Brown v Owen

[2005] QDC 40

DISTRICT COURT OF QUEENSLAND

CITATION:

Brown v Owen [2005] QDC 040

PARTIES:

MARK ANDREW BROWN   (Appellant)

AND

RONALD OWEN  (Respondent)

FILE NO/S:

10 of 2004

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Gympie

DELIVERED ON:

4 March 2005

DELIVERED AT:

Maroochydore

HEARING DATE:

8 February 2005

JUDGE:

Judge J.M. Robertson

ORDER:

   [1]      Application to strike out appeal dismissed. 

   [2]      The appeal is allowed.  The respondent to pay the appellant's costs, but as the appeal has succeeded on a question of law, I grant to him an indemnity certificate in respect of the appeal pursuant to s15(3) of the Appeal Costs Funds Act 1973.

   [3]      The complaints are to be listed for mention at a time and date to be fixed in the Gympie Magistrates Court to be determined according to law.

CATCHWORDS:

Justices Act and Practice Directions - application to strike out, failure to comply with direction to make disclosure and provide particulars, delay in prosecuting appeal, s222 appeal, whether Magistrate had power to dismiss complaints on grounds that the prosecutor had not complied with a direction to provide brief and particulars.

Cases cited:

Gamble v Davidson [1998] ACA 154

Steinberg v Lundgaard [2001] QCA 332

Double Time Pty Ltd v Ryan [2002] 1 Qd R 371

R v The Judge of the District Court at Brisbane and Davies; ex parte Allen [1969] Qd R 114

R v Tait [1998] QCA 304

Von Schulz v Durrant [2000] QCA 235

Commissioner of the Police Service v Lyn & anor [2004] QSC 56

Legislation:

Ss 83A, 146, 147, 149, 222, 229(1) Justices Act 1886

S 28A the District Court Act 1967

S 15(3) Appeal Costs Fund Act 1973

Chapter 62, Chapter Division 3 the Criminal Code Act 1899

Rule 7 Criminal Practice Rules 1990

Practice Direction No. 5 of 2001

COUNSEL:

A. Kimmins (for the appellant)

F. Martin (for the respondent)

SOLICITORS:

Queensland Police Service Solicitor (for the appellant)

Roberts and Kuskie Solicitors (for the respondent)

1. On 12 July 2000, Mr Ronald Owen was charged with 324 offences against the Weapons Act 1990, and 166 offences of fraudulent false accounting against s. 441 of the Criminal Code.  All offences arose out of transactions associated with the Government buy back scheme for weapons. 

1. The indictable offences were eventually tried from 6 October to 28 October 2003 before His Honour Judge McGill SC and a jury in Gympie, and Mr Owen and his co-accused Anthony Cleaver were acquitted of all charges.  The summary offences had been mentioned on numerous occasions in the Gympie Magistrates Court and were held over pending the disposition of the indictable offences.

1. The first mention of the summary matters in the Magistrates Court after the acquittal was on 7 November 2003.  Mr Owen’s solicitor Mr Kuskie informed the Magistrate Mr Johnstone that the identical charges against Mr Cleaver had been discontinued and he expected a similar outcome for his client.  The police prosecutor told Mr Johnstone that she was not sure whether the charges would…