Dupois v Reid

[2025] QCA 42

SUPREME COURT OF QUEENSLAND

CITATION:

Dupois v Reid [2025] QCA 42

PARTIES:

CHARLES DUPOIS
(appellant)
v
RYDER GREG REID
(first respondent)
KIMBERLEY ELIZABETH THOMAS
(second respondent)
MERISHIA WHEATLEY
(third respondent)

FILE NO/S:

Appeal No 11045 of 2024
SC No 9996 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 22 August 2024 (Bradley J)

DELIVERED ON:

28 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2025

JUDGES:

Bond and Boddice JJA and Muir J

ORDERS:

1.   The appeal be dismissed.

2.   The appellant pay the respondents’ costs of the appeal.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – GENERALLY – where the appellant filed an application for leave to present an information against the respondents – where the primary judge was allocated the hearing of the application – where the appellant sought recusal of the primary judge to hear the application on the ground of actual, or alternatively, apprehended bias – where the primary judge declined to recuse himself – where the primary judge dismissed the application for leave to present an information – where the primary judge also made an order as to costs – where the appellant appeals those orders – whether the primary judge erred in law in refusing to recuse himself and in dismissing the application

COUNSEL:

The appellant appeared on his own behalf
J M Horton KC for the first and second respondents
D D Keane KC for the third respondent

SOLICITORS:

The appellant appeared on his own behalf
Gilshenan & Luton for the first and second respondents
Queensland Police Service Legal Services for the third respondent

1. THE COURT:  On 30 July 2024, the appellant filed an application for leave to present an information alleging the joint commission, by the respondents, of indictable offences in the State of Queensland.

2. On 16 August 2024, the primary judge was allocated the hearing of the application.

3. On 22 August 2024, the appellant’s application for leave was heard by the primary judge.  At the commencement of the hearing, the appellant sought that the primary judge recuse himself on the ground of actual, or alternatively, apprehended, bias.  The primary judge declined to recuse himself and the application proceeded to hearing.

4. On 22 August 2024, the primary judge ordered that the application for leave to present an information against the respondents be dismissed.  The appellant was ordered to pay the respondents’ costs of the application.

5. The appellant appeals those orders.  The appellant contends that the primary judge erred in law in refusing to recuse himself and in dismissing the application for leave.

   Application for leave

6. The application for leave to present an information against the respondents, alleged breaches of the criminal law between 20 May 2023 and 30 June 2024.  The criminal offences were attempting to pervert justice, conspiracy to bring a false accusation, compounding an indictable offence, fraud, official corruption and conspiring to defeat justice.  Each respondent was alleged to be a principal offender by having committed the act, or having aided and abetted the others to commit those acts.

7. The acts were said to have been committed by the respondents by reason of their involvement in the prosecution of the appellant for criminal offences in May 2023.  The first and second respondents are respectively a principal Crown prosecutor and a legal officer with the office of the Queensland Director of Public Prosecutions.  The third respondent was a prosecutor with the Queensland Police Service, with carriage of an application brought against the appellant for a protection order, pursuant to the Domestic and Family Violence Protection Act 2012.

   Decision below

8. The application for recusal relied on alleged conduct of the primary judge in an application brought by the appellant in July 2022.  The appellant contended that the primary judge had displayed obvious bias in the conduct of that hearing, including treating the appellant aggressively and abusively during submissions.  The appellant relied on written statements of persons said to have been present at the hearing.  The appellant submitted to the primary judge that he had previously informed the court that he would not be running a matter before the primary judge due to matters of bias.  He submitted to the primary judge that those responsible for listing the matter before the primary judge must have done so to ensure that there was an outcome adverse to the appellant’s interest.

9. In refusing the application for recusal, the primary judge observed that the earlier hearing related to an urgent interlocutory application heard during court vacation.  The primary judge had sought, at that hearing, identification by the appellant of why there was a need for an urgent hearing and of the material relied upon in support of the application.

10. The primary judge also observed that that decision had itself been the subject of an appeal, in which complaint had been made by the appellant that the primary judge had not treated him fairly.  That contention was rejected by the appellate court.

11. The primary judge found that in those circumstances there was no basis for a conclusion of actual bias.  Further, apprehended bias was not established merely because there had been a previous ruling adverse to the appellant.

12. In dismissing the application for leave to present an information against the respondents, the primary judge observed that if leave was given to present the information: the respondents would be deprived of the protection afforded by a committal process and would lose the protection afforded by having a Crown prosecutor determine whether to bring a prosecution, after considering the sufficiency of evidence, its quality and persuasive strength impartially and uninfluenced by personal feelings.

13. The primary judge found that as the appellant had not put on any admissible evidence, or provided any particulars of the alleged offences, it was not possible to conclude that a prima facie case of commission of those offences was made out.  Further, no explanation had been provided by the appellant as to why the usual process of the institution of proceedings pursuant to the Justices Act 1886, had not been deployed and the only motivation given by the appellant for bringing proceedings, was to reach an agreement with the prosecutorial authorities to bring to an end, the criminal proceedings faced by the appellant.  The primary judge observed that that was a “discreditable motive”.

14. The primary judge concluded:

    “The overwhelming result of considering the specific matters … is that the Court should refuse to give leave to the applicant to bring a private criminal prosecution in respect of counts that he has – in respect of counts for which there is no credible evidence of a prima facie case, and in respect of which he has such a level of personal involvement, and has published his strong personal views, that it would be of concern that a person in that position ought to be conducting a criminal prosecution.”[1]

    [1]AB 45/10­–18.

    Consideration

15. The following propositions are relevant to the disposition of the appeal.  Whilst trite, they deserve articulation:

    (a)If a litigant has determined that they have a well-founded objection to a particular judicial officer being allocated to determine their proceeding, it would be prudent for the litigant to notify the court of the objection in advance of the listing of the proceeding and, at least in brief outline, to also notify the court of the grounds relied upon.  However, litigants do not have the right to choose the judicial officer to determine their proceedings.

    (b)Judicial resources are not unlimited and the process of listing judicial officers, so as to deal efficiently with the business of the court, can be attended by significant complexity.  Accordingly, the court may well decide to list a judicial officer to determine a proceeding, despite having received notification of objection.  That is what happened here.  The court’s decision to do so is not a justiciable issue.

    (c)If the court lists a judicial officer, despite having received a litigant’s objection to that judicial officer, the appropriate response for the litigant who continues to object to the judicial officer concerned, is to advance an application for the recusal of that judicial officer.

    (d)If the judicial officer is sitting alone, the application must be advanced to the judicial officer concerned.  If the judicial officer is sitting as part of a multi-member court, the application should be determined in the manner indicated by the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[2]

    (e)If the application for recusal succeeds, then the court will have to reconstitute.  If the application for recusal fails and even if the litigant believes firmly that it should have succeeded, it is not open to the litigant to prevent the proceeding being determined by the simple expedient of refusing to present their case.

    (f)If the application for recusal has been unsuccessful, absent a successful application for adjournment or stay, the duty of the judicial officer may well require the judicial officer to proceed to a determination of the proceeding, especially where the other parties urge that course.  In such circumstances, any failure of the litigant to present a case in support of the relief claimed in the proceeding may well be fatal to their prospects of success on the merits.

    [2](2023) 97 ALJR 419.

    Recusal

16. The appellant submits that the primary judge erred in refusing to recuse himself, as there was “clear evidence” of prior aggressive conduct directed towards the appellant.  However, that evidence related to a hearing, which had itself been the subject of an appeal by the appellant.  The primary judge’s alleged conduct at that hearing was expressly found, on appeal, to involve nothing more than an attempt, by a busy judge, in the application list, to obtain information to questions relevant to whether the hearing was indeed urgent.

17. Against that background, the evidence sought to be relied upon from submissions of the earlier hearing, could not properly support a basis for actual bias and the primary judge was correct to refuse to recuse himself on that basis.

18. For similar reasons, that behaviour could not support a conclusion that a fair-minded, lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide.

19. There was no error in the primary judge’s refusal to recuse himself.

20. At the hearing of the appeal, the appellant repeated his complaint about the court having listed the primary judge as the judge to determine the proceeding, notwithstanding he had foreshadowed objection.  He advanced scandalous allegations that the court, having done so, demonstrated adverse intent towards him.  There was no evidentiary support for the allegations; they should never have been advanced.

    Refusal of leave

21. At the hearing of the appeal, the appellant accepted that before the primary judge he had made a conscious and deliberate decision not to present to the primary judge, any evidence in support of the merits of his application, or to make submissions on the application for leave to present an information once the primary judge had refused to recuse himself.  His view, as expressed to this Court, was that it was impossible for the primary judge to determine his application against him when he had chosen not to present his case.  It is in that context that the appellant now seeks to advance a contention that he was denied a fair hearing on the application for leave to present an information, as the application was decided without hearing his submissions.

22. There is no merit in the contention that there was a denial of procedural fairness.

23. The appellant commenced a proceeding by which he sought leave to present an information against the respondents, alleging various types of offending against the criminal law.  He had notified the court that he objected to the primary judge being listed to deal with his application.  He advanced a recusal application to the primary judge.  When that failed and despite having been ready to proceed, he consciously determined not to.

24. Once the appellant made a conscious and deliberate decision not to advance either evidence or submissions on the hearing of the application for leave to present an information, it was incumbent upon the primary judge to determine the hearing on the evidence and submissions advanced at that hearing.  There is no basis to complain of an absence of a fair hearing on the determination of that application, in those circumstances.

    Orders

25. The Court orders:

    1.The appeal be dismissed.

    2.The appellant pay the respondents’ costs of the appeal.