GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE AND HEYDON JJ
DIANE McGRATH FINGLETON APPELLANT
AND
THE QUEEN RESPONDENT
Fingleton v The Queen [2005] HCA 34
23 June 2005 B58/2004
ORDER
1.Appeal allowed.
2.Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 26 June 2003 and in their place order:
(a)appeal allowed;
(b)conviction of the appellant quashed; and
(c)judgment and verdict of acquittal entered on both counts in the indictment.
On appeal from the Supreme Court of Queensland
Representation:
B W Walker SC with S J Hamlyn-Harris for the appellant (instructed by Woods Prince Lawyers)
D F Jackson QC with M J Copley for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Fingleton v The Queen
Courts and judicial system – Magistrates – Judicial officers' immunities – Immunity conferred upon magistrates in the performance or exercise of an administrative function or power conferred under an Act – Appellant Chief Magistrate proposed to remove Co-ordinating Magistrate from that position – Whether immunity extends to a criminal charge against appellant of unlawful retaliation against a witness.
Criminal law – Unlawful retaliation against a witness – "Without reasonable cause" – Whether trial judge misdirected jury as to the meaning of "reasonable cause" in s 119B of the Criminal Code (Q) – Relevance of the meaning of the terms "detriment" and "retaliation" to an assessment of "without reasonable cause".
Constitutional law (Cth) – Federal judicial power – Appellate jurisdiction of the High Court – Criminal matter – Grounds of appeal – Point not taken at trial or before Court of Criminal Appeal – Whether new ground of appeal can be raised before the High Court – Whether following trial point waived or spent – Whether raising new ground deprives proceedings of the character of an "appeal" for purposes of s 73 of the Constitution.
Words and phrases – "appeal", "without reasonable cause", "detriment", "retaliation", "under an Act".
Magistrates Act1991 (Q), ss 10, 21A. Criminal Code (Q), ss 30, 119B, 620. Constitution, s 73.
GLEESON CJ. The principal issue in this appeal concerns the protection and immunity conferred upon magistrates by s 21A[1] of the Magistrates Act 1991 (Q) ("the Magistrates Act"), which provides:
"A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court."
[1]Subsequent to the events that gave rise to these proceedings s 21A has been renumbered as s 51. It is convenient to refer to the statutory provisions as they were in force at the relevant time.
In relation to criminal proceedings against a magistrate, the concluding words of that section direct attention to s 30 of the Criminal Code (Q) ("the Code"), which provides:
"Except as expressly provided…
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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AGLC
Fingleton v The Queen [2005] HCA 34
Case
[2005] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by the appellant, the Chief Magistrate of Queensland, against her conviction for unlawful retaliation against a witness under s 119B of the Criminal Code (Q). The dispute arose from the appellant's decision to initiate proceedings to remove a coordinating magistrate, Mr Gribbin, from his position. The appellant argued that her actions were protected by judicial immunity conferred upon magistrates exercising administrative functions under an Act, specifically s 21A of the Magistrates Act 1991 (Q) and s 28AA of the District Court Act 1967 (Q).
The central legal issues before the High Court were whether the appellant's actions in seeking to remove Mr Gribbin from his coordinating magistrate position constituted an exercise of an administrative function or power conferred under an Act, thereby attracting statutory immunity. Additionally, the Court considered whether the trial judge had misdirected the jury on the meaning of "without reasonable cause" in s 119B of the Criminal Code (Q), and whether the High Court should entertain new grounds of appeal not raised at trial or before the Court of Appeal.
The High Court allowed the appeal, quashing the appellant's conviction. The majority of the Court held that the appellant's conduct in initiating the show cause process for the removal of Mr Gribbin from his coordinating magistrate position was an exercise of an administrative function or power conferred under the Magistrates Act, and therefore she was entitled to the protection and immunity provided by s 21A of that Act. Consequently, she should not have been held criminally responsible. The Court declined to express a view on the remaining grounds of appeal, noting that the appellant had succeeded on her primary ground and that other points had not been properly raised or pursued in the lower courts.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 26 June 2003 and in their place order:
(a) appeal allowed;
(b) conviction of the appellant quashed; and
(c) judgment and verdict of acquittal entered on both counts in the indictment.
