James Malone (a pseudonym)[1] v The Queen
[2020] VSCA 51
•19 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0029
| JAMES MALONE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 March 2020 |
| DATE OF JUDGMENT: | 19 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 51 |
| JUDGMENT APPEALED FROM: | DPP v [Malone] (Unreported, County Court of Victoria, Judge Lyon, 3 February 2020) |
---
CRIMINAL LAW – Interlocutory Appeal – Unrepresented applicant charged with stalking and associated offences – Stay of proceedings sought on grounds of malicious prosecution – Whether trial judge erred in failing to grant permanent stay – Leave to appeal refused – No foundation to claim that charges laid for improper purpose – Williams v Spautz (1992) 174 CLR 509 considered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mister Prosecutor and Madam Prosecutor | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
The applicant faces trial in the County Court on an indictment that charges him with stalking[2] (three charges — charges 1, 2 and 6) and using a carriage service to menace, harass or cause offence[3] (three charges — charges 3, 4 and 5).
[2]Crimes Act 1958, s 21A.
[3]Criminal Code (Cth), s 474.17(1).
In circumstances we will later discuss, on 3 February 2020 the judge presiding in the applicant’s impending trial, Judge Lyon, refused an application made by the applicant for a permanent stay of the charges (‘the interlocutory decision’ or ‘the ruling’). The judge also certified under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) ‘that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
Pursuant to s 295(2) of the CPA, the applicant seeks leave to appeal against the interlocutory decision.
As will appear, we consider that the applicant’s submissions to the trial judge were untenable. Quite plainly, the judge’s ruling is correct. Leave to appeal the interlocutory decision will therefore be refused. In our opinion, this was not a case in which the judge should have certified under s 295(3). Our reasons follow.
The applicant’s charges
It is unnecessary to say much about the factual background, but the genesis of the present proceeding seems to have been the applicant’s interception while driving on 27 July 2012 by a police officer, Constable Ryan Pitts, which resulted in the applicant being charged with traffic offences and assaulting police. Thereafter, the prosecution alleges that in a series of emails, the applicant accused Constable Pitts of perjury, assault and perverting the course of justice.
Apparently a more senior police officer, Sergeant Colin Dods, intervened, and it is alleged that he too became the subject of abusive emails from the applicant (addressed both to him and to others) between March 2013 and December 2014. Later, in mid-2018, so it is alleged, the applicant made a number of Facebook posts containing false allegations against Sergeant Dods, and sent a number of abusive emails (addressed both to him and to others). The emails and Facebook posts directed at Sergeant Dods are the subject of the first and second charges, stalking.
Charges 3 and 5 — using a carriage service to menace, harass or cause offence — are concerned with a number of allegedly abusive and threatening telephone calls made by the applicant to a case manager at Corrections who was overseeing a community correction order to which the applicant was subject; and charges 4 and 6 — another ‘carriage service’ charge and another charge of stalking — involve allegations that the applicant made abusive and threatening calls and emails directed to another police officer, Detective Sergeant Peter Kos, who had arrested the applicant on 3 June 2016.
The application made in the County Court
The application for a permanent stay presently under consideration was made to the trial judge on 22 January 2020, and, as we have said, was refused on 3 February 2020. It was not the first time that the applicant had made an application for a stay of the criminal proceedings brought against him.
On 11 November 2019, the unrepresented applicant — who was then in custody — told the judge that, based on alleged malicious prosecution, he intended to seek prohibition in the Supreme Court. At that stage, the judge stood the matter down for a week, so that the applicant could seek bail in the Supreme Court.
The matter returned to the trial judge on 18 November 2019. In the meantime, the applicant had been granted bail. On that occasion, among other things the applicant made an application that the trial be stayed, essentially due to the unavailability of a prosecution witness. The judge refused that application.
When the matter resumed on 20 November 2019, the applicant made two further applications: first, he asked the judge to disqualify himself for ‘apprehended bias’; and, secondly, he asked the trial judge to stay any trial on the indictment until he had had the opportunity to seek judicial review of the validity (or invalidity) of the charges brought against him. The judge refused those applications, and, on 21 November 2019, refused to certify under s 295(3) of the CPA.
By Notices dated 29 November 2019, the applicant sought a review of the judge’s refusal to certify under s 295(3); and, secondly, leave to appeal against the interlocutory decision. Those applications were, however, abandoned by a Notice dated 9 December 2019.
On 22 January 2020, the applicant made a further application for a permanent stay. It was supported by a lengthy affidavit, ‘Affidavit in support of Application for permanent stay of wrongful prosecution’, affirmed 7 January 2020 (Exhibit 1); and a second lengthy affidavit, ‘Affidavit for Subpoenas to Permanently Stay Malicious Prosecution’, affirmed 22 January 2020 (Exhibit 2). The thrust of the application may be gauged from the applicant’s oral submissions, when he told the judge that
my assertion is that these – this prosecution was commenced for an improper purpose.
