Brown v Owen

[3] The first mention of the summary matters in the Magistrates Court after the acquittal was on 7 November 2003. Mr Owen's solicitor Mr Kuskie informed the Magistrate Mr Johnstone that the identical charges against Mr Cleaver had been discontinued and he expected a similar outcome for his client. The police prosecutor told Mr Johnstone that she was not sure whether the charges would be proceeding and sought an adjournment to seek instructions. It is clear from the material before this court that, although the complainant was a police officer Mark Brown; the "instructions" were to come from the Director of Public Prosecutions Officer in Brisbane who had instructed the prosecutor at the District Court trial.

[4] The matter was mentioned again on 19 December 2003, and the prosecution informed Mr Johnstone that the charges would proceed. Mr Kuskie then advised the court that his client (who was not personally present) would plead not guilty.

[5] Mr Kuskie informed the court that he had not been supplied with a brief of evidence or particulars of the charges, and for that reason, he could not estimate the length of the hearing, apart from observing that it would go at least as long as the District Court trial.

[6] There is no dispute that Mr Johnstone then set the matter down for a hearing mention on 5 March 2004 and directed the prosecution to provide a complete brief of evidence with particulars to the defence by then. The Magistrate gave the prosecution "an extended period of time" to enable them to comply with his clear direction.

[7] When the matter was first mentioned on 5 March 2004; the prosecution had not provided a brief of evidence or particulars to the defence. The matter was mentioned on two occasions during the day. The first and most critical mention involved argument by Mr Kuskie and the police prosecutor which lead ultimately to Mr Johnstone dismissing all complaints.

[8] Unfortunately, there is no transcript of that hearing. The only person with any independent recollection is Mr Kuskie who has filed an affidavit. Mr Kimmins who appears for the complainant informed me that the police prosecutor had no independent recollection of the hearing. There is a lengthy transcript of the second hearing on that day which was to do with costs, and some of the comments of the Magistrate are helpful in ascertaining his reasoning for dismissing all complaints earlier that day.

[9] Mr Kuskie's recollection is not challenged and I accept it. He says that prior to the hearing he spoke to the prosecutor and asked her for the brief and particulars which he had still not received. The prosecutor told him that she had been instructed by "Brisbane" that the brief which had been provided in relation to the indictable offences "would do". This was not acceptable to Mr Kuskie, and these matters were placed before Mr Johnstone. As well, Mr Kuskie recalls pointing out that since the provision of the original brief, four weeks of evidence had been received in the District Court, including 2 days of evidence by Mr Owen. He submitted that his client could not prepare for trial without particulars of the summary offences. The prosecutor then sought a short adjournment and on resumption, she informed the Court that she had spoken to Mr Andrew Lossberg of the Director of Public Prosecutions Office Brisbane, and as a result, no further brief or particulars would be supplied as the prosecution believed that the original brief was adequate. Mr Kuskie says in his affidavit that Mr Lossberg was the Director of Public Prosecutions officer who instructed counsel throughout the hearing of the indictable offences.

[10] Mr Kuskie then applied to Mr Johnstone for an order that the complaints be dismissed on the ground that the prosecution had failed to provide a brief and particulars in contravention of his direction to do so, given on 19 December 2003. Mr Johnstone dismissed all charges. Mr Martin, who appears for Mr Owen helpfully referred me to a passage in the transcript of the costs hearing, which I agree, amplifies the reasons behind the decision to dismiss. At page 9 line 1-11 Mr Johnstone said:

"It is the view of this Court that, if the Crown or the prosecution or the Queensland Police Service wishes to bring its considerable resources against an individual and there is a requirement for that individual to respond to that complaint, and further, if a specific order is made by this Court that a matter is set down for a hearing mention on a particular date, it is insufficient, in this Court's view, for the Queensland Police Service to merely advise, on a date that the matter is set down for a hearing mention, that the brief is the same as the other one, which has apparently been provided to the defendant in respect of District Court proceedings."

[11] The complainant, Detective Brown, appeals against the order dismissing the complaint asserting that, in so doing, the Magistrate acted without power. Mr Owen has applied pursuant to s229(1) of the Justices Act 1886 that the appeal be struck out on the grounds that the appellant has delayed in prosecuting the appeal or has failed to take a necessary step to present the appeal. In essence, Mr Owen argues that the appellant has failed, in a significant way, to comply with Practice Direction No. 5 of 2001 dealing with appeals to the District Court. Obviously, if he is successful on his application the substantive appeal will fail.

[12] Practice Direction No. 5 of 2001 provides (relevantly); in paragraph 2:

Within 28 days of filing the Notice of Appeal the appellant must file and serve on any respondent who has filed a notice of address for service an outline of argument on behalf of the appellant.

An Appeal will not be given a date for hearing until the outline of argument has been filed unless a Registrar directs to the contrary."

[13] Detective Brown's appeal was filed on 1 April 2004. His outline of submissions was not filed until 25 October 2004. Mr Martin argues that the requirements of the Practice Direction are mandatory; he particularly relies upon the emphasis placed on the word "must" in the direction; and that this Court has no discretion to hear the appeal once the breach of the Practice Direction has been established.

[14] Section 229(1) of the Justices Act states:

"If the appellant delays in prosecuting the appeal or fails to take a necessary step to present the appeal, a District Court judge may strike out the appeal on application in the approved form by a party to the appeal."

[15] It is immediately obvious that the use of the word "may" connotes a discretion even if an appellant has delayed or failed to take a necessary step.

