Legal question (QLD)

[Brian Bosley]

I came upon an expression recently, that I had never heard
before, and am interested to explore. A hearing in the
magistrates court was granted a "permanent stay of committal" (I
think that was the expression used) against an accused, in a case
that had pima facie evidence of a crime. There were at least 5
witnesses to the offence. It was also explained at the time,
that this meant that the case now could never be heard.

I find this incredible, that a magistrate can put such a "gag" on
the judicial process, and would like to find out under what
circumstances, and by what authority such a procedure can be
carried out.

[Tony Smith]

Brian Bosley wrote:


> I find this incredible, that a magistrate can put such a "gag" on
> the judicial process, and would like to find out under what
> circumstances, and by what authority such a procedure can be
> carried out.

Some reading for you:-

Go to http://courts.qld.gov.au then to "judgments" then "search
judgements".

Enter "permeanent stay" as your search term.

Enjoy.

Or, a bit of pre-reading:

http://www.courts.qld.gov.au/publications/articles/speeches/2005/dj23030
5.pdf#xml=http://courts.qld.gov.au.master.com/texis/master/search/mysite
..txt?q=%22permanent+stay+%22&order=r&id=20616a2938a43ed4&cmd=xml


I'd be interested to know if you still find it "incredible" or not when
you are done.



Tony Smith

[Tony Smith]

Brian Bosley wrote:


> I find this incredible, that a magistrate can put such a "gag" on
> the judicial process, and would like to find out under what
> circumstances, and by what authority such a procedure can be
> carried out.

Some reading for you:-

Go to http://courts.qld.gov.au then to "judgments" then "search
judgements".

Enter "permeanent stay" as your search term.

Enjoy.

Or, a bit of pre-reading:

http://www.courts.qld.gov.au/publications/articles/speeches/2005/dj23030
5.pdf#xml=http://courts.qld.gov.au.master.com/texis/master/search/mysite
..txt?q=%22permanent+stay+%22&order=r&id=20616a2938a43ed4&cmd=xml


I'd be interested to know if you still find it "incredible" or not when
you are done.



Tony Smith

[Brian Bosley]

"Tony Smith" <adolphuzspriggs@ hotmail.com> wrote in message
news:xn0e19d7fr7n2s000@news.individual.net...
> Brian Bosley wrote:
>
>
>> I find this incredible, that a magistrate can put such a "gag"
>> on
>> the judicial process, and would like to find out under what
>> circumstances, and by what authority such a procedure can be
>> carried out.
>
> Some reading for you:-
>
> Go to http://courts.qld.gov.au then to "judgments" then "search
> judgements".
>
> Enter "permeanent stay" as your search term.
>
> Enjoy.
>
> Or, a bit of pre-reading:
>
> http://www.courts.qld.gov.au/publications/articles/speeches/2005/dj23030
> 5.pdf#xml=http://courts.qld.gov.au.master.com/texis/master/search/mysite
> .txt?q=%22permanent+stay+%22&order=r&id=20616a2938a43ed4&cmd=xml
>
>
> I'd be interested to know if you still find it "incredible" or
> not when
> you are done.
>
I not only still find it incredible that magistrates have this
power, but also find it outrageous. Here we have a system where
a magistrate, without hearing any of the evidence from
complainants and witnesses, can not only dismiss the case out of
hand, but permanently deny the opportunity of ever presenting it
again. In effect, (s)he assumes the duties of a jury.
I realise there will always be frivolous cases, and "insufficient
evidence" cases which deserve to be thrown out of court, but I
always beleived a magistrate's prime function in serious cases,
was to establish whether there was a case to answer, and if so,
to commit the accused for trial.
The case that sparked my interest in this matter (a case in which
I have no interest in the outcome, guilty or not guilty) is a
serious case of assault brought by 2 complainants with 2 or 3
witnesses. The accusations of assault, and police investigation
at the time, were considered to be serious enough for the
government to close the establishment where they took place, and
cancel the authority of the owners to operate. Without hearing
one word of testimony, the magistrate has effectively thrown this
case out of court, and prohibited any further proceedings on the
matter. Justice has served no one in this matter. The victims
feel cheated and the accused has not been cleared.

