Sarhan v Sarra
[2010] QSC 301
•13 August 2010 (delivered ex tempore)
SUPREME COURT OF QUEENSLAND
CITATION:
Sarhan v Sarra and Anor [2010] QSC 301
PARTIES:
HUSSEIN SARHAN
(applicant)
v
MAGISTRATE Z SARRA
(first respondent)
and
CONSTABLE T DWYER,
QUEENSLAND POLICE SERVICE
(second respondent)FILE NO/S:
BS 4775 of 2010
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
13 August 2010 (delivered ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
13 August 2010
JUDGE:
Daubney J
ORDER:
1. That each party have such extensions of time as may be required for the filing by the applicant and the second respondent of their respective applications for relief under the Judicial Review Act.
2. The orders and directions made by the first respondent on 25 February 2010 are set aside.
3. The order made by the first respondent on 28 January 2010 discharging the applicant is set aside.
4. The orders made by the first respondent on 28 January 2010 against the second respondent are set aside.
5. There will be no order as to costs.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXCLUSION OF PROCEDURAL FAIRNESS – GENERALLY – where the applicant was charged with a summary offence and trial of the offence was heard by the first respondent in the Magistrates Court – where counsel for the applicant had made an application at the close of the prosecution case that his client be discharged on the basis that there was no case to answer – where the prosecution was not given an opportunity to make submissions about the application – where the applicant was discharged – where orders were made that the arresting officer was to pay the applicant the value of property seized from the applicant – where no lawful authority for the first respondent making these punitive orders was identified – whether the orders should be set aside
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ULTRA VIRES – where the first respondent purported to re-open the case against the applicant and set aside the orders initially made – whether this was ultra vires the Magistrate and should be set aside
Judicial Review Act 1991 (Qld), s 13
Justices Act 1886 (Qld), ss 147A, 222
Summary Offences Act 2005 (Qld), s 16Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, cited
Reid v Director of Public Prosecutions (Qld) [2008] QCA 123, distinguished
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, citedCOUNSEL:
DC Shepherd for the applicant
No appearance for the first respondent
T Gardiner for the second respondentSOLICITORS:
Legal Aid Queensland for the applicant
No appearance for the first respondent
Queensland Police Service Solicitor for the second respondent
HIS HONOUR: The applicant, Hussein Sarhan, was charged with
an offence under section 16 of the Summary Offences Act 2005,
namely that on 15 April 2009 at Carindale he unlawfully
possessed a thing reasonably suspected of being stolen or
unlawfully obtained.
The trial of this charge came on in the Magistrates Court on
28 January 2010 before the first respondent (who has, as is
conventional, played no part in this proceeding and has
indicated an intention to be bound). Mr Sarhan was
represented at that summary trial by counsel. The police
prosecutor called a number of witnesses, who were
cross-examined, and then closed the prosecution case.
Counsel for Mr Sarhan then made an application for his client
to be discharged on the basis that there was no case to
answer. The learned Magistrate heard and engaged in argument
with counsel for Mr Sarhan and then, without hearing from or
even calling upon the police prosecutor to make submissions on
the no case application, segued into giving reasons as to
why Mr Sarhan should be discharged. The learned Magistrate's
reasons concluded with the statement: "...I think in relation
to the no case, I think the prosecution have failed to reach
the standard given that the standard of proof is beyond
reasonable doubt and...on that basis, the prosecution has
failed."
The learned Magistrate then, on an application by counsel for
Mr Sarhan, declined to make an order for costs but did order
that the arresting police officer pay Mr Sarhan the sum of
$810 (being the value of the item seized from Mr Sarhan as the
subject of the offence and then returned by the police officer
to Woolworths) and further ordered that this sum be paid
within two months and in default of payment, the officer be
imprisoned for 16 days.
Both counsel who appear before me were unable to identify any
statutory or lawful authority for the Magistrate making these
punitive orders.
On 25 February 2010, having previously ordered, as I have
said, that Mr Sarhan be discharged, the Magistrate purported
to re-open the case against Mr Sarhan and set aside the orders
he had made on 25 January 2010. He listed the matter for
further review in May 2010.
The present proceedings were instituted by Mr Sarhan making
application pursuant to the Judicial Review Act for an order
to set aside the orders made by the Magistrate on 25 February
2010.
When the matter was called before me today, counsel for the
second respondent (the police officer) properly conceded that
there was no basis to oppose the relief sought. The actions
and the making of the purported orders on 25 February 2010
were clearly ultra vires the Magistrate - Mr Sarhan had been
discharged. The Magistrate's conduct was not within the
limited scope of cases contemplated by section 147A of the
Justices Act. The learned Magistrate simply did not have
power to do what he purported to do on 25 February 2010.
