R v Coaldrake
[2024] QMC 7
•1 May 2024
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
R v Coaldrake [2024] QMC 7
PARTIES:
R
(Complainant)
v
LA Coaldrake
(Defendant)
FILE NO/S:
MAG-15226/23(4)
DIVISION:
PROCEEDING:
Hearing
ORIGINATING COURT:
Brisbane Magistrates Court
DELIVERED ON:
1 May 2024
DELIVERED AT:
Brisbane
HEARING DATE:
16 July 2024
MAGISTRATE:
Pinder
ORDER:
1. Any application to have particular complaints against separate defendants heard together pursuant to s 43A of the Justices Act was refused by me on 23 October 2023.
2. The parties explicitly abandoned that proposed application on that date.
3. The hearing commenced with the arraignment of Ms Coaldrake and the matter remains a part heard hearing of which I am seized.
4. I am required (unless and until further order are made such as an order that I recuse myself), duty bound to hear the matter to conclusion and determine it.
5. The orders purportedly made 21 February 2024 were made ultra vires and are unlawful and are not binding upon me.
6. I confirm the pendency of the orders made 23 October 2023.
CATCHWORDS:
PART HEARD TRIAL – PRE-COURT DIRECTIONS AND RULINGS – HEARING COMPLAINTS TOGETHER – DIRECTIONS ORDERS
Justices Act 1886 (Qld) s 43, s 43A, and s 83A
Criminal Code Act 1899 (Qld) s 590AA
Criminal Practice Rules 1999 (Qld) 41 – 43
SOLICITORS:
Sergeant Pham for the Prosecution
Ms C. DeMarco informed by the Environmental Defenders Office for the Defence
INTRODUCTION:
A charge contrary to section 56(1)(A) – Criminal Code - Disturbing the Legislature in respect of the defendant Ms Coaldrake is currently part heard before me.
It appears, from the record of proceedings, that a hearing previously listed before me on 17 April 2024 was delisted and the charge currently stands listed for a hearing commencing on the 16 July 2024.
The matter is listed as a trial review part heard before me today 1 May 2024.
These reasons deal with and correct orders purportedly made after the commencement of this hearing before me from the 23 October 2023.
When the matter was referred back to me with a copy of the court file it became apparent that orders were purportedly made on 21 February 2024 ordering that the part head matter of Ms Coaldrake be heard together with some 13 other defendants.
Noting that the matter was part heard before me and as a consequence any applications in that proceeding ought to have been listed back before me, it was concerning that orders may have been made purportedly disturbing orders previously made by me in respect of the hearing.
I have subsequently had the benefit of reviewing the endorsements on the bench charge sheet from the court file and reviewing transcripts from the mentions before the court as follows:
· 23 October 2023 – before Magistrate Pinder
· 8 February 2024 – before Magistrate Pinder
· 21 February 2024 – before Magistrate Saggers
· 28 February 2024 – before Deputy Chief Magistrate Gett
These reasons correct the position in respect of this part heard matter.
THE COMMENCEMENT OF THE HEARING
This matter was listed before me as a trial to commence on Monday, 23 October 2023. Sergeant Payne (Queensland Police Service) appeared as prosecutor and Mr Hoare of Counsel (now of King’s Counsel) appeared on behalf of the defendant.
The transcript confirms that whilst both the prosecution and defence had laboured under the misapprehension that there had been a joinder of charges and an order that different complaints be heard together, that in fact had not occurred.
The record of the proceedings constituted by the endorsements and orders on the bench charge sheet of the court file reveal as follows:
· On 31 May 2023 the matter was before Her Honour Magistrate Gilbert when it was adjourned to a hearing (as a one-day hearing) on 23 October 2023.
· There is no endorsement of any application being made or indeed orders by the court pursuant to s 43A of the Justices Act ordering that complaints be heard together.
· The endorsement simply records that Ms Coaldrake’s matter was listed for trial on 23 October 2023.