That improper purpose being to conceal, aid and abet the, ah, criminal actions of members of Victoria Police, Ringwood Magistrates’ Court, lawyers from [named firm of solicitors] who were supposed to be presenting [sic] for me in 2016, members of Legal Aid, um, and … members of Parliament who were also aware and have been provided those documents. And it’s quite clear when you look at the police submissions here again that these prosecutions were arisen as a result of a series of emails that were sent to members of Parliament.
The interlocutory decision
In refusing the stay sought by the applicant, the judge noted that the applicant submitted ‘overall that the proceedings have predominantly been instituted for a wrongful purpose’.
Somewhat painstakingly, the judge analysed the contents of the two affidavits relied upon by the applicant in support of the application for a stay. He summarised the material as follows:
Although [the applicant’s] submissions/affidavit must be considered as a whole, it appears that there are approximately nine principal issues which constitute the basis of the application:
(1) police aggression/detainment of [the applicant] on the original interception July 2012;[[4]]
[4]This is a reference to the applicant’s interception while driving by Constable Pitts on 27 July 2012, which resulted in the applicant being charged with traffic offences and assaulting police.
(2) the police attempt to execute the warrant of apprehension and serve the personal protection order at 1:36 am on 3 May 2013 [sic];[[5]]
[5]It appears that this refers to police attendance at, and search of, the applicant’s former address in South Morang at 1.36 am on 3 April 2013 — not 3 May 2013 as the judge said — in order to execute a warrant for the applicant’s arrest, issued on 2 April 2013 on the application of Sergeant Colin Dods.
(3) circumstances of [the applicant’s] arrest on 3 June 2016 and other instances of arrest/detainment;[[6]]
[6]On 3 June 2016, the applicant was arrested by Detective Sergeant Peter Kos, in the company of Detective Senior Constables Sally Brown and Josh Whitby, pursuant to a warrant of apprehension that had been issued by the Ringwood Magistrates’ Court on 27 May 2016 in relation to criminal damage at a Member of Parliament, Matthew Guy’s, office. On the stay application, the applicant alleged that ‘there was no warrant’. He asserted that he had gone to Mr Guy’s office to complain about a ‘cover up’ of an assault perpetrated upon him by police on 27 July 2012. Thereafter, he was subject to ‘arbitrary arrest and detainment’ for 111 days, which was ‘concealed at that time and has been concealed since by the detectives’.
(4) police knowingly withheld the Dr Turnbull report diagnosing [the applicant] as being on the autism spectrum late 2017/2018;[[7]]
[7]Dr Leon Turnbull, an occupational and forensic psychiatrist, prepared a report for the applicant’s former legal aid solicitors, dated 11 December 2017, for use in other proceedings. Dr Turnbull expressed the view that the applicant ‘is on the autism spectrum’. He said the applicant’s ‘thinking is sticky and rigid, his emotional expression is constrained, and he becomes consumed by the minutiae of details to pathological proportions’. On the stay application, the applicant claimed that the diagnosis of autism was ‘suppressed’ from him, until a solicitor gave it to him after he ‘was locked up by the VFTAC’.
(5) arrest by Detective Samson on 16 July 2018 and charges laid; further charges being laid on 3 August 2018. [The applicant] was remanded in custody;[[8]]
(6) 28 December 2018 incident with Minister Pakula;[[9]]
(7) further bail conditions sought by OPP but refused by Judge Hannan in 2019 on different grounds than those agitated by [the applicant];[[10]]
(8) incidents at William Street Deli on 4 and 22 April 2019 involving Detective Murnane, Sgt Kos and [the applicant];[[11]]
(9) the ideology of the VFTAC [Victorian Fixated Threat Assessment Centre].[[12]]
[The applicant] submits that together and in their individual parts, it may reasonably be concluded that the police have:
· engaged in acts of terrorism;
· engaged in intimidation, threats and harassment;
· engaged in ongoing concealment and fraud which in turn are discriminatory, because they cause inequality before the law and create unfairness to him; and attempted, conspired to and perverted the course of justice.
[8]See footnote 6 above. On the stay application, the applicant submitted:
The DPP has done this [i.e. concealed evidence] via her refusal to acknowledge the fact that 3 June 2016 was not a lawful arrest. The DPP has done this via their reissued summary indictment opening filed on 13 November 2019, paragraph 32 as indicated. This is not full disclosure. This is a blatant attempt to divert the course of public justice. This is the same DPP which is, in this malicious prosecution, chosen to prosecute this malicious prosecution in what the informant, Detective Ian Sampson, has since 16 July 2018 falsely and knowingly claimed in various misrepresentations including under oath in the Magistrates’ Court on 3 August 2018 that on 3 June 2016 was lawfully arrested by Detective Sergeant Peter [Kos] pursuant to a warrant of apprehension that had been issued by the Ringwood Magistrates’ Court on 27 May 2016 for criminal damage.
