Case stated by a magistrate at Brisbane - [2017] QDC 48

DISTRICT COURT OF QUEENSLAND

CITATION:

Case stated by a magistrate at Brisbane [2017] QDC 48

PARTIES:

A MAGISTRATE AT BRISBANE

(applicant)

v

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(first respondent)

and

AC

(second respondent)

and

CH

(third respondent)

and

ATTORNEY-GENERAL OF QUEENSLAND

(intervener)

FILE NO/S:

BD 2658/16

PROCEEDING:

Special case stated pursuant to s 46 Magistrates Courts Act 1921

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

10 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2017

JUDGE:

Rafter SC DCJ

ORDER:

Special case stated set aside.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – CASE STATED AND REFERENCE OF QUESTION OF LAW – where a case stated is referred from the Magistrates Court at Brisbane for the District Court of Queensland pursuant to section 46 of the Magistrates Courts Act 1921– where the second and third respondents have not been served with the case stated – where the case stated seeks opinion on abstract or hypothetical questions – where insufficient facts available to enable the questions of law to be determined - whether the case stated is in the appropriate form for the consideration of the District Court

COUNSEL:

I P Fraser, solicitor for the Commissioner of the Queensland Police Service

L M Syme for the Attorney-General

SOLICITORS:

Queensland Police Service Legal Unit for the Commissioner of the Queensland Police Service

Crown Solicitor for the Attorney-General

Introduction

A magistrate at Brisbane has stated a special case for the opinion of the District Court pursuant to s 46 Magistrates Courts Act 1921.

The special case refers to two matters that came before the magistrate on 3 September 2015. The matters are described by the magistrate in the case stated as Case Reference “A” and Case Reference “B”.

In the matter described by the magistrate as Case Reference “A”, the second respondent was charged with assault occasioning bodily harm contrary to s 339(1) Criminal Code. The second respondent had been served with a notice to appear issued pursuant to s 382 Police Powers and Responsibilities Act 2000 (“PPRA”) which required his appearance at the Magistrates Court, 240 Roma Street, Brisbane on 29 June 2015.

The second respondent did not appear on 29 June 2015. The matter was adjourned to 3 September 2015. An order was made pursuant to s 14A(1)(b) Bail Act 1980 permitting the second respondent to go at large without bail on the condition that he appear and surrender into the custody of the Magistrates Court at Brisbane on 3 September 2015.

The second respondent did not appear on 3 September 2015. The transcript of proceedings indicates that the magistrate did not make any order on that date. However, the schedule of facts attached to the case stated indicates that the “Order of referral” to this court was made.

In the matter referred to by the magistrate as Case Reference “B”, the third respondent was charged with begging for money in a public place contrary to s 8(1)(a) Summary Offences Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QDC 48
Decision Date: 10 March 2017

CaseChat Overview and Summary

The matter before the court was a case stated by a magistrate at Brisbane, where the Magistrates Court of Queensland referred a case to the District Court for an opinion on certain questions of law. The respondents, the second and third, had not been served with the case stated, and the questions posed were abstract or hypothetical, lacking sufficient facts to enable the court to determine the questions of law. The primary issue before the court was whether the case stated was in the appropriate form for the District Court to consider. The court considered the relevant legislation, including section 46 of the Magistrates Courts Act 1921, and determined that the case stated did not meet the necessary requirements.

The court found that the case stated did not contain sufficient facts to enable the questions of law to be determined, and that the questions posed were abstract or hypothetical in nature. The court held that a case stated must contain sufficient facts to enable the court to determine the questions of law, and that the questions posed must be based on real and existing facts, rather than hypothetical or abstract scenarios. The court also noted that the second and third respondents had not been served with the case stated, which further undermined the validity of the case stated. The court held that the case stated was not in the appropriate form for the District Court to consider, and set it aside.

In summary, the court held that the case stated was not in the appropriate form for the District Court to consider, as it lacked sufficient facts and posed abstract or hypothetical questions. The court set the case stated aside, and the matter was remitted back to the Magistrates Court for further consideration. The court emphasised the importance of ensuring that a case stated contains sufficient facts and is based on real and existing facts, and that all parties are served with the case stated before it is referred to the District Court.

Orders

Orders of the court

Special case stated set aside.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Case stated by a magistrate at Brisbane [2017] QDC 48
PARTIES:	A MAGISTRATE AT BRISBANE (applicant) v COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (first respondent) and AC (second respondent) and CH (third respondent) and ATTORNEY-GENERAL OF QUEENSLAND (intervener)
FILE NO/S:	BD 2658/16
PROCEEDING:	Special case stated pursuant to s 46 Magistrates Courts Act 1921
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	10 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2017
JUDGE:	Rafter SC DCJ
ORDER:	Special case stated set aside.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – CASE STATED AND REFERENCE OF QUESTION OF LAW – where a case stated is referred from the Magistrates Court at Brisbane for the District Court of Queensland pursuant to section 46 of the Magistrates Courts Act 1921– where the second and third respondents have not been served with the case stated – where the case stated seeks opinion on abstract or hypothetical questions – where insufficient facts available to enable the questions of law to be determined - whether the case stated is in the appropriate form for the consideration of the District Court
COUNSEL:	I P Fraser, solicitor for the Commissioner of the Queensland Police Service L M Syme for the Attorney-General
SOLICITORS:	Queensland Police Service Legal Unit for the Commissioner of the Queensland Police Service Crown Solicitor for the Attorney-General