Buswell v Francis [2010] QDC 537

1 [2010] QDC 537 DISTRICT COURT APPELLATE JURISDICTION JUDGE HARRISON Appeal No 136 of 2010 CAMERON ROBERT CHARLES BUSWELL Appellant and DANIEL JAMES FRANCIS Respondent CAIRNS ..DATE 15/12/2010 JUDGMENT -- 1 of 7 -- 2 JUDGMENT HIS HONOUR: This is an appeal by the original complainant, Cameron Robert Charles Buswell against a finding of a Magistrate of no-case to answer on the hearing of a complaint in the Magistrates Court at Cairns on the 22nd of June 2010. The respondent to this appeal was originally charged on complaint with four offences under the Animal Care and Protection Act 2001. The prosecution evidence was heard before the Magistrate at Cairns that day, and at the conclusion of that evidence the solicitor acting on behalf of the respondent made a submission of no-case to answer. In the course of that submission, the solicitor relied on an alleged failure on the part of the prosecution to prove compliance by the inspector, who investigated the matter, with section 120 of the Act. Section 120 provides: "120 Production or Display of identity card (1) An inspector may exercise a power under this Act in relation to a person only if the inspector- (a) first produces the inspector's identity card for the person's inspection; or (b) has the card displayed so that it is clearly visible to the person. (2) However, if it is not practicable to comply with subsection (1), the inspector may produce the identity card for the person's inspection at the first reasonable opportunity. (3) For subsection (1), an inspector does not exercise a power in relation to a person only because the inspector has entered a place as mentioned in section 122(1)(b) or(2)." The evidence in relation to this requirement was scant. When -- 2 of 7 -- 3 JUDGMENT the inspector entered upon the premises he had a tape recorder with him and, for whatever reason, there were times when the tape-recording was not particularly easy to hear. It was obvious that during the course of this argument at the conclusion of the prosecution case, that all present in the Court had some difficulty following what in fact was said, but for today's purposes it was agreed that the relevant passages were as set out in a transcript. Both parties have summarised that transcript to me today, and I note that the transcript was tendered by consent on the hearing of the matter. The relevant passage, for current purposes, appears in paragraph 4.4 of the submissions advanced on behalf of the appellant. After the introduction by the inspector to the respondent the following words appear in the transcript: "I'll show you my identification [indistinct]." There is then something said by the respondent, but all the record shows is that that was indistinct. It was successfully argued by the solicitor for the respondent at the conclusion of the prosecution case that this could not mean compliance with section 120 of the Act. During the course of argument before the Magistrate, she was referred to the provisions of section 175 of the Act which provides: "175 Appointments and authority: The following must be presumed unless a party to the proceeding, by reasonable notice, requires proof of -- 3 of 7 -- 4 JUDGMENT it- (a) the appointment of an authorised officer or inspector; (b) the power of the chief executive, an authorised officer or inspector to do anything under this Act." Section 175 appears under Chapter 7 of the Act, which deals with evidence and legal proceedings and, to me, would have to have specific application in any legal proceedings under the Act. It has been argued on behalf of the respondent that the requirement under section 120 is effectively absolute and that any failure on the part of an inspector to comply with the production under section 120 effectively means that any evidence obtained in the exercise of any powers from that point on would not be admissible against him. This was the overall effect of the decision of the Magistrate. It seems to me, however, that there was not given sufficient regard to subparagraph (b) of section 175. As I read that section, "the power of an inspector to do anything under this Act must be presumed unless a party to the proceeding, by reasonable notice, requires proof of it." (The underlining is mine). I believe that sections 120 and 175 should be read in conjunction. And if an issue arises as to any failure to produce under section 120, I believe that section 175 would apply and it would be incumbent on a person taking that point -- 4 of 7 -- 5 JUDGMENT to give the reasonable notice under section 175 so that the matter could then be determined on the hearing. Notice was not given here. I also have concerns about the finding that there was no evidence at all of compliance with section 120. It seems to me that the Magistrate could have inferred in the absence of any suggestion to the contrary in cross-examination or otherwise that the passage that I referred to earlier from the transcript was in fact a production by him of his identification for the purposes of section 120. Had there been a challenge to that and that is all the evidence that was available, then the situation may have been different, but in the absence of any such challenge I believe that it would have been reasonably open to draw that inference. Further, it seems to me that noncompliance with section 120 is not necessarily fatal in a matter such as this. If, at the end of the case, the Court was faced with a situation where it was not satisfied that the production under section 120 had been given, I believe that all that would do is enliven a discretion in the presiding Magistrate, in terms of the admissibility of the evidence which ensued, following the exercise of various powers under the Act from that point on. Again, it is well known that there are a number of matters which are relevant to the exercise of that discretion. This is something that would have required separate consideration by the Magistrate, if she was satisfied that there had not -- 5 of 7 -- 6 JUDGMENT been any compliance with section 120 and if she was satisfied that section 175 did not apply. It was argued on behalf of the appellant that this is a matter where the exercise may well have gone the other way. Whilst it is not necessary for me to determine that in view of the findings that I have already made, I would agree that this is the type of case where, on the evidence before the Court, that may well have been the case if that matter was ever determined. It is not as though there was ever any suggestion that the respondent was treating the inspector as anything other than an inspector purporting to exercise his powers under this particular legislation. Further, there was clearly a prima facie case shown. For all of those reasons, it seems to me that the appeal should be upheld and that I should order a rehearing. I exercise my powers under section 222 section (2). And I believe that the best thing that could happen in a matter such as this is if the trial is reheard from the beginning, and I vacate the order of no-case by the Magistrate and refer the matter back to the Magistrates Court at Cairns for rehearing. I have been asked to order that the matter be heard by a Magistrate other than the Magistrate that made the original ruling. I do not see the need to make that order as such because, it seems to me, that as a matter of commonsense in an area where there are seven presiding Magistrates, that that this matter would be organised so that that would happen in -- 6 of 7 -- 7 JUDGMENT any event. Mr Henry, you have an application for costs? ... HIS HONOUR: First things first: I order that the respondent pay the appellant's costs of and incidental to the appeal fixed at $1800. I also confirm that, in essence, this matter was determined on a question of law, being the relevance of section 175 of the Act - vis-à-vis section 120 of the Act - and in those circumstances I will grant an indemnity certificate under the provisions of section 15(3) of the Appeal Costs Fund Act 1973. ----- -- 7 of 7 --