Dwyer v Mamic

[1992] QCA 11

IN THE COURT OF APPEAL [1992] QCA 011

SUPREME COURT OF QUEENSLAND

No. O.S.C. 21 of 1991

Before the Court of Appeal

The President

Mr Justice Davies

Mr Justice Thomas

BETWEEN:

PETER EDWARD DYWER

(Plaintiff) Respondent

- and -
STIPE MAMIC

(Defendant) Appellant

JUDGMENT - FITZGERALD P. and DAVIES J.

Delivered the 3rd day of March 1992

CATCHWORDS: CRIMINAL LAW - CONDUCT OF PROSECUTION - Appeal from

decision of Magistrate Staying Prosecution - whether magistrates decision can be supported on basis made - whether prosecution an abuse of process - whether sentencing principles would render prosecution futile

Counsel: R.M. Needham Q.C. for the Appellant

D.F. Gordon for the Respondent

Solicitors:Commonwealth Director of Public Prosecutions for the

Appellant

Legal Aid Office (Queensland) for the Respondent

Hearing dates:18th February, 1992

REASONS FOR JUDGMENT - FITZGERALD P. and DAVIES J.

Delivered the 3rd day of March 1992.

This appeal challenges the decision of a Stipendiary

Magistrate ordering the stay of a prosecution brought by the

Commonwealth against one Stipe Mamic. The appeal lies by way of

order to review under s. 209 of the Justices Act 1886 as amended. It will be convenient to refer to the complainant police officer as the appellant, and to the defendant Mamic as

the respondent.

The Stipendiary Magistrate, upon the submission of the respondent's counsel, ordered the stay on the basis that the proceedings were an abuse of process. It is therefore necessary

to examine the history of the proceedings.

On 4th February, 1991 the respondent assaulted a female employee in the Department of Social Security. He was arrested and charged with assault causing bodily harm. He failed to obtain bail. He is then alleged to have sent through the mail (on 21st February) to the same female employee a written

document containing threats. A further charge was then laid

under s. 76 of the Crimes Act 1914 (as amended) of "wilfully hindering by threats a Commonwealth officer whilst engaged in

the discharge of her office".

The respondent was brought before the court on 16th April,

1991 on both matters. The charge under the Criminal Code is

triable summarily by a Magistrate subject to compliance with ss. 341-343A of the Code, which include the discretionary

consideration that if the Magistrate thinks the charge a fit subject for prosecution by indictment, he shall abstain from dealing with it summarily. The charge under s. 76 of the Crimes Act may also be dealt with summarily, but only if both parties

consent to that course (Crimes Act s. 4J1). When the matters came before the court the prosecution sought the summary determination of both. The respondent refused to consent to

summary determination of the Crimes Act charge with the result that those proceedings could proceed only as a committal upon an

indictable charge. The assault charge proceeded summarily and

in the event the Magistrate found the respondent guilty of

common assault and imposed a penalty. The remaining charge was then brought before another Magistrate who committed the

respondent for trial. The prosecution evidence included that of a handwriting expert connecting the writing in the offending document to the respondent. He was committed to the District

Court sittings of 3rd June, 1991.

On 29th May the respondent's solicitors were advised that

the Commonwealth would not proceed with the prosecution of the

offence under s. 76, and that they would instead bring a charge under s. 85S(b) of the Crimes Act. The reason seems to have been that the female employee to whom the document was addressed

did not receive it so that it was considered that an essential

element of the more serious charge under s. 66 could not be proved. The essential charge under s. 855(b) was that he

knowingly used a postal service in an offensive way. It carries

lesser penalties than the indictable charge. A no true bill was

entered with respect to the s. 76 charge on 6th June. A complaint and summons was served that same month, and the matter was listed for trial on 30th July, 1991.

At the hearing before the Stipendiary Magistrate on that

date, counsel for the respondent submitted that the matter

should be stayed because the charge involved "matters of such complexity that it should be heard before a judge and jury" and that the Crown in replacing the s. 76 charge with one under s.

85S had so prejudiced the respondent that he could not receive a fair trial. The only complexity suggested to the Magistrate, or

on the appeal, was the suggestion that the defence might also have a handwriting expert whose evidence might conflict with

that of the witness called by the Crown. Counsel for the

prosecutor submitted to the Magistrate that there was no abuse

of process and no prejudice to the defendant, there having been no undue delay on the part of the prosecution. There then followed submissions by both counsel concerning the

possibilities of adjourning, or calling the available witnesses before adjourning in order to enable the defence sufficient time to organise a witness on the question of handwriting.

In his reasons the Stipendiary Magistrate seems to have

placed great store upon the fact that the prosecution had

originally been brought so that it might be heard on indictment in the District Court, that it had been discontinued and that

the prosecution now wanted to charge the defendant summarily on

essentially the same facts. The reasons include the following:-
"On the matter that has been placed before me, that is the

issue of handwriting [sic]. The matter should be allowed to proceed to trial by jury and or [sic] the Crown is not in a position to do so. Then that, in my opinion, should be the end of the matter and it is inappropriate that the charge that this defendant is currently before the Court should be laid."

Having mentioned authorities including Barton v. The Queen

(1980) 147 C.L.R. 75 and R. v. His Honour Judge C.F. McLoughlin

and Cooney ex parte The Director of Prosecutions (1988) 1 Qd.R. 464 the Magistrate held that the complaint was an abuse of

process and ordered that the proceedings be stayed.

Since the basis upon which the respondent attempts to oppose the order now sought is totally founded upon a complete fallacy, there is no occasion to explain or elaborate upon

existing authority.

The respondent accepted that the magistrate's decision could not be supported on the basis on which it was made, but argued that it ought to be upheld on a different basis; namely, that the conduct the subject of the outstanding charge was relevantly connected to the offence of which the respondent has already been convicted so that established sentencing principles require that established sentencing principles require that he not be further punished even if he is convicted of the remaining charge. Thus, it was said, it was futile, and contrary to the public interest, to allow the remaining charge against the

respondent to proceed with attendant costs and other detriment.
Alternatively, it was urged that this Court has a discretion
under s. 213 of the Justices Act to refuse the order sought by

the respondent and that the same considerations should be

applied to that discretion which should be exercised in favour

of refusing the order sought.

Even if it be assumed that a sufficient connection exists

between the offence of which the respondent has been convicted

and the conduct the subject of the present charge if that is established, the respondent's argument wholly fails. There is not the slightest indication that the sentence imposed upon the respondent related to the totality of his conduct. On the contrary, it is plain that it did not. He has been convicted and sentenced only for assault. There is no reason why he could not be further punished if it is found that, more than a fortnight

later, he used the mail for an improper purpose even if, or

perhaps especially if, that purpose was related to threats with

respect to the original assault.

The appeal (by order to review) should be allowed with costs and the Magistrate's order staying further proceedings should be quashed. The matter should be remitted to another Magistrate with directions to proceed according to law.