Osgood v QPS [2005] QCA 75

Court of Appeal (Qld)|2005-03-17|Before: McMurdo P, Jerrard JA and Jones JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Mr Osgood, who is self-represented both here and in the earlier proceedings concerning these applications in the Magistrates and District Courts, applies for an extension of time for leave to appeal from orders of a District Court judge dismissing his four appeals to the District Court from decisions or events in the Magistrates Court.

The four District Court orders the subject of this application were given on 6 August 2004. His application for an extension of time was filed on 29 September 2004, a little over three weeks late. By way of explanation for his lateness in pursuing his applications for leave to appeal, Mr Osgood claims that because he was in custody it was difficult for him to pursue the matter in a timely fashion. Although this explanation is not sworn or affirmed, this Court would not deny him the opportunity to argue his applications for leave to appeal if he demonstrated promising grounds for success in any appeal were leave to be granted.

I will consider those issues by dealing separately with each of the four matters concerned in this application.

This matter, a purported appeal to the District Court under s222 Justices Act 1886 (Qld) was from a magistrate in Cairns who allowed a police prosecutor to withdraw an application made under the Domestic Violence Protection Act 1989 (Qld). Section 222 provides for an appeal to a District Court judge only from a decision of a magistrate from "any order made by any justices or justice in a summary manner upon a complaint for an offence or breach of duty". As the complaint was withdrawn by the Prosecutor there was no order from which Mr Osgood could appeal. The District Court judge rightly recognised this in striking out the appeal. That decision was plainly right.

This purported appeal is from a decision of a magistrate in Cairns who refused Mr Osgood's request that his property, seized by police when they executed a search warrant at his house, be returned to him. Her Honour determined that the order of the magistrate was not one made upon a complaint for an offence or breach of duty and no appeal lay to the District Court under s222. That decision was plainly right.

This purported appeal to the District Court arose in this way. A magistrate at Mossman ordered that the brief of evidence relating to criminal charges for fraud and possession of tainted property be made available to Mr Osgood for collection one week before the next mention date of 28 April 2004 and well prior to committal. When his Honour's directions were not complied with, apparently because the police delivered the brief to the wrong address, the magistrate refused to strike out the charges and instead ordered that another brief of evidence be prepared and delivered to Mr Osgood within seven days. The appeal is from the magistrate's decision not to strike out the charges which Mr Osgood contends offended against s705 of the Criminal Code, and as a result of which the Magistrates Court had no jurisdiction under s158(2) Justices Act 1886 (Qld). S705 of the Criminal Code has no application in the Magistrates Court but entitles a person committed for trial or charged with an ex officio indictment to have a copy of the depositions. On the 6th of August 2004, when her Honour determined the matter, the charges were still before the Magistrates Court at Mossman. Her Honour correctly concluded that the order which Mr Osgood sought to appeal from was not an order on a complaint for an offence or breach of duty under s222 Justices Act 1886 (Qld) in that it was interlocutory only. This again is plainly right: see Schneider v Curtis [1967] Qd R 300 and Paulger v Hall [2002] QCA 353; [2003] 2 Qd R 294, 13 September 2002, and compare Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478.

This purported appeal to the District Court was from a decision of a magistrate on 26 May 2004 when he refused to strike out other criminal charges pending in the Magistrates Court because the prosecution had failed to provide a brief of evidence within time. Instead, the magistrate listed the matter for committal.

The learned District Court judge again found that the decision sought to be appealed from was not a final order from which an appeal lay under s222 Justices Act 1886 (Qld). For the reasons given in District Court Appeal No 262 of 2004, that decision was also plainly right.

Mr Osgood has not established that if an extension of time were to be granted he would have any realistic prospect of succeeding in obtaining leave to appeal because the decision of the primary judge in each District Court appeal was plainly right. That is not to say Mr Osgood did not have a genuine grievance about the late supply of the witness statements in District Court Appeals Nos 262 and 287 of 2004. But on the material before this Court that grievance appears to have been appropriately dealt with by the magistrates. In any case, for the reasons given earlier, none of the District Court appeals the subject of this application were competent.

He also applies for leave to adduce further evidence on this application. This evidence is a signed Queensland Police Service "statement of witness" made by Constable Benjamin Keith Tome. Mr Osgood contends that the statement should have been disclosed in District Court Appeals Nos 124 and 287 of 2004. He contends the statement shows that the initiating domestic violence application and search warrant were tainted.

The statement from Mr Tome exhibited to Mr Osgood's affidavit is dated 18 October 2003 on the top right-hand corner of the first page of the statement and was apparently signed by Mr Tome under section 110A(5)(c)(ii) of the Justices Act 1886 (Qld) on 28 October 2003.

I have some difficulty in understanding the relevance of that material to Mr Osgood's applications before this Court. It is sufficient to say that Mr Osgood has not given any reason to justify this Court's receipt of the further evidence in circumstances where the purported District Court appeals to which it is said to relate are incompetent. His application to adduce further evidence should be refused.

I would make the following orders: The application to adduce further evidence and the application for an extension of time within which to apply for leave to appeal are refused.

JERRARD JA: I agree with the reasons for judgment and orders proposed by the President. I add only that in respect of the matters on which Mr Osgood has been committed for trial, the applications that he was making before the Magistrate really asked the Magistrate to impose a permanent stay of the committal proceedings because of the non-delivery to Mr Osgood of statements. The Magistrate actually had no power to make an order permanently staying committal proceedings, and that was settled by the High Court in the case of Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1.

JONES J: I agree with the reasons spoken by the learned President and Justice Jerrard and I agree with the orders proposed.

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