Case stated by a magistrate at Brisbane [2017] QDC 48

DISTRICT COURT OF QUEENSLAND CITATION: Case stated by a magistrate at Brisbane [2017] QDC 48 PARTIES: A MAGISTRATE AT BRISBANE (applicant) v COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (first respondent) and AC (second respondent) and CH (third respondent) and ATTORNEY-GENERAL OF QUEENSLAND (intervener) FILE NO/S: BD 2658/16 PROCEEDING: Special case stated pursuant to s 46 Magistrates Courts Act 1921 ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 10 March 2017 DELIVERED AT: Brisbane HEARING DATE: 28 February 2017 JUDGE: Rafter SC DCJ ORDER: Special case stated set aside. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – CASE STATED AND REFERENCE OF QUESTION OF LAW – where a case stated is referred from the Magistrates Court at Brisbane for the District Court of Queensland pursuant to section 46 of the Magistrates Courts Act 1921– where the second and third respondents have not been served with the case stated – where the case stated seeks opinion on abstract or -- 1 of 9 -- 2 hypothetical questions – where insufficient facts available to enable the questions of law to be determined - whether the case stated is in the appropriate form for the consideration of the District Court COUNSEL: I P Fraser, solicitor for the Commissioner of the Queensland Police Service L M Syme for the Attorney-General SOLICITORS: Queensland Police Service Legal Unit for the Commissioner of the Queensland Police Service Crown Solicitor for the Attorney-General Introduction [1] A magistrate at Brisbane has stated a special case for the opinion of the District Court pursuant to s 46 Magistrates Courts Act 1921. [2] The special case refers to two matters that came before the magistrate on 3 September 2015. The matters are described by the magistrate in the case stated as Case Reference “A” and Case Reference “B”. [3] In the matter described by the magistrate as Case Reference “A”, the second respondent was charged with assault occasioning bodily harm contrary to s 339(1) Criminal Code. The second respondent had been served with a notice to appear issued pursuant to s 382 Police Powers and Responsibilities Act 2000 (“PPRA”) which required his appearance at the Magistrates Court, 240 Roma Street, Brisbane on 29 June 2015. [4] The second respondent did not appear on 29 June 2015. The matter was adjourned to 3 September 2015. An order was made pursuant to s 14A(1)(b) Bail Act 1980 permitting the second respondent to go at large without bail on the condition that he appear and surrender into the custody of the Magistrates Court at Brisbane on 3 September 2015. [5] The second respondent did not appear on 3 September 2015. The transcript of proceedings indicates that the magistrate did not make any order on that date. However, the schedule of facts attached to the case stated indicates that the “Order of referral” to this court was made. [6] In the matter referred to by the magistrate as Case Reference “B”, the third respondent was charged with begging for money in a public place contrary to s 8(1)(a) Summary Offences Act 2005. He was served with a notice to appear pursuant to s 382 PPRA requiring his appearance at the Magistrates Court, 240 Roma Street, Brisbane on 7 July 2015. On 6 July 2015, the Magistrates Court was notified that the third respondent was subject to an involuntary treatment order pursuant to the Mental Health Act 2000. Accordingly pursuant to s 243 Mental Health Act 2000, the proceedings for the offence were suspended for the time being. The third respondent -- 2 of 9 -- 3 did not appear on 7 July 2015 and the matter was adjourned to 3 September 2015. An order was made pursuant to s 14A(1)(b) permitting him to go at large without bail on the condition that he appear and surrender into the custody of the Magistrates Court on 3 September 2015. [7] On 3 September 2015, the matter came before the Magistrates Court at Brisbane. At this stage the proceedings were still suspended pursuant to the Mental Health Act 2000. The magistrate appears to have made no order, although the case stated indicates that the “Order of referral” to this court was made. On 28 September 2015, the Director of Public Prosecutions decided that the charge against the third respondent would proceed according to law pursuant to s 247(1)(a) Mental Health Act 2000. The Director of Public Prosecutions notified the Magistrates Court at Brisbane of that decision by letter dated 16 October 2015. Special case stated [8] By reference to the facts of the two cases, the magistrate has purported to state a special case for the opinion of the District Court on the following questions of law: “A. Are the provisions of Section 389 of the PPRA (as presently