to all of the charges. Submissions on sentence ensued.
  1. In the course of those submissions the Police Prosecutor told the first Magistrate that the minimum penalty for the s 754 offence was 50 penalty units accompanied by mandatory disqualification from holding or obtaining a driver licence for two years. Mr Nicolaou’s solicitor acknowledged he was aware of that, noting Mr Nicolaou would lose his job as an apprentice carpenter because of the disqualification. The learned presiding Magistrate proceeded to fine Mr Nicolaou 50 penalty units, namely $5,500 and also made the mandatory disqualification order.[1]
  1. The applicant submits as ultimately relevant to whether this sentence should be reinstated that the first Magistrate erred in concluding that the imposition of a fine was mandatory. The first Magistrate had no regard to probation, the sentencing option later favoured by the second Magistrate as an available sentencing option.
  1. Section 754 of the PPRA relevantly provides:

754 Offence for driver of motor vehicle to fail to stop motor vehicle

(1) This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving.

(2)The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.

Minimum penalty—50 penalty units.

Maximum penalty—200 penalty units or 3 years imprisonment.

(3) If a court convicts a person of an offence against subsection (2), the court, in addition to imposing a penalty, must disqualify the person from holding or obtaining a Queensland driver licence for 2 years.

…” (emphasis added)

  1. A breach of s 754 is punishable with imprisonment. Section 91 of the Penalties and Sentences Act 1992 (Qld) provides a probation order may be made if “a court convicts an offender of an offence punishable by imprisonment”.[2] It follows that probation could be imposed by way of penalty under s 754. 
  1. That possibility is not excluded simply because the maximum penalty is said to be a fine “or” imprisonment. Section 180A of the Penalties and Sentences Act explains such a provision means the sentencing court “may” impose a fine or imprisonment or both.  That section’s language is permissive.  It does not prescribe that a fine or imprisonment or both are the only forms of sentence that can be imposed under such a provision.[3] It leaves alive the characterisation of s 754 that it is an offence punishable with imprisonment and thus does not exclude the availability of probation under s 91.
  1. What though of s 754’s reference to a “minimum penalty” of 50 penalty units? Where, as here, a minimum as well as a maximum penalty is specified then the penalty must not be less than the minimum and not more than the maximum.[4]  However, there appears to be no reason grounded in statute or principle why a period of probation ought be regarded as a lesser penalty than a fine.  They are inherently different forms of penalty and their relative harshness will vary subjectively, depending on their duration or amount and on the individual circumstances of the offender.  Further, the fact that probation arises as a sentencing alternative to imprisonment, whereas a fine is a sentencing option even for offences that are not punishable with imprisonment, suggests as a matter of principle that probation should not be regarded as a lesser sentencing option than a fine.
  1. Section 754’s reference to a minimum penalty of 50 penalty units requires that where a fine is imposed it must be at least 50 penalty units. However, it does not require that a fine must be imposed. To construe the penalty provision for the offence in that way would be to ignore that it is also an offence punishable with imprisonment and, it follows, with probation. The wording of s 754 does not inevitably require the imposition of a fine or exclude the availability of a sentence of probation.
  1. Had the first Magistrate realised this he probably would have imposed a period of probation rather than a fine of $5,500. He plainly perceived the imposition of such a fine as draconian in the circumstances of the case but wrongly understood that he was obliged by law to impose it.
  1. This application for judicial review is concerned with the series of occurrences that unfolded in the Magistrates Court as an obvious result of the learned Magistrate’s subsequent reservations about the sentence that he had imposed.

Reopening of first sentence proceeding

  1. On the afternoon of 2 October 2012, the same day upon which the first sentence had been imposed, the first Magistrate mentioned the case in open court in the presence of a Police Prosecutor. He announced he was going to bring the matter on for a reopening on 9 October 2012.
  1. During that afternoon appearance the first Magistrate expressed concern that charging Mr Nicolaou under s 754 had produced an oppressive result. He expressed the view that s 754 was intended for more serious cases and that alleging a breach of s 60 of the PPRA, “[s]topping vehicles for prescribed purposes”, would be more appropriate for the level of criminality in this case.  Plainly these were mere expressions of opinion.  It is for the executive branch of government to decide what a citizen should be charged with.[5] The first Magistrate did not suggest to the contrary. 
  1. His Honour did not actually identify what he intended to occur at the reopening or by what exercise of power he would reopen the proceeding.[6]
  1. Later on 2 October 2012, the Clerk of the Court issued a Notice of Reopening. The Notice nominated s 188 of the Penalties and Sentences Act in its heading.  Section 188(1) relevantly provides:

“188 Court may reopen sentencing proceedings

(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal—

(a) imposed a sentence that is not in accordance with the law; or

(b)failed to impose a sentence that the court legally should have imposed; or

(c) imposed a sentence decided on a clear factual error of substance; or

(d)failed to fix a date for the offender to be released on parole as required under part 9, division 3;

the court, whether or not differently constituted, may reopen the proceeding.” 