[Brian Bosley]

"Tony Smith" <adolphuzspriggs@ hotmail.com> wrote in message
news:xn0e19d7fr7n2s000@news.individual.net...
> Brian Bosley wrote:
>
>
>> I find this incredible, that a magistrate can put such a "gag"
>> on
>> the judicial process, and would like to find out under what
>> circumstances, and by what authority such a procedure can be
>> carried out.
>
> Some reading for you:-
>
> Go to http://courts.qld.gov.au then to "judgments" then "search
> judgements".
>
> Enter "permeanent stay" as your search term.
>
> Enjoy.
>
> Or, a bit of pre-reading:
>
> http://www.courts.qld.gov.au/publications/articles/speeches/2005/dj23030
> 5.pdf#xml=http://courts.qld.gov.au.master.com/texis/master/search/mysite
> .txt?q=%22permanent+stay+%22&order=r&id=20616a2938a43ed4&cmd=xml
>
>
> I'd be interested to know if you still find it "incredible" or
> not when
> you are done.
>
I not only still find it incredible that magistrates have this
power, but also find it outrageous. Here we have a system where
a magistrate, without hearing any of the evidence from
complainants and witnesses, can not only dismiss the case out of
hand, but permanently deny the opportunity of ever presenting it
again. In effect, (s)he assumes the duties of a jury.
I realise there will always be frivolous cases, and "insufficient
evidence" cases which deserve to be thrown out of court, but I
always beleived a magistrate's prime function in serious cases,
was to establish whether there was a case to answer, and if so,
to commit the accused for trial.
The case that sparked my interest in this matter (a case in which
I have no interest in the outcome, guilty or not guilty) is a
serious case of assault brought by 2 complainants with 2 or 3
witnesses. The accusations of assault, and police investigation
at the time, were considered to be serious enough for the
government to close the establishment where they took place, and
cancel the authority of the owners to operate. Without hearing
one word of testimony, the magistrate has effectively thrown this
case out of court, and prohibited any further proceedings on the
matter. Justice has served no one in this matter. The victims
feel cheated and the accused has not been cleared.

[Sylvia Else]

Brian Bosley wrote:
> I have no interest in the outcome, guilty or not guilty) is a
> serious case of assault brought by 2 complainants with 2 or 3
> witnesses. The accusations of assault, and police investigation
> at the time, were considered to be serious enough for the
> government to close the establishment where they took place, and
> cancel the authority of the owners to operate. Without hearing
> one word of testimony, the magistrate has effectively thrown this
> case out of court, and prohibited any further proceedings on the
> matter. Justice has served no one in this matter. The victims
> feel cheated and the accused has not been cleared.

The magistrate would have explained his/her reasons for doing this.

It is possible for there to be an appeal against the stay order. If the
prosecution don't appeal, then presumably they believe that the appeal
would fail.

Without knowing the basis of the magistrate's decision, it's impossible
to form a valid view.

Sylvia.

[Sylvia Else]

Brian Bosley wrote:
> I have no interest in the outcome, guilty or not guilty) is a
> serious case of assault brought by 2 complainants with 2 or 3
> witnesses. The accusations of assault, and police investigation
> at the time, were considered to be serious enough for the
> government to close the establishment where they took place, and
> cancel the authority of the owners to operate. Without hearing
> one word of testimony, the magistrate has effectively thrown this
> case out of court, and prohibited any further proceedings on the
> matter. Justice has served no one in this matter. The victims
> feel cheated and the accused has not been cleared.

The magistrate would have explained his/her reasons for doing this.

It is possible for there to be an appeal against the stay order. If the
prosecution don't appeal, then presumably they believe that the appeal
would fail.

Without knowing the basis of the magistrate's decision, it's impossible
to form a valid view.

Sylvia.

[Tony Smith]

Brian Bosley wrote:

> I not only still find it incredible that magistrates have this
> power, but also find it outrageous.

You could try picketing the courts, or even Parliament I guess, if it
makes you feel better.



