Tucker v Griffiths
[2012] QMC 9
•17 April 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Tucker v Griffiths [2012] QMC 9
PARTIES:
DAVID RONALD TUCKER
(complainant)
v
TERRENCE DOUGLAS GRIFFITHS
(defendant)
FILE NO/S:
MAG54208/11(1)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint – Application to strike out
ORIGINATING COURT:
Magistrates Court at Murgon
DELIVERED ON:
17 April 2012
DELIVERED AT:
Murgon
HEARING DATE:
31 October 2011
MAGISTRATE:
Stjernqvist H
ORDER:
Application for order that the proceedings were commenced out of time is dismissed with costs.
CATCHWORDS:
CRIMINAL LAW - PRACTICE AND PROCEEDURE - Time for commencing proceedings – knowledge of offence – complainants knowledge – who is complainant – discontinuing proceedings – commencing new proceedings – continuity of time
COUNSEL:
SOLICITORS:
Charge.
On or about 11 October 2009 TERRENCE DOUGLAS GRIFFITHS at Hivesville in the Magistrates Court District of Murgon in the State of Queensland lit a fire that was not authorised by Division 1 of Part 7 of the Fire and Rescue Service Act 1990 (“the Act”) or by an notification, notice or permit given under the said Division.
Particulars.
On or about 11 October 2009 TERRENCE DOUGLAS GRIFFITHS lit a fire at a property situated at and known as 60 Ten Chain Road Hivesville in the State of Queensland contrary to section 62 of the Act.
Offence Provision – Section 62 – Offence to light unauthorised fire.
A person who lights a fire that is not authorised by this division or by any notification, notice or permit given under this division commits an offence against this Act.
Maximum penalty—50 penalty units or 6 months imprisonment.
Proceeding for offences – Section 148C.
A proceeding for an offence against this Act, other than an indictable offence, must be taken in a summary way under the Justices Act 1886.
It was conceded by the defendant that the matter should be dealt with in a summary way.
Chronology.
11/10/09 Date of alleged offence.
07/10/10 First complaint sworn.
23/11/10 First mention of first Complaint.
07/12/10 – 27/04/11 Various mentions of first Complaint
22/03/11 Second or substituted Complaint sworn.
24/03/11 Second or substituted Complaint filed in Registry.
24/05/11 Second or substituted Complaint first mentioned.
12/07/11 Second or substituted Complaint mentioned/hearing date set.
31/10/11 First day of hearing (but did not).
01/11/11 First Complaint discontinued.
Date preliminary argument (time) heard.
Preliminary Issue.
The applicant/defendant has asked that I strike the process out if I find it has been commenced out of time.
Specifically, the application relates to the Complaint and Summons sworn on 22 March 1011 (the second or substituted Complaint).
The applicant/defendant has asked me to find that – a public officer – became aware of the offence on 11 October 2009. That public officer (of the department) was one Mr. Smith, a rural fire fighter who turned up at the fire on 11 October 2009.
The complainant – and also a public officer – is Mr. David Ronald Tucker who holds the position of Acting Inspector within the compliance division of the Queensland Fire and Rescue Service.
The applicant/defendant asks that I find time should run from the date Mr. Smith attends the fire as he at that time held the requisite knowledge of the offence.
Further, the applicant contends there is no restriction as to who (which public officer) can take the complaint out.
Further and alternatively the applicant/defendant submits that for the purposes of subsection (b) of section 148D that I find time started when the Legal Unit of the department became aware of, or had knowledge of the fire on 16 September 2010.
The Justices Act provides for the definition of a ‘public officer’ and for the definition of ‘complaint’.
‘public officer’ means;[1]
[1] Section 4, Justice Act 1886.
(a) an officer or employee of the public service of the State or the Commonwealth or
(b) an officer or employee of a statutory body that represents the Crown in right of the State or the Commonwealth; or
(c) an officer or employee of a local government;
who is acting in an official capacity.