  1. The Notice did not identify which limb of s 188 was relevant. Against that part of the Notice headed “Reason for the reopening” the only words inserted were, “Court has ordered a reopening on (sic) the sentence”.
  1. When the matter came before the court for reopening on 9 October 2012 the first Magistrate indicated he had been motivated to reopen the matter for the purpose of inviting the prosecution to consider whether the prosecution should be more properly brought under s 60 of the PPRA and also because he had some concern as to whether the elements of s 754 had been met on the facts placed before him.  However, his Honour did not identify the precise basis upon which he was purporting to reopen the sentence. 
  1. The Police Prosecutor presented a lengthy written outline of argument, contending that the court lacked jurisdiction to reopen the proceeding. The proceeding was then adjourned to 22 October 2012 to allow the defence an opportunity to consider the written submissions of the prosecution.
  1. Prior to the resumption of proceedings, Mr Nicolaou’s solicitor provided written submissions. Those submissions argued that at the outset of the first sentence the substance of the complaint had not been stated to Mr Nicolaou and he had not been asked how he pleaded, contrary to the requirements of s 145(1) of the Justices Act 1886 (Qld).  It was asserted the non-compliance had the consequence that the court had no jurisdiction to convict Mr Nicolaou and consequently the orders made against him were a nullity and the charges remained to be dealt with according to law.  It was submitted in the alternative that the sentence imposed was not in accordance with law and could therefore be reopened pursuant to s 188(1)(a) of the Penalties and Sentences Act.
  1. When the reopening of the first sentence was finally heard before the first Magistrate on 22 October 2012, the first Magistrate indicated that his major concern in deciding to reopen the sentence had been whether all of the elements of the charge had been established. However, his Honour did not go on to express any concluded view about that topic because he found in Mr Nicolaou’s favour that there had not been compliance with s 145 of the Justices Act, with the consequence that the court had no jurisdiction to convict and sentence Mr Nicolaou.  His Honour also alluded to his reservations about the police decision to pursue a charge under s 754 in the circumstances of this case but emphasised that was a matter relevant to the prosecutorial discretion and that he made no decision on that issue. 
  1. His Honour found he had no jurisdiction to have convicted Mr Nicolaou, that his orders of 2 October 2012 were a nullity and that the matter should be relisted before another Magistrate to be dealt with according to law.

Grounds 1 and 2

  1. Grounds 1 and 2 are:

 

“1.The decision of the first respondent, made on 2 October 2012, involved an error of law and was otherwise contrary to law when ordering a re-opening of the sentence imposed on the third respondent on 2 October 2012, pursuant to s.188 of the Penalties and Sentences Act 1992 (Qld) (“the PS Act”).

 

  1. The decision of the first respondent, made on 22 October 2012, involved an error of law and was otherwise contrary to law when conducting a re-opening of the said sentence under s.188(1)(a) of the PS Act because the re-opening:
  1. was not in respect to the sentence imposed but in relation to concerns whether all of the elements the offence had been established by the Prosecution; and
  1. in proceeding with the re-opening the first respondent erred in holding that s.145 of the Justices Act 1886 (Qld) had not been complied with resulting in a finding that the first respondent had no jurisdiction to convict the first respondent and make the orders against him.”
  1. Ground 1 of the application cannot be sensibly considered in isolation because of the paucity of information given on 2 October 2012 about the basis for the reopening. The reopening did not proceed in substance until 22 October 2012, the date with which Ground 2 is concerned. It was not until then that the basis upon which the reopening actually proceeded became known. Ground 1 is therefore subsumed by Ground 2 and one of the questions with which that ground is also concerned, namely, did the first Magistrate err in proceeding with the reopening of the sentence pursuant to s 188?
  1. Ground 2 also requires consideration of another question, namely, did the first Magistrate err in finding by virtue of non-compliance with s 145 that he had no jurisdiction to have made his orders of 2 October 2012 and that his orders were thus a nullity?

Was there error in proceeding with reopening pursuant to s 188?

  1. Section 188 of the Penalties and Sentences Act only empowers a court to reopen proceedings pursuant to statutory criteria.  The need for those criteria to be applied strictly was explained in R v Cassar, ex parte Attorney-General:[7]

“Attempts to review sentences, in light of subsequent events, by resort to a creative, non-literal construction of s 188 must be strongly discouraged.  The section may not be used as an avenue for the judicial review of administrative decisions.  Sentences are reviewed through the appeal process, not by means of this provision, which is in the nature of a “slip rule”, to be used in the exceptional, limited circumstances to which in precise terms it refers.”

  1. In the present matter the only potentially relevant s 188 criterion permitting the reopening was s 188(1)(a), namely, that the court “imposed a sentence that is not in accordance with the law”. His Honour confirmed as much when he was asked by the Police Prosecutor in the course of submissions whether the matter was a reopening under the Penalties and Sentences Act.  His Honour responded he had allowed it to be reopened pursuant to s 188(1)(a) because the sentence imposed had not been imposed according to law. Here however the sentence was of itself “in accordance with the law”.  It is not to the point that it may have been a manifestly excessive sentence warranting appellate intervention.  It was a form of sentence that a court could lawfully impose upon a person convicted under s 754 of the PPRA.
  1. The real basis for the reopening was not that the sentence was not in accordance with the law but that the conviction that preceded it was supposedly not in accordance with the law. The first Magistrate reasoned in effect that a sentence could not be imposed “in accordance with the law” if it relates to a conviction which has not been reached in accordance with the law. This reasoning blurs two distinct phases of the hearing of a criminal matter. It would, if correct, permit a court of first instance to use s 188 to vacate convictions that the court thinks have been reached in error and in turn order rehearings. Such a use is beyond the orders permitted by s 188. Section 188(3) provides:

(3) If a court reopens a proceeding, it—

(a) must give the parties an opportunity to be heard; and

(b) may resentence the offender—

(i) for a reopening under subsection (1)(a)—to a sentence in accordance with law; or

(ii) for a reopening under subsection (1)(b)—to a sentence the court legally should have imposed; or

(iii) for a reopening under subsection (1)(c)—to a sentence that takes into account the factual error; or

(iv) for a reopening under subsection (2)—to a sentence under subsection (4); and

(c) may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b).”