> Here we have a system where
> a magistrate, without hearing any of the evidence from
> complainants and witnesses, can not only dismiss the case out of
> hand, but permanently deny the opportunity of ever presenting it
> again. In effect, (s)he assumes the duties of a jury.

Although a judge can in certain circumstances "assume the duties of a
jury" as you put it, that is not the case here.

A judge is the arbiter of law in a court, if he or she feels that, for
example, an accused has no case at law to answer, that by virtue or
media coverage or notoriety there is no possibility of the accused
being given a fair trial, or that the is no prospect of a properly
instructed jury being able to make a finding of guilty, or a number of
other things, the judge has the power to permanently stay proceedings.


> I realise there will always be frivolous cases, and "insufficient
> evidence" cases which deserve to be thrown out of court, but I
> always beleived a magistrate's prime function in serious cases,
> was to establish whether there was a case to answer, and if so,
> to commit the accused for trial.

Could it be that they established that there was no case to answer?

> The case that sparked my interest in this matter (a case in which
> I have no interest in the outcome, guilty or not guilty) is a
> serious case of assault brought by 2 complainants with 2 or 3
> witnesses. The accusations of assault, and police investigation
> at the time, were considered to be serious enough for the
> government to close the establishment where they took place, and
> cancel the authority of the owners to operate.

An administrative function, has no bearing on criminal, or for that
matter, civil proceedings.



> Without hearing
> one word of testimony, the magistrate has effectively thrown this
> case out of court, and prohibited any further proceedings on the
> matter. Justice has served no one in this matter. The victims
> feel cheated and the accused has not been cleared.

Yep its a bugger isn't it. Silly victims thinking they would get
"justice" from a court when all you will ever get there is LAW. Poor
accused, denied the opportunity to prove innocence and (potentially)
take action against the accusers.

That is the way the system works. If you don't like it, move.




Tony Smith

[Tony Smith]

Brian Bosley wrote:

> I not only still find it incredible that magistrates have this
> power, but also find it outrageous.

You could try picketing the courts, or even Parliament I guess, if it
makes you feel better.



> Here we have a system where
> a magistrate, without hearing any of the evidence from
> complainants and witnesses, can not only dismiss the case out of
> hand, but permanently deny the opportunity of ever presenting it
> again. In effect, (s)he assumes the duties of a jury.

Although a judge can in certain circumstances "assume the duties of a
jury" as you put it, that is not the case here.

A judge is the arbiter of law in a court, if he or she feels that, for
example, an accused has no case at law to answer, that by virtue or
media coverage or notoriety there is no possibility of the accused
being given a fair trial, or that the is no prospect of a properly
instructed jury being able to make a finding of guilty, or a number of
other things, the judge has the power to permanently stay proceedings.


> I realise there will always be frivolous cases, and "insufficient
> evidence" cases which deserve to be thrown out of court, but I
> always beleived a magistrate's prime function in serious cases,
> was to establish whether there was a case to answer, and if so,
> to commit the accused for trial.

Could it be that they established that there was no case to answer?

> The case that sparked my interest in this matter (a case in which
> I have no interest in the outcome, guilty or not guilty) is a
> serious case of assault brought by 2 complainants with 2 or 3
> witnesses. The accusations of assault, and police investigation
> at the time, were considered to be serious enough for the
> government to close the establishment where they took place, and
> cancel the authority of the owners to operate.

An administrative function, has no bearing on criminal, or for that
matter, civil proceedings.



> Without hearing
> one word of testimony, the magistrate has effectively thrown this
> case out of court, and prohibited any further proceedings on the
> matter. Justice has served no one in this matter. The victims
> feel cheated and the accused has not been cleared.

Yep its a bugger isn't it. Silly victims thinking they would get
"justice" from a court when all you will ever get there is LAW. Poor
accused, denied the opportunity to prove innocence and (potentially)
take action against the accusers.

That is the way the system works. If you don't like it, move.




