Platz v Osborne [1943] HCA 39

68 C.L.R.] OF AUSTRALIA. (HIGH COURT OF AUSTRALIA.] PLATZ APPELLANT ; CoMPLAINANT, AND OSBORNE RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

Tustices—Conviction—Quashed on appeal—Power to remit matter to justices— yy (

Justices Acts 1886 to 1942 (Q.) (50 Vict. No. 17—6 Geo. VI. No. 7), "ss. 209, 210, 231.

Held, by Rich, McTiernan and Williams JJ. (Latham C.J. and Starke J. dissenting), that s. 210 of the Justices Acts 1886 to 1942 (Q.) does not confer power on the Court to remit a matter to the justices for rehearing.

Decision of the Supreme Court of Queensland (Full Court) by majority, affirmed.

Appa from the Supreme Court of Queensland.

Frederick Vincent Osborne was charged before a stipendiary magistrate upon the complaint of Louis Joseph Platz, a constable of police, that on 9th February 1943, at Ipswich, in the Petty Sessions District of Ipswich in the State of Queensland, he, the said Frederick Vincent Osborne, had in his possession one Good Year heavy duty 650-16 motor tyre, one Good Year heavy duty 600-16 motor tyre, four Good Year 650-16 motor tubes, three Dunlop Perdriau 750-17 motor tubes, and four Good Year 750-17 motor tubes, suspected of having been unlawfully obtained.

Osborne was convicted and ordered to be imprisoned for a period of two months with hard labour.

An order nisi to quash the conviction was obtained under s. 209 of the Justices Acts 1886 to 1942 (Q.) and upon the return of the

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order nisi an order quashing the Conviction was made by the Full Court of the Supreme Court of Queensland upon the ground that though upon the evidence there were reasonable grounds for finding that the police constable did in fact suspect that the two tyres had been unlawfully obtained, there were no grounds for finding that he suspected that the tubes had been unlawfully obtained. The Full Court accordingly held that Osborne was wrongfully convicted in respect of the nine tubes and said that although that Court may have certain powers of amendment, this was not one of the cases in which the power to amend should be exercised. The Court had no power to alter any sentence, the appropriate sentence to be imposed was the function of the stipendiary magistrate at the time of the conviction, and it was impossible to determine what sentence the stipendiary magistrate would have imposed if Osborne had been convicted in respect of the two tyres only. The Full Court further decided that it.was beyond the power of that Court to remit the matter to the stipendiary magistrate to determine what sentence should be imposed for a conviction in respect of the two tyres as the stipendiary magistrate was then functus officio.