In the matter of AZZ
[2023] QSC 299
•24 November 2023 (ex temp)
SUPREME COURT OF QUEENSLAND
CITATION: In the matter of AZZ [2023] QSC 299 PARTIES: In the matter of AZZ (applicant) DIVISION: Trial Division PROCEEDING: Application ORIGINATING Supreme Court at Toowoomba COURT: DELIVERED ON: 24 November 2023 (ex temp) DELIVERED AT: Toowoomba HEARING DATE: 24 November 2023 JUDGE: Williams J ORDER: 1. Leave is refused. CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – LEAVE OR
DIRECTION OF SUPREME COURT TO EXHIBIT CRIMINAL INFORMATION – DISCRETION TO GRANT OR REFUSE – GENERALLY – considerations where
domestic violence allegations and no contact conditions in place – where the applicant seeks leave to commence criminal proceedings by way of private information pursuant to s 686 of the Criminal Code 1899 (Qld) – where the respondent is the applicant’s ex-wife – where a protection order pursuant to the
Domestic and Family Violence Protection Act 2012 (Qld) is in place – whether the current proceedings are a mechanism by which the applicant orchestrates contact with the respondent,
thereby circumventing the protection orderCriminal Code 1899 (Qld), s 686, s 687, s 688, s 689, s 690, s
691, s 694
Criminal Practice Rules 1999 (Qld), r 23, r 24
Domestic and Family Violence Protection Act 2012 (Qld)
Justices Act 1886 (Qld), s 102Ex parte Marsh [1966] Qd R 357
Gilbert v Volkers [2005] 1 Qd R 359
Gouldham v Sharrett [1966] WAR 129
R v Hamill [1903] QWN 76
Re Smith [1993] 2 Qd R 218COUNSEL: The applicant appeared on his own behalf
The respondent appeared on her own behalfSOLICITORS: The applicant appeared on his own behalf
The respondent appeared on her own behalf
The applicant seeks leave pursuant to s 686 of the Criminal Code 1899 (Qld) to
present an information to commence criminal proceedings against the applicant’s ex-
wife (who for the purposes of the application I will refer to as the respondent).
The applicant seeks to commence criminal proceedings for the following offences
allegedly committed by the respondent:
(a) Perjury (ss 123 and 124 of the Criminal Code); (b) Fabricating evidence (s 126 of the Criminal Code); (c) Making a false verified statement (ss 193 and 195A of the Criminal Code); (d) Fraud as an employee to the value of $30,000 or more (s 408C of the Criminal Code);
(e) Obtaining identification information (s 408D of the Criminal Code); (f) Fraudulently falsifying a record (s 430 of the Criminal Code); and (g) Forging and uttering (s 488 of the Criminal Code).
The application (in Form 13) is accompanied by draft forms of information pursuant
to Sch 3 of the Criminal Practice Rules 1999 (Qld) in respect of these offences:
namely Form 78 perjury, Form 79 fabricating evidence, Form 102 making a false
verified statement, Form 241 fraud as an employee to the value of $30,000 or more,
Form 242 obtaining identification information, Form 259 fraudulently falsifying a
record, Form 318 forging and uttering.
The application is also supported by an affidavit from the applicant, which exhibits
documents including:
(a) An extract of the affidavit of the respondent in Federal Circuit and Family Court of Australia family law proceedings;
(b) A copy of a Shareholders Agreement in respect of [Company A];[1] (c) Directors’ meeting minutes for [Company B] dated 13 November 2019; (d) Directors’ meeting minutes for [Company B] dated 15 April 2020; (e) Copy front and back of the applicant’s driver’s licence (with some information [1] The page numbers appear to be in the incorrect order as the paragraphs of the agreement do not flow sequentially.
masked);
(f) Document containing affirmation from the applicant as to his signature and containing example signature;
(g) Affidavit from a third party in Federal Circuit and Family Court of Australia family law proceedings;
(h) Notice of remedy from the applicant to the respondent dated 1 June 2023; (i) Notice of wrong from the applicant to the respondent dated 12 June 2023; and
(j) Notice of trespass from the applicant to the respondent dated 20 June 2023. Criminal Code procedure for an information by a private person for indictable offences
Section 686 of the Criminal Code provides as follows:
“(1) Any person may by leave of the Supreme Court present an
information against any other person for any indictable offence,
alleged to have been committed by such other person.
