Baldwin; Sheldon; Neucom; Hardie; O'Sullivan; Elton; Abdy; Strange v O'Connor

[1988] HCATrans 61

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane	Nos Bl, B2, B3, B4, BS, B6,
B7 and B8 of 1988

B e t w e e n -

SANDRA VALDA BALDWIN,

VINCENT ANTHONY SHELDON

KATHLEEN MARGE NEUCOM

COLIN STANLEY HARDIE

EUGENE O'SULLIVAN
BRIAN RAYMOND ELTON

ANTHONY ABDY

PETER STRANGE

Applicants

and

TERENCE JAMES O'CONNOR

Respondent

Applications for special leave

to appeal

DEANE J

Baldwin

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

F&QM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 25 MARCH 1988, AT 12. 39· PM

Copyright in the High Court of Australia

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MR R.R. DOUGLAS, QC: If the Court pleases, I appear with

my learned friend, MR D.A. REID, for the

applicant. (instructed by Carberry and Company)

MR D.R. GORE, QC: If the Court pleases, I appear with

my learned friend, MR J.D. PARKER, for the

respondent, in each of the applications.

(instructed by D.G. Sturgess, QC, Director of

Public Prosecutions)

DEANE J: There are how many applications, Mr Douglas?

MR DOUGLAS: The last time I counted there were eight.

There are eight, Your Honour.

DEANE J:	Yes.
MR DOUGLAS:	There is only one substantial affidavit, though.

DEANE J: Yes, Mr Douglas.

MR DOUGLAS:	Your Honours, these applications arise out of the decision of the Full Court of Queensland to
make absolute an order to review directed to a
magistrate who, himself, ruled that certain
summonses, based upon complaints laid before a justice, were invalid and that magistrate found the
facts to support that view.  The complaints were
dated 21 April 1987 and related to certain simple
offences.

It is convenient, Your Honours, first to take

you to the manner in which the Full Court dealt with

the magistrate's decision at page 42 of the application

book. Their Honours, there, said:

So far as the sunnnons is concerned,

the duties of a Justice in that regard

have been set out in several cases heard

by this Court, one being THE QUEEN V PEACOCK,

EX PARTE WIELAND (1971) Qd. R. 471, and also

in an unreported decision of MADSEN V APPO,

EX PARTE MADSEN, which was determined in

December 1973.

And then gave a reference to a passage in the judgment of Mr Justice Williams, where he said:

"It is not possible to lay down hard and

fast rules which every Justice must follow

before issuing his summons - a Justice must

deal with each individual case in a manner

consistent with what has been stated above." -

and refers to authorities, and said:

"It will depend upon the circumstances of each

case whether he does more than satisfy himself

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that the complaint is genuinely laid

for a good cause seeking to bring the

person charged before a Court to answer

a charge that on its face seems good."

(Continued on page 4)

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MR DOUGLAS (continuing):  The learned judge of the

Full Court dealt,with respect, scantily with

the magistrate's findings of fact, when they

said:

In my view the material before

the Magistrate showed just that.

Your Honours, may we take you to the material

before the magistrate. The first passage is at

page 13 of the record, the second line- the lines

are not number, but it is the first answer:

Mr Jerrard:	So what did you say to her
on the phone?

I said to her I would need her services -

this is a police officer, who was speaking to

the justice who was to issue the sunnnons -

as I recall it, to witness as a Justice

of the Peace some sunnnonses.

Then at the bottom of the page, the last big

answer:

I said words to the effect that I

have some sunnnonses here, there's quite

a few, I can't recall how many I would

have said at that time. I said, "They

relate to an investigation I have

been conducting over quite a lengthy

period. I think the actual summons

that had the most matters referred to

it I read that out to her, I recall.

Then over the page, the second answer:

I would have read the counts out, yes .....

And I said, "The other basically relate

to the same".

DAWSON J:  Mr Douglas, why was not all of this academic,

after all the complaint was before the magistrate
and the magistrate had jurisdiction to proceed
and there was an appearance, presumably, for

the defendants?

MR DOUGLAS:  Yes, Your Honour, is raising the point that

the defendants acquiesced to the jurisdiction?

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DAWSON J:  The power to issue a summons has nothing to do with

jurisdiction. The jurisdiction is given by the

complaint being before the magistrate.

MR DOUGLAS: Well, we understand that that point was taken

but abandoned before the Full Court. And indeed

the applicants here all appeared under objection

before the magistrate.

DAWSON J: Well, your are not suggesting that the jurisdiction

depends upon the summons being valid, are you - - -

MR DOUGLAS: No, Your Honour. What I am suggesting is that

an objection was taken before the magistrate as to jurisdiction at the time - at the appropriate time -

and, although I did not appear in the Full Court,

I am told that that objection wasa:,andoned by the

current respondents.

DAWSON J: Well, where does that leave us?

MR DOUGLAS:	Where does that leave us?
DAWSON J:	Yes.

MR DOUGLAS: Well, Your Honour, it is not a point which is

open here, with respect.

DEANE J:  The objection was taken by your clients to the
summonses, and apparently also to the complaints.

MR DOUGLAS: That is so.

DEANE J:	On the grounds of bias.
MR DOUGLAS:	Yes.

DEANE J: It then seems to have developed into a sort of

fishing expedition in which the justice was,

out of the blue, expected to remember what had

happened as a matter of procedure in relation to

these particular summonses.	One then finds that bias
disappears but something else takes its place.

MR DOUGLAS: Yes, that is so, Your Honour. Bias did go away,

but what turned out in the longrunwas that,on any

fair view of it, the justice did not appreciate what

she was doing. She really thought, on the evidence,

that she was there to issue, in effect, subpoenas
to witnesses to give evidence at some hearing to

aid the Federal Police.	Now that appears at
pages 26 to 28 of the record.	She had no appreciation,

with respect, of what she was being asked to do.