· On 25 September 2023 (at a trial review mention) the endorsement simply confirms that the matter is to proceed to hearing and remains listed for trial on 23 October 2023.
· Again, there is no record of any application or orders being made pursuant to s 43A that complaints be heard together.
When the matter was called on for trial, noting that the parties were under the misapprehension that complaints (that is defendants) had been ordered to be heard together, that was raised in the following exchange (see Annexure 1)
As can be seen from the record of proceedings:
· It was accepted by the parties that no order for a joint hearing – that is for separate complaints to be heard together pursuant to s 43A had been made.
· That there was listed one trial for one defendant.
· That what Mr Hoare KC described as “those formalities” of the Justices Act had not occurred.
· That at that stage the issue of any potential order for hearing of particular complaints together was neither made nor pressed.
· Indeed, Mr Hoare KC’s response was “if the order has not been made and I’m not seeking to ventilate it now” the matter against Ms Coaldrake was to proceed.
· I refused any proposed application and the trial proceeded.
· Mr Hoare KC did indicate that prospectively an application for joinder of the other defendants may be made.
The defendant Ms Coaldrake was then arraigned and entered a plea of not guilty and the hearing commenced before me.
The parties then sought to be heard in relation to what they described as a “preliminary point” that is a contention that the charge as preferred was not good at law and could not proceed.
That matter was argued, the court was given the benefit of written submissions and other material and the hearing was then adjourned to consider and provide reasons in respect of that issue.
On 8 February 2024 the hearing resumed and for reasons which were published in writing to the parties I determined that the charge was good in law and could proceed.
After hearing from the parties, the single charge against Ms Coaldrake was listed for a resumption of the part heard hearing before me to recommence on 17 April 2024.
Again, a review of the transcript of that mention is illuminating in respect of the parties’ and courts’ understanding of the trial listing.
Relevantly at that mention what occurred was contained in the transcript (see Annexure 2).
To that point the matter was uncontroversial and had proceeded in a conventional manner.
The hearing had commenced before me on 23 October 2023, a confused and belated suggestion that complaints be heard together was not allowed, the parties conceded that the single charge as against the defendant Ms Coaldrake ought proceed to trial and the hearing commenced.
THE PRELIMINARY POINT
The parties and their legal representatives appear confused as to the commencement of the hearing in respect of the charge against Ms Coaldrake, partly it would appear following the argument after the hearing had been commenced as to the offence provision.
The Magistrates Court, the only court of summary jurisdiction in Queensland hearing criminal matters, has no power to entertain or make pre-trial directions or rulings.
In respect of matters that proceed on indictment before the Supreme or District Courts such a power does exist. The power conferred on the Supreme and District Courts in respect of pre-trial directions and rulings is contained in s 590AA of the Criminal Code Act 1899 (Qld) (Criminal Code).
Relevantly it provides at the commencement.
“(1) If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her own initiative direct the parties to attend before the court for directions or rulings, as to the conduct of trial or any pre-trial hearing.”
Self-evidently s 590AA confers a power under the Criminal Code for pre-trial directions and rulings only in respected matters which proceed upon indictment.
Likewise, the Criminal Practice Rules 1999 (Qld), which similarly deal with the pre-trial application and rulings, do not apply to the Magistrates Court.
Rule 5 provides:
“Application of rules to the Magistrates court.
The following provisions of these rules apply to a Magistrate court.
· Chapters 1, 3, 11, 12 and 13A
· Chapter 8, rules 30 to 34
· Chapter 9A
· Chapter 14, to the extent provided for in rule 59(3).”
Only those particular parts of the Criminal Practice Rules apply to the Magistrates Court in Queensland.
The provisions in Criminal Practice Rules applying and giving power in respect of pre-trial directions and rulings are contained in “chapter 9” of the rules.
As can be seen, chapter 9 does not apply to the Magistrates Court.
Chapter 9 (rules 41 – 43) does permit a party to apply for a pre-trial direction or ruling.
The Magistrates Court, hearing an indictable offence that is mandatorily summary, as is the case with an offence contrary to s 56(1) of the Criminal Code, does not have power to hear and determine pre-trial directions and rulings.