  1. Those orders all involve interference with the sentence, not the conviction. While s 188(3)(c) refers to amending “any relevant conviction” that is only for the limited purpose of imposing a different or amended sentence. An obvious example of such an amendment might be for the purpose of exercising the discretion to not record a conviction. However, such an exercise of discretion forms part of the sentencing process.[8] It does not alter the legal reality that a defendant has actually been convicted of an offence.  Rather, it means that there has been a conviction without the recording of a conviction.[9] Section 188 might empower a court to vacate the recording of a conviction but it does not empower a court to vacate the conviction of a defendant by a court.  It only empowers the court to impose a different sentence than that which was initially imposed.
  1. If the reopening which proceeded substantively on 22 October 2012 did proceed only as a reopening pursuant to s 188 then no basis was identified for intervention under that section. The orders made could not have been made under that section. If the first Magistrate proceeded only under s 188 then he did so in error.
  1. However, the first Magistrate did not proceed solely under s 188. Despite the Clerk of the Court’s Notice of Reopening specifying s 188, it will be recalled the first Magistrate did not specify that section as the legal basis for the reopening when he mentioned the matter on the afternoon of 2 October 2012, only hours after the first sentence had been imposed. More significantly, when the reopening eventually proceeded on 22 October 2012, his Honour accepted the first limb of the defence submission, which did not rely upon s 188. That submission was that non-compliance with s 145 of the Justices Act meant the court had no jurisdiction to convict Mr Nicolaou and that accordingly the orders made on 2 October 2012, when sentence was imposed, were a nullity.  His Honour’s endorsement of the bench charge sheets[10] was to that effect. 
  1. The upshot is that the reopening of the proceeding relied upon an eventual exercise of power beyond that contained in s 188 of the Penalties and Sentences Act.  To the extent s 188 was relied upon by the court, it erred.  However, it would not be appropriate to intervene to correct that error on review if the court’s other basis for its eventual exercise of power did not involve error.[11] 

Was there error in finding that the conviction and sentence was a nullity by virtue of non-compliance with s 145?

  1. Mr Nicolaou’s argument, accepted by the first Magistrate, was that there had not been compliance with s 145 of the Justices Act, with the consequence that the court had no jurisdiction to convict and sentence Mr Nicolaou. 
  1. Section 145 provides:

145 Defendant to be asked to plead

(1) When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads.

(2) If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any other manner authorised by law.”

  1. The exchange at the outset of the proceeding, immediately preceding the Police Prosecutor’s recitation of the facts on sentence was:

“UNIDENTIFIED SPEAKER:  The matter of Matthew James Nicolaou.

[MR NICOLAOU’S SOLICITOR]:  Mr Nicolaou appears, your Honour.

BENCH:  Yes

[MR NICOLAOU’S SOLICITOR]:  There are two charges of driving an unregistered vehicle, two driving an uninsured vehicle, one using false plates on the vehicle and one failing to stop for police.  I’m instructed to enter pleas of guilty to all charges.

BENCH:  Thank you.  Yes, have a seat, thank you Mr Nicolaou.

[POLICE PROSECUTOR]: The facts in relation to all matters are…”

  1. It is contended for Mr Nicolaou that s 145 was not complied with because, on the face of that exchange:
  1. the substance of the complaint was not stated to him;
  1. he was not asked how he pleaded; and
  1. he did not voice his pleas of guilty.
  1. Mr Nicolaou’s solicitor was obviously aware of the charges his client was facing. He listed the names of the charges in open court and indicated that Mr Nicolaou pleaded guilty to those charges. By doing so the solicitor was impliedly indicating to the court on his client’s behalf that there was no need for the presiding Magistrate to address his client as contemplated by s 145. This implied waiver of s 145’s requirements may be relevant to the significance of the consequences of non-compliance with s 145 but does not alter the fact the terms of s 145 were not complied with.
  1. Additionally, the fact Mr Nicolaou was legally represented did not alter the requirements of s 145. Section 144 certainly contemplates the court may hear and determine a complaint if the parties “appear either personally or by their lawyers”. However, s 145 applies when “the defendant is present”[12] and refers to “the defendant”, not the defendant’s lawyer.  Section 145 does not contemplate that a defendant’s legal representative can substitute for the defendant to achieve compliance with it.[13] Rather, it requires the participation of a defendant, at least to the extent of the defendant at the hearing being told of the substance of the complaint, being asked how he or she pleads to it and he or she then pleading guilty to it.
  1. The substance of each complaint was not stated to Mr Nicolaou at the hearing. Further, Mr Nicolaou was not asked at the hearing how he pleaded and there was no plea of guilty by him. Section 145 was not complied with.
  1. What is the consequence of non-compliance with s 145? Is it an irregularity of such a fundamental character as to automatically render what follows a nullity or will the consequences vary according to the circumstances of the case?
  1. Despite divergences in contemporary judicial opinion[14] these questions were authoritatively resolved in Queensland in 1965 by the Full Court in Todhunter v Zacka, ex parte Zacka[15] where, inter alia, a plea had not been taken in accordance with s 145 prior to a summary trial.  The Full Court discharged the order to review concluding that there had not been a fundamental defect in procedure that was fatal to the validity of the proceedings. Hanger J[16] and Douglas J,[17] with each of whose reasons Sheehy ACJ agreed, distinguished reasoning in the English case of Stefani v John[18] to the effect that summary jurisdiction derives from statute and that a court which does not follow all of the requirements of that statute in determining cases summarily will lack jurisdiction.  Rather, their Honours adopted the reasoning of the High Court in Munday v Gill,[19] where Gavan Duffy and Starke JJ observed:

“No definite principle can be extracted from these cases.  In some instances, the irregularity is so serious that the consent of the accused will not cure it; in others, consent overcomes the irregularity; whilst in yet others, it is very slight and unattended by any serious consequence to the accused, so that no substantial miscarriage of justice takes place and the Courts refuse to interfere.  Much must therefore depend upon the nature of the charge, the character of the irregularity, and the conduct of the parties at the hearing.  The fact that the accused person has consented to the irregular procedure is weighty, and one that is often decisive; but it is not conclusive of itself and the Court must consider the whole of the circumstances.”

