R v Mathews - [2010] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mathews [2010] QCA 196

PARTIES:

R
v
MATHEWS, Russell Gordon Haig
(applicant/appellant)

FILE NO/S:

CA No 56 of 2010
DC No 33690 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 20 July 2010
Reasons delivered on 30 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2010

JUDGES:

McMurdo P, Fraser JA and White JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 20 July 2010

1.    Application for leave to appeal granted.

2.    Appeal allowed.

3.    The order of the District Court of 19 March 2010 is set aside and instead the following orders are substituted:

(a)     the applicant is granted an extension of time to appeal to 19 March 2010;

(b)     the appeal is allowed;

(c)     the orders of the Magistrates Court of 1 June 2005 and 17 December 2008 are set aside;

(d)     instead, the charge of public nuisance brought against the applicant is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – appellant applied for leave from order of District Court Judge refusing application to extend time to appeal from orders of Magistrate – Magistrate sentenced applicant for public nuisance before determining whether on evidence applicant was guilty or not guilty – Magistrate purported to re-open sentence and set aside conviction under s 188(3)(a) Penalties and Sentences Act 1992 (Qld) three years later – whether Magistrate sentencing the appellant before determining guilt was unlawful – whether Magistrate's purported setting aside conviction and sentence was unlawful – whether District Court should have set aside orders of Magistrates Court

Penalties and Sentences Act (1992) Qld, s 19, s 188(3)(a)
Vagrants, Gaming and Other Offences Act 1931 (Qld) (repealed), s 7AA, s 39

COUNSEL:

The appellant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: On 20 July 2010, this Court made the following orders:

1. Application for leave to appeal granted.

2. Appeal allowed.

3. The order of the District Court of 19 March 2010 is set aside and instead the following orders are substituted:

(a) the applicant is granted an extension of time to appeal to 19 March 2010;

(b) the appeal is allowed;

(c) the orders of the Magistrates Court of 1 June 2005 and 17 December 2008 are set aside;

(d) instead, the charge of public nuisance brought against the applicant is dismissed.

These are my reasons for joining in those orders. The applicant, Russell Gordon Haig Mathews, applied for leave to appeal to this Court under s 118(3) District Court of Queensland Act 1967 (Qld) from a District Court judge's order refusing his application to extend time to appeal from orders made in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mathews

Details

AGLC: R v Mathews [2010] QCA 196
Case: [2010] QCA 196
Decision Date: 20 July 2010

CaseChat Overview and Summary

The appellant in the matter of R v Mathews sought leave to appeal from the decision of a District Court judge who had refused an application to extend the time in which to appeal from the orders of a magistrate. The magistrate had sentenced the appellant for public nuisance before determining whether, on the evidence, the appellant was guilty or not guilty. The magistrate subsequently purported to re-open the sentence and set aside the conviction under section 188(3)(a) of the Penalties and Sentences Act 1992 (Qld) three years later. The appellant argued that the magistrate's actions were unlawful and that the District Court should have set aside the orders of the Magistrates Court.

The legal issues before the court were whether the magistrate sentencing the appellant before determining guilt was unlawful, whether the magistrate's purported setting aside of the conviction and sentence was unlawful, and whether the District Court should have set aside the orders of the Magistrates Court. The court found that the magistrate's actions were indeed unlawful, as the sentencing before a determination of guilt was a breach of the appellant's right to a fair hearing. The court also found that the magistrate's subsequent setting aside of the conviction and sentence was an abuse of process. The court held that the District Court should have set aside the orders of the Magistrates Court and dismissed the charge of public nuisance against the appellant.

The appeal was allowed, and the orders of the Magistrates Court were set aside. The appellant was granted an extension of time to appeal, and the charge of public nuisance was dismissed. The application for leave to appeal was granted, and the order of the District Court was set aside and substituted with the aforementioned orders.

Orders

Orders of the court

Delivered ex tempore on 20 July 2010

1. Application for leave to appeal granted.

2. Appeal allowed.

3. The order of the District Court of 19 March 2010 is set aside and instead the following orders are substituted:

(a) the applicant is granted an extension of time to appeal to 19 March 2010;

(b) the appeal is allowed;

(d) instead, the charge of public nuisance brought against the applicant is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Mathews [2010] QCA 196
PARTIES:	R v MATHEWS, Russell Gordon Haig (applicant/appellant)
FILE NO/S:	CA No 56 of 2010 DC No 33690 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered ex tempore on 20 July 2010 Reasons delivered on 30 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2010
JUDGES:	McMurdo P, Fraser JA and White JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 20 July 2010 1. Application for leave to appeal granted. 2. Appeal allowed. 3. The order of the District Court of 19 March 2010 is set aside and instead the following orders are substituted: (a) the applicant is granted an extension of time to appeal to 19 March 2010; (b) the appeal is allowed; (c) the orders of the Magistrates Court of 1 June 2005 and 17 December 2008 are set aside; (d) instead, the charge of public nuisance brought against the applicant is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – appellant applied for leave from order of District Court Judge refusing application to extend time to appeal from orders of Magistrate – Magistrate sentenced applicant for public nuisance before determining whether on evidence applicant was guilty or not guilty – Magistrate purported to re-open sentence and set aside conviction under s 188(3)(a) Penalties and Sentences Act 1992 (Qld) three years later – whether Magistrate sentencing the appellant before determining guilt was unlawful – whether Magistrate's purported setting aside conviction and sentence was unlawful – whether District Court should have set aside orders of Magistrates Court Penalties and Sentences Act (1992) Qld, s 19, s 188(3)(a) Vagrants, Gaming and Other Offences Act 1931 (Qld) (repealed), s 7AA, s 39
COUNSEL:	The appellant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent