COWDERY v O'Meara

[2002] NSWSC 927

CITATION:	COWDERY v O'Meara [2002] NSWSC 927
FILE NUMBER(S):	SC 10853/02
HEARING DATE(S):	22/4/02
JUDGMENT DATE:	4 October 2002
PARTIES :	Nicholas Richard COWDERY - Plaintiff Kenneth Ian O'Meara - Defendant
JUDGMENT OF:	Dowd J

COUNSEL :	Mr P Johnson SC and Mr A Naylor - Plaintiff Defendant: In person
SOLICITORS:	Mr I V Knight Crown Solicitor - Plaintiff
CATCHWORDS:	Summons against DPP - Performance of statutory function not removable - Abuse of process - Stay
LEGISLATION CITED:	Crimes Act 1900 (NSW) Director of Public Prosecutions Act 1986 (NSW) Justices Act 1902 (NSW) Supreme Court Act 1970 (NSW)
CASES CITED:	The Queen v Rogerson (1992) 174 CLR 268 John L Pty Limited v Attorney General for the State of NSW (1987) 163 CLR 508 Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 Grassby v The Queen (1999) 168 CLR 1 Williams v Spautz (1992) 174 CLR 509 R V Smith [1995] 1 VR 10 Price v Ferris (1994) 34 NSWLR 704 Maxwell v The Queen (1996) 184 CLR 501
DECISION:	(1) That the information laid by the first defendant be stayed (2) That the first defendant pay the plaintiff's costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

4 October 2002
10853/02 Nicholas Richard COWDERY v Kenneth Ian O'MEARA
JUDGMENT

1 DOWD J: By way of summons the plaintiff sought a declaration against Kenneth Ian O'Meara, the first defendant, that the information laid by the first defendant at Raymond Terrace Local Court on 29 November 2001 which alleged that the plaintiff, on or about 17 July 2001, at Raymond Terrace in the State of New South Wales did contravene the provisions of s319 of the Crimes Act 1900 ("the Act"), by taking over the private prosecutions commenced by Kenneth Ian O'Meara and declining to proceed with the prosecutions of Rodney John Grant, Rodney Leigh Brown, Stephen Graham McTackett and Marianne Louise Rogers (AKA Randall), despite substantial evidence produced as to their guilt, thereby obstructing and/or defeating the course of justice contrary to s319 of the Act; and as such, is an abuse of process.

2 The summons sought an order that the information be permanently stayed and alternatively an order that the summons issued upon the information be quashed and further, an order restraining the Clerk of the Court, Downing Centre Local Court, the second defendant, from causing the information to be listed for any purpose referred to in Div1 of Pt 4 of the Justices Act 1902 apart from the adjournment of the information pending the determination of the present summons by this Court.

3 The second defendant has filed a submitting appearance save as to costs.

4 There was proved by affidavit before me the facts as set out below.

5 The first defendant laid the information against the plaintiff alleging that he had committed an offence under s319 of the Act as alleged in paragraph 1 above. The proceedings were stood over to the Downing Street Local Court. The first defendant was ordered to serve a brief of evidence by 11 March 2002.

6 No materials have been served by the first defendant other than a written statement made by the first defendant on 9 January 2002 and a notice under s48D of the Justices Act 1902 that the plaintiff may inspect certain documents contained in boxes at the plaintiff's home at Heatherbrae.

7 The purported prosecution of the plaintiff arises from the plaintiff having exercised his statutory discretion under s9 of the Director of Public Prosecutions Act 1986 (NSW) ("the DPP Act") and taken over and terminated four private prosecutions brought by the first defendant against Grant, Brown, McTackett and Rogers identified above. Informations had been laid against each of these people alleging various offences under the Act. By letter, under the DPP Act, the plaintiff required the Clerk of the Local Court at Raymond Terrace, where the original information was laid, to furnish information connected with the information against him as the plaintiff was considering taking over the prosecutions. The plaintiff was so advised on the same day.