  1. Consistently with the High Court’s reasoning in Munday v Gill,[20] Douglas J acknowledged in Todhunter[21] that there can be irregularities which take away jurisdiction even though there has been waiver but did not regard non-compliance with s 145 as falling into that category.
  1. A different view was expressed in the District Court in Rowen v Strophair,[22] by Andrews DCJ, as he then was, who distinguished Todhunter on the basis it was dealing with an irregularity in the manner of taking evidenceHowever, the irregularities in Todhunter included a failure to comply with the requirements of s 145.  Admittedly, unlike the present case, it was concerned with the consequences of non-compliance with s 145 where the matter below had proceeded as if there had been a plea of not guilty, but so too was Rowen v Strophair.  The fact that the present matter proceeded as if there had been a plea of guilty provides no logical basis to distinguish the reasoning in Todhunter.  If s 145 was a provision of such a kind that a failure to comply with it would be automatically fatal to the validity of the ensuing proceedings then it would have that effect whether the ensuing proceedings was a trial or a sentence.  It is clear from Todhunter that s 145 is not a provision of that character and that the consequences of non-compliance will vary according to the circumstances of the case. 
  1. In Rowen v Strophair Andrews DCJ followed the reasoning in Stefani v John notwithstanding that in Todhunter that reasoning had been distinguished by the Full Court, which preferred the High Court’s reasoning in Munday v Gill as apposite.  In Daly v Barlow,[23] Hoare J disagreed with the reasoning of Andrews DCJ, observing that the application of the Full Court’s approach in Todhunter should have led to an opposite result than that reached by Andrews DCJ.
  1. Hoare J explained in Daly v Barlow that non-compliance with s 145 was not of itself a fundamental defect because s 145 is a procedural provision rather than a provision conferring substantive rights. His Honour observed:

“The approach which I find useful in the present case is to distinguish between substantive rights and procedural provisions.  For instance, notwithstanding the provisions of s. 145 of The Justices Act, I can see no               objection to a defendant being dealt with summarily, saying, “I know precisely what the charge is.  There is no necessity to read the complaint over to me.  I admit the charge.”  Likewise, if a defendant is represented by counsel or solicitor, I see no reason why the latter should not follow the time-honoured formula and say, “I take the complaint as read and plead guilty.”  There is no reason why counsel or the solicitor should not speak for his client: see R. v. Salisbury & Amesbury Justices.  In neither of these suggested instances had the letter of s.145 been followed but the provision is a procedural one and I can see no reason whatever why the requirements of a mere procedural provision should not be waived.”[24] (citations omitted)

  1. The remarks of Hoare J ought not be understood as encouraging waiver of compliance with s 145. His Honour was merely explaining that if compliance with s 145 has been waived there is no reason why the non-compliance will of itself render the ensuing proceeding a nullity. However, as was emphasised by the High Court in Munday v Gill, the fact of waiver is not conclusive.  Waiver will not eliminate other potential reasons why a conviction in the wake of non-compliance with s 145 may be interfered with.  A risk with waiving compliance with s 145 is not that the non-compliance will of itself negate the outcome of the proceeding but that it will obscure some other feature that will.
  1. The mischief which s 145 is most obviously directed at avoiding is wrongful conviction resulting from a misunderstanding of the substance of the charge and whether the defendant intends to plead guilty or not guilty to it. For example, to draw upon Hoare J’s reference to a defendant saying, “I know precisely what the charge is”, a defendant may think he or she knows what the charge is, but be wrong. Such misunderstandings may only become known belatedly, if at all. At worst, they may result in a miscarriage of justice with the defendant being wrongly convicted and punished. Even if discovered in the course of the proceeding, in time to stop and start again, such misunderstandings will still result in a waste of court time and resources, which compliance with s 145 would have prevented.
  1. Despite repeated judicial emphasis of the desirability of compliance with s 145,[25] a perception may linger in the busy jurisdiction of the Magistrates Court that time consuming compliance with s 145 is less important where defendants are legally represented because there is little risk of the misunderstanding and associated injustice which s 145 is obviously directed at minimising. However, legal representatives are not immune from misunderstanding and in any event the statutory procedure set out in s 145 does not discern between whether or not a defendant is legally represented.  The safest and correct course, even where defendants are legally represented, is to comply with the statutory procedure.
  1. In the present matter his Honour was correct in concluding s 145 had not been complied with but erred in concluding that the non-compliance with s 145 of itself meant the court had no jurisdiction to convict and that its orders were a nullity.
  1. Further, there was no misunderstanding or injustice occasioned or obscured by the non-compliance with s 145. The matter proceeded on the obvious understanding that Mr Nicolaou pleaded guilty to the charges he was facing. There was no suggestion later in the hearing or in the course of argument on the reopening that he in fact lacked understanding of the substance of the charges he was facing or lacked the intention that he be dealt with as having pleaded guilty to them. In short, there was no concern that Mr Nicolaou had been wrongly convicted.
  1. However, even if there was some such concern it would not have entitled the first Magistrate to purportedly reopen proceedings and vacate the conviction. The circumstances under which a court at first instance can revisit and change its own ostensibly final decision are rare because of the importance in the judicial system of the principle of finality.
  1. The principle is no less important in cases where the presiding judicial officer rather than a party develops a hindsight concern about the final decision. In the High Court case of Burrell v The Queen,[26] the plurality explained it is irrelevant whether the court rather than a party raises a concern about its decision because either way if the concern is to be addressed it would require a “reargument of issues that would constitute the departure from the principle of finality”.  Their Honours went on to identify the formal recording of the court’s order as a watershed point of finality in litigation:

“Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.”[27]

  1. In some cases there may linger doubt as to whether a court has reached the watershed point of no return in its pronouncements. For example, in R v Allen[28] the Court of Criminal Appeal did not consider itself functus officio where it had pronounced judgment but not given its reasons. 
  1. The point of no return at first instance in respect of conviction on a plea of guilty is the point at which there has been an acceptance of the plea amounting to a determination of guilt by the court.[29] In the higher courts that point is generally regarded as the administration of the allocutus under s 648 of the Criminal Code Act 1899 (Qld).[30] In courts where that formal procedure is not followed it will at the latest be the passing of sentence upon the defendant, as was explained by Dawson and McHugh JJ in Maxwell v The Queen:[31]

“The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court.  Of course, the formal entry of the plea upon the record may afford the clearest evidence of the determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.

