Queensland Judgments


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Lasker v Holeszko

Unreported Citation: [2019] QCA 163

The Court clarified that the right of appeal under s 222 Justices Act 1886 only arises where the order the subject of the appeal is one that finally disposes of a complaint. Here, the Magistrate had published reasons for his decision recording findings of fact that in his opinion were sufficient to conclude that the applicant should be convicted of the offences alleged in the complaint but then made orders and directions for further submissions on costs and before imposing a penalty. Until those matters had been dealt with the Magistrates Court had not disposed of the complaint.

Gotterson and Philippides JJA and Bradley J

23 August 2019

The applicant sought leave to appeal from an order made in the District Court, striking out a notice of appeal. [19]. That appeal had been lodged following the giving of reasons for conviction in the Magistrates Court in relation to a complaint under the Sustainable Planning Act 2009. At the time the appeal was filed, the learned Magistrate had published reasons for his decision to convict the applicant and made further directions for the filing of submissions in relation to penalty and costs. [7]–[8]. Justice Bradley wrote the leading judgment with whom the other members of the Court agreed and ultimately refused the application for leave to appeal.

The applicant contended that the learned District Court judge had erred in striking out the appeal as the applicant had in substance been convicted when the learned Magistrate gave reasons and this constituted an “order” for the purposes of section 222 Justice Act 1886 (“the Act”). It was argued that the phrase “conviction” derives its meaning from context and should be construed to include a finding of guilt as opposed to final adjudication with the passing of sentence. [21]–[23]. It was further submitted that from the moment of conviction the operation of the Act ceased and the Penalties and Sentences Act 1992 governed the proceeding. [36]–[39].

Justice Bradley canvassed the relevant authorities as to the interpretation of section 222 of the Act and was of the view that the right of appeal under that section depends on whether the order the subject of the appeal was an order that finally disposed of a complaint. [40]. Analogies were drawn with orders that dismiss a complaint and his Honour distinguished the making of interlocutory orders and decisions in relation to ‘no case’ submissions. [25]–[29]. Relevant to the instant case, his Honour opined that the reasons published by the learned Magistrate did not have the effect of formally convicting the applicant [50] but in any event, no right of appeal lay without determination of the issue of costs and sentence being passed. [40]–[41].

J P Feely of Counsel