Hogue v The Queen

[2005] QDC 363

DISTRICT COURT OF QUEENSLAND

CITATION:

Hogue v R [2005] QDC 363

PARTIES:

ADRIAN ARTHUR HOGUE

Applicant

v

THE QUEEN

Respondent

FILE NO/S:

D127/04

DIVISION:

Criminal proceeding

PROCEEDING:

Pre- trial ruling

ORIGINATING COURT:

District Court, Mt Isa

DELIVERED ON:

2 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 April 2005

JUDGE:

Nase DCJ

ORDER:

Application for permanent stay refused.

CATCHWORDS:

COUNSEL:

Mr J Robson for the applicant
Mr A W Collins for the respondent

SOLICITORS:

L A Evans for the applicant
Director of Public Prosecutions

1. This is an application for a permanent stay of a criminal proceeding brought as a pre-trial ruling pursuant to s 590AA Criminal Code.

1. On 30 July 2004 an indictment was presented in the District Court at Mt Isa against Adrian Arthur Hogue (“the applicant”).  The indictment charges the applicant with seven counts of passing valueless cheques (s 427A Code) and three counts of fraud (s 408C Code).  The three counts of fraud are said to be charged in the alternative to three of the cheque charges.

1. The applicant at relevant times was a registered builder operating in the Mt Isa area.  The offences relate to cheques passed between 11 January 2001 and 28 June 2001.  The last cheque passed was dishonoured on 29 June 2001.  On 30 June 2001 the applicant ceased trading.  The seven dishonoured cheques were passed to five different creditors.  The total face value of the dishonoured cheques on my calculation is $130,074.19.  The three fraud charges relate to occasions when the recipient of a cheque was induced to release goods or perform services on settlement of an existing outstanding account.

1. The relevant chronology of the prosecution is as follows:

12, 15 January 2001 … applicant passed two CBA cheques.  One for $20,000 (12 June 2001), and one for $30,000 (15 June 2001).  Both cheques were duly dishonoured.

6 March 2001 … applicant passed one NAB cheque for $20,000.  Cheque subsequently dishonoured (26 March 2001).

22 March 2001 … applicant passed one NAB cheque for $10,061.  Recipient asked to defer presentation of cheque.  However on 6 April 2001 the cheque was presented and dishonoured.

1 April 2001 … applicant passed two NAB cheques totalling $41,013.19.  Both cheques dishonoured.

15 June 2001 … applicant passed NAB cheque for $10,000.  Applicant asked recipient not to present cheque, and later (28 June 2001) gave recipient a substitute Suncorp Metway cheque for $10,000.  This cheque was dishonoured (28 June 2001).

30 June 2001 … applicant ceased trading.

8 August 2001 … applicant went into bankruptcy, trustee appointed (Messrs McIntosh & Pack).

7 September 2001 … David John Cranston (Cranston & Hussein) appointed trustee in bankruptcy for applicant in place of Messrs McIntosh & Pack.

20 September 2001 … Cranston & Hussein receive a box of accounting records from the former trustees in bankruptcy.

October 2001 … first complaint to police.  Two further complaints made in October 2001, and in November 2001, April 2002, and August 2003.

October 2001 to January 2002 … search warrants executed on financial institutions.

22 May 2002 … applicant formally interviewed by police.

6 June 2002 … applicant transmits six boxes of accounting records to trustee in bankruptcy (Cranston & Hussein).

28 April 2003 … complaint and summons issued.

2 March 2004 … committal hearing.

Approximately 20 October 2004 … accounting records in possession of Cranston & Hussein returned to applicant.

1. In an affidavit the investigating police officer said the delay between complaint and the commencement of criminal proceedings was due to a combination of two factors:  understaffing and priority being given to the investigation of child sexual offences.  The police officer said she believed the applicant was aware the matter had been referred to the police from at least December 2001.  Between the formal interview (22 May 2002) and the institution of proceedings by complaint and summons (28 April 2003) the police officer spoke to the applicant a number of times.  On each occasion she said she told him the investigation was continuing.

1. The applicant claims it is important that in the mid 1990’s he entered into a contract with Budlex Pty Ltd (“Budlex”) for the construction of a block of units at Mt Isa.  After a dispute arose with Budlex the applicant commenced an action against Budlex.  He obtained a judgment from the Queensland Building Tribunal (“QBT”) in his favour in late 1998 with quantum to be assessed.  Quantum was not finally assessed until January 2003, when an assessment of $530,589.24 was made by the QBT.  The applicant claims that throughout the relevant time he was trading in 2001 he expected substantial funds from Budlex. 