In these days where there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of a plea on the record of the court, a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused.”

  1. In the present matter sentence was passed on Mr Nicolaou, that is, he had been convicted by the first Magistrate. The court effectively recorded its formal order in articulating sentence in open court and the conviction and sentence were also recorded on the bench charge sheet.[32] The litigation of this case in the Magistrates Court had ended.
  1. There is a statutory exception to the principle of finality contained in s 147A of the Justices Act.  That exception is limited to permitting the reopening of proceedings where a conviction or order is based on or contains an error of fact and empowers the court to set aside the conviction or vacate or vary an order to conform with the facts.  However, it is not suggested the circumstances of this case could attract the operation of s 147A.
  1. In a similar vain, courts also have an inherent jurisdiction, generally referred to as the slip rule, to correct an error arising from an accidental slip or omission.[33] As was explained in Burrell v the Queen,[34] the slip rule is not a substantial qualification to the finality rule:

“The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.” (citation omitted)

  1. The first Magistrate’s orders of 22 October 2012 did not involve the correction of a mere slip. They fundamentally altered the substance of the result that had been reached and recorded.
  1. Mr Nicolaou contended for a broader exception to the finality rule than the slip rule. In doing so he drew generally on the observations of Byrne J in Power v Heyward[35] that a Magistrates Court has by implication the powers reasonably necessary to enable it to act effectively within its jurisdiction, even in respect of matters regulated by statute or rules of the court, so long as it can do so without contravening such provisions.  In this context Mr Nicolaou also referred to Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall and Ors,[36] in which Boddice J reached a similar conclusion in respect of the powers of an Industrial Magistrate.  However, both of those cases were concerned with the exercise of a court’s power in the course of determining a case before it, not its power after the event to alter its determination of the case.  The examples of the implied power cited with authority by Byrne J were the court’s implied power to regulate its own procedure, ensure fairness in investigative and trial procedures and prevent abuse of its process.  None of those examples bespeak an exception to the finality principle.
  1. Mr Nicolaou submitted more specifically, relying on the decision of McGill DCJ in Australia Meat Holding Pty Ltd v Higgs,[37] that where a court has made an order without jurisdiction it has inherent jurisdiction to set the order aside.  However, it was common ground in that case that the court had acted without jurisdiction.  McGill DCJ emphasised that where it is not agreed a court lacked jurisdiction to order as it did, the court should not set the order aside and instead leave the question to be determined on appeal.[38] Australia Meat Holding Pty Ltd v Higgs does not assist Mr Nicolaou because in the present matter the prosecution did not concede the first Magistrate had acted without jurisdiction in convicting and sentencing Mr Nicolaou.  
  1. As earlier explained the first Magistrate erred in concluding the non-compliance with s 145 meant he lacked jurisdiction to have made his earlier orders. However, whether he was right or wrong about that he lacked jurisdiction to substantively interfere with those orders in any event. His Honour erroneously reviewed and made orders as to the contested validity of his final determination of the case, something that was not his province but the province of an appellate court.
  1. The applicant has succeeded in showing error, but does that warrant interference through judicial review? Before considering that question it is appropriate to consider the balance of the proceeding below and the third ground advanced by the applicant in respect of it.

The second sentence proceeding of 24 October 2012

  1. When the matter came on before the second Magistrate on 24 October 2012 each of the charges were read in full to Mr Nicolaou[39] who confirmed he entered pleas of guilty to each of them.
  1. At the outset the Police Prosecutor submitted the earlier conviction had in effect been reversed pursuant to an exercise of power under s 188(1)(a) of the Penalties and Sentences Act and that no such power existed under that provision.  It was submitted in effect that the matter had not been reopened according to law and that the second Magistrate should not hear the matter. His Honour rejected that submission, indicating that he would proceed in accordance with the ruling made on 22 October 2012.
  1. Sentence submissions were then made afresh. In the course of those submissions the defence solicitor submitted why a period of probation rather than a fine ought be imposed.
  1. His Honour imposed a period of six months probation and ordered Mr Nicolaou’s disqualification from holding or obtaining a driver licence for a period of two years.

Ground 3

  1. Ground 3 states:

“In conducting the proceedings and making the orders on 24 October 2012 the second respondent erred at law and acted contrary to law by reason of the matters pleaded at grounds 1 and 2 above because he had no jurisdiction to conduct the said proceedings.”

  1. In effect this ground alleges error on the part of a Magistrate for hearing a matter that, according to the court’s record, was properly before him for determination. It was not for the second Magistrate to know whether the applicant would in the future seek judicial review of or appeal the decisions of the first Magistrate, let alone do so successfully. Unless and until that occurred the matter was before the Magistrates Court for determination.
  1. The prosecution did not request an adjournment or temporary stay of proceedings pending such a review or appeal. Instead it effectively invited the second Magistrate into the same error that befell his predecessor, of presiding as a de facto appellate court or court of review. The second Magistrate did not fall into that error.
  1. In the event that this court on review or a court on appeal interfered with the first Magistrate’s decision that his initial orders were a nullity it would likely be necessary to make consequential orders vacating the second Magistrate’s decision. However, as events stood before the second Magistrate the case remained to be determined and in the absence of a request for an adjournment or temporary stay pending review or appeal he was right to proceed to determine it. Ground 3 must fail.

Is it appropriate to intervene?