Tony Smith

[Brian Bosley]

"Sylvia Else" <sylvia@not.at.this.address> wrote in message
news:42670a28$0$10305$afc38c87@news.optusnet.com.a u...
>
>
> Brian Bosley wrote:
>> I have no interest in the outcome, guilty or not guilty) is a
>> serious case of assault brought by 2 complainants with 2 or 3
>> witnesses. The accusations of assault, and police
>> investigation at the time, were considered to be serious
>> enough for the government to close the establishment where
>> they took place, and cancel the authority of the owners to
>> operate. Without hearing one word of testimony, the
>> magistrate has effectively thrown this case out of court, and
>> prohibited any further proceedings on the matter. Justice has
>> served no one in this matter. The victims feel cheated and
>> the accused has not been cleared.
>
> The magistrate would have explained his/her reasons for doing
> this.
>
The reason given I understand, was the the complainants/victims
were so young that their memory was suspect. This after a 3 year
delay in hearing the case.
>
> It is possible for there to be an appeal against the stay
> order. If the prosecution don't appeal, then presumably they
> believe that the appeal would fail.
By the same token, the accused has not appealed, thereby
remaining tainted by accusation. If it was I, and I was
innocent, as the accused claims, I would want the evidence
tested, especially given the reason for dismissal by the
magistrate.
>
> Without knowing the basis of the magistrate's decision, it's
> impossible to form a valid view.
>
> Sylvia.

[Brian Bosley]

"Sylvia Else" <sylvia@not.at.this.address> wrote in message
news:42670a28$0$10305$afc38c87@news.optusnet.com.a u...
>
>
> Brian Bosley wrote:
>> I have no interest in the outcome, guilty or not guilty) is a
>> serious case of assault brought by 2 complainants with 2 or 3
>> witnesses. The accusations of assault, and police
>> investigation at the time, were considered to be serious
>> enough for the government to close the establishment where
>> they took place, and cancel the authority of the owners to
>> operate. Without hearing one word of testimony, the
>> magistrate has effectively thrown this case out of court, and
>> prohibited any further proceedings on the matter. Justice has
>> served no one in this matter. The victims feel cheated and
>> the accused has not been cleared.
>
> The magistrate would have explained his/her reasons for doing
> this.
>
The reason given I understand, was the the complainants/victims
were so young that their memory was suspect. This after a 3 year
delay in hearing the case.
>
> It is possible for there to be an appeal against the stay
> order. If the prosecution don't appeal, then presumably they
> believe that the appeal would fail.
By the same token, the accused has not appealed, thereby
remaining tainted by accusation. If it was I, and I was
innocent, as the accused claims, I would want the evidence
tested, especially given the reason for dismissal by the
magistrate.
>
> Without knowing the basis of the magistrate's decision, it's
> impossible to form a valid view.
>
> Sylvia.

[Heretic]

On Thu, 21 Apr 2005 12:21:01 +1000, Brian Bosley wrote:


> "Sylvia Else" <sylvia@not.at.this.address> wrote in message
> news:42670a28$0$10305$afc38c87@news.optusnet.com.a u...
>>
>>
>> Brian Bosley wrote:
>>> I have no interest in the outcome, guilty or not guilty) is a serious
>>> case of assault brought by 2 complainants with 2 or 3 witnesses. The
>>> accusations of assault, and police investigation at the time, were
>>> considered to be serious enough for the government to close the
>>> establishment where they took place, and cancel the authority of the
>>> owners to operate. Without hearing one word of testimony, the
>>> magistrate has effectively thrown this case out of court, and
>>> prohibited any further proceedings on the matter. Justice has served
>>> no one in this matter. The victims feel cheated and the accused has
>>> not been cleared.
>>
>> The magistrate would have explained his/her reasons for doing this.
>>
> The reason given I understand, was the the complainants/victims were so
> young that their memory was suspect. This after a 3 year delay in
> hearing the case.
>>
>> It is possible for there to be an appeal against the stay order. If the
>> prosecution don't appeal, then presumably they believe that the appeal
>> would fail.

Or the prosecution could proceed to trial without a committal. A stay
order stops the prosecution going further in that court as a measure of
judicial control over a prosecution in that court. It doesn't do anything
about the matter proceeding in a higher court.

> By the same token, the accused has not appealed, thereby remaining
> tainted by accusation. If it was I, and I was innocent, as the accused
> claims, I would want the evidence tested, especially given the reason
> for dismissal by the magistrate.