[16] The power of the Chief Judge to issue Practice Directions derives from s28A of the District Court Act 1967 and in Gamble -v- Davidson [1998] QCA 154 the Court of Appeal held (in relation to a previous Practice Direction which was replaced by the present direction) that s28A(2) does not confer on the Chief Judge power to make a Practice Direction empowering a District Court Judge to strike out an appeal on the ground that the appellant has failed to file and serve an outline of argument by a date specified in the Practice Direction. As the Court held, the power to give Practice Directions in s28A(2) is to be exercised "subject to any Act...", thus any conflict between the Practice Direction and the applicable statutory provision, in this case s229(1), must be resolved in favour of the statutory provision.

[17] The present Practice Direction does not conflict with s229(1) in that it does not purport to confer a power on this Court to strike out the appeal on the grounds that the appellant has not complied with some part of it.

[18] As Mr Kimmins pointed out in his oral submission, the Practice Direction itself contains sanctions for an appellant who fails to file the outline within time; and that is that a date of hearing will not be allocated until the outline has been filed.

[19] The use of the mandatory term "must" in the Practice Direction must give way to the express wording in section s229(1) which confers a discretion on this Court in the event of a breach of s229(1) by an appellant.

[20] Gamble v Davidson was followed in Steinberg v Luundgaard [2001] QCA 332, and similar themes can be found in a number of decisions dealing with the failure by an appellant to comply with the procedural requirements in the Justices Act covering appeals to this Court. It has to be emphasised that since all of these cases the relevant provisions of the Justices Act have been substantially amended, and the cases must be read in that light. Until Double Time Pty Ltd v Ryan [2001] QCA 57; [2002] 1 Qd.R 371, a line of authority in this Court applying cases such as R v The Judge of the District Court at Brisbane and Davies; exparte Allen [1969] Qd.R 114, had held that a failure to strictly comply with the procedural requirements of s222 of the Justices Act was fatal unless the other party had waived non-compliance. Double Time overruled that line of authority, and held that in cases of non-compliance the District Court maintained a discretion, to be exercised by reference to circumstances of the case. In Von Schulz v Durrant [2000] QCA 235, the Court observed that similar considerations can arise in applications to extend time to appeal: R v Tait [1998] QCA 304.

[21] In this case, the solicitor for the appellant has provided an explanation for the lengthy delay. He was unable to obtain the transcript of the critical hearing on 5 March because the tape was lost. It took some time for this to be discovered, and it is not suggested that there was any significant delay in filing the outline after that information was known. Importantly, Mr Martin does not allege any particular prejudice to his client as a consequence of the delay. I find that the appellant has satisfactorily explained his delay in filing his outline, and in all the circumstances the application to strike out the appeal is dismissed.

[22] Mr Johnstone dismissed the complaints on the ground that the appellant/complainant had failed to comply with his direction on the 19 December 2003 to provide a brief of evidence and particulars. The direction power is contained in s83A of the Justices Act 1886, and a direction is binding on the parties: s83A(6). Prosecution disclosure in the Magistrates Courts is now governed by s40 which adopts the laws relating to prosecution disclosure which is set out in Chapter 62, chapter division 3, of the Criminal Code. Although these laws were not in effect at the time Mr Johnstone made his order; it is relevant to note that s590AC(2) provides that failure to comply does not affect the validity of the proceeding. This is a similar theme to that set out in the Criminal Practice Rules which did apply at the time of the order. Mr Martin pointed this out in his oral submission. Non-compliance with the rules itself does not invalidate a proceeding; however the Court is given a power to direct otherwise, including a power to "set aside all or part of the proceeding": r.7 Criminal Practice Rules 1999.

[23] The simple issue for this Court is: did the Magistrate have power to dismiss the complaints for failure to comply with the direction to make disclosure and provide particulars? Mr Martin relied on s149 of the Justices Act 1886, but he properly acknowledged in argument that this section deals with the consequences of dismissal, and does not confer any discrete power to dismiss. In any event, s149 seems to contemplate a hearing on merits. There is a power to dismiss contained in s146(1)(a) but only after a hearing on the merits. Clearly, a Magistrate can dismiss a complaint where the complainant offers no evidence. Similarly, if the complainant does not appear, the complaint may be dismissed with or without costs; s147.

[24] There is no suggestion that Mr Johnstone purported to act pursuant to an inherent power to prevent an abuse of process, although Mr Martin now says that the conduct of the prosecution constituted an abuse of process. The difficulty with that submission is that there was no submission made to the Magistrate to that effect. He was told by the prosecutor that, in effect, a brief of evidence and particulars in the form of the earlier supplied District Court brief had been supplied, but he never proceeded to hear argument to test that contention.

[25] There is no doubt that the attitude of the prosecution was high handed. To submit that what the defence had "would do", without any other attempt to comply with the clear direction made on 19 December, was disrespectful and inappropriate. Mr Johnstone was entitled to be concerned about the attitude take by the prosecution; particularly so given that the large number of complaints had been before the Court since 2000. However, in purporting to dismiss the complaints without testing whether there had been compliance, he acted beyond the scope of his power. He 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. There was no question of want of jurisdiction pursuant to s158(2) although in some respects, the matter has similarities with the case of Commissioner of the Police v Lyn & Another [2004] QSC 56 where the prosecution had not responded to a number of submissions by the defence to the effect that the matter be dealt with summarily rather than by way of committal proceedings, and the Magistrate struck out the proceedings on that basis.

[26] The appeal is allowed. Mr Owen should pay the appellant's costs, but as the appeal has succeeded on a question of law, I grant to him an indemnity certificate in respect of the appeal pursuant to s15(3) of the Appeal Costs Funds Act 1973.

[27] In relation to the application to strike out, I make no order as to costs.

[28] I order that the complaints be listed for mention at a time and date to be fixed in the Gympie Magistrates Court to be determined according to law.