Birchley v Couchy

[2005] QDC 20

DISTRICT COURT OF QUEENSLAND

CITATION:

Birchley v Couchy [2005] QDC 020

PARTIES:

MELISSA JANE COUCHY
applicant/appellant
And
IAN PATRICK BIRCHLEY
respondent

FILE NO:

BD4692 of 2004

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Brisbane

DELIVERED ON:

17/02/2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2005

JUDGE:

Alan Wilson SC,DCJ

ORDER:

Application dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – REVIEW -  administrative provision authorising Crown to charge fees for copying transcripts – applicant/appellant seeking to avoid payment – nature of discretion

Justices Act 1886
Recording of Evidence Act 1972

Cases considered:
Dietrich v The Queen (1992) 177 CLR 292
Hamilton v Oades (1989) 166 CLR 486
Jago v District Court of New South Wales (1989) 168 CLR 23

COUNSEL:

Mr BD Brunello, Solicitor for the applicant/appellant
Mr M Hungerford-Synes of Counsel for the respondent

SOLICITORS:

Boe Lawyers for the applicant/appellant
Director of Public Prosecutions for the respondent

1. Ms Couchy was convicted before a magistrate on 1 December 2004 of two offences – committing a public nuisance, and obstructing police.  Convictions were recorded and she was fined $500, to be paid within one month.  An appeal was lodged in this court on 22 December 2004.

1. In this application the appellant seeks an order that she be provided with a copy of the transcript of the proceedings in the Magistrates Court, and that any costs associated with the copying be waived.  A supporting affidavit from her solicitor shows various enquiries have been undertaken in the Magistrates Court and the District Court, and at the Department of Justice and with the office of the Director of Public Prosecutions in an attempt, by the solicitors, to obtain a copy of the transcript without payment.  It appears that:

(a)        The Magistrates Court has refused to waive the fees for a copy of the transcript.

(b)        The DPP was not prepared to provide a copy of the transcript, which it had.

(c)        This court would not permit a copy of the transcript held here to be taken, unless an order to that effect was made.

(d)        The transcript is about 70 pages long and would cost $4.80 per page to copy, for a total cost of $336.

1. At the hearing Counsel for the DPP indicated it was prepared to make its copy available for perusal by the appellant’s lawyers; and the appellant’s solicitor proposed that his firm be permitted to borrow out the District Court copy, for the purpose of making its own photocopy.

1. The regulations propounded under the Recording of Evidence Act 1972 provide (Reg 13) for administrative provisions to be made providing for and fixing the fees to be paid in respect of copies of transcripts of legal proceedings.  The Justices Act 1886, s 154(1) provides, relevantly:

154     Copies of record

(1)When in any proceeding before justices an order is made, or the justices commit the defendant to be tried or for sentence, or discharge the defendant, the person having custody of the record of the proceeding shall upon —

(a)the application in writing of any person who, in the person’s opinion, has a sufficient interest in the proceeding or in securing a copy of the record thereof or of the part of such record applied for; and

(b)     payment of the amount of the prescribed fee;

subject to this section, supply to the applicant a copy of the complaint relevant to the proceeding, the depositions taken therein, any order made therein (including an order for the committal or discharge of the defendant), any documentary exhibit therein other than a photograph, or, as the case may require, a copy of such of them as the applicant applies for.

1. The applicant’s material shows she is indigent and that her solicitors have, creditably, appeared for her before the magistrate without remuneration and are conducting this appeal on the same basis (subject to a right to claim costs if the appeal is successful, and she recovers costs).  She supports herself from a disability pension and, I accept, would have difficulty producing the amount required to pay the prescribed fee.

1. I was not overwhelmed by reference to authority about the court’s power to interfere with these kinds of administrative provisions, but simply referred to the decisions of the High Court in Jago v District Court of New South Wales (1989) 168 CLR 23 and Dietrich v The Queen (1992) 177 CLR 292 in support of the proposition that the court retains an inherent jurisdiction to control proceedings before it to ensure that justice is done.

1. Dietrich is no more than, relevantly, an acknowledgement that the common law in Australia does not recognise the right of an accused to be provided with counsel at the public expense but with, simultaneously, an acknowledgement by the majority that there is power to grant a stay in cases in which representation of the accused is obviously essential to a fair trial.  Elsewhere, in Hamilton v Oades (1989) 166 CLR 486 Deane and Gaudron JJ said (uncontentiously, although they were in the minority):

The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice …

1. Jago is a case in which there had been a long delay in listing a criminal case for trial and, eventually, the accused sought a permanent stay of proceedings.  In deciding that there was not, in New South Wales, a right at common law to the speedy trial of a criminal charge (separate from the right to a fair trial) Mason CJ said:

It is convenient to commence by considering the inherent power of courts to prevent abuses of their processes.  It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abusive process … Subject to statutory provision to the contrary, the court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes power to take appropriate action to prevent injustice:  see Hamilton v Oades. (emphasis added)

At 56, Deane J said:

Once a court is seised of criminal proceedings, it has control of them.  In the absence of applicable express statutory provision, that control includes the power – either inherent or implied – to ensure that the court’s process is not abused by the proceedings being made an instrument of unfair oppression …

1. I was not referred to any authority suggesting an executive decision to charge appellants for copies of transcripts might be categorised as an abuse of process.  This is an appeal, not a criminal trial, and there is no apparent basis for transporting the principles discussed in Jago and Dietrich from the criminal to the appellate jurisdiction.  That said, it is nevertheless appropriate to acknowledge and the court’s ongoing power to control and supervise proceedings; but, as the passage cited earlier from Jago shows, the power to take appropriate action to prevent injustice is always to be considered subject to any statutory provisions to the contrary.

1. Section 154 is, on its face, very clear. It would plainly remain within the discretion of the executive officers charged with the administration of that section to waive fees when and if they consider that is appropriate. What is being sought, here, is in effect a form of judicial review of their administrative decision not to do so. The fact a discretion exists may be seen from s 154(4) which provides that the requirement for payment does not prejudice the provisions of the Criminal Code, ss 705 and 706, which permit copies of depositions to be allowed to persons committed for trial, and the right to inspection of depositions at trial. Otherwise, however, s 154(1) is couched in terms suggesting the discretion is quite a narrow, limited one.

1. The limited evidence concerning the reasons for refusal suggests that, at the highest, there is a policy decision not to provide transcripts without payment. The existence of such a policy is hardly surprising. In light of the statute, questions about its fairness cannot arise because s 154(1) contains a legislative imprimatur for it. Nothing in the material presented with this application points to the conclusion it has been improperly applied.

1. Even if the discretion is wider than I have allowed, and vests in the court, I would not be inclined to apply it in this case.  This applicant faces the same expense as any other appellant in her position and, notwithstanding any sympathy for her or admiration for her solicitors for providing free legal assistance, there is no apparent basis for concluding that the policy creates injustice, or has done so here.  That conclusion is more readily reached because of the DPP’s offer to allow perusal of the transcript.

1. For these reasons, the application is dismissed.