(2)
An information presented by leave of the court is to be signed by the person on whose application the leave is granted, or some other person appointed by the court in that behalf, and filed in the Supreme Court.
(3) The person who signs the information is called the prosecutor. (4) The information is to be intituled ‘The Queen on the prosecution of the prosecutor (naming the person) against the accused person (naming the person)’, and must state that the prosecutor informs the court by leave of the court. (5)
Except as otherwise expressly provided, the information and the proceedings upon it are subject to the same rules and incidents in all respects as an indictment presented by a Crown Law Officer and the proceedings upon such an indictment as
hereinbefore set forth.”
Section 687 provides that before the information is presented, the prosecutor is to be
required to give security in such amount and in such manner as the court on giving
leave to present the information may direct. The security is in relation to the
prosecutor prosecuting the information without delay and the accused’s costs incurred
in respect of the person’s defence to the charge as the court may order the prosecutor
to pay.
Section 688 requires that an office copy of the information is to be served upon the
accused person following the registrar endorsing a summons and applying the seal of
the court, requiring the person to appear and plead to the information.
Section 689 requires the accused person to enter an appearance and file a plea in
writing in the Supreme Court and to deliver a copy to the prosecutor.
Section 690 outlines a process in default of a plea by the accused person. Section 691
outlines the process in relation to the time and place of trial.
Section 694 deals with costs of the defence and states as follows:
“In any of the following cases, that is to say—
(a) if an application for leave to present an information against a person (the accused person) ends without the application being granted; (b) if the accused person pleads to the information, and is not brought to trial within a year after filing the person’s plea;
(c)
if a Crown Law Officer informs the court that the Crown Law Officer will not further proceed on the information;
(d) if the accused person is acquitted upon trial; the court, or the judge before whom the trial (if any) is had, may award
costs to the accused person.”
Service and material from the respondent
Rule 23 of the Criminal Practice Rules provides that a person making an application
to the Supreme Court must serve a copy of the filed application and any supporting
documents on the accused person. The copies must be served at least 2 clear business
days before the date the application is to be heard. The court has the ability to extend
or shorten time. Further, the accused person may agree in writing to attend the hearing
despite receiving the copies less than 2 clear business days before the hearing.
There is an affidavit of service that the application was served on the respondent on
11 October 2023 by a Court Bailiff.
The application was filed on 24 August 2023 and was set down for hearing on Friday,
24 November 2023, being the next Supreme Court circuit in Toowoomba.
The respondent emailed material to the Toowoomba Courthouse on 7 November
2023. This material has been Marked for Identification A and subsequently marked
as Exhibit 1. The email from the respondent to the Court refers to a discussion with
the Supreme Court Registry on 13 October 2023, which is consistent with the
affidavit of service.
Pursuant to r 24 of the Criminal Practice Rules, the court may decide an application
whether or not the accused person appears at the hearing of the application.
The respondent contacted the Court Registry and requested to be able to appear at the
application by telephone. Leave to appear by telephone was granted.
At the hearing on 24 November 2023 the respondent appeared by telephone and made
brief submissions.
Relevant authorities
Holmes J (as the Chief Justice then was) helpfully considered s 686 of the Criminal
Code in the matter of Gilbert v Volkers [2005] 1 Qd R 359.
Her Honour noted that s 686(1) of the Criminal Code provides no criteria for the grant
of leave and that the provision has received relatively little judicial consideration.
Relevantly, Holmes J considered two relevant authorities, namely:
(a) The Full Court of the Supreme Court of Western Australia who considered an equivalent provision in Gouldham v Sharrett [1966] WAR 129;[2] and
(b) The Queensland Supreme Court decision of Wanstall J in Ex parte Marsh [1966] Qd R 357.[3]
[2] Section 720 of the Criminal Code (WA) is in identical terms to s 686(1), except for a qualification that
[3] Judgment was delivered two weeks before the decision in Gouldham v Sharrett.
