R v Bottomley

COURT OF APPEAL [1992] QCA 119

PINCUS JA DAVIES JA DERRINGTON J

CA No 113 of 1991

BRISBANE

... DATE 12/5/92

JUDGMENT

PINCUS JA: This is an appeal against a conviction on a charge that on 6 July 1991 at Kingaroy in the State of Queensland the appellant resisted a police officer while acting in the execution of his duty or, according to the notice of appeal, while acting in the course of his duty. It is common ground that the charge was laid under s 340 subs (2) of the Criminal Code which makes it a misdemeanour to assault, resist or wilfully obstruct a police officer while acting in the execution of his duty or any person acting in aid of a police officer while so acting.

The course which the Magistrate took was to treat the charge as one which could be tried before her, whereas it is clear from the provisions of the Code that there is no means whereby a Magistrate can try or convict a defendant accused of such an offence. The provisions of the Code, namely s 3 subs (3) make crimes and misdemeanours indictable offences. Section 341, to which we have been referred, permits of summary conviction for unlawful assaults and there seems to have been a misapprehension (to which, perhaps, the prosecution contributed) on the part of the Magistrate, who thought that she had jurisdiction to deal with the matter in the way in which she did; the appellant was not charged with assault.

It is admitted, and seems to me to correctly admitted, that the Magistrate was in error. It is my view that the proper order is to extend time so far as necessary to permit an appeal to be brought against the conviction, to allow that appeal, to quash the conviction and to remit the proceedings on the charge to the Magistrates Court to be further dealt with according to law.

DAVIES JA: I agree.

DERRINGTON J: I agree.

PINCUS JA: The order will be as I have indicated.

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CaseChat Overview and Summary

The Court of Appeal in Brisbane heard an appeal in the case of R v Bottomley. The appellant contested his conviction on a charge of resisting a police officer while the officer was executing his duty. The charge was brought under section 340(2) of the Criminal Code, which pertains to the assault, resistance, or obstruction of a police officer during the execution of their duty. The case originated from an incident that occurred on 7 July 1991 in Kingaroy, Queensland. The appeal centred around the jurisdiction of the Magistrate who presided over the case and whether the charge was properly tried and convicted by the Magistrate.

The primary legal issue before the Court was whether the Magistrate had the jurisdiction to try and convict the appellant for resisting a police officer, given that the offence is categorised as a misdemeanour and requires a trial by jury according to the Criminal Code. The Court found that the Magistrate had misconstrued her jurisdiction as the charge did not fall under the summary conviction provisions for unlawful assaults, as outlined in section 341 of the Criminal Code. The Court determined that the charge in question was an indictable offence, meaning it should have been tried by a higher court with a jury.

The Court held that the Magistrate's error in jurisdiction necessitated the quashing of the conviction and the remitting of the proceedings to the Magistrates Court for further legal proceedings. All judges agreed that the conviction should be quashed, and the appeal should be allowed. The Court extended the time for the appeal, permitted it, and ordered the conviction to be quashed. The proceedings were to be remitted to the Magistrates Court to be dealt with according to law.

In conclusion, the Court's judgment was that the conviction by the Magistrate was invalid due to a lack of jurisdiction, and the correct procedure was not followed. The appeal was allowed, the conviction was quashed, and the matter was remitted to the Magistrates Court for further action.

CaseChat Overview and Summary

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