  1. The third respondent submits that even if error has been demonstrated, this is not an appropriate case in which to grant the application for review.
  1. He relies upon the operation of ss 12 and 13 of the Judicial Review Act which provide:

“12 When application for statutory order of review may be dismissed

Despite section 10, but without limiting section 48, the court may dismiss an application under section 20 to 22 or 43 that was made to the court in relation to a reviewable matter because—

(a) the applicant has sought a review of the matter by the court or another court, otherwise than under this Act; or

(b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the court or another court.

13 When application for statutory order of review must be dismissed

Despite section 10, but without limiting section 48, if—

(a) an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and

(b) provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person;

the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so.” (emphasis added)

  1. Mr Nicolaou submits adequate provision is made to review the decisions complained of by way of an appeal to a District Court judge under s 222 of the Justices Act and that pursuant to either s 12 or s 13 of the Judicial Review Act the application should be dismissed.

Other provision for review available under s 222

  1. Section 222 of the Justices Act relevantly provides:

“222 Appeal to a single judge

(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.

(2) However, the following exceptions apply—

(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;

(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;

(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. Of the exceptions in s 222(2), only s 222(2)(c) is potentially relevant. However, it only precludes appeals against conviction by a defendant who has pleaded guilty.[40] It will not preclude an appeal where the legitimacy of the proceeding or of the alleged guilty plea is in issue.[41] Here it was in issue whether there had actually been a guilty plea according to law before the first Magistrate.  That in turn bore upon both the legitimacy of the decision of the first Magistrate to reopen proceedings and find the initial orders were a nullity and the legitimacy of the proceeding before the second Magistrate.  Section 222(2)(c) would not preclude the applicant pursuing an appeal in the present context. 
  1. The word “order”, used in s 222, is relevantly defined in s 4 of the Justices Act:

“order includes any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court...” (emphasis added)

  1. In light of the broad definition of “order” any determinations of the Magistrates Court made in a summary way on a complaint for an offence are susceptible to appeal under s 222. The exceptions in s 222 to its application are of no present relevance. On the face of it, the decisions of the first Magistrate and second Magistrate could therefore have been appealed pursuant to s 222.
  1. The applicant however submitted he could not have appealed the first Magistrate’s decision of 22 October 2012 under s 222 because such an appeal does not lie against interlocutory orders.
  1. The applicant relied upon Schneider v Curtis,[42] where a defendant had sought under s 222 to appeal the decision of a Magistrate during a trial that there was a case to answer. The Full Court concluded that such a ruling was not an “order upon a complaint” within the meaning of s 222. Gibbs J, with whom Douglas J agreed, said:

“In my opinion the legislature did not intend that the wide powers of control over the proceedings of magistrates which this court may exercise by way of order to review should also be available on an appeal under s.222.  Such an appeal in my opinion only lies from an order which disposes of a complaint, for example by dismissing it, or by entering a conviction and imposing a penalty.  It does not lie from a magistrate’s ruling, given at the close of the complainant’s case, that there is a case for the defendant to answer, for although such a ruling may amount to the refusal of an application, and may be regarded as an order within the definition in s. 4, it is made upon an incidental application during the hearing of the complaint, and is not an order made upon the complaint.”[43]

  1. His Honour emphasised the significance of the requirement of s 223 that the appeal is by of rehearing. He highlighted this was inconsistent with the procedure that would be appropriate on an appeal from an interlocutory ruling.[44] This heralds a significant distinction as between Schneider v Curtis and the novel circumstances of this case.  Here, the ruling of the first Magistrate was subsequent to the hearing of the matter.  There would be no concern that for want of a completed hearing below there could not be a rehearing on appeal. The issue would be the validity of the apparently completed hearing, the complete record of which would be available to a District Court judge by way of rehearing on a s 222 appeal.
  1. A further point of distinction is that in the present matter the controversy does not relate to the correctness of an incidental ruling before or during the hearing of the complaint. It relates to the validity of the purported determination of the complaint. As was explained in Owen v Cannavan and Anor,[45] the foundation for the Full Court’s reasoning in Schneider v Curtis was that s 222(1)’s reference to an order “on a complaint” is “referrable to the determination of a complaint”. Here there had been a determination of a complaint and the order made was referrable to that determination. It was therefore an order within the meaning of s 222 and could, without further developments in the proceeding below, have been the subject of a s 222 appeal. 
  1. Even if I am wrong in that conclusion and the rule in Schneider v Curtis would have precluded a s 222 appeal of the order at that stage, that preclusion was short lived.
  1. Two days later there was a further purported determination of the complaint below. The applicant accepted the second Magistrate’s orders of 24 October 2012 could have been the subject of a s 222 appeal by the applicant. However, the applicant’s submissions carried an implied assertion that the right to appeal the second Magistrate’s orders did not confer a right of review in that appeal as to the orders of 22 October 2012.
  1. The rule in Schneider v Curtis does not preclude the appellant in a s 222 appeal challenging the correctness of interlocutory orders which preceded the final outcome of those orders and “affected the final result”.[46] For example, in Paulger v Hall[47] a Magistrate wrongly refused a prosecution application during a trial to amend the charged dates of the offences, fatally compromising the prosecution’s case and eventually resulting in no further evidence being offered.  The charges were then dismissed and the prosecution successfully pursued a s 222 appeal.  The District Court judge set aside the Magistrate’s orders refusing the application to amend and adjourned the complaints for hearing.  While it was the order of dismissal which had purportedly disposed of the complaints and thus grounded the right to appeal pursuant to s 222, the Court of Appeal concluded the earlier ruling refusing the amendment had so affected the final result that the correctness of that earlier ruling could be reviewed on the s 222 appeal.
  1. In a similar vain, in the present case the order of 22 October 2012 so affected the final result of 24 October 2012 that the result would not have even happened without the making of the order of 22 October 2012. If the order of 22 October 2012, setting aside the initial conviction and sentence as a nullity had not been made, the final result of the proceeding below would have been the initial conviction and sentence of 2 October 2012. A s 222 appeal of the decision of 24 October 2012 would inevitably require a review of the decision of 22 October 2012. That is because a determination of the validity of the first Magistrate’s decision purportedly vacating the initial conviction and sentence would inevitably be determinative of the validity of the second Magistrate’s decision.
  1. Further, the terms of s 225(1) of the Justices Act support the conclusion that an appeal of the decision of 24 October 2012 could result in orders in respect of the decision of 22 October 2012.  Section 225(1) provides:

“225 Powers of judge on hearing appeal

(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”

  1. Section 225(1) permits more than the confirmation, setting aside or varying of the appealed order. It also permits the making of “any other order in the matter the judge considers just” (emphasis added).  Those words and their context mean a District Court judge has the power to make such orders as are just in the case which is under appeal and is not restricted to interfering solely with the specific order under appeal.  If a judge in a s 222 appeal against the second Magistrate’s decision concluded the matter was finalised when the initial sentence was imposed on 2 October 2012 the judge would have the power under s 225 to vacate not only the appealed orders of 24 October 2012 but also the orders of 22 October 2012.  The judge could thereby reinstate the sentence of 2 October 2012 or, depending upon how the appeal was litigated, impose some other sentence.
  1. The availability to the applicant of such relief under a s 222 appeal triggers the application of ss 12 and or 13 of the Judicial Review Act
  1. In Stubberfield v Webster[48] Thomas J expressed the view in the context of an attempt to judicially review civil proceedings in the Magistrates Court that:

“…it would seem that applications for prerogative review will invariably be dismissed under s. 12(b) of the Judicial Review Act on the ground that adequate provision is made by a law other than the Judicial Review Act under which the applicant is entitled to seek a review of the matter by another court.  Jurisdiction to dismiss such an application will also arise under s. 13.”

Byrne J took a similar view in Stubberfield v Kilner.[49] In Clampett v Magistrate Cornack[50] Daubney J considered that the views of Thomas J and Byrne J in the above-mentioned cases applied with equal force to decisions made by Magistrates in the exercise of the criminal rather than civil jurisdiction.

  1. It is apparent from these cases that the availability of alternative and adequate provision for review in the form of an appeal is not disregarded because the time within which the appeal should be filed has expired by the time the application of ss 12 and 13 is considered on judicial review. That is unsurprising. Sections 12 and 13 should not be circumvented by a failure to utilise a remedy, the existence of which attracts their operation.
  1. The applicant submitted that the existence of an avenue of appeal does not automatically warrant the dismissal of an application for statutory order of review in that the issue to be determined on review may not be the same as that which would be considered in the appeal. In support of that submission the applicant relied upon Nelson v Q-Comp[51] where Mullins J refused to exercise the power under s 12 to dismiss the application for statutory order of review where the applicant had also filed a Notice of Appeal in the Industrial Magistrates Court.  Her Honour found that the appeal to the Industrial Magistrates Court would not involve a consideration of the procedural fairness issue falling to be considered on review. 
  1. A distinction of that kind does not arise here. Had the applicant pursued a s 222 appeal a central question on that appeal would be the central question here, namely, whether the first Magistrate erred in reopening the proceeding and finding that the earlier orders made were a nullity. The resolution of that question would invariably be determinative of whether, as the applicant contends, the sentence initially imposed ought be reinstated.
  1. The avenue of a s 222 appeal in respect of the orders of the first Magistrate subsequent to the initial sentence and the orders of the second Magistrate attracts the application of both ss 12 and 13 of the Judicial Review Act.  Section 12 confers discretion to dismiss where such an avenue exists and s 13 mandates dismissal where such an avenue exists, if the court is satisfied it would be in the interests of justice to do so. 
  1. Adequate provision existed for the applicant to seek review of the decisions in contention here by recourse in a conventional way to the appellate system. It is in the interests of justice that the time and resources of the courts and parties not be consumed by pursuit of judicial review that is unnecessary because the law provides for a conventional remedy under the appellate system.
  1. Further, the second Magistrate placed Mr Nicolaou on six months probation over six months before the hearing of this judicial review. Mr Nicolaou has already completed the term of the probation order.[52] If the initial sentence were reinstated it would not reflect any discount or allowance for that fact.  That is an additional consideration favouring the exercise of the discretion to dismiss pursuant to s 12.  It also supports the conclusion relevant to s 13 that it in the interests of justice to dismiss the application.
  1. As against this there is nothing in the present case suggesting there is some special feature of it which calls for an exercise of the discretion in s 12 in favour of the applicant or which tells against the conclusion that it is in the interests of justice to dismiss the application.
  1. I would dismiss the application pursuant to both ss 12 and 13.

Dismiss because it is “inappropriate” to intervene?

  1. In the alternative to his submissions seeking dismissal under ss 12 and 13, Mr Nicolaou also relied upon s 48, which relevantly provides:

“48Power of the court to stay or dismiss applications in certain circumstances

(1) The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that—

(a) it would be inappropriate

(i) for proceedings in relation to the application or claim to be continued; or

(ii) to grant the application or claim; or

(b) no reasonable basis for the application or claim is disclosed; or

(c) the application or claim is frivolous or vexatious; or

(d) the application or claim is an abuse of the process of the court. ...” (emphasis added)

