Police v Lehmann

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Lehmann [2006] QMC 001

PARTIES:

POLICE

(respondent)

v

BRIAN DAVID LEHMANN

(applicant)

FILE NO/S:

MAG223404/05(7)

DIVISION:

Magistrates Court

PROCEEDING:

Application for magistrate to disqualify themself

ORIGINATING COURT:

Magistrates Court at Atherton

DELIVERED ON:

20 June 2006

DELIVERED AT:

Atherton

HEARING DATE:

9 June 2006

MAGISTRATE:

Braes TJ

ORDER:

Application dismissed

CATCHWORDS:

PROCEDURE – RECUSING – when should magistrate disqualify themself

COUNSEL:

D Hodgens (sol) for the applicant

SOLICITORS:

1. The preamble to this matter is set out in the introduction of the written submissions made by Mr Murray on behalf of Mr and Mrs Lehmann.

1. The parties submit that I should disqualify myself from hearing these matters on the grounds of bias, both apprehended and real.

1. Mr Murray does not mention it, but I have also had other matters before me involving Mr and Mrs Lehmann.  Mrs Lehmann appeared, I recall on behalf of herself and Mr Lehmann as claimants in the Small Claims Tribunal.  The claim arose out of a tenancy dispute with the mother of the child complainant in the criminal charges against Mr Lehmann.  In the first instance after hearing from Mrs Lehmann in the absence of the respondent I gave judgment for Mr and Mrs Lehmann.  I subsequently allowed a rehearing of the matter on the application of the respondent as she advised that she had not received notification of the original hearing.  After hearing Mrs Lehmann and the respondent I dismissed the claim.  I believe that these two hearings were dealt with after the sentence of Mr Lehmann on three counts of indecent dealing, being the sentence to which Mr Murray refers.

1. Mr Murray also advises that in respect of Mrs Lehmann I dealt with her on a Weapons Act offence plea of guilty and placed her on a good behaviour bond without recording a conviction.

1. The submission that I should disqualify myself on the grounds of bias is made on behalf of both Mr and Mrs Lehmann. Mr Lehmann is to appear in the Atherton Magistrates Court charged with two offences under the Weapons Act to which I understand he intends to plead not guilty, and Mrs Lehmann has lodged an appeal against a decision by the authorised police officer to revoke her weapons licence subsequent to her plea of guilty to the Weapons Act charge previously referred to. Mr Murray first raised this submission in the Atherton Magistrates Court on the 9^th May, 2006. Once raised I requested that written submissions be put forward so that the submission could be properly argued and considered.  On this occasion I indicated to Mr Murray that I could not recall the exact expression of the principle of law, which I did have written in a note on the bench of my court in Mareeba, but not Atherton.  I did not give the submission consideration, having called for written submissions.  I did not intend to make any statement on that day about the principle of law involved.  The reason for…