Croll v Reeves

[2005] QCA 77

SUPREME COURT OF QUEENSLAND

CITATION:

Croll v Reeves [2005] QCA 77

PARTIES:

LEONARD THEODORE CROLL
(applicant/applicant)
v
MICHAEL REEVES
(respondent/respondent)

FILE NO/S:

Appeal No 10494 of 2004
SC No 9123 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave/Judicial Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

22 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2005

JUDGES:

McPherson and Keane JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.    Application dismissed
2.    Applicant to pay the respondent's costs of the       application to be assessed on the indemnity basis

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWERS OF JUDGE - OTHER MATTERS - applicant convicted of dangerous operation of a motor vehicle - after conviction made application to District Court seeking direction that several witnesses in trial be dealt with for contempt of court - registrar refused to accept application - application to Supreme Court to direct registrar to accept application or to begin contempt proceedings unsuccessful - whether application under s 590AA Criminal Code can be brought after trial - whether s 590AA Criminal Code gives power to registrar to punish for contempt - whether allegation of perjury can support finding of contempt

Criminal Code 1899 (Qld), s 590AA
District Court of Queensland Act 1967 (Qld), s 30
Criminal Practice Rules 1999 (Qld), r 42

Keeley v Mr Justice Brooking (1979) 143 CLR 162, cited
McGoldrick v Citicorp Finance Pty Ltd [1990] VR 503, cited
Re Bride; ex parte Stewart (1995) 60 FCR 569, cited

COUNSEL:

Applicant appeared on his own behalf
J Fenton for the respondent

SOLICITORS:

Applicant appeared on his own behalf
C W Lohe, Crown Solicitor, for the respondent

McPHERSON JA:  I will ask Justice Keane to deliver the first set of reasons.

KEANE JA: The applicant seeks leave to appeal against the refusal by the learned primary Judge to direct the Registrar of the District Court pursuant to s 30 of the District Courtof Queensland Act 1967 (Qld) to accept an application purporting to be made under s 590AA of the Criminal Code seeking a direction that several witnesses in a criminal trial, which had been concluded, be dealt with for contempt of Court.

By way of background, on 23 March 2004 the applicant was convicted after a trial on two counts of dangerous operation of a motor vehicle.  He was acquitted of one count of wilful damage and one count of assault occasioning bodily harm.  The jury was unable to reach a verdict with respect to one count of dangerous operation of a motor vehicle.

On 6 April 2004 the applicant was sentenced with respect to the two counts of dangerous operation of a motor vehicle to 12 months probation and 100 hours of community service. The applicant appealed against his conviction and on 30 July 2004 that appeal was dismissed by this Court: see R v Croll [2004] QCA 255.

On 17 of August 2004 the applicant sought to file in the District Court Criminal Registry an application for a direction or ruling under r 42 of the Criminal Practice Rules 1999 (Qld).  He sought a direction that certain witnesses at the trial are in contempt of Court in that they did not obey their oath to tell the truth, the whole truth and nothing but the truth.  The Registrar refused to accept the application.
The applicant had also attempted to file an affidavit summarising the transcript of his criminal trial and annexing a report by Dr Frank Grigg, an engineer, which contained expressions of opinion as to the evidence the subject of the trial.

On 19 October 2004 the applicant sought from the Supreme Court orders that:  (a) the Registrar of the District Court accept for filing the documents attached to the affidavit of the applicant; or alternatively (b) the Supreme Court begin contempt proceedings against a number of witnesses in the trial who the applicant alleges disobeyed their oath and find that they are in contempt of Court.

The learned primary Judge dismissed this application.  Her Honour took this course for three reasons, any one of which would have been sufficient to support the dismissal of the application.  

The first reason for dismissing the application was that
s 590AA of the Criminal Code is concerned with pre-trial procedures. It has no application once a criminal proceeding has been heard and determined. In my view her Honour's conclusion on this point is correct not only as a matter of the proper construction of s 590AA of the Criminal Code but also because the jurisdiction of the District Court to inquire, hear and determine indictable offences conferred by
s 60 of the District Court of Queensland Act 1967 (Qld) is exhausted once the charges in question have been heard and determined.

The second reason given by the learned primary Judge for dismissing the application was that s 590AA of the CriminalCode and the Criminal Practice Rules 1999 together confer no power on the Registrar of the District Court to direct that contempt proceedings be commenced. Once again this conclusion is plainly correct. The powers enumerated in s 590AA simply do not include the power to punish for contempt nor do they include powers to review a matter once it has been heard and determined.

The third reason given by the learned primary Judge for rejecting the application was that her Honour entertained a real doubt as to whether an allegation of perjury could support a finding of contempt.  That doubt was in my respectful opinion well founded.  A person accused of perjury is entitled to the protections afforded an accused charged with an indictable offence, not the least of which is the benefit of trial by jury in accordance with the provisions of the Criminal Code.  These provisions and the protections they afford should not be circumvented by bringing a charge of perjury in the form of a proceeding for contempt, save in the rare class of case of a palpably false answer calculated to frustrate the processes of the Court before whom the evidence is given. 

The authority for that is the decision of the High Court in Keeley v Mr Justice Brooking (1979) 143 CLR 162 at 169, 170 and the decision of the Victorian Court of Appeal in McGoldrick v Citicorp Finance Pty Ltd [1990] VR 503 at 507, 508 and the decision of the Federal Court in Re Bride;
ex parte Stewart (1995) 60 FCR 569 at 570 to 571.

This case does not belong to that rare class.  I am of opinion then that the application before the learned primary Judge was wholly misconceived for the reasons which she gave.  The application to this Court is similarly misconceived.  I would order that the application be dismissed. 

Having regard to the absence of any arguable foundation for the application I would order that the applicant pay the respondent's costs of the application to be assessed on the indemnity basis.

McPHERSON JA:  I agree.

FRYBERG J:  I agree.

McPHERSON JA:  The order will be as Justice Keane has stated

it.  

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