Background
Background to the litigation
Parts 5 and 6 are presently immaterial. Part 7 contains general provisions including provisions relating to terms and conditions of what was described as the "employment" of magistrates (s 18). It includes s 21A, which appears at the commencement of these reasons. Section 21A was introduced by the Justice Legislation (Miscellaneous Provisions) Act (No 2) 1999 (Q). By the same legislation, the District Court Act 1967 (Q) was amended by the insertion of s 28AA, which provided that a judge has, in the performance or exercise of an administrative function or power conferred on the judge under an Act, the same protection and immunity as a judge in a judicial proceeding in the court. The Explanatory Notes stated: "Clause 18 [of the Bill] inserts a new s 28AA granting protection and immunity to a judge of District Courts following concern that was expressed by judges about the potential personal liability of judges who authorise the use of surveillance and listening devices and perform or exercise other administrative functions or powers conferred on them under an Act. In the absence of any specific legislative provisions, judges are exposed to potential personal liability. Federal judges exercising these functions and powers are granted immunity in like situations. Accordingly, the amendment provides the same protection and immunity to judges in the performance or exercise of administrative functions as they have in judicial proceedings in their courts."The facts The appellant's predecessor as Chief Magistrate was Mr Deer. One of the coordinating magistrates nominated by the appellant under s 10(2)(d) of the Magistrates Act was Mr Gribbin, a magistrate at Beenleigh. The position carried with it an annual allowance of $2,000. In September 2002, Mr Gribbin was also Vice-President of the Magistrates Association. On 16 July 2002, the appellant determined that a magistrate, Ms Thacker, should be transferred to Townsville. On 30 July 2002, Ms Thacker filed an application for a review of that determination by the judicial committee. Ms Thacker wrote to the Magistrates Association seeking assistance with her application. In particular, she sought information and evidence relating to the history of transfers of magistrates. On 12 August 2002, Mr Gribbin provided an affidavit to Ms Thacker's solicitors for use in the review proceedings. A copy was given to the appellant's solicitors on 16 August 2002. The appellant made an affidavit in reply on 30 August 2002. In early September 2002, there was friction between the appellant and Mr Gribbin concerning the matter of the agenda for a meeting of coordinating magistrates which was due to take place on 19 September 2002. On 18 September 2002, the appellant sent Mr Gribbin by email a letter calling on him to show cause why she should not exercise her power to withdraw his nomination as a coordinating magistrate and thereby remove him from that position. The day before she sent the letter the appellant obtained legal advice from a solicitor, Mr Searles, who had been retained by the Crown Solicitor to advise the appellant. The appellant showed Mr Searles a draft of a letter which, if sent, would have removed Mr Gribbin. Mr Searles advised that the letter be altered to give Mr Gribbin an opportunity to show cause why he should not be removed. The material parts of the letter were as follows:"Could you also explain to me why you sought [sic] fit to supply an affidavit in the matter of Ms Thacker's Review of my decision to transfer her to Townsville. You were critical in it of both Mr Deer and myself in relation to transfer matters. Is this a matter which you feel should be discussed by you in an affidavit before the Judicial Committee, when you have never raised it with me personally or at a Co-ordinating Magistrate's meeting?In the circumstances, I feel that I do not have your confidence in my leadership abilities. No other magistrate, certainly not a co-ordinating magistrate has seen fit to enter into any such matters. In fact, in the matter of Payne v Deer, I specifically refused to supply an affidavit to Ms Payne's Solicitors because of the need to be seen not to be in dispute with the then Chief Magistrate.Further, you circulated all other co-ordinating magistrates (except Mr Hine and with no reference to myself), in relation to a proposed agenda item for the forthcoming co-ordinating magistrates meeting. The agenda is, in the end, a matter for my discretion, following consultation with the other Co-ordinating magistrates. No-one put to me that such an item should not be on the agenda. I consider that action on your part, again, to be disloyal to the leadership of the magistracy and disruptive of the morale of the magistracy.The position of Co-ordinating Magistrate in the Queensland Magistracy is a privileged position. I regularly meet with all Co-ordinating Magistrates who give input into the administration of the courts. Whilst constructive criticism will always be appreciated, there must be loyalty to the Chief Magistrate. As stated, you sought to agitate a view about an item on the agenda for the meeting beginning tomorrow, without my knowledge.This and the other example I refer to above, manifest to me a clear lack of confidence by you in me as Chief Magistrate. In the circumstances, I ask you to show cause, within seven days, as to why you should remain in the position.In the circumstances, it is not appropriate that you attend the Co-ordinating Magistrates meeting this Thursday and Friday at Central Courts."CriminalCode, s 119B
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HUGH J
HAYNE J
(dissent)
Apart from submitting that the words "under an Act" completely exclude functions and powers conferred under the Magistrates Act itself, the respondent has not proposed any intermediate position according to which s 21A could apply to some of the powers conferred by s 10 but not to others. The rationale behind the immunity it confers requires that s 21A be read as covering the exercise by a Chief Magistrate of the powers conferred by s 10 of the Magistrates Act.Conclusion The appellant should not have been held criminally responsible for the conduct alleged against her. By statute, she was entitled to a protection and immunity that was wrongly denied to her. She is entitled to succeed on her primary ground of appeal. With one exception, the remaining grounds of appeal seek to raise points that were not taken, and in some cases were expressly conceded, at trial and in the Court of Appeal. Those points do not raise any conclusive legal objection to the proceedings or the outcome of the trial, and some of them, if made good, would only result in an order for a new trial. The appellant should not be permitted to pursue those points in this Court. As to the ground that was argued in the Court of Appeal, it is sufficient to say that the reasoning of the Court of Appeal was closely related to the way in which the parties at trial presented and conducted their respective cases. In this Court, the appellant has endeavoured to alter the position that was taken at trial in respect of a number of fundamental issues. Furthermore, she has succeeded in an argument that there should never have been a trial of those issues. In the circumstances, this Court should express no view on the remaining ground of appeal. The appeal should be allowed. The orders of the Court of Appeal of the Supreme Court of Queensland should be set aside. In place of those orders the appeal to the Court of Appeal should be allowed, the appellant's conviction should be quashed, and a verdict and judgment of acquittal on both counts in the indictment should be entered. Mc I agree that this appeal must be allowed and the appellant's conviction quashed because the acts that were the subject of the charge under s 119B of the Criminal Code (Q) were acts done by a magistrate "in the performance or exercise of an administrative function or power conferred on the magistrate under an Act" within the meaning of s 21A of the Magistrates Act 1991 (Q)[28]. My reasons for doing so are the same as those of Gummow and Heydon JJ with whose judgment I agree.[28](Reprint No 3), formerly Stipendiary Magistrates Act 1991 (Q). But I would also quash the conviction on the ground that the learned trial judge failed to put the appellant's true case on "reasonable cause" to the jury and failed to direct the jury as to the meaning of that term and the evidence relevant to its evaluation. To understand why that is so, it is necessary to examine the summing‑up in detail, much of which in my opinion did not adequately explain to the jury how they should apply a novel legal provision, set in an unusual context, with legal terms and issues upon which the jurors required clear guidance.