Attorney-General of Queensland v Macey

[2013] QCA 195

[2013] QCA 195

COURT OF APPEAL

CHIEF JUSTICE
HOLMES JA
FRASER JA

CA No 4 of 2013
DC No 214 of 2012

ATTORNEY-GENERAL OF QUEENSLAND                  Appellant

v

MACEY, Samantha Jane  Respondent

BRISBANE

FRIDAY, 19 JULY 2013

JUDGMENT

CHIEF JUSTICE:  The respondent pleaded guilty before a Magistrate to 23 charges brought against her under the Collections Act 1996.  On the 16 of April 2012 she was sentenced to a partly suspended term of imprisonment in order to carry out 240 hours of community service and she was ordered to pay restitution.

The respondent appealed to the District Act under s 222 of the Justices Act 1886. On the 26th of November 2012 a District Court Judge allowed that appeal, rendering the term of imprisonment fully suspended and setting aside the order for payment of restitution.

The Attorney-General purported to appeal, by a notice filed on the 7th January 2013, which followed form 34 under rule 81 of the Criminal Practice Rules.

Form 34 and rule 81 relate to appeals under s 669A of the Criminal Code.  Under that provision, the Attorney-General may appeal against a sentence pronounced by a court of trial or by a court of summary jurisdiction dealing summarily with an indictable offence.  Neither of those situations applied here.

Unsurprisingly, the Attorney-General has this morning abandoned that proceeding and we ordered that the “purported” notice of appeal, I suppose it should be called, filed on the 7th of January 2013, be struck out.

Any appeal in this situation would need to have been instituted by the complainant, Christine Price, if granted leave to appeal under s 118(3) of the District Court of Queensland Act 1967.

Ms Price is not before us except in the title to the proceeding.  Her absence is explained by the affidavit of the Acting Director, Tactical Compliance of Fair Trading Operations within the Department of Justice and Attorney-General, Mr L’Barrow.  She has ceased to be employed within the requisite Department.

Mr Copley, who appeared for the Attorney-General and as well, in a sense, Mr L’Barrow here this morning sought the substitution of Mr L’Barrow for Ms Price.  The difficulty immediately confronting that application is that there is no evidence that Ms Price is aware of, let alone agrees in, any such substitution.

The application to re-cast the proceeding in that way should not be allowed.  I would refuse that application.

HOLMES JA:  I agree. As it seems to me, there is no application on foot by Ms Price, so there is nothing to which Mr L’Barrow could be added or substituted.

FRASER JA:  I agree with what has fallen from both my colleagues.