That's the gap between the law and public perception. The law says the
accused is innocent until proven guily in a court of law. Public
perception says that you are guilty if talk-back radio (or Usenet) says so.

Presumably the Magistrate was giving the DPP a clip over the ears for
instituting the prosecution.

[Heretic]

On Thu, 21 Apr 2005 12:21:01 +1000, Brian Bosley wrote:


> "Sylvia Else" <sylvia@not.at.this.address> wrote in message
> news:42670a28$0$10305$afc38c87@news.optusnet.com.a u...
>>
>>
>> Brian Bosley wrote:
>>> I have no interest in the outcome, guilty or not guilty) is a serious
>>> case of assault brought by 2 complainants with 2 or 3 witnesses. The
>>> accusations of assault, and police investigation at the time, were
>>> considered to be serious enough for the government to close the
>>> establishment where they took place, and cancel the authority of the
>>> owners to operate. Without hearing one word of testimony, the
>>> magistrate has effectively thrown this case out of court, and
>>> prohibited any further proceedings on the matter. Justice has served
>>> no one in this matter. The victims feel cheated and the accused has
>>> not been cleared.
>>
>> The magistrate would have explained his/her reasons for doing this.
>>
> The reason given I understand, was the the complainants/victims were so
> young that their memory was suspect. This after a 3 year delay in
> hearing the case.
>>
>> It is possible for there to be an appeal against the stay order. If the
>> prosecution don't appeal, then presumably they believe that the appeal
>> would fail.

Or the prosecution could proceed to trial without a committal. A stay
order stops the prosecution going further in that court as a measure of
judicial control over a prosecution in that court. It doesn't do anything
about the matter proceeding in a higher court.

> By the same token, the accused has not appealed, thereby remaining
> tainted by accusation. If it was I, and I was innocent, as the accused
> claims, I would want the evidence tested, especially given the reason
> for dismissal by the magistrate.

That's the gap between the law and public perception. The law says the
accused is innocent until proven guily in a court of law. Public
perception says that you are guilty if talk-back radio (or Usenet) says so.

Presumably the Magistrate was giving the DPP a clip over the ears for
instituting the prosecution.

[Sylvia Else]

Brian Bosley wrote:

> The reason given I understand, was the the complainants/victims
> were so young that their memory was suspect. This after a 3 year
> delay in hearing the case.

I'd have to wonder why the matter was stayed rather than quashed.

> By the same token, the accused has not appealed, thereby
> remaining tainted by accusation. If it was I, and I was
> innocent, as the accused claims, I would want the evidence
> tested, especially given the reason for dismissal by the
> magistrate.

I don't think the accused has standing to appeal. In any case, a
not-guilty verdict in a trial is not an exoneration, whatever people
might and the press might like to think. All it means is that the
required proof beyond reasonable doubt was not available.

Sylvia.

[Sylvia Else]

Brian Bosley wrote:

> The reason given I understand, was the the complainants/victims
> were so young that their memory was suspect. This after a 3 year
> delay in hearing the case.

I'd have to wonder why the matter was stayed rather than quashed.

> By the same token, the accused has not appealed, thereby
> remaining tainted by accusation. If it was I, and I was
> innocent, as the accused claims, I would want the evidence
> tested, especially given the reason for dismissal by the
> magistrate.

I don't think the accused has standing to appeal. In any case, a
not-guilty verdict in a trial is not an exoneration, whatever people
might and the press might like to think. All it means is that the
required proof beyond reasonable doubt was not available.

Sylvia.

[Heretic]

On Thu, 21 Apr 2005 12:48:42 +1000, Sylvia Else wrote:

>
>
> Brian Bosley wrote:
>
>> The reason given I understand, was the the complainants/victims were so
>> young that their memory was suspect. This after a 3 year delay in
>> hearing the case.
>
> I'd have to wonder why the matter was stayed rather than quashed.

What does "quashed" mean in committal proceedings?