For completeness, I should say that to the extent it is
necessary, I would allow Mr Sarhan such extension of time (if
any) as may be required for this application. That
application for extension of time is also quite properly not
opposed by counsel for the second respondent.
The applications remaining for determination then are by the
second respondent. They are, in effect, for orders to be made
under the Judicial Review Act quashing the Magistrate's
decision on 28 January 2010 to discharge Mr Sarhan and to
quash the consequential orders which require the police
officer to pay restitution (with a penal default order) and
also for the time to be extended for those applications to be
brought.
Counsel for the second respondent argued:
(a) that the Magistrate's decision to discharge was infected
by jurisdictional error for a failure to accord procedural
fairness to the prosecution;
(b) alternatively that the decision ought be set aside because
the Magistrate applied the wrong test on the no case
submission.
In the course of argument with counsel I queried whether these
matters were properly the subject of an application for
judicial review or ought be the subject of an appeal to the
District Court under section 222 of the Justices Act.
Having regard, however, to section 13 of the Judicial Review
Act and bearing in mind the expense to the public and the
parties of requiring the parties to pursue the avenue of
review available under the Justices Act, I am satisfied that,
at least in respect of the first of the contentions advanced
by the second respondent, it is appropriate for me to deal
with the application in this forum.
The High Court has recently reiterated the notion that the
line between jurisdictional error by an inferior Court and an
error in the exercise of jurisdiction is difficult to define
precisely, if it can be defined at all - Kirk v. Industrial
Court (NSW) (2010) 239 CLR 531 at [71]-[73]. That being said,
the duty on an inferior Court to accord procedural fairness to
the parties is fundamental to our system of justice.
In the circumstances of the present case, in which a Magistrate simply failed to observe that duty, I would have no hesitation in finding that he committed a jurisdictional error (see for comparison Re Refugee Review Tribunal Ex Parte Aala (2000) 204 CLR 82).
Counsel for the applicant pointed me to several passages in
the transcript of the hearing before the learned Magistrate in
which, during the course of the evidence, the Magistrate engaged with the prosecutor on a number of occasions in relation to the quality of the evidence and the ability of that evidence to sustain the charge being faced by Mr Sarhan. The Magistrate may indeed have gone so far as to intimate his
thinking as to whether the evidence, as it was unfolding, was
sufficient to sustain the charge. But those exchanges were not, in my opinion, sufficient to constitute an opportunity for the prosecutor to be heard on the no case application. As I have already said, when that application was made, the prosecutor was not only not heard, he was not even called on.
Counsel for Mr Sarhan sought to rely on Reid v. Director of
Public Prosecutions (Qld) [2008] QCA 123 and particularly the
observation of Keane JA at [38] that: "The entitlement to
procedural fairness is concerned with ensuring the opportunity
to be heard: it does not encompass an obligation on the part
of the decision maker to insist that the opportunity be
availed of".
Reid's case was quite different to the present. That case
concerned proceedings before the Mental Health Court in which,
so it was asserted, the appellant was taken by surprise by
certain psychiatric evidence tendered to the Court.
Ultimately the question in that case was whether counsel for
the appellant, who did not address the Court on critical
aspects of the psychiatric evidence, had been denied the
opportunity to be heard or whether he had, in effect, been
lulled into some false sense of security which had led him to
believe that such submissions were not necessary. That case,
however, is a far cry from the present in which, as I have
said, the prosecutor was not even given the opportunity to be
heard on the no case application.
In view of my conclusions on the first argument, it is
unnecessary for me to make findings on the second. I would,
however, merely observe that having regard to the Magistrate's
application of what was clearly the wrong test on a no case
submission (see the final sentence of his judgment which I
have quoted above), I would have thought that an appeal
against that decision would have been close to a formality.
It is, however, unnecessary for me to say anything further on
this.
As to the restitutionary orders made on 28 January 2010, these
were, as I have already said, clearly beyond the Magistrate's
power and ought also be quashed.
I would give the necessary extensions of time for the second
respondent's applications to be brought. Mr Sarhan suffers no
prejudice by the matters being dealt with here rather than
going back to wind through the appeal process under the
Justices Act.
There will be the following orders:
1. That each party have such extensions of time as may be
required for the filing by the applicant and the second
respondent of their respective applications for relief under
the Judicial Review Act.
2. The orders and directions made by the first respondent on
25 February 2010 are set aside.
3. The order made by the first respondent on 28 January 2010
discharging the applicant is set aside.
4. The orders made by the first respondent on 28 January 2010
against the second respondent are set aside.
5. There will be no order as to costs.
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