Theologhidis v Commissioner of Police

[2023] QDC 84

DISTRICT COURT OF QUEENSLAND

CITATION:

Theologhidis v Commissioner of Police [2023] QDC 84

PARTIES:

ALEXANDER THEOLOGHIDIS
(Appellant)
v
COMMISSIONER OF POLICE
(Respondent)

FILE NO:

BD 2244/22

DIVISION:

Civil

DELIVERED ON:

8 May 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2023

JUDGE:

Barlow KC, DCJ

ORDERS:

1.   The amended application filed by leave be adjourned to a date to be fixed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – the applicant made an application in the appeal for the respondent to provide disclosure – whether the District Court has power to order disclosure in an appeal from the Magistrates Court

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – CONTROL OF COURT PROCEDURE – the applicant made an application in the appeal for the respondent to provide disclosure – where s 224 of the District Court Act 1967 allows a District Court Judge to make orders about procedure for an appeal – whether the production of documents for disclosure is a matter of procedure

Criminal Code ss 668, 671B
Criminal Procedure Rules
District Court of Queensland Act 1967 s 113
Justices Act 1886 ss 222, 224

1. On 16 August 2022, the appellant, who is the applicant before me today, was convicted in the Magistrates Court at Redcliffe of three offences:  committing a public nuisance, obstructing a police officer and assaulting a police officer.  In this appeal, the appellant filed an application on 26 March 2023, the relevant nature of which I shall state in short form, being that the respondent provide disclosure of certain documents in the course of this appeal.  By leave given to the appellant today, I have allowed him to file, and he has filed, an amended application which includes more detail of the documents of which he seeks disclosure. 

2. This application came on before Judge Byrne KC on 5 April 2023, at which time it became clear that the respondent Commissioner contended that this Court, in the course of an appeal from the Magistrate, has no power to order disclosure.  His Honour ordered that that question - whether the Court has power - be determined today and he adjourned the application for that purpose.

3. Mr Theologhidis, the appellant, appears for himself. Mr Hall from the Director of Public Prosecutions’ Office appears on behalf of the Commissioner. In written submissions filed on behalf of the Commissioner and drawn by Mr Hall, he submitted again that the Court has no power to make an order for disclosure and production of documents in the course of an appeal. His submissions, which were very helpful, I should add, and comprehensive, led the appellant this morning to concede that the Court does not have the power under the Criminal Procedure Rules, because the requirements for procedure under those rules and the requirements for production of documents or disclosure under the Criminal Code do not apply to this Court in an appeal.

4. Nevertheless, it seems to me that the Court does have power, in an appeal from a magistrate, to order the production of documents by either party and that power comes in the following way. 

5. The appeal is brought pursuant to section 222 of the Justices Act 1886. The appellant is aggrieved and has brought the appeal properly under that section. Section 224 of that Act relevantly provides in subsection (1) that:

   For an appeal, a District Court judge may, on the application of a party or the judge’s own initiative:

   …

   (b) make orders and give directions about service of any notice and about any procedure.

6. The production of documents on disclosure does appear to me, on its face, to be a matter of procedure and therefore the Court may well have the power under that paragraph of section 224 to order disclosure of documents in the course of an appeal. 

7. But it is not necessary to rest there. In the Criminal Code, chapter 67 deals with appeals. Section 668 defines “Court”, with a capital C, as meaning the Court of Appeal. Section 671B provides relevantly as follows:

   (1) The Court may, if it thinks it necessary or expedient in the interests of justice …

   (a) order the production of any document, exhibit, or other thing connected with the proceedings; ...

8. That subsection goes on at its end to say:

   …and exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters ....

9. Those sections, of course, apply only to the Court of Appeal, given the definition in section 668. However, section 113 of the District Court of Queensland Act 1967 provides as follows:

   The District Court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal.

10. That being the case, it seems to me that this Court has the express power that is given to the Court of Appeal, in hearing an appeal, under section 671B of the Criminal Code, to order the production of any documents connected with the proceedings. I put this line of argument to Mr Hall and, after consideration he, with respect quite rightly, conceded that, having regard to those sections to which I have referred, of the Criminal Code and the District Court of Queensland Act, this Court does have the power to order production of documents in the course of an appeal.

11. Mr Hall did not concede that that power arises under section 224 of the Justices Act, but I find it unnecessary to make a concluded decision on that section, because it does seem to me that the Court has power under the other provisions to which I have referred.

12. That being so, the application for an order for production should now be adjourned to a date to be fixed, in order to allow this Court to determine the application on its merits.  It seems that the Commissioner may seek to be represented directly, or by someone other than the Director of Public Prosecutions, and therefore I should also give her the opportunity to make that determination and to appear if she considers it appropriate. 

13. So the formal order of the Court will simply be that the amended application filed by leave today be adjourned to a date to be fixed.