Crowe v Bennett; ex parte

[1992] QCA 29

IN THE COURT OF APPEAL	[1992] QCA 029
SUPREME COURT OF QUEENSLAND	O.S.C. No. 18 of 1991

ROBERT ALEXANDER CROWE
v.
CHRISTIAN THOMAS BENNETT

Ex parte: ROBERT ALEXANDER CROWE

DARRYL JOSEPH CHARLESON
v.
CAMERON NOEL BOND

Ex parte: DARRYL JOSEPH CHARLSON

WILLIAM PATRICK McDONNELL
v.
CHRISTOPHER ANDREW HOLDEN and

BRADLEY HAROLD MARRIOTT

Ex parte: WILLIAM PATRICK McDONNELL

In the Court of Appeal
The Chief Justice
Mr Justice McPherson

Mr Justice Davies

JUDGMENT - DAVIES J.A.

Delivered the 23rd day of March 1992

CATCHWORDS:  JUSTICES - JURISDICTION - COSTS -
Applicants/policemen are complainants who
were ordered by magistrate to pay
respondent's costs of adjournment - whether
s.88(3) limited to charge of simple offence
or breach of duty - whether magistrate
empowered to award such costs either per
statute or due to inherent power
Justices Act ss. 84, 88(3), 104
Acts Interpretation Act s.14(1)
Bail Act s.8

Counsel: Mr. M. Byrne for the Appellants

Ms. C. Holmes for the Respondent, Marriott
Mr. A. Rafter for the Respondents, Bennett and
Holden
Mr. P. Porcellini, Solicitor, for the Respondent,
Bond

Solicitors:	The Director of Prosecutions for the
Appellants
The Legal Aid Office for the Respondent, Marriott Messrs. Biggs & Fitzgerald for the Respondent, Bennett Messrs. Cranston McEachern & Co. for the Respondent, Holden Messrs. Cooke & Hutchinson for the Respondent, Bond
Hearing date(s):	14 February 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND O.S.C. No. 18 of 1991

ROBERT ALEXANDER CROWE
v.
CHRISTIAN THOMAS BENNETT

Ex parte: ROBERT ALEXANDER CROWE

DARRYL JOSEPH CHARLESON
v.
CAMERON NOEL BOND

Ex parte: DARRYL JOSEPH CHARLSON

WILLIAM PATRICK McDONNELL
v.
CHRISTOPHER ANDREW HOLDEN and

BRADLEY HAROLD MARRIOTT

Ex parte: WILLIAM PATRICK McDONNELL

_______________________________________________________

THE CHIEF JUSTICE
MCPHERSON JA

DAVIES JA

_______________________________________________________

Reasons of The Chief Justice, Mr Justice Davies
and Mr Justice McPherson delivered on the 23rd day
of March 1992; The Chief Justice and Mr Justice
Davies concurring, Mr Justice McPherson

dissenting.

_______________________________________________________

"THE ORDER NISI TO REVIEW MADE ABSOLUTE AND THE
ORDER FOR COSTS BELOW IS SET ASIDE. NO ORDER MADE
AS TO COSTS OF THE APPEAL. EACH OF THE
RESPONDENTS IS GRANTED A CERTIFICATE UNDER THE
APPEAL COSTS FUND ACT 1973 TO COVER THEIR OWN
COSTS, TO BE TAXED, OF THE APPEAL."

The appellants are three police officers who are complainants against the four respondents, each of whom is charged with stealing with actual violence whilst armed and in company, unlawful detention and going armed in public so as to cause fear. These being indictable offences, an examination pursuant to s.104 of the Justices Act was due to commence on 24 June 1991. Because statements of the prosecution witnesses were delivered late to the respondents, they sought and obtained an adjournment of the hearing. No question arises before us in respect of the magistrate's order granting an adjournment. However, the magistrate ordered that the appellants pay the costs of that adjournment. The appellants appeal by way of order to review against that order substantially on the ground that the magistrate had no power to make an order for costs upon the granting of an adjournment of an examination of witnesses under s.104. They do not argue that if he had that power the orders were not properly made.