‘complaint’ means;[2]
Complaint – includes the terms ‘information’, ‘information and complaint’, and charge’ when used in any Act, and means an information, complaint or charge before a Magistrates Court.
[2] Section 4, Justices Act 1886.
When – proceedings must start is specifically provided for by the relevant Act.
When proceeding may start – Section 148D;[3]
[3] Fire and Service Rescue Act 1990.
A proceeding for a summary offence against this Act must start within the later of the following periods to end;
(a) 1 year after the commission of the offence;
(b) 6 months after the offence comes to the complainant’s knowledge, but within 2 years after the offence is committed.
Were these proceedings commenced ‘out of time’?
Applicant/Defendant.
The initial argument as to ‘time’ put forward by the applicant/defendant is based on the commencement of the second or substituted proceeding which was sworn on 22 March 2011 and ignores the date the first complaint was sworn.
The position held by the applicant/defendant is there is no continuity of proceeding – as between the first and second complaints.[4]
[4] Page 47 transcript.
The chronology listed above shows that the two processes were at some stage running together. A perusal of the first compliant reveals that there were initially four matters of complaint –
· 2 offences dated 11/10/09; and a further
· 2 offences dated 23/10/09.
The second or substituted complaint contains only the –
· 2 offences alleged to have been committed on 11/10/09.
The two alleged offences dated 11/10/09 and the relevant particulars are identical in all respects as between the first and second Complaint.
Mr. Hansen for the applicant/defendant maintains his argument that the volunteer rural fire officer is an officer or employee of the state. It was conceded that whilst Mr. Smith, (Volunteer Rural Fire Fighter) was not employed he was – an officer and hence a public officer pursuant to the definition contained in the Justices Act.[5]
[5] Section 4.
The applicant/defendant submits that in this case, knowledge of the alleged offence came to the notice of the department on 11 October 2009 and further the knowledge (of the fire) obtained on 16 September 2010 by the legal unit was the same knowledge conveyed to the complaint on 7 October 2010.[6]
[6] Page 37 transcript.
It is the applicant/defendants submission that time then expired for the complainant on 15 March 2011 being six months from 16 September 2010 and consequently, were out of time – at the time of second complaint was sworn on 22 March 2011.
Counsel for the applicant/defendant has – in support of his submission – referred me to matter of Witheyman v Van Reit & Ors[7] particularly in relation to the issues of legislative intent, the loss of time, defences that could have been mounted and the fading of memories as time goes by.[8] In this matter, His Honour McGill DCJ concluded;
This is an appeal against an exercise of discretion and is therefore subject to the general limitation on such appeals, that it must appear that some error has been made in exercising the discretion.[9] I do not consider that the appellant has shown that there was any error of principle, or taking into account extraneous or irrelevant matters, in the magistrate’s exercise of discretion. Accordingly, in my opinion no basis has been shown on which, consistently with the approach in House v the King, I could interfere with the magistrate’s exercise of discretion. In any case if the discretion did fall to me, I would exercise it in the same way, in view of the extent of the delay and in the absence of any proper explanation, much less excuse, for the delay.
[7] [2007] QDC 342.
[8] Page 38 transcript.
[9]House v the King [1936] 55 CLR 499 AT 504-5.
I am also asked to accept the argument of Byrne for the defendant in the matter of Cross Country Realty Pty Ltd v. Peebles[10]
[10] [2007] HCA 322.
Mr. Byrne (appearing for Cross County Realty) argued that where a department or an appropriate officer of a department is in possession of, or has disclosed to the officer, material relevant to ground a charge, that time should run from this point.
Mr. Byrne, attempting to seek special leave to appeal before the High Court of Australia (HCA) submitted the Queensland Court of Appeal (QCA) (per McMurdo P) erred when finding;
“In the light of the undisputed evidence from Mr. Peebles, which the magistrate appears to have accepted, the Magistrate could not have reasonably found that Mr. Peebles had reasonable grounds for believing the applicants had committed offences under the Act before he examined the seized boxes of document in March 2004.”[11]
[11] Cross Country Realty P/L & Ors v. Peebles [2006] QCA 501 at para [11].