  1. Mr Nicolaou submitted the application should be dismissed pursuant to s 48(1)(a) because it would be “inappropriate” to grant the application.
  1. The respondents submitted the nature of the general discretion arising under s 48(1)(a) was informed by the discussion in the authorities of the residual discretion to not make an order for prerogative relief notwithstanding the existence of error.[53]
  1. A consideration identified in the authorities as relevant to that residual discretion is whether an alternative remedy is available. However, in the Judicial Review Act that consideration provides a specific basis for dismissal pursuant to ss 12 and 13, as discussed above.  It therefore does little to assist in indicating the nature of the discretion arising under s 48(1)(a).
  1. It was submitted for Mr Nicolaou that reinstatement of the initial sentence was inappropriate because the erroneous reasoning that a fine was mandatory affected that sentencing decision. In substance that was a submission that the first sentence should not be reinstated because that sentence was manifestly excessive, a matter which is the province of a judge on a s 222 appeal. This is not a merits review. It is concerned with preventing an excess of jurisdiction, one of the very problems which prerogative relief or its statutory equivalent was developed to address.[54] The apparent severity of the initial sentence would not of itself make it inappropriate to dismiss the application.
  1. The applicant acknowledged another situation where it may be inappropriate to intervene on review, despite error being demonstrated, is where subsequent events have overtaken the initial decision to the point where it would no longer be practicable to unravel those events if the application was granted.[55] The applicant submits this is not that type of case.  However, Mr Nicolaou contends it has a similar quality in that he has already served the term of the probation order imposed on him by the second Magistrate. That cannot be undone. If the initial sentence were reinstated, as the applicant seeks, it would make no allowance for Mr Nicolaou’s service of a significant component of the sentence imposed upon him by the second Magistrate.  That consideration makes it inappropriate, despite the errors below, to grant the application and I would therefore also dismiss it pursuant to s 48.

Conclusion

  1. Notwithstanding that the applicant has demonstrated error the application should be dismissed pursuant to each of ss 12, 13 and 48.
  1. It is appropriate that the parties be heard as to costs after being afforded an opportunity to consider these reasons.
  1. My orders are:
  1. Application dismissed.
  1. I will hear the parties as to costs.

Footnotes

[1] His Honour indicated this single fine was in respect of all charges except for the two charges of driving uninsured for which no penalty was imposed.

[2] Also see s 101, which is of similar effect in respect of community service.

[3] See Acts Interpretation Act 1954 (Qld) s 32CA(1).

[4] Acts Interpretation Act 1954 (Qld) ss 41, 41A.

[5] See Maxwell v R (1995) 184 CLR 501, 513, 534.

[6] The endorsement on the file does not assist.

[7] [2002] 1 Qd R 386, 390.

[8] R v Briese; ex parte A-G (Qld) [1998] 1 Qd R 487, 490.

[9] See Penalties and Sentences Act 1992 (Qld) s 12(4).

[10] Ex 1.

[11] See Judicial Review Act 1991 (Qld) s 48.

[12] Compare s 146A which deals with the disposition of a guilty plea in absentia.

[13] Compare s 145’s parallel provision in NSW, the Criminal Procedure Act 1986 (NSW) s 192, where the accused person referred to is defined by s 3 of that Act as including the person’s legal representative, as was discussed in Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202 and McKinlay v Commissioner of Police [2011] QCA 356.

[14] Compare, for example, Murray v McKenzie [2006] QDC 84 and PPG v Commissioner of Police [2011] QDC 277.  There is also some divergence of opinion regarding pleas to indictable offences dealt with summarily, compare Commissioner of Police v Warcon [2011] QDC 28 and Brown v QPS [2011] QDC 301, but that involves a different statutory procedure, under s 552I of the Criminal Code.

[15] [1965] Qd R 515 (“Todhunter”).

[16] Ibid 518.

[17] Ibid 522.

[18] (1948) 1 KB 158.

[19] (1930) 44 CLR 38, 80-81.

[20] Ibid.

[21] Supra 522.

[22] (1967) 61 QJPR 33.

[23] [1969] Qd R 237, 242.

[24] Ibid 242-243.

[25] Hyde v Mason [2005] QCA 79, [24]; McKinlay v Commissioner of Police [2011] QCA 356, [32] and McNamara v Queensland Police Service [2013] QCA 100, [21].

[26] (2008) 238 CLR 218, 224.

[27] Ibid.

[28] [1994] 1 Qd R 526.

[29] Maxwell v The Queen (1995) 184 CLR 501, 509.

[30] R v Shillingsworth [1995] 1 Qd R 537, 543.

[31] (1995) 184 CLR 501, 509.

[32] Ex 1.

[33] L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590, 594.

[34] Supra 224.

[35] (2007) 2 Qd R 69, 72.

[36] [2013] QSC 130.

[37] [2006] QDC 81.

[38] Ibid [13].

[39] This met and exceeded the requirement of s 145, which is only that “the substance” of the complaint be stated.

[40] Smith v Ash [2010] QCA 112, [87].

[41] Ajax v Bird [2010] QCA 2, [5].

[42] [1967] Qd R 300.

[43] Ibid 306.

[44] Ibid 305.

[45] [1995] QCA 324.

[46] Paulger v Hall [2003] 2 Qd R 294, 301.

[47] [2003] 2 Qd R 294.

[48] [1996] 2 Qd R 211, 213.

[49] [1997] 1 Qd R 668.

[50] [2012] QSC 123, [21].

[51] [2004] QSC 167.

[52] R 1-45 L 48, 1-54 L 1.

[53] Those authorities were helpfully reviewed by Applegarth J in BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd and Ors (No 2) [2013] QSC 67, [7-14].

[54] Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWSC 1167, [10].

[55] See for example Mills v Commissioner of the Queensland Police Service [2011] QSC 244.

Close

Editorial Notes

  • Published Case Name:

    Commissioner of Police Service v Magistrate Spencer and Ors

  • Shortened Case Name:

    Commissioner of Police Service v Magistrate Spencer

  • Reported Citation:

    [2014] 2 Qd R 23

  • MNC:

    [2013] QSC 202

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    06 Aug 2013

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2014] 2 Qd R 2306 Aug 2013-

Appeal Status

No Status
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.