Fingleton v The Queen [2005] HCA 34

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE AND HEYDON JJ

DIANE McGRATH FINGLETON APPELLANT

AND

THE QUEEN RESPONDENT

Fingleton v The Queen [2005] HCA 34

23 June 2005

B58/2004

ORDER

1. Appeal allowed. 2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 26 June 2003 and in their place order: 3. appeal allowed; 4. conviction of the appellant quashed; and 5. judgment and verdict of acquittal entered on both counts in the indictment.

On appeal from the Supreme Court of Queensland

Representation:

B W Walker SC with S J Hamlyn-Harris for the appellant (instructed by Woods Prince Lawyers)

D F Jackson QC with M J Copley for the respondent (instructed by Director of Public Prosecutions (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.