drafted) a code? B. What power does the Magistrates Court presently have to compel the Defendant to attend court in Case Reference “A” and Case Reference “B”? C. If the provisions of Section 389 of the PPRA are a code, is there a point where jurisdiction for a non-appearing defendant expires, what is that point and can it be revived by for example, the subsequent appearance of the defendant and the entering into an undertaking? D. Is “delaying the issue or execution of a warrant” (Section 389(5)) to be understood as simply postponing execution of a warrant or does this phrase describe another process? Question B above assumes no irregularity in the subject Notices to Appear.” [9] The special case stated sets out the issue for consideration as follows: “The Issue at the Heart of the Matter [16] If a Defendant cannot be put “at large” or have the Notice to Appear “enlarged”, then a large number of Defendants may be at large illegally and in circumstances where jurisdiction has expired. [17] Any warrant subsequently issued for the arrest of such Defendant may, where the Defendant is arrested, amount to false imprisonment with all the consequences that may follow. -- 3 of 9 -- 4 Discussion [18] There is a duality of opinions within the Magistracy as to the legality of putting a Defendant “at large” or “enlarging” a Notice to Appear. [19] It must also be said that within the Magistracy, workloads are sometimes overwhelming and a presiding Magistrate of the negative view who is presented with a case where (for example) the Defendant has previously been put “at large” may feel compromised. [20] If there is a problem, then it starts on the first return date of the Notice to Appear because, on one view excepting for ex- parte disposition, this is the only opportunity to require an undertaking or in the alternative, order a warrant in accordance with the PPRA.” Appearances on the hearing of the special case stated [10] The Attorney-General was given leave to appear pursuant to s 7(1)(i) Attorney- General Act 1999. Ms L Syme of counsel appeared for the Attorney-General and provided considerable assistance. [11] Mr I Fraser, Senior Legal Officer at the Queensland Police Service Legal Unit appeared for the Commissioner of the Queensland Police Service and also provided considerable assistance. [12] The second and third respondents have not been served with the case stated and did not appear. The applicable statutory provisions and rules governing a case stated [13] Section 46 Magistrates Courts Act 1921 provides: 46 Special case stated A Magistrates Court may state in the form of a special case for the opinion of the District Court any question of law arising in any case. [14] On the hearing of a special case, the District Court may remit the matter to the Magistrates Court with the opinion of the District Court thereon.1 [15] Section 122 District Court of Queensland Act 1967 provides: 122 Special case A Magistrates Court may not state in the form of a special case for the opinion of the Supreme Court any question of law arising in any case, but in lieu thereof may state in the form of a special case for the opinion of the District Court any such 1 s 47(e) Magistrates Courts Act 1921. -- 4 of 9 -- 5 question of law, and the District Court shall have the same powers, authorities and duties as the Supreme Court had in respect of such a special case prior to the coming into force of the District Courts Act Amendment Act 1960. [16] Rule 782 Uniform Civil Procedure Rules 1999 (“UCPR”) provides that subject to any Act, Chapter 18 Division 2 Part 3 applies to a case stated to a court other than the Court of Appeal. [17] Rule 785 (which is contained in Part 3) provides: 785 Application of rules to appeals and cases stated under this part (1) Part 1, other than rules 746, 753, 758, 766(3), 767, 776 and 777, applies to appeals under this part, with necessary changes, and subject to any practice direction of the court in which the appeal is brought. (2) Rule 781 applies to cases stated under this part, with necessary changes. [18] Rule 781 (which is applicable to the present case stated by reason of r 785(2)) provides: 781 Form and contents of case stated (1) A case stated must— (a) be divided into paragraphs numbered consecutively; and (b) state the questions to be decided; and (c) state concisely the facts necessary to enable the Court of Appeal to decide the questions arising or to otherwise hear and decide the questions on the case stated. (2) On receipt of a case stated, the registrar, if satisfied all parties interested in the case have been served with a copy, must set a date for hearing by the Court of Appeal. (3) At the hearing of a case stated— (a) the Court of Appeal and the