Brooks v Halfpenny

[2002] QDC 269

DISTRICT COURT OF QUEENSLAND

CITATION:

Brooks & Anor v. Halfpenny [2002] QDC 269

PARTIES:

GARRY KENNETH BROOKS  (Appellant)

And

MONIQUE VIVIAN SULLIVAN                   (Appellant)

And

RUSSELL JOHN HALFPENNY                 (Respondent)

FILE NO/S:

Apl 34 of 2001 and Apl 34A of 2001

DIVISION:

Civil

PROCEEDING:

Appeal from decision of Magistrate

ORIGINATING COURT:

Magistrates Court, Maroochydore

DELIVERED ON:

18^th October 2002

DELIVERED AT:

Maroochydore

HEARING DATE:

10^th October 2002

JUDGE:

Judge J.M. Robertson

ORDER:

Both appeals dismissed. No order as to costs.

CATCHWORDS:

APPEALS – conviction for offence against Education (General Provisions) Act 1989

DUPLICITY – whether wording of charge was duplicitous

ABUSE OF PROCESS – principles for ordering stay

UNSAFE AND UNSATISFACTORY – principles to be applied

INITIATION OF CHARGES – general rule must bow to specific legislation

Cases cited:
Jago v. The District Court of New South Wales and Ors. (1989) 16 CLR 23
Shepherd v. R (1990) 170 CLR 573
R v. Jones [1993] 1 Qd.R. 672
M v. R (1994) 181 CLR 487

Johnson v. Miller (1937) 59 CLR 467

Statutes cited:
Education (General Provisions) Act 1989, ss.114, 118

Justices Act 1886, ss.43(1)(b)(iii), 46, 47

COUNSEL:

J. Farrell for the appellants

No appearance for the respondents

SOLICITORS:

Legal Aid Queensland for the appellants

No appearance for the respondents

1. These two appeals were heard together, and Mr Farrell appeared for both appellants. There was no appearance by or on behalf of the respondents. I was satisfied that the respondents were, or should have been, aware of the hearing date. Mr Hastie from the Office of the Director of Public Prosecutions appeared at the call-over on the 21^st August 2002 when I made directions and set the matter down for hearing on the 10^th October 2002, and I am satisfied that he advised the respondent. As a matter of policy, apparently the D.P.P. does not represent police in relation to appeals against convictions under the Education (General Provisions) Act 1989. In the circumstances I decided to proceed with the appeals in the absence of the respondents.

1. The appellants were each convicted of one breach of s.118(1) of the Education (General Provisions) Act 1989 before Mr Killeen Magistrate on the 25^th October 2001 in that:

“On the 11^th day of August 2000 at Buderim in the Magistrates Court district of Maroochydore in the State of Queensland (each of them) being a parent of a child of the age of compulsory attendance namely Jake Jesse Brooks failed to comply with section 114 or section 117 of the Education (General Provisions) Act 1989.”

1. Each of the appellants was find $300.00 and ordered to pay $57.00 costs of court, in default seven days imprisonment and a conviction was recorded. They appeal against conviction only.

1. The orders made by Mr Killeen on the 25^th October 2001 concluded what can only be described as proceedings under the Education (General Provisions) Act of epic proportions against both appellants relating to two of their children, Jake and Tom. Mr Killeen found that the charges against the appellants in relation to Tom were not proved and these were dismissed. There are a number of grounds of appeal argued by Mr Farrell in his written submissions. Some grounds he argued faintly and these can be disposed of quickly.

Duplicity

1. Mr Killeen upheld a submission made at the end of the prosecution case that the charge was duplicitous in that it initially charged a form of continuing offence namely “That on dates between the 30^th January 2000 and the 13^th day of September …” the appellants committed the offence. He compelled the prosecutor to elect one date which he did, and Mr Killeen then amended the charge to read “On the 11^th day of August 2000 …”.  His approach may have been unduly favourable to the appellants, in that he could have directed the prosecution to elect a number of dates between those originally stated; but his approach was sound and cannot be challenged now. Mr Farrell makes a complaint that the Magistrate should have so ruled at the start of the trial when Mr Nagel first argued duplicity. Even if he is correct, I cannot see that the appellants were thereby prejudiced. The same witnesses called by the prosecution to prove the elements of the offence on the 11^th August 2000 would have been called to prove the alleged offences on the other days. If Mr Killeen had compelled the prosecution to elect a date or dates at the start of the hearing, and the prosecutor had elected a number of dates, Mr Killeen would have been entitled to order that the charges be joined in one complaint on the ground that the matters were founded on substantially the same facts: s.43(1)(b)(iii) of the Justices Act 1886. In any event, if he had directed the prosecution to elect one date at the start of the hearing, in my opinion the evidence concerning the other dates would have been admissible as similar fact evidence or to meet possible defences, or to establish context.

