Fingleton v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh J,Gummow,Heydon JJ,Kirby J,Hayne J
• Judgment Date: 23 June 2005
• Neutral Citation: [2005] HCA 34,2005-0623 HCA A
• Court: High Court
• Docket Number: B58/2004
• Date: 23 June 2005

[2005] HCA 34

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne AND Heydon JJ

B58/2004

Diane McGrath Fingleton

Appellant

and

The Queen

Respondent

Magistrates Act 1991 (Q), ss 10, 21A.

Criminal Code (Q), ss 30, 119B, 620.

Constitution, s 73.

Fingleton v The Queen

Courts and judicial system — Magistrates — Judicial officers' immunities — Immunity conferred upon magistrates in the performance or exercise of an administrative function or power conferred under an Act — Appellant Chief Magistrate proposed to remove Co-ordinating Magistrate from that position — Whether immunity extends to a criminal charge against appellant of unlawful retaliation against a witness.

Criminal law — Unlawful retaliation against a witness — ‘Without reasonable cause’ — Whether trial judge misdirected jury as to the meaning of ‘reasonable cause’ in s 119B of the Criminal Code (Q) — Relevance of the meaning of the terms ‘detriment’ and ‘retaliation’ to an assessment of ‘without reasonable cause’.

Constitutional law (Cth) — Federal judicial power — Appellate jurisdiction of the High Court — Criminal matter — Grounds of appeal — Point not taken at trial or before Court of Criminal Appeal — Whether new ground of appeal can be raised before the High Court — Whether following trial point waived or spent — Whether raising new ground deprives proceedings of the character of an ‘appeal’ for purposes of s 73 of the Constitution.

Words and phrases — ‘appeal’, ‘without reasonable cause’, ‘detriment’, ‘retaliation’, ‘under an Act’.

1 Gleeson CJ. The principal issue in this appeal concerns the protection and immunity conferred upon magistrates by s 21A1 of the Magistrates Act 1991 (Q) (‘the Magistrates Act’), which provides:

Gleeson CJ

‘A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court.’

2 In relation to criminal proceedings against a magistrate, the concluding words of that section direct attention to s 30 of theCriminal Code (Q) (‘the Code’), which provides:

‘Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by the judicial officer in the exercise of the officer's judicial functions, although the act done is in excess of the officer's judicial authority, or although the officer is bound to do the act omitted to be done.’

3 The appellant was the Chief Magistrate in Queensland. Following a trial in the Supreme Court of Queensland, before Helman J and a jury, she was convicted of an offence against s 119B of the Code, which prohibits unlawful retaliation against a witness. An alternative charge of attempting to pervert the course of justice was not the subject of a verdict because of the conviction on the primary charge. The appellant was sentenced to a term of imprisonment. An appeal against conviction to the Court of Appeal of the Supreme Court of Queensland was dismissed2. The Court of Appeal reduced the appellant's sentence. The custodial part of the sentence has been served.

4 At trial, and in the Court of Appeal, no point was taken concerning s 21A of the Magistrates Act, or s 30 of the Code. Those provisions were first raised by this Court when considering an application for special leave to appeal from the decision of the Court of Appeal. Special leave to appeal was granted.

5 In the Court of Appeal, there was only one ground of appeal. It is an element of the offence created by s 119B of the Code that the proscribed retaliatory conduct is engaged in without reasonable cause. The sole ground of appeal was that no reasonable jury could have found beyond reasonable doubt an absence of reasonable cause in the appellant's conduct. In this Court, seven

grounds of appeal are pressed, one of which is the same as the ground considered by the Court of Appeal. The first ground is as follows:

‘The provisions of s 119B of theCriminal Code (Qld) did not apply to the actions of the appellant; having regard to the provisions of s 30 of the Code, and s 21A of the Magistrates Act 1991 (Qld).’

6 The respondent accepts that, if the proposition of law upon which that ground is based is correct, then the conviction was obtained in circumstances where there was no liability to conviction, and this Court would have power to set it aside. Senior counsel for the respondent acknowledged that the immunity now relied upon by the appellant exists for the public benefit and not for the private advantage of magistrates, and that if it applied in the case of the appellant it could not be waived. On that basis, the case being one in which the appellant may have had available to her a point of law which was a complete answer to both of the charges against her, the point may be raised for the first time in this Court, in accordance with the principles stated inGipp v The Queen3 and Crampton v The Queen4. The same cannot be said of the other new grounds of appeal, but they can be left aside at this stage. It is appropriate to deal with the question of immunity first because, if the appellant's argument is correct, there should never have been a trial of the other issues in the case.