parties may refer to the whole of a document referred to in the case stated; and (b) the Court of Appeal may draw any inference from the facts stated in the case. The procedure followed in this case [19] In the second respondent’s case on 3 September 2015, the magistrate addressed the Police prosecutor in relation to the second respondent’s failure to appear on an earlier occasion and expressed his concern that he had been permitted to go at large. The magistrate said: -- 5 of 9 -- 6 “There was no appearance of the defendant and he was given at large. I don’t think so. You can’t give a defendant at large on an assault occasioning bodily harm on a notice to appear. That’s my view.”2 [20] The Police prosecutor agreed with the magistrate’s view. The magistrate then went on to say: “Now, others disagree with me, but I think this could be a case that I want to pursue.”3 [21] The magistrate indicated that he would contact the prosecutor about the matter but he does not appear to have done so. There was no indication given by the magistrate that the matter was to be the subject of a case stated pursuant to s 46 Magistrates Courts Act 1921. [22] In the third respondent’s case, the magistrate simply indicated that he was going to take the file along with that of the second respondent. Again, there was no indication that the matter was to be the subject of a case stated. [23] On 24 February 2016, the Magistrates Court at Brisbane sent a letter to the Chief Judge of the District Court enclosing the special case that had been prepared by the magistrate. Procedural issues [24] The magistrate purported to state a case based on the facts of two separate matters. The preferable course would be for questions of law arising in a particular case to be the subject of a single case stated. If similar questions of law arise in a quite separate case, those questions could of course be the subject of another case stated. This court could, if it was appropriate to do so, order that the matters be heard together pursuant to r 79 UCPR. [25] As I have already mentioned, the second and third respondents were not present in the Magistrates Court. Furthermore, it appears that they have not been served with the case stated. The fact that they have not been served creates a fundamental difficulty in dealing with the matter. Rule 781(2) UCPR (which applies to a case stated to this court with necessary changes by reason of r 785(2)) provides that the registrar must set a date for hearing if satisfied that all parties interested in the case have been served with a copy. [26] The questions framed in the case stated could potentially affect the liberty of the second and third respondents. Accordingly, quite apart from r 781(2), the ordinary principles of natural justice require that they be served and given an opportunity to be heard. 2 Transcript of proceedings 3 September 2015 p 2 ll 26-30. 3 Transcript of proceedings 3 September 2015 p 2 ll 33-44. -- 6 of 9 -- 7 [27] The fact that the second and third respondents have not been served means that the questions in the special case stated cannot be answered. [28] Furthermore, the usual practice in relation to stating a case involves the court formulating questions of law following consultation with the parties. In Land and Resources Tribunal v Schmidt4 the Court of Appeal. consisting of Williams and Jerrard JJA and Mullins J, said: “A case stated is a process by which a court or Tribunal in the course of proceedings before it submits to a superior court for its decision or opinion on a question of law that arises from facts as found by the court or Tribunal and stated in the case: Industrial Equity Ltd v. Commissioner for Corporate Affairs [1990] V.R. 780, 782-783. This is reflected in the definition of “stated case” in sch. 2 to the Supreme Court of Queensland Act 1991…. The process of settling a case stated is important in isolating the real question of law that should be referred for opinion to the Court of Appeal.”5 [29] That process ensures that the questions referred for the opinion of the District Court are appropriately framed to address the issues in the case. [30] In the present matter, the prosecutor was not invited by the magistrate to make any submissions on the appropriateness of a case stated or the questions of law to be submitted for determination. The submissions of the parties [31] Ms Syme who appeared for the Attorney-General, pointed out that the parties to the proceeding in the Magistrates Court had raised no issue as to the proper interpretation of the relevant provisions of the PPRA. She submitted that the questions in the case stated should be viewed as abstract or hypothetical. Ms Syme also submitted that there were insufficient