8 On 7 June the first defendant wrote to the plaintiff asserting that the first defendant had been arrested at Tahmoor on 15 February 1997 and charged with certain drug and firearm offences and that when he had appeared at court between February 1997 and September 1999 he had made it clear that he had evidence that would prove that he was not at Tahmoor at the relevant time, that evidence being statements from persons at Port Stephens who stated that he was actually at Port Stephens and a tape recording of police attending the property on 15 February 1997 saying words to the effect of "shoot the bastard and plant a gun on him".

9 The letter went on to say that on 23 September 1999 the four persons referred to as the defendants above executed a search warrant and carried off certain documents and computer programmes not covered by the warrant. The first defendant said that he had made a complaint to the New South Wales Police about the theft of the documents not covered by the warrant but no action was taken.

10 The first defendant asserted in his letter that in March 2001 Marianne Rogers returned copies of the bulk of the documents to the first defendant and copies of some of the files downloaded from the hard drive on his home computers and that he then laid the private prosecutions.

11 On 9 July 2001 the plaintiff advised the first defendant that pursuant to s10 of the DPP Act he had taken over the four prosecutions and that he had declined to proceed further with them.

Facts of the original criminal proceedings

12 On 15 February 1997 a police helicopter was involved in the search of other premises when the crew sighted a large number of cannabis plants growing on the first defendant's property. The first defendant was observed standing on the verandah of his home when police attended from the ground. The defendant evaded police and was located hiding in the roof of the premises. A short time later he was arrested and conveyed to Picton police station where he was charged. A search warrant was obtained for the first defendant's premises at 71 Greenacre Drive, Tahmoor and the premises was searched and a further one hundred and twenty nine cannabis plants were located in a large shed being cultivated hydroponically. The shed was equipped with elaborate equipment with rotating lights, air ventilations, the shed's walls being lined with foil.

13 In a search of the first defendant's motor vehicle, parked in his garage, a Jennings .22 calibre pistol and magazine was located in the boot of the vehicle with numerous rounds of ammunition, the pistol was loaded and had a round in the breech. In the first defendant's bedroom a pump action shotgun was located with numerous rounds of ammunition. The shotgun was fully loaded with a round in the breech. The shotgun had been stolen from a break-in in 1993. Some 249.7 grams of cannabis leaf were found inside a greyhound kennel, the total number of cannabis plants located being five hundred and ninety eight.

14 On 25 February 1997 the first defendant was spoken to by police and charged at Picton concerning the cannabis plants, firearm offences, cannabis leaf and the goods in custody. On 29 August 1997 an indictment was presented alleging that the first defendant cultivated prohibited plants not less than the commercial quantity and a further count that he did possess a .22 calibre Jennings self loading pistol without having a licence or permit and that he possessed a 12 gauge shotgun without being licensed to do so.

15 There then ensued a series of interlocutory applications by the first defendant in the District Court where the proceedings were to be heard. A Supreme Court summons was then brought by the first defendant against various defendants, including the plaintiff. An application was then made to the Federal Court and the private prosecution of the plaintiff by the first defendant, the subject of these proceedings. The proceedings in the Supreme Court ultimately proceeded to the High Court where an application to remove the proceedings to that court was refused and the appeal deemed abandoned by the effect of the High Court rules.

16 The proceedings before the Federal Court for prohibition were against various judges and magistrates of the New South Wales' courts including the plaintiff and various police officers.

17 The proceedings in the District Court were the subject of interlocutory proceedings. Interlocutory applications were ultimately dismissed although an application for special leave to appeal to the High Court was to be heard. The court has not been advised of the result of that leave application.

18 The offence alleged under s319 of the Act is an indictable offence which provides:

"s319. A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years."

19 Section 312 of the Act defines "pervert the course of justice":

"s312. A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law."

20 The elements of the offence are that the accused:

a. Did any act or made any omission;
b. With intent in any way to pervert the course of justice.