The effect therefore is that the hearing in respect of the charge against Ms Coaldrake commenced on the 23 October 2023 when she was arraigned and remains a continuing part-heard hearing before the Magistrates Court, constituted on this occasion by myself.
DIRECTIONS HEARING - JOINED OF DEFENDANTS
It appears that there are some 13 other defendants in addition to Ms Coaldrake charged similarly with an offence of disturbing the legislation contrary s 56(1) of the Criminal Code allegedly committed on 30 November 2022.
The Justices Act 1866 (Qld) provides procedural provisions dealing with summary hearing of criminal offences in the Magistrates Court.
Section 43 provides relevantly that a complaint shall be for one matter only and two unless… for example, matters of complaint are joined.
Where there are particular complaints, that is separate complaints against separate defendants, the Justices Act also relevantly provides a power for the court to order those particular complaints be heard together.
“Section 43A: Court may order particular complaints to be heard together
1) This section applies in relation to a complaint of a simple offence or breach of duty.
2) A court may order that 2 or more complaints against the same defendant be heard together if all the matters of complaint in the complaints are of a kind that could have been joined in 1 complaint under section 43.
3) Also, a court may order that 2 or more complaints against different defendants be heard together if the matters of complaint in the complaints are founded on –
a) Substantially the same facts; or
b) Facts so closely related that a substantial part of the facts is relevant to all the matters of complaint.”
That application must be made before the hearing commences.
It can be seen that s 43A permits a court to order that two or more complaints against different defendants be heard together.
The making of an order pursuant to s 43A involves the exercise of the discretion by the court.
Whilst s 43, provides in respect of joinders of complaints against the same defendant that the matter can proceed to hearing “if no objection is taken.”
That provision (s 43) similarly involves a residual exercise of discretion as noted in s 43(4) where a court can order those complaints be heard separately.
From the commencement of the hearing in respect of this charge against Ms Coaldrake (commencing 23 October 2023 before me), no application before the court constituted as part heard hearing the matter, has been heard and no orders have been made ordering that complaints against separate defendants be heard together.
The Justices Act provides a power in the Magistrates Court to make directions at a directions hearing.
Relevantly s 83A of the Justices Act provides:
“Direction hearing
(1) This section applies to a proceeding for an offence
…
(3) A party to the proceeding may apply to a court, in the approved form for a direction hearing.
(5) At a direction hearing, a Magistrate may give a direction he or she is entitled to make at law about any aspect of the conduct of the proceeding, including, for example…
(ca) Hearing of complaints that have been ordered to be heard together under s 43A.”
The hearing in this matter had commenced and was part heard before me.
In the event there was any application for a direction in respect of the hearing the matter ought properly have been listed back before me to be heard and determined. That unfortunately did not occur.
THE PARTIES SUBSEQUENT CONDUCT
The prosecution and defence, apparently dissatisfied with the ruling and orders that I had made on 23 October 2023, sought to reventilate that in a directions hearing before a differently constituted court.
In respect of that application I note that the records of the court file and transcripts record as follows:
· On 20 February 2024 (some 12 days following the mention when the matter was listed for trial against a single defendant Ms Coaldrake) the defendant’s solicitors filed (purportedly electronically) an application for a direction hearing seeking an order pursuant to s 43A of the Justices Act that all charges against each of the 14 defendants (including the part heard matter before Ms Coaldrake) be heard together.
· Concerningly in the covering correspondence filing the application the defendant’s solicitors did not inform the registry (or the court) that this was a part heard matter before me and that the issue of the orders for defendants to be heard together had been ventilated, abandoned, and dealt with on 23 October 2023 and confirmed during the mention for trial listing on the 8 February 2024.
· The registry listed that matter (that is the matter of Coaldrake) along with the other 13 defendants for mention at 2:00pm on 21 February 2024. The matters came before the court (constituted by His Honour Magistrate Saggers) on 21 February 2024 and a transcript of proceedings reveals the following exchange (see Annexure 3).