facts in the case stated to enable the questions to be answered. She submitted that in the circumstances it was appropriate for the case stated to be set aside. [32] Mr Fraser, who appeared for the Commissioner of the Queensland Police Service, submitted that the questions of law in the case stated seek an advisory opinion on the interaction of s 14A(2) Bail Act 1980 and ss 388 and 389 PPRA. He submitted that there was no dispute between the parties in relation to the application of those provisions. Mr Fraser also submitted that the case stated was not an appropriate mechanism for the resolution of the questions raised by the magistrate. Mr Fraser also submitted that the facts were insufficient to enable the questions to be determined. In those circumstances, he submitted that the case stated was not in a form suitable for consideration by this court and it should be stayed or set aside. 4 [2006] 1 Qd R 161; [2005] QCA 195. 5 [2006] 1 Qd R 161 at 168-169 para [27]; [2005] QCA 195 at para [27]. -- 7 of 9 -- 8 Conclusion [33] I have already mentioned that considerations of natural justice to the second and third respondents preclude this court from determining the questions of law in the case stated. [34] In any event, I accept the submissions of Ms Syme and Mr Fraser that the questions are inappropriate for determination. In Director of Public Prosecutions, South Australia v B6 the plurality of Gaudron, Gummow and Hayne JJ said: “The difficulties in the case stated procedure, whether the case is stated in a criminal or civil matter or, if in a criminal matter, whether stated at the instance of the prosecution or defence, are well known. At least some of those difficulties stem from a failure to recognise that the jurisdiction is not conferred to permit courts to offer general advisory opinions on hypothetical questions. The questions reserved in this matter appear to invite such an opinion.”7 [35] I also accept the submissions of Ms Syme and Mr Fraser that there are insufficient facts to enable the questions of law to be determined. In R v Rigby8 the High Court said: “Upon a case stated the court cannot determine questions of fact and it cannot draw inferences of fact from what is stated in the case. Its authority is limited to ascertaining from the contents of the case stated what are the ultimate facts, and not the evidentiary facts, from which the legal consequences ensue that govern the determination of the rights of parties.”9 [36] The schedule to the case stated states at paras 7 and 15 that “Except for the Order of referral herein, no other order was made by myself on 3 September 2015.” [37] At that stage, the charge against the third respondent was suspended by reason of the provisions of the Mental Health Act 2000. In those circumstances, it would have been inappropriate to refer any question of law to this court at that stage. Furthermore, Mr Fraser who appeared for the Commissioner of the Queensland Police Service indicated that there was a distinct possibility that the charge of begging for money in a public place against the third respondent had been withdrawn. That possibility highlights the hypothetical nature of the questions posed in the case stated. [38] The limitations of the case stated procedure are illustrated by the comments of Lord Mustill in Attorney-General’s Reference (No.3 of 1994).10 His Lordship said: 6 (1998) 194 CLR 566. 7 (1998) 194 CLR 566 at 576 (internal citations omitted). 8 (1956) 100 CLR 146. 9 (1956) 100 CLR 146 at 150-151. 10 [1998] AC 245. -- 8 of 9 -- 9 “The courts have always firmly resisted attempts to obtain the answer to academic questions, however useful this might appear to be. Normally, where an appeal is brought in the context of an issue between parties, the identification of questions which the court should answer can be performed by considering whether a particular answer to the question of law might affect the outcome of the dispute. The peculiarity of a reference under the Act of 1972 is that it is not a step in a dispute, so that in one sense the questions referred are invariably academic. This peculiarity might, unless limits are observed, enable the Attorney-General, for the best of motives, to use an acquittal on a point of law to set in train a judicial roving commission on a particular branch of the law, with the aim of providing clear, practical and systematic solutions for problems of current interest. This is not the function of the court, and the words emphasised in section 36(1) were in my view designed to keep the proceedings in Attorney-General’s reference within proper bounds.”11 [39] In the circumstances, it is appropriate that the case stated be set aside. 11 [1998] AC 245 at 265. -- 9 of 9 --