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MR DOUGLAS (continuing): At the middle of page 26, numbered

at the bottom of the record:

SO WHAT lS THAT ROLE DO YOU UNDERSTAND IT?

I understand that 1 am calling people to Court.

WHY?

Because there is a case and they are needed

to give evidence.

She thought that was her role.	Then over to page 28,
about point 6 of the page:

But 1 see that it is convenient for them -

that is the police -

and part of the role of the public service
area in the Federal Police is to support the

investigative areas, and 1 see that as a part

of the support functions.

She, with respect, did not really appreciate, as she should have done, what her role was. But,

indeed, Your Honours, section 239 of the JUSTICES ACT

of Queensland, which reads:

When the person convicted, or against whom

an order has been made, or any person whose

goods have been condemned or directed to be

sold as forfeited, was present at the hearing

of the case, the conviction or order shall

be sustained, although there may have been

no complaint or summons or amendment thereof,

unless he objected at the hearing that there

was no complaint or summons or amendment thereof.

Similar sections appear in the other JUSTICES ACT.

We would submit that the objection which was taken

at the time was one which sufficiently complied

with section 239 so as to properly object to the

complaint and summons which was before the Court

at that time.

DAWSON J:	But how could there be objection to the complaint?
MR DOUGLAS:	Well, Your Honour, section 239 contemplates
DAWSON J:	I agree with that but what was the objection to the

complaint then?

MR DOUGLAS:  Your Honour, there was no objection to the complaint,

there was to the summons.

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DAWSON J:  And there is no doubt that the complaint gives

jurisdiction to the matter, is there?

MR DOUGLAS:	I cannot argue against that, Your Honour.
DAWSON J:	And there is no doubt about the law relating to

the issue of sunnnonses by a justice, is there?

I mean, it is well established that a discretion

has to be exercised?

MR DOUGLAS:  Yes, Your Honour. That has been made plain in

the cases which appear in our list, indeed.

DAWSON J:  Well, if there is no doubt about the law and there

is no doubt about the jurisdiction of the magistrate,

where is the special leave point?

MR DOUGLAS:  Your Honour, the special leave point here - we

know, of course, we are faced with the recent

refusal of special leave in the case of

G.J. COLES & CO LIMITED V REG, and the only note of

that we have is in (1987) 6 Legal Reporter - SL 4,

it is, yes - where Your Honour sat, of course, as one

of the judges. The distinguishing features of this

case from that, Your Honour, are that the justice in

this case, on any view of it, did not appreciate

the role she was asked to undertake. She thought her

role was something quite different to an exercise of

her discretion to issue a sunnnons based upon the

complaints laid before her.

She perceived her role to be simply as someone

who is there to get documents out to bring witnesses

before the court so that they could give evidence, as

she said in terms, and which meant, Your Honour, that

that is a distinguishing feature which makes this an

important case because, if the case is applied elsewhere,

and indeed in Queensland, the test would be that a

complaint genuinely laid for a good cause,

even though the justice misunderstands the function he or she is performing, even though the complaint

is read out to her or to him.

Your Honours, we cannot take the matter much

further than that, to say that it is apparent that

the justice in this case did not appreciate that

she was there to exercise her discretion to issue

a sunnnons, or not issue a sunnnons, upon the complaint

laid before her.

DEANE J:  Mr Douglas, can I just take you back to page 26.

There the justice said:

I understand I am calling people to

Court ... ~ .Because there is a case and they are needed to give evidence.

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DEANE J:  Now, you focus on the "they are needed to give

evidence'. 1 to say she thought they were being called

as witnesses?

MR DOUGLAS:	Yes.
DEANE J:	Was that point ever taken or fairly raised before the

magistrate, because as I read Mr Jerrard's

submissions in summary form, he did not suggest

that one should read from what the witness said,

a complete misapprehension about what was involved.

MR DOUGLAS:  Can I say two things to that. In Queensland

my experience is that would not be a summary of

his submissions that would be his full submission because

a tape-recorder would have been used to take

down everything.

DEANE J:  The fact that it is all in capitals makes one

think it must be a summary, I suppose.

MR DOUGLAS:  I think they type all in capitals in these

things, Your Honour. I think what they do is

the capitals are the questions and the minor

characters are the answer. I think it is fair

to say that that would have been his whole

submission. That being the case I must answer

in the negative to your proposition. We are

just checking that to make sure that is plain,

Your Honour, but I do not recall that that is the

case. That seems to be so, Your Honours. They

are our submissions.

DEANE J:  Thank you, Mr Douglas. We need not trouble

Mr Gore. In theFull Court of the Supreme Court of

Queensland Mr Justice Kelly, with whose judgment

Mr Justice Connolly, Mr Justice Moynihan agreed,

stated the applicable principles by quoting from

the unreported judgment of the Full Court delivered

by Mr Justice Williams in MADSEN V APPO, December 1973.

We do not think that the correctness of His Honour's	statement of the applicable general principles	is attended by sufficient doubt to warrant the
grant of special leave to appeal. The members
of the Full Court in the present case were unanimously of the view that applying the applicable general
principles to the particular facts the learned magistrate was in error in holding that the relevant
complaints and/or summonses were invalid. We do
not think that the decision of the Full Court in
that regard raises any question of principle or
any question of general importance. Special leave
to appeal is therefore refused.

MR GORE:  May it please the Court, the respondent asks for

costs.

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DEANE J:  Mr Douglas, I presume there is nothing you can

say about that?

MR DOUGLAS:	I wish there was, Your Honour, but I cannot.
DEANE J:	Very well. Special leave to appeal is refused

with costs.

AT 12.53 PM THE MATTER WAS ADJOURNED SINE DIE

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