1. The applicant claims in an affidavit filed in support of the application that all his creditors knew his financial position was precarious and that he was expecting funds from Budlex (paragraph 12).  He asserts that in about January 2001 he verbally advised all creditors of his financial difficulties (paragraph 15).  He asserts also that he believed all of his creditors were aware that if he did not recover the money due from Budlex he would not be able to pay his debts.

1. In the same affidavit the applicant asserts that at the time each cheque was written he believed his expected receipts would enable the cheque to be met on presentation.

1. The application for a stay is based on the loss of the applicant’s business records, and the effect of the claimed loss of his business records on his ability to successfully defend the charges against him.  The applicant asserts that during the course of his bankruptcy and various court proceedings his business records were transmitted to his trustees in bankruptcy, but that only approximately a third of those records were ever returned to him at the end of the bankruptcy.  It is important to note that it is a defence to a cheque offence, proof of which lies on the accused, to prove he/she had reasonable grounds for believing the cheque would be met in full on presentation (s 427A Code).  The applicant asserts the loss of his business records deprives him of the opportunity of substantiating his claim that at the time he passed each cheque he believed, on reasonable grounds, that the particular cheque would be met in full on presentation.

1. The prosecution dispute the applicant’s claim that only a third of the records he supplied to the trustee in bankruptcy were returned to him after the bankruptcy proceedings.  An affidavit by a Mr Castley (from Cranston & Hussein) which disputes the applicant’s claim that only a third of his accounting records were returned to him at the conclusion of the bankruptcy was placed before the court by the prosecution.

1. There is no doubt the applicant would be disadvantaged by the loss of his business records, at least on the assumption his business records support his claim he believed, at the time he passed each cheque, that it would be met on presentation.  The applicant’s claim is put at its highest in his affidavit as follows:

“38     The documents I received back from the Trustees contained some cheque books, bank statements, deposit books, receipts and deliveries dockets and was paperwork from the 1990s.  Most records were missing.  I have in my possession one diary which is my daily work diary for 2001.  This diary does not provide details of contracts and jobs that I had through 2001.  It is a work diary that shows what work I was doing, for example, there was tiling work being done at Lot 18 Breakaway Creek.  I was doing work in March 2001 at Hilton Mine for Kiernans of Cloncurry.  I was also doing renovations for Isa Square in March 2001.

39.      Without the full records it is not possible for me to show what work I did during the two years prior to my being declared bankrupt.

40.      I seek a stay of proceedings in this matter as it is important that I am able to obtain if possible copies of contracts and quotes.  To defend the charges I need to show the Court that I had a reasonable expectation that I would receive monies at the time the cheques were issued so that those cheques written out by me would be met on presentation.  I did request the recipients of the cheques to hold them for presentation when I received the monies due to me by Budlex Pty Ltd and on current contracts at the time.  I believed at the time the cheques were written that I would receive sufficient money to enable to cheques to be paid.

41.      The events that lead to the charges occurred in 2001 which is now some four years ago.  I cannot remember exact details of those people I had contracts with and how much those contracts were worth.  I cannot recollect when progress payments were due to me.  I need my records or copies of the contracts I had for this purpose.  I am still trying to locate same.”

1. In disputing the factual basis of the application the prosecution expressly put in issue the applicant’s claim that he forwarded his records in 16 to 18 tomato sized boxes to his trustee in bankruptcy but only received approximately one third of his records back.

1. The power to stay an indictment for abuse of process is now well established in Australia.  Because an exercise of the power to stay an indictment effectively suppresses a prosecution, the exercise of the power is normally said to be exceptional.[1]  The court, in exercising the power to stay an indictment is acting to prevent abuse of its processes,[2] although a stay of a prosecution is not restricted to abuse of process strictly so called.  A stay may be an appropriate form of relief from abuse of process based on double jeopardy.[3]  Thus in Viers [1983] 2 Qd R 1 Thomas J (as he then was) stayed an indictment in a case where the Code defence of autrefois (s 17 Code) did not protect the accused from jeopardy.  A stay may also be an appropriate remedy where delay or other fault of the prosecution has resulted in a situation in which a fair trial cannot be held.[4] 

   [1]In constitutional theory and practice the prosecution of criminal offences is an incident of executive government not an aspect of judicial power.

   [2]Williams v Spautz (1992) 174 CLR 509.

   [3]Connolly v DPP [1964] AC 1254 per Lord Devlin at pp.1346, 1347, 1353 and Lord Pearce at pp. 1362, 1364.

   [4]Jago 168 CLR 23.

1. The High Court, in a series of decisions,[5] extended the concept of abuse of process for criminal proceedings to cases where a fair trial is not possible.  In theory this extension rests on a right not to be tried unfairly and the public interest in ensuring the courts processes are not utilized for unfair trials.