1. Mr Farrell further argues that the charge was duplicitous because of the words “section 114 or section 117”. I agree on its face that the wording does suggest duplicity, however what the argument ignores is that Mr Killeen ultimately ruled that section 117 had no application; and that he did not formally amend the charge accordingly is of no moment. I disagree with Mr Killeen’s ruling that the charges were properly before the Court as alternatives; however nothing turns on this error as it is quite clear that at the end of the prosecution case both appellants were well aware of the case against them; and no prejudice has resulted to them as a consequence. Indeed, it has to be kept in mind that these were summary proceedings before an experienced Magistrate whose approach was practical and just in my opinion.

Abuse of process

1. Mr Farrell’s argument misapprehends the law in relation to the power of a Court to stay a prosecution on the grounds of abuse of process. The leading authority (to which Mr Farrell did not refer) is Jago v. The District Court of New South Wales and Ors. (1989) 16 CLR 23. The cases in which stay on the grounds that to proceed would constitute an abuse or process will be rare. To be sufficient, some conduct on the part of the prosecuting authority must be shown to result in prejudice to the accused person obtaining a fair trial. As Brennan J (as His Honour then was) said in Jago (at 47):

“When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”

1. Apart from there being no conduct alleged here on the part of the prosecution, any obstacles to a fair hearing in this case were dealt with by Mr Killeen in precisely the manner suggested by Brennan J. There is no substance in this ground.

Unsafe and Unsatisfactory

1. This ground is referred to in the outline but was not touched on in oral argument. Mr Farrell’s argument seems to come down to this: because Mr Hall (the Deputy Principal at Buderim Mountain State School where Jake was enrolled) gave evidence that he could not say the attendance record relied upon by the prosecution was 100% accurate, therefore Mr Killeen should have entertained a reasonable doubt about the non-attendance of Jake at school on the 11^th August 2000. Again, I think this submission misapprehends the responsibility of the prosecution in a criminal trial. The prosecution do not have to prove particular facts beyond a reasonable doubt (with perhaps an exception in some circumstantial cases although the law remains unsettled in that area: Shepherd v. R (1990) 170 CLR 573 at 579; R v. Jones [1993] 1 Qd.R. 672); rather the prosecution have to prove guilt beyond a reasonable doubt. In M v. R (1994) 181 CLR 487 the High Court held that in Australia the question to be decided by an appellate court as to whether a verdict is unsafe or unsatisfactory is a question of fact which the court decides making its own independent assessment of the evidence; in doing so it assesses whether, on the whole of the evidence, it was open to (the Magistrate) to be satisfied beyond a reasonable doubt that the accused person was guilty. The court will not allow itself to substitute trial by court of appeal for trial by (a magistrate), for the ultimate question must always go back to determining whether (the Magistrate) could have been satisfied beyond a reasonable doubt. Having undertaken that independent assessment here I am satisfied that it was open on the evidence accepted by Mr Killeen, for him to convict, and this ground must also fail.

Form of Charge

1. The main thrust of Mr Farrell’s argument at the hearing was that the charge before Mr Killeen did not disclose an offence known to law; and therefore any conviction based on such a charge cannot stand. At first blush, this argument has some appeal as it is unusual for a charge to be worded so as to allege a failure to comply with a particular provision of the law. Unfortunately, the Court was not assisted by reasoned argument from the respondent, and it has been necessary for me to research the law myself. I did not have to look far to see the fallacy in the argument. Section 114 of the Education (General Provisions) Act 1989 states (relevantly):

“114   Compulsory enrolment and attendance at school

Every parent of a child being of the age of compulsory attendance shall cause that child –

(a)   to be enrolled at a State school … and to attend the State school … on every school day, for the program of instruction for which the child is enrolled, unless there is in existence at the material time, in respect of that child, a dispensation or provisional dispensation granted in accordance with section 115.”

1. It is common ground that there was no dispensation granted in respect to Jake.

1. Section 118 of the Education (General Provisions) Act 1989 states (relevantly):

“118   Penalty for non compliance with compulsory education provisions

(1) A parent of a child being the age of compulsory attendance who fails to comply with section 114 or 117 commits an offence against this Act …”

1. The section goes on to prescribe penalties, and sets out evidentiary provisions for proceedings for such an offence.

1. It is true, as stated in a number of authorities, including Johnson v. Miller (1937) 59 CLR 467 to which Mr Farrell referred in argument, that in describing an offence, the general rule is that all the facts and circumstances should be stated with such certainty and precision that the defendant is able to judge what case is being made against him or her. If the complaint does not contain or disclose all the essential ingredients of the offence, it is invalid. However, the general rule must bow to specific legislation dealing with the initiation of a charge. In Queensland, the initiation of a charge by way of complaint and summons is governed by the Justices Act 1986. Section 47 of that Act states (relevantly):

“47     What is sufficient description of offence

(1)     The description of any offence in the words of the Act … creating the offence, or in similar words, shall be sufficient in law.” (my emphasis)

1. The drafter of the charge before Mr Killeen has described the offence in the express words of s.118; and it follows that this ground must also fail.

1. Both appeals are dismissed. There will be no order for costs.