In Gouldham v Sharrett, the Court refused an application for leave under s 720 in
respect of an allegation of perjury where the Attorney-General had indicated that he
would not proceed with the charge. In that case, the refusal of the Attorney-General
to file an indictment was “a matter of great weight” taken into account by Wolff CJ,
with whom the other members of the court agreed.
Wolff CJ identified the following criteria as being relevant to considering an
application for leave to commence a criminal proceeding by way of an information
by a private person:
(a) Is the type of offence of such grave character that the determination whether to prosecute should be left to the Attorney-General (for example, prosecutions for
such offences as non-capital homicide, perjury and so on)?
(b) Is the admissible evidence in support of the prosecution inherently credible and sufficient to found a prima facie case?
(c) If there have been no proceedings for committal, is there any good reason why the usual proceedings for committal before Justices should not be resorted to?
(d) Has the accused already been committed for trial by a petty sessional court? (e) Has the Attorney-General entered a nolle prosequi or intimated that he will not file a bill?
(f) Is the administration of justice likely to be impaired by reason of some discreditable motive on the part of the prosecutor?
(g) Is the situation such that if leave is refused a grave injustice will be done to the applicant or somebody standing in close relationship to him?[4]
[4] [1966] WAR 129 at 137-138.
In Ex parte Marsh, the applicant sought to proceed against a police officer who, he
alleged, had assaulted him. Wanstall J reviewed the history of the procedure,
including that the Supreme Court’s power to permit the bringing of private
prosecutions was a peculiarity from the early days of the colony.
Wanstall J concluded that there was no restriction as to the type of offence for which
leave could be granted, since the provision made no distinction. Further, in the exercise of the discretion, the usual matters relevant to the exercise of any judicial
discretion applied.
Holmes J observed that the headnote in Ex parte Marsh overstates the observations
of Wanstall J in regard to whether the procedure under s 686 of the Criminal Code
was unusual and extraordinary. Her Honour agreed that as a matter of history, the
procedure was unusual and extraordinary. Further, her Honour observed that a
legislative expectation could be inferred, against that historical background, that its
adoption would not become an everyday affair.
However, her Honour did not consider that Wanstall J determined that the procedure
should only be countenanced in cases presenting unusual features. The actual
reasoning of Wanstall J does not support that. However, as her Honour identifies,
Wanstall J arrived at that view because of the absence of any committal hearing in
the case before him.
Wanstall J on the facts in Ex parte Marsh considered that there had been no committal
was a feature circumscribing the exercise of the discretion. Further, his Honour
concluded that to permit the applicant to present an indictment would deprive the
accused of the protection afforded by firstly, the committal procedure and secondly,
the Attorney-General’s consideration of whether a true bill should be found.
It was in those circumstances that Wanstall J concluded that there was no unusual or
extraordinary feature which would justify his sanctioning a procedure which deprived
the accused of that protection. Accordingly, leave was refused.
Justice Holmes notes the comments of the Court of Appeal, constituted by Macrossan
CJ, Pincus JA and Davies JA, in Re Smith [1993] 2 Qd R 218 at 221-222 that it was
open to grant leave with a stay so as to allow committal proceedings to take place.
The Court of Appeal otherwise did not criticise the earlier decision of Wanstall J and
there was no suggestion by the Court of Appeal that the analysis was incorrect in
respect of the discretion being unconstrained by the type of offence alleged.
The facts of Gilbert v Volkers can be distinguished from the current application. In
that case the respondent had been committed for trial, and the Director of Public
Prosecutions had indicated that she would not present an indictment.
Holmes J recognised that there was no limitation on how the discretion fell to be
exercised, other than the guide provided by public interest considerations. Further, in
considering what the public interest indicated, her Honour had regard to the criteria
identified in Gouldham v Sharrett, with some qualifications.
In respect of the criterion of gravity of the alleged offence, her Honour highlighted
the difficulties in undertaking a classification of an offence as sufficiently serious to
warrant leave to present an information. Her Honour highlighted some of the
difficulties with considerations as to whether some matters should be left to the
Attorney-General to decide whether to prosecute or not. How this could be
determined is not clear.
In considering allegations of a sexual offence against a child, her Honour concluded
that she did not think there was any reason to regard them as belonging to a class
which ought to be reserved for the Attorney-General’s attention.
