Doonan v McKay

[2002] QCA 514

SUPREME COURT OF QUEENSLAND

CITATION:

Doonan v McKay [2002] QCA 514

PARTIES:

BERNARD GEORGE DOONAN
(appellant/applicant)
v
JAMES ASHLEY MCKAY
(respondent)

FILE NO/S:

CA No 228 of 2002
DC No 642 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2002

JUDGES:

de Jersey CJ, Williams JA and Mullins J
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

1.  Grant leave to appeal;
2.  Allow the appeal and set aside the order granting a permanent stay of the prosecution;
3.  Remit the matter to the Magistrates Court at Charleville with a direction to enter up all necessary adjournments and proceed according to law;
4.  The respondent pay the appellant’s costs of and incidental to the appeal to the District Court and of and incidental to the application and appeal in this Court to be assessed.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – GENERALLY – where respondent was allegedly in breach of tree clearing permit restrictions in contravention of s 53(1)(b) of the Forestry Act 1959 (Qld) – whether learned Magistrate and District Court judge erred in granting a permanent stay of the proceedings to prosecute for either improper purpose, internal oppression or objective injustice – considerations relevant to grant of stay discussed

Forestry Act 1959 (Qld), s 53(1)(b)

R v Smith [1995] 1 VR 10, followed
Walton v Gardiner (1993) 177 CLR 378, considered
Williams v Spautz (1992) 174 CLR 509, considered

COUNSEL:

R A Mulholland QC, with A J Macsporran, for the appellant/applicant
M J Byrne QC, with G R Allan, for the respondent

SOLICITORS:

C W Lohe, Crown Solicitor for the appellant/applicant
Anderssen & Company for the respondent

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Williams JA.  I agree with the orders proposed by His Honour, and with his reasons.

1. WILLIAMS JA: The applicant, Bernard George Doonan, proceeded in the Magistrates Court at Charleville by way of complaint against the respondent, James Ashley McKay, charging two offences against s 53(1)(b) of the Forestry Act 1959. That section makes it an offence to destroy a tree on a Crown holding otherwise than in accordance with a permit duly granted. With respect to count 1 the following were the relevant particulars:

Between 30 April and 20 November 1989 at Torres Park the respondent destroyed a quantity of cypress pine trees with a girth of more than 19 cm diameter over bark located on Grazing Homestead Perpetual Lease 10/3159 Lot 5/CHS 12 Parish of Chesterton.

The particulars with respect to count 2 were identical save that the relevant Grazing Homestead Perpetual Lease was 10/2757 Lot 1/NV 67 and Lot 3/NV 67 Parish of Westerton.  Further particulars were supplied identifying 149…