>> By the same token, the accused has not appealed, thereby remaining
>> tainted by accusation. If it was I, and I was innocent, as the accused
>> claims, I would want the evidence tested, especially given the reason
>> for dismissal by the magistrate.
>
> I don't think the accused has standing to appeal. In any case, a
> not-guilty verdict in a trial is not an exoneration, whatever people might
> and the press might like to think. All it means is that the required proof
> beyond reasonable doubt was not available.

That's not legally correct. The law says the accused is innocent until
proven guilty in a court of law. Being found not guilty does not make the
foermer accused any less innocent.

[Heretic]

On Thu, 21 Apr 2005 12:48:42 +1000, Sylvia Else wrote:

>
>
> Brian Bosley wrote:
>
>> The reason given I understand, was the the complainants/victims were so
>> young that their memory was suspect. This after a 3 year delay in
>> hearing the case.
>
> I'd have to wonder why the matter was stayed rather than quashed.

What does "quashed" mean in committal proceedings?

>> By the same token, the accused has not appealed, thereby remaining
>> tainted by accusation. If it was I, and I was innocent, as the accused
>> claims, I would want the evidence tested, especially given the reason
>> for dismissal by the magistrate.
>
> I don't think the accused has standing to appeal. In any case, a
> not-guilty verdict in a trial is not an exoneration, whatever people might
> and the press might like to think. All it means is that the required proof
> beyond reasonable doubt was not available.

That's not legally correct. The law says the accused is innocent until
proven guilty in a court of law. Being found not guilty does not make the
foermer accused any less innocent.

[Sylvia Else]

Heretic wrote:

> What does "quashed" mean in committal proceedings?

I don't know whether it really amounts to something other than stayed.
But the Crimnal Code (QLD) appears to provide for two distinct actions.
See (2)(a)

http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/s590aa.html

unless you want to argue that the expression "quashing or staying" is
indivisible and is expressing a concept.

> That's not legally correct. The law says the accused is innocent until
> proven guilty in a court of law. Being found not guilty does not make the
> foermer accused any less innocent.

I agree, as far as it goes, but in this context, innocence and guilt are
legal concepts.

If a person's concerned about their reputation, then legal concepts are
irrelevant, and what counts is whether people generally are convinced
that the person didn't do the deed. A finding of not-guilty, and thus
innocence at law, is not sufficient for that.

Sylvia.

[Sylvia Else]

Heretic wrote:

> What does "quashed" mean in committal proceedings?

I don't know whether it really amounts to something other than stayed.
But the Crimnal Code (QLD) appears to provide for two distinct actions.
See (2)(a)

http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/s590aa.html

unless you want to argue that the expression "quashing or staying" is
indivisible and is expressing a concept.

> That's not legally correct. The law says the accused is innocent until
> proven guilty in a court of law. Being found not guilty does not make the
> foermer accused any less innocent.

I agree, as far as it goes, but in this context, innocence and guilt are
legal concepts.

If a person's concerned about their reputation, then legal concepts are
irrelevant, and what counts is whether people generally are convinced
that the person didn't do the deed. A finding of not-guilty, and thus
innocence at law, is not sufficient for that.

Sylvia.

[Heretic]

On Thu, 21 Apr 2005 13:33:56 +1000, Sylvia Else wrote:


>
> Heretic wrote:
>
>> What does "quashed" mean in committal proceedings?
>
> I don't know whether it really amounts to something other than stayed.
> But the Crimnal Code (QLD) appears to provide for two distinct actions.
> See (2)(a)
>
> http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/s590aa.html
>
> unless you want to argue that the expression "quashing or staying" is
> indivisible and is expressing a concept.

Yo no se.

>> That's not legally correct. The law says the accused is innocent until
>> proven guilty in a court of law. Being found not guilty does not make
>> the foermer accused any less innocent.
>
> I agree, as far as it goes, but in this context, innocence and guilt are
> legal concepts.
>
> If a person's concerned about their reputation, then legal concepts are
> irrelevant, and what counts is whether people generally are convinced
> that the person didn't do the deed. A finding of not-guilty, and thus
> innocence at law, is not sufficient for that.

On that basis, whether there is a prosecution started or not is of no
importance. It's what people choose to believe, or are told to believe.
Not on Usenet, of course...