Reference is made to Blackstone’s list of matters which could be the subject of a
private complaint. This list would suggest that matters which tend “to disturb the
government” or those affecting the administration of justice could be a category left
in the hands of the State prosecuting authorities. This may extend to perjury, but it is
not clear whether this would include the other allegations of various fraudulent or
dishonest conduct alleged by the applicant in the current case.
The second criterion considered by Holmes J was the evidence put forward by the
applicant. This involves an analysis of whether a prima facie case exists. In the case
of Gilbert v Volkers, given the committal had taken place, considerable detailed
evidence was provided to the Court in respect of that application. This included cross-
examination at the committal, testing the strength of some of the evidence.
The third criterion considered by Holmes J was the Director of Public Prosecutions’
decision. In that case the respondent had been committed for trial on seven charges.
After the committal, materials were provided to the Director of Public Prosecutions
and a decision was made not to proceed.
An explanation was provided by letter indicating that the decision to discontinue did
not reflect on the applicant’s credibility but rather difficulties in the way of
prosecution, in the form of absence of independent evidence, the age of the offences being more than 15 years and the requirement for a Longman direction. In that case,
the matter was also referred to the Office of the New South Wales Director of Public
Prosecutions for further consideration and a report was prepared. That report in effect
went further than the explanation from the Queensland Director of Public
Prosecutions, in effect supporting the decision that was made.
For the purposes of the application, Holmes J concluded that the fact that the Director
had decided not to prosecute must of itself be accorded some weight, in the exercise
of the Court’s discretion. However, her Honour recognised that the decision could not
be conclusive.
The next criterion considered was whether there was a prima facie case. On the
particular facts, her Honour concluded that there was a prima facie case on all four
charges including the three counts contained in the proposed indictment.
The next criterion considered in accordance with Gouldham v Sharrett was the
applicant’s motives. In that case, there had been considerable media reporting on the
circumstances. Her Honour concluded that there was no basis to conclude that the
applicant was motivated by malice and further, that there was nothing discreditable
about the applicant’s conduct in making the situation public.
The next criterion considered was the potential criticism of the criminal justice
system. In that case, her Honour considered that there was a real risk that rather than
the public seeing a trial, being the criminal justice system at work, it could be
perceived as an extension of the media contest between the parties.
The next criterion considered was whether there was injustice to the applicant.
Consideration was given to options for civil proceedings, including a personal injuries
action and a defamation action. Her Honour concluded that there could be no
assurance that the applicant’s complaint would be fully ventilated or resolved.
However, her Honour did recognise that the applicant had not been left without a
voice.
Her Honour’s approach then was to consider the factors in favour of a grant of leave
and factors militating against leave.
The factors in favour of grant of leave included that there was a prima facie case, the
applicant had been left without the opportunity of giving her account in a trial or
seeing the issues resolved by a jury. Further, the charges were serious and involved
significant breaches of trust.
The factors militating against leave in that case included the media coverage and
publicity. In that case, a trial being conducted by an independent prosecutor with the
distance and authority of the Crown would not occur.
Her Honour recognised at [47] that:
“On a criminal trial, the prosecution should be, and should appear to
be, conducted on behalf of society as a whole, without the distracting winds of personal indignation or outrage. There is, I think, an overwhelming risk that if this trial were to be conducted on the basis that it was the applicant who was the prosecutor of the respondent, the perception of a personal contest between applicant and respondent would continue, with an attendant risk that the jury would perceive the
process as one involving either the affirmation of the applicant’s
account and denunciation of the respondent on the one hand, or a rebuffing of the applicant and preferring of the respondent on the other. The impact of any attempt to cure that perception by direction would be considerably diminished by the very appearance of applicant
and respondent as opposing parties.”
Ultimately, her Honour weighed the public interest in a resolution of the allegations
by a jury trial against the public interest of not permitting a trial flawed by delay,
publicity and the risk of misperception of its purpose and concluded that leave not be
granted.
The decision of Gouldham v Sharrett is also of some assistance in the current case.
