Higgins v Comans

Case [2005] QCA 234


SUPREME COURT OF QUEENSLAND

CITATION:

Higgins v Mr Comans, Acting Magistrate & DPP (Qld)
[2005] QCA 234

PARTIES:

HIGGINS, Paul Anthony
(appellant)
v
MR COMANS, ACTING MAGISTRATE
(first respondent)
DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)
(second respondent)

FILE NO/S:

CA No 60 of 2005
SC No 10640 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Case Stated

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2005

JUDGES:

McPherson and Keane JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the determination made

ORDER:

Question submitted for determination "Does a Magistrates Court conducting an examination of witnesses pursuant to Part 5, Division 5 of the Justices Act 1886 (Qld) have power to stay such proceedings as an abuse of process?" is answered "No"

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - COMMITTAL FOR TRIAL BY JUSTICE OR CORONER - POWERS AND DUTIES OF MAGISTRATE OR CORONER - OTHER MATTERS - where appellant was charged with committing offences against the person of his former de facto partner - where charges were dismissed when committal proceedings could not proceed due to complainant's ill-health - where complainant subsequently died - where appellant was again charged with the same offences - where appellant sought to stay committal proceedings as abuse of process - where magistrate ruled he had no power to stay the committal - where appellant appealed to a single judge of the Supreme Court who stated a case for the Court of Appeal - whether the Magistrates Court has the power to grant a stay of proceedings in relation to the examination of witnesses on a committal hearing

Criminal Code 1899 (Qld), s 592A
Justices Act 1886 (Qld), s 83A, s 104, s 108, s 146, s 222A

Ammann v Wegener (1972) 129 CLR 415, cited

Clough v Leahy (1904) 2 CLR 139, cited

Coco v Shaw [1994] 1 Qd R 469, cited

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92, cited

Dietrich v The Queen (1992) 177 CLR 292, distinguished

Director of Public Prosecutions v Shirvanian & Anor (1998) 44 NSWLR 129, distinguished

Fuller v Field & South Australia (1994) 62 SASR 112, cited

Granowski v Shaw (1896) 7 QLJ 18, cited

Grassby v The Queen (1989) 168 CLR 1, followed

Kendall v United States (1838) 37 US (12 Pet) 524, cited

Jago v District Court (NSW) (1989) 168 CLR 23, considered

John Fairfax Publications Pty Ltd & Ors v Ryde Local Court & Ors [2005] NSWCA 101; CA 40894 of 2004, 11 April 2005, cited

Papzoglou v Republic of the Philippines (1997) 74 FCR 108, applied

Re Mercantile Bank, ex p Millidge (1893) 19 VLR 527, cited

Williamson v Trainor [1992] 2 Qd R 572, distinguished

COUNSEL:

M C Chowdhury for the appellant
A B Fiddes (legal practitioner) for the first respondent
M R Byrne…

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AGLC
Higgins v Comans [2005] QCA 234
Case
[2005] QCA 234
Decision Date

CaseChat Overview and Summary

In Higgins v Comans, the appellant was charged with offences against his former de facto partner, but the committal proceedings were dismissed due to the complainant's ill-health. After the complainant's death, the appellant was charged with the same offences. The appellant sought to stay the committal proceedings as an abuse of process, but the magistrate ruled that they had no power to do so. The appellant appealed to a single judge of the Supreme Court who stated a case for the Court of Appeal. The central issue was whether the Magistrates Court has the power to grant a stay of proceedings in relation to the examination of witnesses on a committal hearing.

The court considered the relevant legislation and case law to determine the scope of the Magistrates Court's powers. The court examined the Justices Act 1886 (Qld) and its provisions regarding the examination of witnesses. The court also considered the decisions in Clough v Leahy, Ammann v Wegener, and Jago v District Court (NSW), among others. The court noted that the power to stay proceedings as an abuse of process is generally reserved for higher courts and is not typically exercised by the Magistrates Court. The court also considered the appellant's argument that the proceedings would be an abuse of process because the complainant was unavailable to give evidence, but ultimately found that the Magistrates Court did not have the power to grant a stay in these circumstances.

The court answered the question submitted for determination "Does a Magistrates Court conducting an examination of witnesses pursuant to Part 5, Division 5 of the Justices Act 1886 (Qld) have power to stay such proceedings as an abuse of process?" in the negative. The court held that the Magistrates Court does not have the power to grant a stay of proceedings in relation to the examination of witnesses on a committal hearing. The appeal was dismissed, and the committal proceedings were to continue.

Orders

Orders of the court

Question submitted for determination "Does a Magistrates Court conducting an examination of witnesses pursuant to Part 5, Division 5 of the Justices Act 1886 (Qld) have power to stay such proceedings as an abuse of process?" is answered "No"

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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