[9]It appears that the applicant attended 121 Exhibition Street, Melbourne, on 28 December 2018, and attempted to serve former Attorney-General, Martin Pikula, with a ‘notice of appeal’, and later that day endeavoured to report Mr Pakula to police for assault and using obscene language. In other affidavit material, the applicant alleged that he was arrested on 16 July 2018, and, when he applied for bail on 3 August 2018, was served with new charges for stalking Sergeant Colin Dods and Sergeant William Holmes. The applicant alleged that ‘these additional charges were engineered in order to detract attention from the origin of the charges, which appears to have been the direction of Martin Pakula’.
[10]On 20 February 2019, the prosecution sought revocation in the County Court of bail to which the applicant was subject. The applicant asserted that the application was based on the false claim of his ‘potential for future acts of violence’, that claim itself being based on ‘the false statement from the former Attorney General Martin Pakula’ concerning the events of 28 December 2018. In affidavit material, the applicant claimed that Judge Hannan made her findings based on circumstances which the applicant ‘did at no point agitate’. He claimed:
These are circumstances which a reasonable person would conclude were conducted in order to deflect attention from the obvious misrepresentations made by barrister [named] for the OPP, the obvious misrepresentations and attempt to pervert the course of justice by Detective Hannah Murnane and the obvious prevarication riddled false statement and attempt to pervert the course of public justice by the former Attorney General Martin Pakula.
[11]The applicant asserted that he had been subpoenaed to give evidence on 4 April 2019 at the Melbourne Magistrates’ Court in relation to charges brought against a friend by Detective Peter Kos. He alleged that Detectives Kos, Brown and Whitby positioned themselves in the front window of the William Street Deli (which he had to pass to go home) so as to intimidate him. The applicant also claimed that he saw Detective Hannah Murnane inside the William Street Deli when he passed it on 22 April 2019. He entered with a friend and ordered two coffees, and, as he left, was confronted by two Protective Services Officers whom Detective Murnane had called, alleging that she had been intimidated by the applicant.
[12]On 3 August 2018, the applicant was granted bail in the Melbourne Magistrates’ Court in relation to four charges of stalking, and three charges of using a carriage service to menace, harass or cause offence, brought by Detective Senior Constable Iain Samson. The applicant had been charged on 16 July 2018, following a referral to VFTAC, stemming from a host of offensive emails sent by him to members of Parliament, Victoria Police, the judiciary, court staff and other public servants. In affidavit material relied on in support of his stay application, the applicant alleged that VFTAC had ‘been launched and deployed contrary to proper purpose rather with the purpose of using intimidation to further a political and ideological cause’.
The judge cited a number of authorities bearing on the grant of a permanent stay, including Jago,[13] Walton v Gardiner,[14] Clyne[15] and Barton.[16]
[13]Jago v District Court of New South Wales (1989) 168 CLR 23 (‘Jago’).
[14]Walton v Gardiner (1993) 177 CLR 378.
[15]Clyne v New South Wales Bar Association (1960) 104 CLR 186.
[16]Barton v The Queen (1980) 147 CLR 75.
With respect to charges 3 and 5, the judge concluded that there was no basis upon which they could be stayed.[17]
[17]We note that the judge in effect invited the applicant to seek severance of charges 3 and 5 — which relate to alleged offending against an officer employed by Corrections Victoria — from charges 1, 2, 4 and 6. Notwithstanding the judge’s invitation, however, the applicant made it clear that he had made a considered decision to have all charges on the indictment tried together. When the judge informed the applicant that he had to make ‘a forensic decision’ as to whether he sought severance, the applicant replied:
I’ll leave it all together, because my presentation will be that this isn’t [scil, is] a conspiracy to defeat the course of public justice involving the highest office in the State through to police officer courts, Magistrates, and I believe I represent a very clear and obvious case, including using the summary indictment where there’s a misrepresentation at paragraph 32, [of the Amended Summary of Prosecution Opening] showing concealing of fraud, false imprisonment. So I’ll leave it together. Thank you, though, I appreciate the full disclosure.
As to charges 1, 2, 4 and 6, the judge turned ‘to a consideration of the overall effect of the nine principal factors … as to whether they point to the prosecution being undertaken for an improper purpose and as such justify and require a stay of these proceedings’, and observed:
When each aspect is examined in turn, and then considered as part of an overall scenario, I cannot conclude that any single instance alleged by [the applicant], or the overall scenario, contributes to a conclusion that these charges are brought and prosecuted for an improper purpose, or constitute the types of crimes alleged by [the applicant].