7 In order to place the allegations against the appellant in the appropriate context, it is necessary to begin by examining the functions and powers of the appellant under the Magistrates Act. It was her conduct in relation to those functions and powers that allegedly contravened s 119B of the Code, and also allegedly involved an attempt to pervert the course of justice. It is also necessary to take note of certain other features of the Magistrates Act, which formed part of the background to the appellant's conduct.

The Magistrates Act

8 The following references are to the legislation in its form at the time of the alleged offences. It has since been amended in certain respects.

9 The Magistrates Act is described in its long title as ‘[a]n Act relating to the office of Magistrates, the judicial independence of the magistracy, and for related purposes’.

10 Part 2 of the Magistrates Act deals with the appointment, jurisdiction, and powers of magistrates. Section 4 states the qualifications for appointment, and s 5 provides for appointment, by the Governor in Council, of ‘as many Magistrates as are necessary for transacting the business of the Magistrates Courts.’ Before making a recommendation to the Governor in Council about an appointment, the Minister must first consult with the Chief Magistrate. Sub-sections ( 3) and (4) provide that the appointment of a magistrate must state the place where the magistrate is to sit and the period (not longer than five years) for which that determination is to apply, provided that the Chief Magistrate and the magistrate may agree upon a change of location before the expiration of such period. Section 7 provides:

‘A Magistrate may exercise, throughout the State, all the jurisdiction, powers and functions conferred on a Magistrate, or on 2 justices, by or under any law of the State.’

No doubt the words ‘throughout the State’ explain the purpose of the provision, which is related to concepts of territorial limitations of jurisdiction that were still reflected in theJustices Act 1886 (Q) (‘the Justices Act’) in the form it took in 2002. Section 19 of the Justices Act referred to the exercise of summary jurisdiction in certain circumstances by two or more justices.

11 Part 3 of the Magistrates Act deals with the Chief Magistrate. Section 10, which describes the functions of the Chief Magistrate, provides:

‘10. (1) The Chief Magistrate is responsible for ensuring the orderly and expeditious exercise of the jurisdiction and powers of Magistrates Courts.

(2) Subject to this Act and to such consultation with Magistrates as the Chief Magistrate considers appropriate and practicable, the Chief Magistrate has power to do all things necessary or convenient to be done for ensuring the orderly and expeditious exercise of the jurisdiction and powers of Magistrates Courts, including, for example —

• (a) determining the Magistrates who are to constitute Magistrates Courts at particular places appointed under section 22B(1)(c) of theJustices Act 1886 or who are to perform particular functions; and

• (b) issuing directions with respect to the practices and procedures of Magistrates Courts; and

• (c) allocating the functions to be exercised by particular Magistrates; and

• (d) nominating a Magistrate to be a supervising Magistrate or a coordinating Magistrate for the purpose of the allocation of work of the Magistrates Court.

(3) Subsection (2) does not authorise the Chief Magistrate to promote a Magistrate.

(4) The Chief Magistrate must not make a determination under subsection (2)(a) about the place at which a magistrate is to constitute a Magistrates Court unless the Chief Magistrate —

• (a) first —

  • (i) consults with the magistrate; and

  • (ii) gives the magistrate written notice of the proposed maximum period that the magistrate is to constitute a Magistrates Court at the place; and

• (b) has sufficient and reasonable regard to the magistrate's personal circumstances and all other relevant considerations.

(5) The Chief Magistrate must give a magistrate written notice of a determination under subsection (2)(a) stating —

• (a) the place the magistrate is to constitute a Magistrates Court; and

• (b) the period the magistrate is to constitute the Magistrates Court at the place; and

• (c) the reasons for the determination.

(6) However, subsection (4) does not apply if —

• (a) because of urgent circumstances, the Chief Magistrate makes a determination (a“temporary determination”) under subsection (2)(a) about the place at which a magistrate is to constitute a Magistrates...