Mr. Byrne asked the HCA to accept that finding of the QCA – to be in distinct contrast to the line of authorities in England and not in accordance with what the statutory or legislative intention must have been.
Mr. Byrne further submitted, that the point of principle is that – it is the obtaining of the materials (relevant to the offence) at which time begins to run and not sitting on those materials and do nothing with them until – at the whim of the complainant prosecutor open up the documents – then to establish there is a case.
Effectively – is it the contention of the applicant/defendant that when Mr. Tucker swore the second compliant on 22 March 2011 he was out of time as the legal unit had knowledge of the matter on 7 October 2010 – therefore the 6 month[12] time period expires 6 March 2010.
Respondent/ Complainant.
[12] Subsection (b) of section 148D.
The respondent/complainant argues there is a nexus between the two processes.
I tend to agree. Certainly the information, and knowledge of the information relied upon by the complainant in both processes (relevant to the date of 11/10/09) is identical. That is to say it is the same date time and place and hence the same fire that the complainant alleges was unlawfully lit. It follows, in my opinion, that in respect of the matter of complaint, it is the same proceeding. It is not contested that the proceeding then, was commenced on 7 October 2010 and then re-issued on 22 March 2011. The first process was discontinued on 1 November 2011.
It is alleged that the offence was committed on or about 11 October 2009. It is conceded by the complainant that the legal unit of the department became aware of the fire on 16 September 2010.
It is stated by the complainant, Mr. Tucker, that the matter the subject of the complaint, that is the offence, came to his knowledge on 7 October 2010 and that he had no knowledge of the matter prior to this date.[13] The (first) complaint was made and signed by the Mr David Ronald Tucker on 7 October 2010.
[13] Page 19 transcript.
It must be said at this point that this date is not an element of the offence.[14]
[14] Morgan v. Babcock and Wilcox Ltd [1929] 43 CLR 163.
Mr. Tucker subsequently signed the second or substituted complaint dealing with the same defendant and the same alleged unauthorised fire on 22 March 2011. The substituted process rectified a technical defect in respect of the name of the defendant.
Mr. Tucker gave evidence that as the then Acting Manager of the compliance section he alone had the power to sign the complaints that were referred to him by the legal unit after the legal unit assessed the information gathered for the brief.[15] I am informed the legal unit became aware of the issue of the fire on 19 September 2010.[16]
[15] Page 20 transcript.
[16] Page 30 transcript.
Mr. Nicholson for the respondent/complainant argues that the complainant is Mr. Tucker and his knowledge of the issue of the fire happens on 7 October 2010. It is not contested that Mr. Tucker had no personal knowledge of the matter prior to that date.
The same complainant, Mr. Tucker then signed the substitute complaint on 22 March 2011.
The respondent/compliant submits that section148D provides for an alternative for the commencement of a proceeding – that is to say a proceeding may be commenced within the later (my emphasis) of the stated periods;
(a) one year after the commission of the offence; or
(b) six months after the offence comes to the complainant’s knowledge, but within 2 years after the offence is committed.
Effectively the respondent/complaint submits that both the first complaint and second complaint have been commence in time pursuant to both subsections (a) and (b) in that the first complaint was commenced within one year of the alleged offence and that the second complaint was commenced within six months of it coming to the personal knowledge of the Complainant and within two years of the alleged offence.
Decision.
The Court of Appeal in the matter of Foxpine Pty Ltd v. Collings[17] when considering the issue of offences brought under the Auctioneers and Agents Act 1971, coming to the knowledge of the complainant, Justice Holmes, President, stated;
“It seems to me that there is a strong argument, given the words of section 170(3) in any event that the relevant knowledge is that of the complainant alone, but that is not necessary to consider whether that is the case. In Smith and Baldwin ex parte Smith [1979] Queensland Reports 380 it was not necessary to decide the point because on no view was any responsible officer of the department in possession of the requisite knowledge. That is the situation here also.”
