Dyson v Police - [2010] QDC 103

[2010] QDC 103

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE RYRIE

JOHN EDWARD DYSON	Applicant/Defendant
and
POLICE	Respondent/Plaintiff
ROMA ..DATE 10/03/2010 ORDER

1-1

HER HONOUR: This is an appeal by John Edward Dyson against

the respondent, Gregory Mark Caletti.

For the purposes of the decision, Mr Dyson was a defendant and
Mr Caletti was the relevant police officer involved in

bringing the charge against Mr Dyson. Mr Dyson had been	10
charged with exceeding the speed limit on the 1st of November 2008 pursuant to Rule 20 of the Transport Operations Road Use Management Road Rules Regulations 1999.
The Court file indicates that the complaint sworn and summons	20
in respect of that offence was dated 1st of December 2008 and
the first appearance was required by Mr Dyson on the 13th of January 2009 before the Roma Magistrates Court. A series of mentions are noted on the Court file as having occurred.
Significantly on the 2nd of April 2009, the matter had been	30
set for hearing for two days in the future. However, further
and better particulars were ordered by the Magistrate in
question against the police as a result of a letter that had
been written on Mr Dyson's behalf, dated the 1st of April
2009.	40
On the 2nd of July 2009, the solicitors sought leave to
withdraw and the matter again was mentioned on the 16th of
July 2009 at which point directions were recorded which did
not make their way to the file that is now before me. As	50
such, the Court is not informed as to what those directions
were. Suffice to say, the matter was adjourned at that point
to the 27th of August 2009 for hearing for two days.

1-2 ORDER 60

Between that date and the last mention of this matter, 25th of
August 2009, before the Acting Retired Magistrate, the police
on that date offered no evidence in respect of the relevant
charge. The Magistrate's notation, as it relates to the

appearance on that day, shows Sergeant Elder for the	10
prosecution and counsel for the defendant, by telephone link granted by leave. Personal attendance of the defendant himself had been excused.
For the purpose of the record noted on the Bench complaint	20
sheet, the relevant Magistrate noted, "That the prosecution
offered no evidence. The charge is struck out, the defendant
is discharged. I hear an application for costs from the
defence". He then made a series of orders to allow the
prosecution to respond by means of written submissions to be	30
filed in the Court on or before the 10th of November 2009 in respect of the oral application for costs that had been made by the defence.
He also made a further order that any response from the	40
defence to be similarly filed on or before the 17th of
November 2009. The Magistrate then ordered a transcript of
the proceedings to issue and be placed on the file for the
parties. He also indicated…

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.

Continue reading Dyson v Police

Details

AGLC: Dyson v Police [2010] QDC 103
Case: [2010] QDC 103
Decision Date: 10/03/2010

CaseChat Overview and Summary

John Edward Dyson appeals against the decision of a Magistrate who dismissed an application for costs in favour of Dyson. Dyson was charged with exceeding the speed limit, but the charge was struck out as the prosecution offered no evidence. Dyson made an application for costs which was orally made by telephone and supplemented by a written submission. The prosecution subsequently filed its written submission one day late. The Magistrate dismissed the application for costs and Dyson appeals against that decision. The police argue that the appeal does not lie because the charge was struck out and the complaint dismissed, and the Magistrate was therefore functus officio and had no jurisdiction to make an order as to costs. The Court holds that the appeal does lie because the Magistrate's endorsement did not amount to a formal order of dismissal and therefore the formal dismissal was deferred and the order was yet imperfect. The Court also holds that the Magistrate miscarried in his exercise of discretion because he failed to take into account all relevant circumstances and considerations, and that there was a denial of natural justice because the Magistrate did not allow Dyson's counsel to reply to the prosecution's submissions. The Court allows the appeal, sets aside the Magistrate's order of dismissal insofar as it refused to make a costs order, and remits the complaint to the Magistrates Court for final disposition including further hearing and determination of the question of whether or not costs should be awarded to Dyson and, if so, in what amount. The Court makes no order as to costs at this stage.

Orders