Police v Morris

[2006] QMC 10

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Morris [2006] QMC 010

PARTIES:

POLICE

(prosecution)

v

SHANE BOYD CHARLES MORRIS

(defendant)

FILE NO/S:

MAG89273/05(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge

ORIGINATING COURT:

Magistrates Court at Atherton

DELIVERED ON:

28 April 2006

DELIVERED AT:

Atherton

HEARING DATE:

28 April 2006

MAGISTRATE:

Braes T

ORDER:

Application for costs is dismissed.

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – whether costs are allowed on an adjournment of a committal proceeding

Justices Act 1886, s 84, s 88

COUNSEL:

Wettenhall for defendant

SOLICITORS:

Prosecution on own behalf

1. This matter was set down for an examination of witnesses, to proceed on the 10 February 2006. The prosecution appeared with witnesses. The defendant did not appear personally but his Solicitor Mr Wettenhall appeared on his behalf.

1. There are a number of subtle questions that arise in considering the prosecutors application for costs.

1. Should a warrant have issued? (a warrant was issued, the bail undertaking forfeited and the matter put over to 21 February 2006. Enforcement of the warrant was postponed until that date.) When one looks at s 29(3) and 3AA of the Bail Act 1980 - in circumstances where the defendant has not appeared personally in the court since August 2005 (all later appearances being by his solicitor) and where no notice of the date of the examination of witnesses was forwarded by the court to the defendant requiring his appearance on the date (refer to S 3AA “ unless otherwise directed “) – it is arguable that a warrant should not have issued.

1. Is the allocation by the court of a further mention date an adjournment? S 84 of the Justices Act 1886 refers to “reasonable cause”. Mr Wettenhall was unable to provide any reason for the defendant’s failure to appear, he had recently not had contact with the defendant, but he thought that the defendant might have become confused about the proceedings. It may be that there was/is “reasonable cause” as referred to in s 84. S 84 refers to adjourning the hearing. As s 84 refers to indictable offences I assume that it may also be referring to the examination of witnesses of an indictable offence. Section 33D of the Bail Act 1980 refers to postponing the issue of or enforcement of the warrant to allow the person a further opportunity to appear before the court. I am of the view that the allocation of a further date by the court amounts to an adjournment.

1. Is the prosecution entitled to its costs on the adjournment. (the Prosecutor submitted that there was no basis for an order for costs on an examination of witnesses but submitted that there was on an adjournment. Mr Wettenhall queried whether this was an adjournment.) The matter was listed for an examination of witnesses – referred to as a committal. I am of the view that the proceedings on 10 February 2006 were proceedings for the examination of witnesses. There is no power to award costs in committal proceedings. There is power in s 88 to award costs on the adjournment of the hearing of a simple offence.

1. The prosecutor’s application for costs is dismissed.