   [5]Barton 147 CLR 75, Jago 168 CLR 23, Dietrick 177 CLR 292.

1. The formulation of unfairness by Mason CJ in Jago has been adopted in subsequent analyses of the law, and is worth setting out in full:

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial:  see Barton (68);  Sang (69);  Carver v Attorney-General (NSW) (70).  At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged.  The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case.  But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused:  Barker v Wingo (71);  Bell v Director of Public Prosecutions (72), as explained in Watson (73), and Gorman v Fitzpatrick (74).  In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare:  Re Cooney (75).

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’:  Barton (76), per Wilson J.  Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’:  Clarkson (77).  I agree with Toohey J that no such case has been made out in the present appeal.  For that reason, and because there is no right to a speedy trial or trial within a reasonable time independent of the right to be protected from unfairness resulting from undue delay, I would dismiss the appeal.”  (Jago pp.33, 34).

1. Two points should be noted from the present exposition of the law by the High Court.  Firstly, the concept of unfairness in the test is not to be equated with any forensic disadvantage or prejudice that might be felt by an accused.  The loss of evidence because of death or other unavailability of a witness, or because of loss of memory normally could not be regarded as a basis for a permanent stay.[6]  To draw on an example by Samuels JA in the course of his judgment in Sams:

   [6]Richards (1994) 77 A Crim R 1, Sams (1988) 36 A Crim R 245.

“Let it be supposed that committal proceedings are conducted with the maximum expedition of which the system is capable, leaving no room for any criticism of any kind.  Let it be further assumed that, a defendant having been committed, the trial is fixed, again with maximum expedition.  Finally, let it be assumed that before the trial takes place all the defendant’s witnesses are killed in some accident or other.

On any view one could certainly say that the defendant had been gravely prejudiced in his defence by this event.  On one view one could say that as a result of that he can no longer have a fair trial in the sense that he is no longer able to bring to his defence all the elements which were once available to him before the untimely intervention of providence.  But I do not think one could say that it was a case in which this jurisdiction should be exercised.  It would be an unfortunate case.  Whether there are any means known to the law to justify intervention of some kind I do not know.  I do not think, however, that it would be a case in which a permanent stay of the kind here in contemplation could be ordered.”

In such a case it would be appropriate to caution the jury about the need to bear in mind the possibility the means of proof or disproof has been lost for the accused, and the effect the loss of evidence has on the quality of the evidence left available for the jury.[7] 

[7]The cases on pre trial publicity demonstrate the courts’ reliance on the trial judges’ directions to balance, as far as possible, any prejudice to an accused (cf R v Lewis [1994] 1 Qd R 613).

1. The second point is that in determining whether a trial is unfair within the test, the court is required to undertake a balancing exercise in which weight is given to the community interest that persons charged with criminal offences be brought to trial. In one case it was suggested this interest should only be displaced when continuation of the proceedings will lead to oppression and injustice inconsistent with the recognised purposes of the administration of criminal justice[8].  I agree this can be a useful way of stating the relevant test in some cases.  In applying the unfairness test the loss of evidence by a party will rarely found a permanent stay, although, of course, the exceptional case may always arise.

   [8]Ulman-Naruniec (2003) 143 A Crim R 531.

1. In this case the evidentiary basis on which the application is founded has been put in dispute by the prosecution.  The prosecution specifically dispute a fundamental claim that only one third of the applicant’s records were returned to him after bankruptcy.  Mr Robson, who appeared for the prosecution, also notes the logical dilemma the applicant faces, even on the disputed assumption that, through no fault of his own, he no longer has possession of his business records for the relevant period.  The logical dilemma is that the applicant is only prejudiced by the loss of his business records if they support his contention that he had a reasonable expectation that each cheque would be met on presentation.  If, contrary to his assertion, his business records suggest he had no reasonable expectation each cheque would be met on presentation then the absence of his business records disadvantages the prosecution.

1. In my respectful opinion it is not appropriate for the court to direct the prosecution be permanently stayed.  A permanent stay is an exceptional remedy as it suppresses the right of the executive to prosecute a criminal charge in the courts.  To impose a permanent stay there must be a fundamental defect “of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.”[9]  If in fact the applicant’s business records are missing for the relevant period through no fault of his own then it may be necessary for the trial judge to address this issue in the summing up in the light of the evidentiary onus on the applicant.  On balance I find myself in general agreement with the submissions advanced by Mr Robson.

   [9]Per Wilson J in Barton (1980) 147 CLR 75 at 111. The passage was adopted by members of the court in Jago 168 CLR 23 and Glennon 173 CLR 593.

1. In the circumstances the application for a permanent stay is refused.