In respect of that exchange, I observe as follows:
· Mr Hoare advised the matters were “put before the court for hearing before Magistrate Pinder” but did not inform the court that this was a part heard trial before me.
· Whilst noting that there was a refusal to hear all of the defendants together as no order for “joinder,” properly described as an order that the defendants be heard together was made, he asserted incorrectly that this was an irregularity that the defendants could waive (see s 43A(3)).
· He made a comment that there was “legal argument” and that the matter was listed before Magistrate Pinder on 17 April – without observing in fact that, the hearing had commenced and was part heard.
Had the court been advised at the time of the filing the application for a directions order and on the mention on 21 February 2024 that:
· The application belatedly to order that the defendants be heard together was refused.
· That that proposed application was abandoned by the parties explicitly.
· That the hearing had commenced and was part heard before the Magistrates Court constituted by me.
Then undoubtedly the court would have refused to hear the application for a directions order and directed the matter be listed back before me as a part heard matter.
Unfortunately, that did not occur.
It is of concern that the legal representatives of the parties considered, apparently being dissatisfied with the outcome on 23 October 2023, that they could seek to review or “appeal” my decision and orders by listing the matter before a differently constituted court. That there was not full disclosure of what had occurred on 23 October 2023 by the parties is equally concerning.
Subsequently on the mention on 28 February 2024 before His Honour Deputy Chief Magistrate Gett (again without the parties drawing to His Honour’s attention that this was a part heard matter where the hearing had commenced on the 23 October 2023), orders were made listing the matter for trial in reliance purportedly on the orders which:
· Vacated the hearing date on 17 April 2024
· Ordered that all defendants (including defendant Coaldrake) have their complaints heard together.
CONCLUSION
Having set out in some detail the chronology of the matter and with the benefit of reviewing not only the record of proceedings being the transcripts of the hearings before the court but also the court file, I conclude as follows:
1. Any application to have particular complaints against separate defendants heard together pursuant to s 43A of the Justices Act was refused by me on 23 October 2023.
2. The parties explicitly abandoned that proposed application on that date.
3. The hearing commenced with the arraignment of Ms Coaldrake and the matter remains a part heard hearing of which I am seized.
4. I am required (unless and until further order are made such as an order that I recuse myself), duty bound to hear the matter to conclusion and determine it.
5. The orders purportedly made 21 February 2024 were made ultra vires and are unlawful and are not binding upon me.
6. I confirm the pendency of the orders made 23 October 2023.
There is a single charge against a single defendant Ms Coaldrake which is part heard before me and which will proceed to a hearing 16 July 2024.
I have expressly not called upon the parties’ legal representatives to make submissions in respect of these matters, noting that the transcripts of the proceedings and records of the court speak for themselves.
I have done so on a considered basis in that, whilst I have formed no concluded view at this stage, following the hearing and determination of the charge I may call upon the legal representatives to address the issue of their conduct
ANNEXURE 1
MR HOARE: I appear with MS HARBURG, spelt H-a-r-b-u-r-g. I appear for – I’m instructed by the Environmental Defenders Office and I appear for 14 defendants. Fourteen are all charged with disturbing the legislature. And two are charged with failing to comply with a direction. I was – they were going to be arranged - - -
HIS HONOUR: I’ll just stop you there.
MR HOARE: Yes.
HIS HONOUR: What you and the prosecutor have today is one trial for one defendant and that alphabetically, the first listed was Ms Coaldrake.
MR HOARE: I was unaware that that was the direction given, but if that is – if that’s how it’s to proceed, your Honour, that is how it’s to proceed.
HIS HONOUR: I’ve got – well, at no stage were there any orders for joinder - - -
MR HOARE: Yes.
HIS HONOUR: - - - or orders for joint hearing. Undoubtedly, you and your opponent are cognisant of the provisions of the Justices Act, so we have one trial for one defendant.
MR HOARE: Yes.