[17] Foxpine Pty Ltd v. Troy Barrie Collings [2001] QCA 8.
Section 170(3)[18] provided;
Proceedings for an offence against this Act (other than proceedings for an offence against section 106 which may be instituted at any time) may be instituted at any time within 12 months after the commission of the offence, or within 6 months after the commission of the offence comes to the knowledge of the complainant, whichever is the latter.
[18] Auctioneers and Agents Act 1971
Section 170 (2) of the Act the prescribed who could prosecute and recover;
All offences against this Act may be prosecuted, and all fees and contributions to the fund due and payable under this Act may be recovered, in a summary way, under the Justices Act1886 upon the complaint of the Registrar or of any person authorised by the Minister.
It is clear Her Honour accepted the knowledge of the offence having being committed comes to the complainant – not when the complaint or information is received – but after the investigation and appreciation of the material by the complainant.
Judge Wylie QC stated in Young and Tullock[19] when discussing the issue of time;
“While I am prepared to concede that the knowledge of the complainant could, on particular facts, include the knowledge of a servant or agent of the complaint it is my view that within the Public Service context it is not possible to say that the knowledge of another officer of the Public Service of the matter of complaint is to be imputed to the complainant as knowledge of the matter of complaint.”
[19] Young v. Tulloch, District Court [2000] No 3678/1999 at 3.
Relevantly the issue of ‘knowledge’ was discussed in Bernecker v. White [1890] 4 Q.L.J, where;
“time ran from the discovery of the offence.”, and;
In Smith v. Baldwin, ex parte Smith [1979] Qd R 380, where;
“time began when the commission of the offence comes to the knowledge of the complainant
Both of these cases were then considered as providing some guidance by the Court of Appeal Woods v. Beattie ex parte Woods [1995] 1 Qd R 343, where the Court stated at 344;
“While these cases may provide some guidance, they cannot be directly applied. Both were concerned with different phrases from that contained in the Electricity Act…”
and further;
“It is necessary to have regard to the terms of the provision which is presently material. The period commences when the complainant first has knowledge of “the matter of complaint”. The matter of complaint is the act or omission alleged in the complaint by which a prosecution is commenced.”
Although the terms of the respective provisions vary slightly the common denominator is the word ‘knowledge’ and not of ‘discovery’.
Again in Woods and Beattie[20] when considering the language used, the Court stated;
“The critical word used is “knowledge” which, in the context, bears a meaning different from a bare allegation, especially an allegation from an anonymous source. The prosecutor had information that the act alleged had been performed by the respondent but, until investigation confirmed what was alleged, his only “knowledge” was that an allegation had been made. The information which the complainant had did not amount to “knowledge” that the respondent had acted as the informant alleged.”
[20] [1995] 1 Qd R 343.
And when considering the outcomes in Berneker and White[21] and Smith and Baldwin[22] the court stated;
“In both cases, it was held that time did not start to run until the complainant had reasonable grounds for believing that an offence had been committed. In effect, it was held that, when information was supplied by a member of the public, time did not commence to run until investigation had been made and the complainant “had such information before him as to give reasonable grounds for such belief.””
[21] [1890] 4 Q.L.J.
[22] [1979] Qd R 380.
Most of these cases were considered in the matter of Cross Country Realty P/L & Ors v. Peebles [2006] QCA 501. As I have mentioned above – from the decision of the QCA, special leave to appeal was sought in the HCA.
I have set out above – the argument of Mr. Byrne for the defendant in this matter when seeking special leave to appeal in the HCA.
Leave to appeal was refused by the HCA per Gleeson;
A majority of the Court is of the view that the application should be dismissed for the following reason. No disputed question of construction of section 589 of the relevant legislation would conveniently fall for consideration if special leave to appeal were grated in this matter.
The litigation has proceeded in the courts below upon the footing presented by the statute, but the relevant question is whether on the facts the commission of the alleged offences came to the knowledge of Mr. Peebles, the person who, as appears from page 1 of the application book and elsewhere, is the complainant in the proceedings brought against the applicants.
