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 Act1886 (Qld), s 83A, s 104, s 108, s 146, s 222A
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…
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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Details
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"