HIS HONOUR: Everyone else will be adjourned off for a mention date and we’ll probably conveniently do that right now. Ms Coaldrake’s – the matter was first listed and I presume the prosecutor’s in a position to proceed with her trial.
SGT PAYNE: Yes, your Honour. There is a legal issue, respectively, the charge before the court.
HIS HONOUR: That’s okay, but let’s just deal with the fact that we’ve got one trial for one defendant.
SGT PAYNE: I was of the understanding it was all of them, your Honour, but - - -
HIS HONOUR: No.
SGT PAYNE: - - - yes. I am in a position to proceed on one, but I - - -
HIS HONOUR: Okay. All good. So just on that basis, the balance of them – are the defendants, on your instructions, Mr Hoare, contesting the charge or charges that relate to them?
MR HOARE: Yes, they are. Can I just raise one matter on the record, is that – and I’m not in any way qualifying what your Honour has said, but my – I’m informed by my junior that it was listed at – as a joint trial, but it simply may not have engaged the Justices Act, as is required - -
HIS HONOUR: Okay.
MR HOARE: - - - for those formalities to occur.
HIS HONOUR: I suspect it reflects rather poorly on both the prosecution and defence having not turned their minds to it before today. So had that been the intention, no one’s done anything about it. And as you appreciate, the issue about joinder is one that involves the exercise of the discretion and that [indistinct]
MR HOARE: Well – yes. No, I’m not arguing with your Honour.
HIS HONOUR: Yes.
MR HOARE: If the order has not been made - - -
HIS HONOUR: Has not been made.
MR HOARE: - - - and I’m not seeking - - -
HIS HONOUR: Yes.
MR HOARE: - - - to ventilate it now.
HIS HONOUR: No. Excellent. Okay. All good. So – okay, so the 13th of November is three weeks hence. If other people are intending to – just excuse me one sec.
MR HOARE: Your Honour, can I – without – can I seek some instructions, but it may be that an application is made for joinder with the other defendants. I’ll need to speak – I’m just ultimately concerned about the resources of the prosecution being expended, as well as - - -
ANNEXURE 2
HIS HONOUR: Okay. So – just one second. Whoever giggled, remain silent. This is a court. Everyone behave. If you don’t behave, you’ll be excluded. Are we all clear about that? Excellent. Okay. Thanks very much. So for reasons I now publish in writing to the parties – can you give a copy to Sergeant Payne. I don’t know – Ms Sheanoda, you’re going to have to make arrangements to contact the registry to secure a copy of the reasons.
MS SHEANODA: Yes. Will do. Thank you, your Honour.
HIS HONOUR: Okay. I conclude that the charge is good at law and can proceed. In the context of fixing a hearing date, your instructions are the charge is still contested, Ms Sheanoda?
MS SHEANODA: Yes, your Honour.
HIS HONOUR: Okay. Where are you at in terms of fixing a hearing date?
SGT PAYNE: Your Honour, we have two dates set after the remaining matters of the 29th and 30th of April.
HIS HONOUR: Okay. So this is a single charge that I’m seized of that I’m going to hear. How long are you going to take for this single charge?
SGT PAYNE: Your Honour, this single charge is – won’t take particularly long.
HIS HONOUR: Like it – we could list it for a day?
SGT PAYNE: Yes, your Honour. The matter has – the other matters have a trial review date, which is this coming Wednesday.
HIS HONOUR: Yes. I really don’t care. So I’m going to fix you a hearing date now. If you’re still proceeding - - -
SGT PAYNE: Yes, your Honour.
HIS HONOUR: - - - I’m going to ask the clerk about part-heard dates, and he is going to tell me that the first of them is 17th of April. So it really is availability in relation to witnesses, predominantly, I suppose?
SGT PAYNE: Yes, your Honour. If I could just have a moment.
HIS HONOUR: Sure.
SGT PAYNE: Can you confirm that proposed date, your Honour?
HIS HONOUR: Seventeenth of April.