The facts in that case were that the applicant had been convicted and sentenced to a
term of imprisonment on a charge of him being an agent who deceived his principal
by failing in an account submitted to him to disclose a deduction made for monies
paid to him on the principal’s account. On release from prison the applicant visited
the respondent and obtained answers which were tape recorded. The applicant then
made a complaint charging the respondent with perjury. The preliminary hearing
included evidence of the statement pre-recorded on the tape and also a typed letter
where the respondent’s signature appeared in the margin.
The Magistrate committed the respondent for trial. However, the Chief Crown
Prosecutor informed the applicant that the Minister for Justice would not proceed with
the charge. However, the process gave the applicant time to make an application for
leave to present a private information. A motion for leave was then made which was
referred to the Full Court.
The Full Court refused the application. The reasons included that the evidence was
tenuous, including that some of the evidence was inadmissible as it had been obtained
by a person in the position of a potential prosecutor using overbearing methods and
trickery. Further, the handwritten part of the document was also inadmissible as the
applicant had failed to identify it with the respondent or explain what the writing had
contained when the respondent signed in the margin.
The Court recognised that there is no definite rule that the Court will refuse to give
leave to a private prosecutor to present any information because the Attorney-General
has refused to file an indictment. However, such a refusal is to be taken into account
by the Court as a matter of great weight. As part of this reasoning, the Court identified
the criteria which were later summarised by Justice Holmes in Gilbert v Volkers.
Wolff CJ concluded that where a private individual commences a private prosecution
by way of information, the private individual is authorised and has the burden of
engaging counsel and taking the steps to bring the accused to trial and for the conduct
of the trial. It is recognised however that the Attorney-General may intervene and
inform the Court that they will not proceed further on the indictment. If that occurs,
the Crown in effect indicates it will not lend its authority anymore to the prosecution
and in withdrawing its authority the prosecution will stop.
It is in these circumstances that Wolff CJ noted:
“There are further reasons of policy which would influence me in
deciding whether or not to grant the authority asked. This is an
allegation of perjury – one of the most serious of offences under the
Criminal Code and an offence which, in my opinion, should generally be left to the law officers to prosecute on indictment. I feel that once the law officers have had an opportunity to consider the facts of the case, as they have here, this court should be loath to give authority
except in a most glaring instance.”[5]
[5] Gouldham v Sharrett [1966] WAR 129 at 137.
The Queensland Court of Appeal in Re Smith [1993] 2 Qd R 218 considered an appeal
from an unsuccessful applicant for leave pursuant to s 686 of the Criminal Code to
present an information against 16 people for indictable offences. The Court of Appeal
recognised that the discretion on its face is not limited. Consideration was also given
to the interaction between s 686 of the Criminal Code and s 42, together with ss 102A
to 102H, of the Justices Act 1886.
In that case it was recognised that the Justices Act provides a comprehensive
procedure for a private complaint to be brought. It also includes various safeguards
including an examination of all of the evidence at an early stage and also a right to
appeal to the Supreme Court.
It was submitted that the procedure under s 686 of the Criminal Code enables the
matter to be brought immediately before a superior court without proper knowledge
of the case against the defendant, thereby depriving the defendant of the opportunity
to test the evidence at the earliest stage.
In that case, the appellant asserted that he had approached the police to have
proceedings instituted but was not successful. No complaint was made under the
Justices Act and there was no evidence of why there was a failure to do so.
The Court recognised:
(a) that the procedure under s 686 of the Criminal Code did not ordinarily involve committal proceedings unless a stay were granted and also it did not involve
the additional protections provided by ss 102A to 102H of the Justices Act; and
(b) that s 686 was a valuable safeguard for a private citizen against refusal by police and justices of the peace to act where an offence has been committed.
The Court considered that in an appropriate case for which leave is granted, the Court
may grant a stay so as to permit committal proceedings to take place.
However, in that particular case the Court went on to conclude that two further
considerations led to the appeal being dismissed. The Court stated as follows:[6]
“The existence of alternative means by which a private citizen may,
without leave, institute criminal proceedings for an indictable offence which have committal proceedings as an integral element; and whether the applicant has sought to utilise all of those means. Here the appellant failed to seek to institute proceedings pursuant to s 42 of the Justices Act 1886. He gave no satisfactory explanation for that failure and there was no other feature of the case which made it plainly unjust
to refuse leave.”