The judge then analysed the matters bearing on the nine factors relied upon, and concluded that none justified a permanent stay.
The application in this Court
There is a single ‘ground’ in the applicant’s Notice of Application for Leave to Appeal Against Interlocutory Decision:
the decision of Judge Gregory Lyon is clearly a sign of incompetence and a deliberate cherry picking of the information before him, in favour of the weak and groundless misleading submission of the ‘Crown’, a sign of his stated fear of being criticised by the Crown and higher courts if the DPP/ OPP oppose his decision if it goes against the malicious prosecution of same.
As formulated, the ground is scandalous. We will treat it, however, as contending that the judge erred in failing to grant a permanent stay.
The Notice is accompanied by a document entitled, ‘Affidavit in support of Notice of Application for Leave To Appeal against Interlocutory Decision’, affirmed 2 March 2020. It, too, contained scandalous and irrelevant matter.
In the course of the hearing, we informed the applicant that, in the Court’s view, his affidavit contained scandalous and irrelevant matter, and we asked him which parts of it he sought to rely on. He replied that ‘the comments on the rulings [contained in the attachment to the affidavit] speak for themselves’. We then informed the applicant that it was difficult to discern anything in it which properly could support his application in this Court, and suggested to him that he should endeavour to put his arguments to us in point form.
In the result, in oral submissions, the applicant submitted that the criminal proceedings against him had been commenced for an improper purpose, that improper purpose being ‘to the ongoing concealment of several terms of arbitrary detainment at the hands of members of Victoria Police’. He alleged that a magistrate and a judge of the Supreme Court — whom he named — ‘are part of the concealment’. The applicant submitted that Judge Lyon’s ruling appears to ‘carefully “cherry-pick” the information’, and ’completely ignores the material facts of the matter’, including the applicant’s autism diagnosis and a ‘false statement by Martin Pakula’.
Further, in his reply, the applicant made a number of outlandish allegations. Thus, he alleged that the judge’s ruling was ‘written by the OPP [Office of Public Prosecutions], if not in concert with the OPP’. He asserted that ‘the OPP knows that there’s been concealment of a serious indictable offence, at least one’, and he said: ‘I submit that they probably participated in assisting [Judge Lyon] writing it. In fact, I believe that the [OPP] instructor probably wrote it’. The applicant further alleged that the prosecution ‘continue this charade, but the fact is they know it … Martin Pakula knows it.[[18]] Lisa Neville knows it.[[19]] Jill Hennessy knows it.[[20]] Kerri Judd knows it’.[[21]]
[18]Former Attorney-General.
[19]Minister for Police and Emergency Services.
[20]Current Attorney-General.
[21]Director of Public Prosecutions.
Consideration
In Williams v Spautz,[22] Mason CJ, Dawson, Toohey and McHugh JJ observed that the criterion for abuse of process is whether the improper purpose is the predominant purpose of the moving party, and said:
It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is ‘a heavy one, to use the words of Scarman LJ in Goldsmith v Sperrings Ltd[23] and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.[24]
[22](1992) 174 CLR 509, 529 (citations as in the original).
[23][1977] 1 WLR, at p 496; [1977] 2 All ER, at p 579.
[24]Jago (1989) 168 CLR, at p 34; see also [R v Sang [1980] AC 402], at p 455.
There was nothing that was put before the trial judge by the applicant that could have persuaded him that the charges in the indictment filed in the County Court had been laid for an improper purpose. The central theme of the applicant’s submissions — that there is a grand conspiracy by prosecuting authorities, Ministers, the judiciary and others to conceal of his ‘arbitrary detainment’ — is utterly without foundation.
The application for leave to appeal against the interlocutory decision must be refused.
We would make a final observation. The judge certified that the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. It was not. The judge should not have certified. It should have been obvious to the judge that any challenge to his ruling would have been quite hopeless, and, therefore that his decision could not be considered to be of sufficient importance to justify an interlocutory appeal. It needs to be once more emphasised that certification under s 295(2) of the CPA is not a matter merely of applying a rubber stamp. A trial judge is required to assess the relative merits of his or her decision and the degree to which it could be said that it is attended by doubt.[25]
[25]McDonald v Director of Public Prosecutions (2010) 26 VR 242, 246 [21] (Redlich JA).
In the present case, valuable judicial time, and the strained resources of the system of criminal justice, should not have had to have been expended entertaining an application which so perspicuously was devoid of merit.
Conclusion
Leave to appeal the interlocutory decision is refused.
---
10
0