The provision presumably relied on by the magistrate and relied on before us by the respondents as conferring that power, is s.88(3) of the Justices Act. Alternatively, the respondents argued that the magistrate had inherent or implied power to order payment of costs upon such an adjournment.

Section 88 is in the following form.

"(1) In any case of a charge of a simple offence or breach of duty the justices present, or, if only one justice is present, that justice may -

(a)  adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties then present, or of his or their counsel, solicitors or agents then present;

(b)  adjourn the hearing and leave the time and place at which the hearing is to be continued to be later determined by such justices, or, as the case may be, justice:

Provided that a hearing so adjourned shall not be continued at a time and place so determined unless the justices then present are satisfied that the parties thereto have been given reasonable notice of such determination.

The power to adjourn a hearing conferred upon justices or a justice by this subsection includes power to adjourn a hearing to enable the matter of a charge of a simple offence or breach of duty to be the subject of a mediation session under the Dispute Resolution Centres Act 1990.

(2) Upon adjourning a hearing the justices or, if

only one justice, is present, that justice -

(a) may commit the Defendant; or

(b)  whether or not the Defendant is in custody, may admit him to bail or suffer him to go at large without bail.

(3) Upon an adjournment the justices or, as the case may be, the justice may order that costs of and occasioned by the adjournment be paid by any party to any other party as to the justices or justice may appear just."

It has been substantially in that form since 1964. Prior to the 1964 amendment, s. 88 was not divided into sub-sections, but contained in substance what is now contained in subss (1) and (2). The 1964 amendment cast the provisions with respect to adjournment and bail into more elaborate form making them subss (1) and (2) respectively and added the new subs. (3) providing for the first time for costs. It also added the section heading: Adjournment of the hearing.

I have not found it helpful to trace back through the history of s. 88 and its predecessors but I think it is helpful to look at ss 84 to 88, which are together grouped under the heading "REMAND AND ADJOURNMENT", in the form in which they existed before and after the 1964 amendment.

The respondents, in order to succeed in their argument that s. 88(3) applies here, had to establish that, unlike subs. (1) it was not limited in its application to the case of a charge of a simple offence or breach of duty. Although some indictable offences may also be simple offences under the Justices Act (see the definitions of "indictable offence" and "simple offence" in s. 4 and Criminal Code ss 443, 444), the offences charged here were not of that kind.

One way in which the respondents sought to establish this contention was by contrasting the use of the definite article in subs (1) ("adjourn the hearing") with the use of the indefinite article in each of subss (2) ("adjourning a hearing") and (3) ("an adjournment"). From this they argued that, whereas paras (a) and (b) of subs (1) are confined in their operation to the case of charge of a simple offence or breach of duty, subss (2) and (3) are not so confined. It was pointed out that, unless the context otherwise indicates or requires, "hearing" includes an examination of witnesses in relation to an indictable offence: s. 4. Ms. Holmes, in her well constructed argument for one of the respondents, also pointed to the fact that this group of sections, ss 84 to 88, were in Part IV of the Act headed "GENERAL PROCEDURE" under the subheading "REMAND AND ADJOURNMENT" indicating their general application to remands and adjournments, rather than in Part VI under the heading "PROCEEDINGS IN CASE OF SIMPLE OFFENCES AND BREACHES OF DUTY". And finally she relied on the heading to s. 88.

The difficulty with the first of these arguments is that, whatever may be the position with respect to subs. (3), it is difficult to see how subs. (2) could have been intended to deal with bail in the case of indictable offences. Both before 1964 when, as I have said, there was a provision in s. 88 dealing with bail but in a more abbreviated form that the present subs. (2), and for some time thereafter the Justices Act contained two provisions, or sets of provisions, other than s. 88(2) dealing with bail. The most important of these for present purposes was s.87 also, of course, under the same heading as s. 88. It provided as follows:-

"Bail of defendant during examination. Instead of detaining the defendant in custody during the period for which he is remanded, any one justice before whom he appears or is brought may, subject to the provisions hereinafter contained, order his discharge upon recognizance."