[6] Re Smith [1993] 2 Qd R 218 at 222.
In those circumstances the Court concluded that there was no error in the exercise of
the discretion.
Consideration
In exercising the discretion pursuant to s 686 of the Criminal Code, I adopt the
approach endorsed by Holmes J in Gilbert v Volkers. Namely, that there is no
limitation on how the discretion is to be exercised other than the general guide
provided by public interest considerations and general principles applicable to the
judicial exercise of a discretion. Further, the criteria identified in Gouldham v Sharrett
are of assistance in considering the public interest considerations.
The first criterion is: Is the type of offence of such grave character that the
determination whether to prosecute should be left to the Attorney-General? Here, the
offending is perjury, fabricating evidence and various other allegations of fraud,
fraudulent behaviour or dishonesty.
As discussed in the authorities, some offences may arguably be better left in the hands
of the state prosecuting authorities particularly where they are offences affecting the
administration of justice. Perjury was recognised in Gouldham v Sharrett as being an
offence in that category. In that case the Full Court considered that the Court “should
be loath to give authority except in a most glaring instance”. That was particularly so
given that the Crown prosecutor had considered the relevant information and had
decided not to proceed.
In the current case the gravity of the offending is serious and potentially affects the
administration of justice. This is particularly so when the alleged perjury and
fabrication of evidence occurred in the context of current proceedings in the Federal
Circuit and Family Court of Australia. Whilst there is no evidence that the relevant
prosecution authorities have considered the allegations in this case, the gravity and
nature of the offences may be a factor against the grant of leave.
However, this may not be conclusive as it is also accepted in the Queensland
authorities that the grant of leave is not limited to certain offences.
The second criterion is: Is the admissible evidence in support of the prosecution
inherently credible and sufficient to found a prima facie case? The evidence put
forward by the applicant is minimal. While it may give rise to lines of further
investigation or enquiries, on its own, it is difficult to see that it establishes a prima
facie case.
Even if a prima facie case is assumed for the purposes of the application, the other
criteria need to be considered.
The third criterion is: If there have been no proceedings for committal, is there any
good reason why the usual proceedings for committal before justices should not be
resorted to? Here, there is no evidence of the Director of Public Prosecutions
considering or making a decision in relation to the allegations. Some of the matters
considered further below are also relevant to this criterion.
The applicant says he has discussed the allegations with police but has decided to
pursue this process to deal with it himself and to save police resources.
The fourth criterion is: Has the accused already been committed for trial by a petty
sessional court? Here, there has been no committal.
The fifth criterion is: Has the Attorney-General entered a nolle prosequi or intimated
that he or she will not file a bill? Here, there is no evidence of this.
The sixth criterion is: Is the administration of justice likely to be impaired by a reason
of some discreditable motive on the part of the prosecutor? What is apparent from the
evidence before the Court is that the allegations arise out of current family law
proceedings in the Federal Circuit and Family Court of Australia.
Orders have been made by the Federal Circuit and Family Court of Australia in
respect of the assets from the former marriage of the applicant and the respondent and
provide for a distribution of those assets. The applicant has made an application to set
aside the orders, which is set down in February 2024.
It is also apparent from the orders which have been provided by the respondent to the
Court which form part of Exhibit 1 that the respondent has, subject to the application
to set aside the orders, the significant benefit of the orders that have been made in the
family law proceedings.
It is also apparent that there is in place a Protection Order pursuant to the Domestic
and Family Violence Protection Act 2012 (Qld) with the respondent as the aggrieved
and the applicant as the respondent to the Protection Order. Two children also have
the benefit of the Protection Order.
The Protection Order was made on 27 May 2021 and continues in force up to and
including 26 May 2026. The terms of the Protection Order include:
(a) Pursuant to Condition 1, the respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
(b) Pursuant to Condition 3, the respondent is prohibited from following or approaching to within 100 metres of the aggrieved when the aggrieved is at any
place.
(c) Pursuant to Condition 5, the respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved.
(d) Pursuant to Condition 6, the respondent is prohibited from using the internet or any other communication device to communicate with, publish pictures or to
make comments concerning the aggrieved.
