Hutton v Kneipp

[1995] QCA 203

IN THE COURT OF APPEAL [1995] QCA 203

SUPREME COURT OF QUEENSLAND	C.A. No. 29 of 1995
Brisbane
Before	Fitzgerald P. Pincus J.A. McPherson J.A.

[Hutton v. Kneipp]

BRETT ANDREW HUTTON
v.
ANTHONY JAMES KNEIPP

(Appellant)

____________________________________________________________________

Fitzgerald P.
Pincus J.A.

McPherson J.A.

Judgment delivered 30/05/1995

Separate reasons for judgment of each member of the Court, all concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

____________________________________________________________________

CATCHWORDS:	CRIMINAL LAW - conviction - possession of a dangerous drug - cannabis sativa - whether selective prosecution - whether unlawful - no suggestion of improper conduct on the part of police - no abuse of process.
Ridgeway (High Court, unreported, 19/4/95)
Leeth (1992) 66 A.L.J.R. 529
Walker (1994) 69 A.L.J.R. 111
Counsel:	The appellant appeared on his own behalf.
Mr B G Campbell for the respondent.
Solicitors:	Director of Public Prosecutions for the respondent.
Hearing date:	12 May 1995.

REASONS FOR JUDGMENT - FITZGERALD P.

J udgment delivered 30/05/1995

The appellant concedes that he was guilty of the offence of which he was convicted. He was one of a large number of persons who assembled in the city of Brisbane and marched to Parliament House where they demonstrated against a law of which they disapprove. In the course of doing so, many of them, including the appellant, broke that law. The appellant's sole complaint is that many others who were guilty of the same offence as the appellant, including some others who played a major role in the protest, were not charged by police officers who observed their offences.

It is unnecessary in this case to discuss the extent of the Court's discretion to dismiss or stay proceedings, or to reject the proposition that selective prosecution could support such a decision: the judgment of Mason C.J., Deane and Dawson JJ. in Ridgeway v. R. (1995) 129 A.L.R. 41 accepts that selective prosecution can be a material factor. Nonetheless, there is no substance in the appellant's complaint. There is nothing to indicate any bad faith or other impropriety in the selection of those who were charged, or in a decision of the senior police officer present at the protest that no further arrests be made.

There were obviously many factors to be considered, including

public safety and the orderly dispersal of the protesters.
The appeal should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 30/05/1995

This is an appeal against conviction. The appellant, who appeared for himself below and before us, was convicted in the Magistrates Court on a charge of having unlawfully had in his possession a dangerous drug, namely cannabis sativa. He was found guilty and fined, but a conviction was not recorded.

The charge against the appellant arose out of a demonstration in the vicinity of Parliament House Brisbane, the purpose apparently being to urge upon the Government, and enlist public support for, changes in the law relating to the use of cannabis. The appellant, who took a leading part in the assembly, smoked a cigarette during it; he was detained and the cigarette was found to contain cannabis. At his trial the appellant did not dispute this, but put before the Magistrate an argument that only a few of the persons present outside Parliament House had been charged, whereas many others were "indulging in precisely the same law-breaking activity". The appellant submitted to the Magistrate that proceeding against one person and not against another committing the same offence "violates the basic principle that common law applies equally to all in the land". Much the same submissions were made in this Court.

It is evident that, if a person commits an offence against the criminal law and is prosecuted, he does not cease to be an offender if able to show that others have committed the same offence and not been prosecuted. But the question the appellant raises requires some discussion; recent developments in the law suggest the possibility that in some circumstances one who claims to be the victim of selective prosecution may possibly obtain some relief. In the principal judgment in Ridgeway (High Court, unreported, 19 April 1995), it is pointed out (p. 16) that improper conduct on the part of law enforcement authorities may justify the exclusion of evidence obtained by such conduct. For example, if evidence that a person was smoking a marijuana cigarette was obtained by means of a detention of that person, which detention was held to be improper, that could give rise to a discretion to exclude that evidence. The issue of selective prosecution arose, to some extent, in Ridgeway itself. In the United States, but not in this country, there is (by the Fourteenth Amendment) an express right to equal protection under the laws and this has been held to apply, in appropriate circumstances, so as to enable the courts to act against selective prosecution, where the basis of selection is unjustifiable: American Jurisprudence 2d, vol. 21A s. 833. One finds some support in Leeth (1992) 66 A.L.J.R. 529 for the view that there is an implied rule of legal equality in our Commonwealth Constitution: 541, 542.

Whether or not a provision resembling the United States' Fourteenth Amendment (s. 1) right to equal protection is to be read into our Commonwealth Constitution, it must we think be conceded in favour of the appellant that it is arguable that a process of selective prosecution of offenders, resulting in the obtaining of evidence by improper conduct on the part of police, may give rise to a discretion to exclude evidence so obtained.