The common law offence of attempting to pervert the course of justice requires proof that the act done had a tendency to pervert the course of justice. This requires the prosecution to prove that the act done had a tendency to pervert the course of justice: The Queen v Rogerson (1991­1992) 174 CLR 268. It is submitted, on behalf of the plaintiff, that this element of the common law offence is not an element of the statutory offence but, in any event, whether the act had such a tendency, it is clear that the elements of the offence expressly include an intent to pervert the course of justice. It is, therefore, not necessary.

21 The information in the proceedings does not allege the element of intention to pervert the course of justice. The laying of a valid information is the basis which gives the Local Court jurisdiction: John L Pty Limited v Attorney General for the State of NSW (1987) 163 CLR 508. The information, therefore, lacks an essential ingredient of the offence under s319 of the Act. Accordingly, the information is not valid and s30 of the Justices Act 1902 cannot be relied upon to save it; ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153.

Abuse of process

22 It was further submitted by the plaintiff that even if the information were valid that it constitutes an abuse of process. The proceedings then before the Local Court were committal proceedings and the Local Court does not have a power of stay: Grassby v The Queen (1999) 168 CLR 1.

23 It was submitted by the plaintiff that a permanent stay may be based upon the court's determination that the proceedings will inevitably fail or that the proceedings have been brought for an improper purpose: Williams v Spautz (1992) 174 CLR 509. It is further submitted that criminal proceedings are an abuse of process if it can be said of them that it is quite clear that they must inevitably fail: R V Smith [1995] 1 VR 10.

24 Smith decided that the court has inherent power to see that its process is not abused by civil or criminal proceedings, but it is only in exceptional circumstances that a proceedings, civil or criminal, will be stayed on the basis that it constitutes an abuse of process. However, civil and criminal proceedings are an abuse of power, not, if it can just be said of them they will very likely fail, but if it can be said of them that it is quite clear they must inevitably fail.

25 It is pointed out by the plaintiff that the evidence the first defendant seeks to adduce, which was in evidence before the court, reveals no evidence capable of supporting an intent to pervert the course of justice. It is to be noted that the first defendant's statement, which is annexed to the affidavit setting out the evidence before me, talks of the first defendant's "belief' only in the fault of the plaintiff.

26 The plaintiff was exercising an independent statutory discretion under s9 of the DPP Act. That independence has been repeatedly underlined in decisions such as Price v Ferris (1994) 34 NSWLR 704. Authorities restrict judicial review of that exercise of prosecutorial discretion: Maxwell v The Queen (1996) 184 CLR 501.

27 It was submitted by the plaintiff that the evidence discloses that the first defendant brought private prosecutions against four persons, that the plaintiff gave consideration to and determined to take over prosecutions and that the first defendant had provided material to the plaintiff for his consideration.

28 It is clear that the first defendant is not happy with the decision of the plaintiff and seeks to avoid that decision by means of a course of litigation generated by the first defendant.

29 It is submitted by the plaintiff, and I accept that submission, that there is no evidence which can support the essential ingredient of intention to commit the offence under s319 of the Act and the present case will inevitably fail and is exceptional and, therefore, constitutes an abuse of power.

30 The courts power to deal with the release sought arises from s23 of the Supreme Court Act 1970 (NSW).

31 Subsequently to the hearing a letter was received, by leave, by the courtin these proceedings from the first defendant which outlined offences that constitute an indictable offence. This submission did not assist the determination of the matter before the court.

32 The proceedings, therefore, brought before the court were not valid proceedings as the information failed to disclose an essential ingredient of the offence. I accept the submission of the plaintiff that, even if there were valid proceedings, the exercise of the Director of Public Prosecutions in taking over and terminating those proceedings has not been shown to be other than a proper exercise of that power. Accordingly, the plaintiff is entitled to the relief sought. Notwithstanding the invalidity of the summons I propose that the preferable remedy is to stay the information.

33 As the plaintiff has succeeded in the application I can see no other order appropriate than that costs should follow the event.

34 The orders, therefore, that I propose are as follows:

1. That the information laid by the first defendant be stayed;
2. That the first defendant pay the plaintiff's costs of these proceedings.
**********

Last Modified: 12/24/2008