R v Bottomley

[1992] QCA 119

COURT OF APPEAL [1992] QCA 119

PINCUS JA DAVIES JA DERRINGTON J

CA No 113 of 1991

BRISBANE

... DATE 12/5/92

JUDGMENT

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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