The other is ss 115 and 116 which, though amended in 1964, both before and after that date dealt with the power of a justice to grant bail in respect of an indictable offence upon committal. Both sets of provisions were repealed by the Bail Act 1980. Section 8 of that Act substituted for those provisions a provision empowering a magistrate to grant bail in both of those situations. I find it impossible to conclude therefore that subs. (2) of s. 88 could ever have applied to any case other than that of a charge of a simple offence or breach of duty.

There is a further apparent duplication in ss. 84 and 88(2)(a) if the latter applies to proceedings under s. 104.

The former provides:

"84. In any case of a charge of an indictable offence, if from the absence of witnesses or from any other reasonable cause it becomes necessary or advisable to defer the hearing of the case, the justices before whom the defendant appears or is brought may adjourn such hearing to the same or some other place, and may by their warrant from time to time remand the defendant to some gaol, lock-up, or other place of security, for such period as they may in their discretion deem reasonable, but not exceeding eight clear days (or such longer period as may be consented to by the defendant) at any one time, to be there kept, and to be brought before the same or such other justices as shall be acting at the time or place appointed for continuing the hearing."

Both would seem to deal with the case where, upon an adjournment, the defendant is to remain in custody.

The argument with respect to the heading to the parts, the heading to ss 84 to 88 and the heading of s. 88 relies on s. 14(1) of the Acts Interpretation Act. In the form in which it existed both before and after the 1991 amendment to that Act, the headings to parts, divisions and sub-divisions of an Act were or were at least deemed to be part of the Act.

By the 1991 amendment section headings are also part of the Act. Section 3(1), both before and after its 1991 amendment, applied the provisions of the Act to all Acts enacted on or after 31 December 1867. However, accepting as I do, that the headings "GENERAL PROCEDURE" and "REMAND AND ADJOURNMENT" are part of the Act and that the heading "Adjournment of the hearing" is part of s. 88, I do not think that these assist one way or the other in the construction of s. 88(3).

Sections 84 to 88 deal with both adjournments of a charge of an indictable offence and adjournments of a charge of a simple offence or breach of duty. Sections 84, 85, 86 and 87 deal only with remand of a charge of an indictable offence. Only s. 88 deals with adjournment of the hearing of a charge of a simple offence or breach of duty. The natural reading of the sections in my view is that the former sections are restricted to the case of a charge of an indictable offence and the latter is restricted to the case of a charge of a simple offence or breach of duty. There is, in my view, no greater logical reason for saying that subs. (3) applies to adjournments of a charge of an indictable offence than there is for saying that subs. (2) does. And as I have indicated above, neither subsection (2) nor its predecessor could have been given that construction prior to 1980 when s. 87 was repealed.

In my opinion, therefore, s. 88(3) does not empower a magistrate to make an order for costs upon the adjournment of a hearing under s. 104.

The respondents are then forced to rely upon either an inherent power or a power implied from the statutory power to grant an adjournment.

In addition to the power to award costs upon the adjournment of the hearing of a charge of a simple offence or breach of duty, conferred by s. 88(3), a magistrate has the power under ss 157 and 158 to order costs upon summary conviction or dismissal. These provisions, particularly the former in the same group of sections as ss 84 to 87, negate any implicit power to award costs upon adjournment of a hearing under s. 104.

It is unnecessary to consider whether a magistrates court has an inherent power to control its own process and proceedings and, if so, whether that power includes a power to award costs. The proceedings here were committal proceedings which are clearly conducted in the exercise of an executive or ministerial function. At least in the exercise of that function a magistrates court can have no inherent power: Grassby v. The Queen (1989) 168 C.L.R. 1 at 11, 15-16; see also 4, 5 and 21.

Accordingly, in my view the appeal should be allowed.

The respondents have each sought an indemnity certificate under the Appeal Costs Fund Act. As appears from the difference in reasons and conclusions between the majority and dissenting judges of this Court, the question involved in this appeal was not an easy one. The application for costs was, in the circumstances, a reasonable one and the magistrate was not in any sense led into error in reaching the conclusion which he did. In my opinion this is an appropriate case to grant the certificates sought and I would grant them accordingly.