ANNEXURE 3
MR HOARE: Yes, so – can I – firstly deal with its defence applications today. Firstly, it’s an application for joiner, which I understand is unopposed. An application was filed yesterday, electronically, but I don’t know whether it’s made its way to the file.
HIS HONOUR: Effectively, yes. There’s an email here from Ms Shanonna?
MR HOARE: Yes. Look, I have a – a copy of the application with its basis, if that’s easier - - -
HIS HONOUR: All right.
MR HOARE: - - - for your Honour to look from.
HIS HONOUR: Well, I’ll put it on the file.
MR HOARE: Look, I’ve set out the history of this matter because it becomes relevant to the exercise of your Honour’s discretion.
HIS HONOUR: Yes.
MR HOARE: Yes.
HIS HONOUR: Hang on. I’ll just – bear with me one moment so I can - - -
SGT PAYNE: Your Honour, I do have my stamp. I request that I swap.
HIS HONOUR: That’s all right. I’ll make these up later, but – all right. All right, so you have necessary leave to read and file the application for a directions hearing the application, that it all – that all charges against each of the 14 be heard together in the Brisbane Magistrates Court. The application is not unopposed.
SGT PAYNE: It’s not opposed, your Honour, but there is some - - -
HIS HONOUR: I need to give some thought to it - - -
SGT PAYNE: Compare [indistinct]
MR HOARE: I’m prepared to [indistinct] this history. So 23rd of October, all matters were put before the court for hearing before Magistrate Pinder.
HIS HONOUR: Yes.
MR HOARE: His Honour declined to hear all matters together, although they had been set down together, because his Honour was of the view that no order for joinder had been made.
HIS HONOUR: Right.
MR HOARE: And was not prepared for the defendants to waive that as an irregularity, which is what we’re entitled to do - - -
HIS HONOUR: Right.
MR HOARE: - - - and proceeded to hear Ms Coaldrake alone.
HIS HONOUR: Right.
MR HOARE: That was the subject of legal argument, which was found against the defendant, that is the charge were not valid, and Ms Coaldrake has been listed, I think, before Magistrate Pinder on the 17th of April.
HIS HONOUR: Let’s have a look. Matter listed for mention 21st of February, court 18, to link with co-offenders already listed at 2 pm for mention. Well, it looks like you have – yes, I think there’s a one-day hearing on the 17th of April that hasn’t been delisted.
MR HOARE: Yes. So, I’d be seeking – I’m putting that on the record so your Honour knows, that it’s - - -
HIS HONOUR: So you want to delist the trial?
MR HOARE: I want to delist the trial of the single defendant.
HIS HONOUR: Yes.
MR HOARE: Join that defendant - - -
HIS HONOUR: The other 13?
MR HOARE: - - - with the other 13.
HIS HONOUR: Yes.
MR HOARE: There’s a commonality of witnesses and evidence. If there is some distinctions between the evidence, it’s so fine it can be dealt with adequately by whoever - - -
HIS HONOUR: Directions, and – yes.
MR HOARE: - - - hears the matter. Yes. Then there is a further two-day listing, which is not suitable for myself.
HIS HONOUR: Sorry, who – and who’s that listed - - -
MR HOARE: That was – that was - - -
HIS HONOUR: - - - allocated to?
MR HOARE: - - - nominally, the other 12. So there’s presently, a two day listing - - -
HIS HONOUR: Okay.
MR HOARE: - - - for the balance of the defendants.
HIS HONOUR: All right.
MR HOARE: And I don’t know who that’s - - -
HIS HONOUR: Let me see if I can - - -
MR HOARE: - - - been listed before on the 29th and 30th of April.
HIS HONOUR: You think that’s the 29th and 30th – yes, I see that.
MR HOARE: Yes. Now, I now have – this is not a fault of the prosecution. The 17th is listed without notice, but the 29th and 30th were certainly listed with notice, and I now have difficulties on both of those days.
HIS HONOUR: Right. So effectively, you want to join everybody, vacate all the trial listings, and get one new trial date.
MR HOARE: Yes.
HIS HONOUR: Okay.
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