Police v Drury

[2011] QMC 9

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Drury [2011] QMC 9

PARTIES:

POLICE

(respondent)

v

RYAN KIM DRURY

(applicant)

FILE NO/S:

MAG42921/11(4)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to strike out proceeding

ORIGINATING COURT:

Magistrates Court at Townsville

DELIVERED ON:

17 June 2011

DELIVERED AT:

Townsville

HEARING DATE:

17 June 2011

MAGISTRATE:

Ryan K

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE - DISCLOSURE – scope of Practice Direction - power of court to strike out proceeding

Magistrates Courts Practice Direction No 13 of 2010

Justices Act 1886 (Qld), s 83A, s 83B

Criminal Code, s 590AI, s 590AC

Brown v Owen [2005] QDC 040

COUNSEL:

M Fenlon for the respondent

L O’Connor (sol) for the applicant

SOLICITORS:

Police Prosecutions for the respondent

Aboriginal & Torres Strait Islander Legal Service for the applicant

1. Ms O’Connor acts for Mr Drury in criminal charges brought pursuant to           Section 85(1)(A) of the Transport Operations (Road Use Management Act       1995) which were alleged to have been committed on 12 February 2011            following the commencement of the relevant sections of the Civil and    Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (the “Moynihan Reforms”)

1. On 14 April 2011, the matter was set for hearing on today’s date.  Paragraph 9            of Practice Direction No. 13 of 2010 applies to these proceedings and states –

   In summary matters the Full Brief of Evidence must be made available                  by the Prosecution for collection within 35 days of the matter being set   for trial and at least 14 days prior to the date set for the hearing of the             trial.

2. Mr Fenlon, for the prosecution, readily admits that the prosecution did not        adhere to the Practice Direction and that the brief was only made available this         week, with Ms O’Connor only coming into possession of it on Wednesday            morning.  Further, of the five statements contained in the brief, only one is         signed pursuant to the Oaths Act.

1. Ms O’Connor has made an application that I strike out the proceedings for       want of prosecution.  She argues that because the prosecution has breached its    obligations under the Practice Direction that I should take this course.

1. Mr Fenlon has opposed the application.  He argues firstly that the Practice        Direction must be read in conjunction with the relevant provisions of the    Criminal Code, these being section 590AI and section 590AC which he says restricts disclosure to indictable offences or “prescribed summary offences” (being indictable offences dealt with summarily). Secondly, he submits that the consequences for failure to comply with directions are contained in sections 83A and 83B of the Justices Act 1886 (as amended). 

1. I have had regard to the Practice Direction and to sections 590AI and 590AC of the Criminal Code.  The intention of the Practice Direction is set out in    paragraph 1 which reads –

   This Practice Direction is intended to assist with case management of Criminal Matters in the Magistrates Court (“the Court”) by giving effect to the Criminal Jurisdiction Reform Administrative Arrangement (made pursuant to s706A of the Criminal Code) by setting out procedures for the full and early disclosure by the prosecution to the defence of all evidence the prosecution proposes to rely on in the proceedings, all information, including knowledge, or material in the possession of the prosecution capable of rebutting the prosecution case or advancing the defence case and the making of applications for order requiring the same.

2. Further, paragraph 9 of the Practice Direction (quoted above) refers to summary matters. Sections 590AI and 590AC of the Criminal Code clearly    only relate to indictable matters.  If what Mr Fenlon is submitting is true, then     all summary matters detailed in the Criminal Code (apart from ”prescribed           summary matters” being indictable matters dealt with summarily) would not           come within the scope of the Practice Direction.

1. This is clearly not the intention of the Practice Direction, the intention of which I have set out earlier.  I conclude that Practice Direction 13 of 2010   includes in its ambit all summary proceedings.

1. Turning now to the court’s power to strike out the proceedings, I have had regard to sections 83A and 83B of the Justices Act 1886 (as amended). These sections were in existence well before the Moynihan Reforms came into force. In particular, section 83B sets out the consequences should a party not comply with a direction given by the court.

1. Those consequences are set out in sub-section (4) –

   (a)adjourn the proceeding to allow enough time for –

   (i)the person to comply with the disclosure direction;  and

   (ii)the defendant to consider anything disclosed under the disclosure direction and obtain any necessary further evidence;  and

   (b)if the court is satisfied that the non-compliance was unjustified, unreasonable or deliberate – make, in relation to the adjournment, an award in favour of the defendant of an amount of costs the court considers just and reasonable;  and

   (c)if an award of costs is made under paragraph (b) – fix a time for the amount to be paid.

2. The court retains its power to otherwise deal with a failure to comply with a      direction of any kind, including any power the court may have to punish for            contempt.

1. Ms O’Connor did not rely on any legislation or refer me to any cases to            support her argument that I strike out the proceedings, only referring me back      to the Practice Direction, which does not confer any power for the court to            take such a step.

1. In the case of Brown v Owen [2005] QDC 040, Robertson J in a decision on appeal with regard to the power of a magistrate to dismiss complaints for failure to comply with a disclosure direction, stated[1] -

   The simple issue for this Court is:  did the Magistrate have power to   dismiss the complaints for failure to comply with the direction to make   disclosure and provide particulars?  Mr Martin relied on s149 of the              Justices Act 1886, but he properly acknowledged in argument that this                  section deals with the consequences of dismissal, and does not confer                    any discrete power to dismiss.  In any event, s149 seems to   contemplate a hearing on merits.  There is a power to dismiss   contained in s146(1)(a) but only after a hearing on the merits.    Clearly, a Magistrate can dismiss a complaint where the complainant                    offers no evidence.  Similarly, if the complainant does not appear, the                complaint may be dismissed with or without costs; s147.

   [1] At [23]

2. His Honour then commented on the Magistrate’s concern with regard to the      prosecution’s attitude in failing to comply with the direction and stated[2] -

   However, in purporting to dismiss the complaints without testing   whether there had been compliance, he (the magistrates) acted beyond               the scope of his power.

   [2] At [25]

3. I find that I have no power to dismiss the charges before me.  I do however      have the power to grant an adjournment or order that the hearing proceed   today.  I reject Ms O’Connor’s alternative submission that I should allow the       hearing to proceed, but only on the basis that the one signed statement should    be relied on as this would not serve the course of justice.

1. The application to strike out is refused.