Bartholomew v Barrett [2012] QDC 108

DISTRICT COURT OF QUEENSLAND CITATION: Bartholomew v Barrett [2012] QDC 108 PARTIES: JAMES WILLIAM BARTHOLOMEW (Appellant) AND ASHLEY J BARRETT (Respondent) FILE NO/S: D37/2011 (Mackay) DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 30 March 2012 DELIVERED AT: Mackay HEARING DATE: 30 March 2012 JUDGE: Samios DCJ ORDER: 1. Appeal allowed. 2. The complaint is to be listed for mention at a time to be fixed in the Magistrates Court in Mackay to be determined according to law. 3. The order of the learned Magistrate made on 24 March 2011 striking out the charges is set aside. CATCHWORDS: INFERIOR COURTS – Magistrate Court – Appeal – Appeal allowed - where Magistrate had struck out charges against Respondent - where appellant had been unable to deliver materials to respondent before mention date - where no prejudice suffered by Respondent. Justices Act 1886, s40, s222 Criminal Code, s590AC Brown v. Owen [2005] QDC 040 Owen v. Edwards [2006] QCA 526 COUNSEL: Mr. Winlaw appeared for the Appellant for the Office of the Director of Public Prosecution. SOLICITORS: The Respondent was not represented. Called three times. -- 1 of 4 -- 2 [1] This is an application for extension of time for the filing of a notice of appeal to this Court. This is an appeal pursuant to section 222 of the Justices Act against the decision of the learned Magistrate who on the 24th of March 2011 struck out two charges brought by the appellant against the respondent. [2] The charges were that on the 18th of February 2010, the respondent exceeded the speed limit on a road and that he, without reasonable excuse, used on a road a motor vehicle whilst a number plate was not attached as required. [3] The complaint and summons was made on the 8th of December 2010 and the initial appearance before the learned Magistrate was on the 20th of January 2011. The learned Magistrate took pleas of not guilty from the respondent and directed the prosecution to deliver to the respondent the brief of evidence on or before the 10th of March 2011. The learned Magistrate also adjourned the matter to the 24th of March 2011. [4] On the 24th of March 2011, the appellant was represented by the Police Prosecutor and the respondent appeared. The transcript shows that the respondent was asked by the learned Magistrate whether he had got the brief of evidence and he indicated in the negative and then the following exchange took place between the Police Prosecutor and the learned Magistrate. BENCH: Mr Raut. MR RAUT: Yes, your Honour. BENCH: You didn't comply with my order, Mr Raut, your having to hand the brief over by the 10th of March. The charges are struck out, thank you. I told you it has to be done. I don't sit here and talk for the sake of talking. MR RAUT: Your Honour, it seems that BENCH: Both charges are struck out. Thank you. [5] The prosecution had sent the brief of evidence to the respondent on the 17th of March 2011 to his bail address via registered post, however, the material was returned to the prosecution as it was discovered that the respondent no longer resided at that address. -- 2 of 4 -- 3 The Police Prosecutor also had the brief of evidence available to give to the respondent on the mention date on the 24th of March 2011. [6] On this appeal, it is submitted by the appellant that the learned Magistrate erred in law in striking out the charges against the respondent. [7] I have been referred on the hearing of this appeal to the decision of his Honour Judge Robertson in Brown v. Owen [2005] QDC 040 and the appeal from that decision to the Court of Appeal in Owen v. Edwards [2006] QCA 526. In the decision by his Honour Judge Robertson, it appears a similar situation occurred as in the present matter. That is, the Magistrate in that case dismissed the complaints against the respondent for failure to comply with the direction to make disclosure and provide particulars. [8] His Honour Judge Robertson noted that there is a directions power contained in the Justices Act and a direction is binding on the parties. However, he also noted that while the matter is now governed by the Magistrates Courts section 40 which imports the disclosure requirements of the Criminal Code, those requirements provide that failure to comply does not affect the validity of the proceeding. While the sections may be a little different at the present time, I note that section 590AC(2) of the Criminal Code provides, "Failure to comply with this chapter division in a proceeding does not affect the validity of the proceeding." [9] His Honour Judge Robertson examined other sections that were referred to in argument, that is, sections of the Justices Act and noted they did not seem to give a power to strike out charges. His Honour noted later that the learned Magistrate could have stayed the proceedings, pending compliance or proceeded to hear argument that the continuation of the proceedings in the circumstances constituted an abuse of process. In the end, his Honour Judge Robertson allowed the appeal against the Magistrate's decision to dismiss the complaints for failure to comply with the direction to make disclosure and provide particulars. -- 3 of 4 -- 4 [10] As I said, the matter then went on appeal. The Court of Appeal gave leave to appeal, however, dismissed the appeal. The Court of Appeal endorsed Judge Robertson's decision to allow the appeal against the Magistrate's decision to strike out the charges. [11] The Court of Appeal referred to a number of authorities, including Jago v. District Court New South Wales [1989] 168 CLR 23 and other authorities and noted that his Honour Judge Robertson considered that the appellant in that case before the Court of Appeal, "must point to actual prejudice which cannot be adequately addressed". Later in the judgment of the Court of Appeal, the reference being [2006] QCA 526, at paragraph 43 the Court referred to the factors that needed to be taken into account by a Judge considering staying proceedings or striking them out for abuse of process. The Court of Appeal referred to the test of fairness which required a balancing of the community's interest on the one hand and the accused' interests on the other. [12] In the present matter, clearly there was no prejudice to the respondent by the late delivery of the brief of evidence. In my opinion, the learned Magistrate did not inquire into what the Prosecution had done to comply with disclosure or could do to comply with disclosure. There is a legitimate public interest in the disposition of charges and the conviction of those guilty of offences and the need to maintain public confidence in the administration of justice. All these factors, in my opinion, were not weighed up by the learned Magistrate before making his decision. [13] For the purposes of this appeal, I come to the view that the learned Magistrate did act in error in summarily dismissing the charges. He should have heard from the Police Prosecutor and balanced the public interest against the interest of the respondent. In this case, there was no prejudice to the respondent, as I have said. The other considerations favoured the Prosecution. Therefore I allow the appeal. [14] I order the complaint be listed for mention at a time to be fixed in the Magistrates Court in Mackay to be determined according to law. I set aside the order of the learned Magistrate made on 24 March 2011 striking out the charges. -- 4 of 4 --