Graves v Duroux

[2014] QSC 198

SUPREME COURT OF QUEENSLAND

CITATION:

Graves v Duroux & Anor [2014] QSC 198

PARTIES:

KELVIN DOUGLAS GRAVES

(applicant)

v

TERRENCE DUROUX (MAGISTRATE)

(first respondent)

and

KAI N VAUGHAN-JOHNSON

(second respondent)

FILE NO/S:

BS 11527 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2014

JUDGE:

Philip McMurdo J

ORDER:

Application is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where a magistrate made a decision to commit the accused for trial for three charges under the Drugs Misuse Act 1986 (Qld) – where the items seized from the accused’s premises were purportedly analysed by the Queensland Health Forensic and Scientific Services - whether the items seized were in fact those which were analysed – whether the magistrate erred in law by concluding that the evidence presented at the committal could support a finding of guilty at a trial – whether the magistrate was apparently correct in deciding to commit the accused for trial.

Drugs Misuse Act 1986 (Qld), s 128.
Judicial Review Act 1991 (Qld), s 20.

Batemberski v Fitzsimon [2000] QSC 185, cited.
Chen v ASM [1999] QSC 181, cited.
Lamb v Moss (1983) 49 ALR 533, applied.
Leahy v Barnes [2013] QSC 226, cited.
Sankey v Whitlam (1978) 142 CLR 1, cited.

COUNSEL:

A Vasta QC, with K Payne, for the applicant
No appearance for the first respondent
PJ McCafferty for the second respondent

SOLICITORS:

McMillan Criminal Law for the applicant
QPS Solicitor for the second respondent

1. On 14 November 2012, the first respondent, a magistrate, committed the applicant to trial on three charges under the Drugs Misuse Act 1986 (Qld). The applicant challenges that decision, seeking a statutory order of review under the Judicial Review Act 1991 (Qld). He says that the magistrate erred in law by concluding that the evidence presented at the committal could support a finding of guilty at a trial.

1. This proceeding was commenced in 2012 but for some reason was not set down for hearing until recently.  The magistrate has not contested the application.  The contradictor is the second respondent, who was an arresting officer in this case. 

1. As is conceded for the second respondent, the magistrate’s decision is of a kind for which there is jurisdiction to grant relief under Part 2 of the Judicial Review Act.  However, in cases such as this, (although an apparent ground for review is demonstrated), generally the court will exercise its discretion to refuse relief.  In Lamb v Moss,[1] Bowen CJ, Sheppard and Fitzgerald JJ said:

   [1](1983) 49 ALR 533 at 564.

“The power to make an order of review under the [Administrative Decisions (Judicial Review) Act 1977 (Cth)] in respect of committal proceedings should be exercised only in most exceptional cases, especially in respect of a decision in the course of proceedings.”

The court there discussed a number of…