(e) Pursuant to Condition 7, the respondent is prohibited from making telephone calls or sending text messages to the aggrieved.
(f) Pursuant to Condition 8, the respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved.
An exception is that Condition 3 does not apply to the extent that is necessary for the
respondent to appear personally before a court or tribunal.
Further, Condition 5 does not apply to the extent that is necessary for the parties to
attend an agreed conference, counselling, mediation session or messaging in respect of compliance of an order of the court or contact with a child authorised by a
representative of the Department of Communities.
An issue that arises in the context of the current application is whether the current
proceedings are a mechanism by which the applicant orchestrates contact with the
respondent, thereby circumventing the Protection Order. Further, it may be an attempt
to re-litigate matters that have been heard and determined in the Federal Circuit and
Family Court of Australia.
This issue also raises one of the concerns identified by Holmes J as a factor militating
against leave. In that case, her Honour identified the risk that the private prosecution
could be seen as a personal contest between the two parties. The passage is referred
to in full previously in these reasons.
In the current case, there is a significant risk that the trial would be conducted on the
basis that it is a personal dispute between the applicant and the respondent rather than
as an independent prosecution conducted on behalf of society as a whole. This factor
is a strong factor against leave.
The seventh criterion is: Is the situation such that if leave is refused, a grave injustice
will be done to the applicant or somebody standing in close relationship to him or
her? Here, there are other processes available to the applicant both by way of civil
proceedings, a complaint under the Justices Act (with the relevant safeguards) and
also raising the issue as part of the ongoing proceedings in the Federal Circuit and
Family Court of Australia.
Given that there are already proceedings on foot dealing with the very subject matter,
which is the subject of the allegations, it would be appropriate for the matters to be
raised within those proceedings in the first instance.
The applicant has indicated that he has applied to set aside the Federal Circuit and
Family Court orders and the application is to be heard in February 2024.
Further or alternatively, the applicant could make a complaint to the police or request
the Federal Circuit and Family Court of Australia to make a referral to the prosecuting
authorities.
In respect of the claims made in respect of the company, there may be relief under the
Corporations Act 2001 (Cth) or a complaint to ASIC as the relevant regulator. There
may also be other civil claims that could be brought seeking relevant relief. In this
regard I note Chubb J’s comments in R v Hamill [1903] QWN 76 in respect of the
general objection to assisting redress of personal grievances by operation of the
criminal law.
Also consistent with the comments of the Court of Appeal in Re Smith, a complaint
under the Justices Act would alternatively commence a process with built in
safeguards to enable the evidence to be considered at an early stage to ascertain
whether there is sufficient evidence to put the respondent on trial.
These alternative procedures are more appropriate than commencing criminal
proceedings by way of private information pursuant to s 686 in the Supreme Court
where there is no ability to test the sufficiency of the evidence at an early stage.
Whilst it is possible for leave to be granted and a stay issued to permit a committal
proceeding to take place in accordance with the comments of the Court of Appeal in
Re Smith, in circumstances where there are clearly other appropriate and viable
procedures available for the applicant, those avenues should be pursued first.
In the circumstances, it is necessary to weigh the public interest in a resolution of the
applicant’s allegations by a jury trial against the public interest in not permitting a
trial to proceed where:
(a) there is another more appropriate procedure available under the Justices Act for a criminal complaint where the sufficiency of evidence can be fully tested at an
early stage prior to the matter proceeding to trial;
(b) the issues can be raised in on-going proceedings in the Federal Circuit and Family Court of Australia and, in particular, where there is a current application
to set aside the orders in the proceedings in which the subject matter of the
allegations was first raised;
(c) there are other appropriate civil remedies which have not been considered or pursued by the applicant;
(d) the serious offences involved would arguably be more appropriately considered by the prosecuting authorities as they raise concerns as to the administration of
justice and there is no evidence that they have been raised with any relevant
prosecuting authority; and
(e) the evidence relied upon in support of the application does not clearly establish a prima facie case.
In all of these circumstances, on balance I conclude that leave ought not to be granted
for the applicant to present an information against the respondent.
Accordingly, the application is dismissed and the order of the Court is that, leave is
refused.
the indictable offence must be one “not punishable with death”.
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