Commissioner of the Police Service v Lynn & Anor [2004] QSC 56

SUPREME COURT OF QUEENSLAND CITATION: Commissioner of the Police Service v Lynn & Anor [2004] QSC 056 PARTIES: COMMISSIONER OF THE POLICE SERVICE (Applicant) v KENNETH P LYNN – Magistrate (First respondent) PHILLIP JOHN LENON (Second respondent) FILE NO/S: 554 of 2002 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 25 March 2004 DELIVERED AT: Cairns HEARING DATE: 2 February 2004 JUDGE: Jones J ORDER: 1. The application is allowed. 2. That the order purporting to strike out the complaint be set aside. 3. The complaint be re-listed for hearing and determined according to law. CATCHWORDS: MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - where a direction to strike out a complaint was given by a magistrate during committal proceedings – where power to strike out by magistrates exists under Section 158(2) of the Justices Act for want of jurisdiction – whether such a power to strike was exercised appropriately by the magistrate. Justice Act 1886 (Qld) Criminal Code (Qld) COUNSEL: Mr Henry for the applicant Mr Marsh for the first respondent Second respondent conducted own case SOLICITORS: MacDonnells for the applicant -- 1 of 3 -- 2 Crown solicitor for the first respondent [1] This is an application by the Commissioner of the Police Service to review a decision made by the first respondent to strike out a complaint of a serious assault which had been alleged against the second respondent. [2] The alleged assault was on a police officer occurring on 18 May 2002. The complaint was laid as an offence pursuant to s 340 of the Criminal Code, an offence which can be tried summarily but only if the prosecution elects to do so. See s 552A. In this instance, the prosecution on 25 June 2002 elected for the matter to proceed as an indictable offence. [3] The subject decision was made in the course of committal proceedings which were to determine whether the second respondent should be committed for trial in the District Court. The decision was thus of an administrative character and made under an enactment, viz Justices Act 1886. Part 5 of that Act deals with proceedings in the case of indictable offences. Such proceedings are concluded either by an order committing the accused to stand trial, or if the evidence is not sufficient, an order that the accused be discharged.1 There is no provision in the Act for a magistrate during committal proceedings to strike out the complaint. [4] The circumstances in which the decision came to be made give some indication of how the issue arose. The second respondent first appeared in the Magistrates Court on 25 June 2002 and the matter was adjourned. Thereafter there was exchange of correspondence between the police and the second respondent’s then solicitor. The purpose of this correspondence was an endeavour to have the police change their election, and agree to have the matter tried summarily. Principally this was because the assault was of a minor nature. Whilst these discussions were in train the matter was further adjourned on two occasions. When the matter finally came before the court on 9 October 2002 the first respondent was advised of a failure of the police to answer correspondence. The entire exchange took the following form:- “MR BOVEY: Your Worship, I forwarded a submission to my friend’s office on the 16th September, followed it up on the 20th of September, the 1st of October and again yesterday. We have had no reply. My friend might be able to enlighten Your Worship as to what the situation is. BENCH: Mr Prosecutor? SNR CONST WEBB: Excuse me, Your Worship. No, I have no information with respect to it, Your Worship. BENCH: That’ll be struck out.” [5] One can understand a sense of frustration arising from the failure on the part of the police either to progress the discussions or have the matter proceed. The simple reality is that the first respondent did not have the power to made the order that he did. The applicant has placed before me detailed submissions identifying circumstances in which such a power does exist. Section 158(2) of the Justices Act 1 S 104 Justices Act 1886 -- 2 of 3 -- 3 which allows the striking out of the complaint for the want of jurisdiction. That did not assist the first respondent in this instance nor would a resort to the inherent power in the court to prevent an abuse of its own process. No argument was raised by either respondent that the first respondent acted under the cover of any such power. [6] In these circumstances it seems clear that the first respondent erred in law in concluding that he had the power to strike the matter out when in fact he had no such power. In the event that should be my finding the applicant does not seek any order for costs. Orders 1. The application is allowed. 2. I order that the order purporting to strike out the complaint be set aside. 3. The complaint be re-listed for hearing and determined according to law. -- 3 of 3 --