The decision in the QCA similarly was a refusal of leave to appeal the decision of a single Judge of the District Court of Queensland. In refusing leave to appeal the QCA (per McMurdo P) observed;
His Honour (DCJ) considered that s. 589(1)(b) was “… not satisfied by the fact that information sufficient to found a reasonable belief that an offence has been committed, has come into the possession of the complainant or has become available to him, if he has not in fact acquainted himself with that information. Until that situation occurs it is not possible … to say that the commission of the offence has ‘come to the complainant’s knowledge’. His Honour found that Mr. Peebles could not be said to have obtained knowledge of the commission of the offences until some time in March 2004 when he examined the seized material so that the complaints were brought within the time limits provide by s 589.
The matter of Peebles is – in many respects identical with this matter before me. Certainly the temporal (time) limits to bring a proceeding is the same and the competing arguments as to who could have brought the proceedings is similar. Whilst there may be – semantically – different statutory construction both compel the starting of a proceeding within the later of one year or two years. As her Honour observed in Peebles;[23]
Both Mr. Peebles and Mr. Cushion were public officers entitled to bring complaints under the Act. But the complainant in each of the complaints the subject of this application was not Mr. Cushion but Mr. Peebles. The plain words of s 589 require only that the proceeding for an offence against the Act be taken within one year after the offence is said to have been committed or six months after the commission of the alleged offence comes to the complaint’s knowledge as long as that is within two years after the commission of the alleged offence. Giving the words …… their ordinary meaning, the term ‘Complainant’ means the complainant who brings the proceedings for an offence or offences under the Act, here, Mr. Peebles. That interpretation, which still places firm temporal limits on bringing proceedings with, at the maximum, two years after the alleged commission of the offence, is consistent with the objects of the Act set out in s 10.
It involves the complainant having knowledge of facts sufficient to establish a person’s contravention of the Act.[24]
[23] Cross Country Realty P/L & Ors v. Peebles [2006] QCA 501 at para [9].
[24] Para [10].
In my view it is clear from the language of s 148D of the Act[25] and from a consideration of the authorities mentioned – that the complainant in this matter is Mr. David Tucker and the person who is required to possess the requisite knowledge of the offence (unauthorized fire).
[25] Fire and Rescue Service Act 1990
It is not proper in my view to say that the fact the Legal Unit possessed knowledge of the fire – to be enough to find that time started then – it is the acquiring of the knowledge of the material relevant to the investigation of the fire that ultimately led the complainant to establish a contravention of the Act.
I have already decided that despite the re-issuing of the Complaint and Summons to rectify the defect being he second or middle name of the defendant and the particularizing of two matters of complaint in lieu of four – that there is a nexus or continuity of the proceedings.
It follow then that I make the following findings.
It is not disputed the incident of the fire occurred 11 October 2009. The first complaint was sworn on 7 October 2010, the date the offence came to the knowledge of the complainant Tucker.
The first complaint was clearly started within the time limits provided in s. 148D(a) - 1 year after the commission of the offence. Given my finding of continuity of the proceeding it follows that I would find the entire proceeding was started within the time limit allowed in subsection (a)
If I am wrong about that – I again have regard to the language of the legislative provision.
A proceeding for a summary offence against this Act must start within the later (my emphasis) of the following periods to end.
I would then find the substituted summons, sworn on 22 March 2011 was started within the later time period provided in subsection (b) - 6 months after the offence comes to the complainant’s knowledge, but within 2 years after the offence is committed.
On this finding the 6 month period extends to 6 April 2011 and the 2 year period would end on 10 October 2011.
It follows then that I find as a preliminary issue, on the material before me, that the matter was commence within the temporal time limits.
Costs.
Costs application on initiating or first process adjourned until matter resolved or determined.
I order the applicant/defendant pay the respondent/complaint’s costs on this application
Application for first day of trial lost due to unavailability of court is deferred to the Appeal Cost Fund and a Certificate ordered to be issued in that respect.
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