But it does not appear that impropriety on the part of the police was shown in the present case. The appellant, in addressing the court below, did not submit there was any; he disclaimed any implication that the police officers present should be subject to censure and said that he believed that they acted "with appropriate restraint and discipline". It is unclear how many persons were present at the demonstration - the estimates ranged up to about 2,000 - and it is not known how many of those persons were smoking marijuana; some of the evidence was to the effect that nearly all of them were. On any view there were a considerable number of persons smoking marijuana; it could hardly be contended that it was improper not to attempt to detain all those who were doing so. Only a few people were arrested and there was no evidence on which it could have been held that those particular arrests were improper because, for example, the selection of those to be arrested was made on a wrong basis, such as on the ground of some private grievance against the person arrested.

The facts are set out in the reasons for judgment of

The argument advanced by the appellant is not without legal substance, but it can lead nowhere unless there is proof of improper conduct on the part of the police; no such conduct was proved or, indeed, alleged at the trial.

The appeal will be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 30th day of May 1995

Pincus J.A. which I have had the advantage of reading. to Walker v. The Queen (1994) 69 A.L.J.R. 111, where Mason C.J. affirmed it to be: Essentially, the point which was made to this Court by the appellant in the course of his submissions on this appeal is that established principle is that the law applies equally to all people; and that this principle had been ignored in prosecuting him and not others who were visibly committing the same offence at the same place and time.

"... a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle".

The rule is, as appears from the reasons in that case of the former Chief Justice, one of long standing. In Campbell v. Hall (1774) 1 Cowp. 204, 208, 98 E.R. 1045, 1047, Lord Mansfield said that:

"... the law and legislative government of every dominion equally affects all present and all property within the limits thereof; and is the rule of decision for all questions that arise there."

However, what both learned judges were saying was that the law is equally applicable to everyone. Whether it is in fact always applied equally depends on the stage which proceedings have reached. In the courts, the law is, or ought to be, so applied.

The oath of office taken by judges requires the holder of such office "to do equal justice ... according to the laws and statutes ... to the best of my knowledge and ability ... without fear, favour, or affection": Oaths Act 1867, s.3. In the case of a magistrate it is to "treat everyone fairly and without bias according to law": Stipendiary Magistrates Regulations 1991, reg. 3(a).

No suggestion is made here that, in hearing and determining the proceedings against the appellant in this matter, the magistrate in any respect failed to observe the basic principle referred to in the decision mentioned, or that he disregarded his oath of office in any way. There was no failure to carry out his judicial duty of treating everyone "fairly and without bias, according to law".

The appellant's complaint relates to an earlier stage of proceedings, and it is that the proceedings should not have been instituted against him at all without at the same time prosecuting all others who were visibly committing the same offence. This is an aspect of the law enforcement function, "which means that any person who commits the relevant offence is prosecuted" : Gouriet v. Union of Post Office Workers [1978] A.C. 435, 477.
Under our system of constitutional separation of powers, the function of instituting prosecutions to enforce the law is in general committed to the executive and not to the judicial branch of government. It is therefore something over which the judiciary has, before a prosecution is instituted and in some way brought before a court, only an indirect measure of control.

Once it is before the court, the judge or the court has an inherent but limited power to stay proceedings where they involve an abuse of process: Jago v. District Court of New South Wales (1989) 168 C.L.R. 23. That means, however, that there is a power to stop a prosecution. It does not mean that the courts can compel a prosecution to be instituted against any person or persons.

In the present instance the appellant's complaint is not so much that the prosecution against him should have been stopped, but rather that it should have been stopped if other known offenders were not also being prosecuted. In effect, he submits that he should not have been singled out as a target of the law enforcement function. There may be circumstances in which the power to stay a prosecution as an abuse of process would be exercised to halt what is described by Pincus J.A. as selective prosecution of offenders. It is, however, difficult to discover any such abuse of process in what took place here. If many of the assembled multitude were engaged in smoking marijuana, it would not have been easy for the relatively small number of police on hand to have arrested and charged all of them. To have attempted to do so might well have increased the difficulties of ensuring that such a large crowd of people continued to act with restraint. To have employed a much larger contingent of police would no doubt have meant taking them from more pressing duties of law enforcement.

The executive function of law enforcement is governed ultimately by the need to preserve the "peace order and good government" of the society which it is designed to serve. Some discretion in the allocation of the resources of government is necessarily inherent in fulfilling that function. There is no reason to suspect it was improperly exercised in the present case.

In my view the appeal should be dismissed.