James Malone (a pseudonym)[1] v The Queen - [2020] VSCA 51

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read James Malone (a pseudonym)[1] v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSCA 51
Decision Date: 19 March 2020

CaseChat Overview and Summary

The case before the court involved James Malone, who was charged with stalking and associated offences. Malone sought an interlocutory appeal against the refusal of a permanent stay of proceedings, claiming that the charges against him were malicious. The appeal was heard in the relevant appellate court. The primary legal issue before the court was whether the trial judge erred in not granting a permanent stay of proceedings on the basis of a claim of malicious prosecution. Malone argued that the charges against him were brought for an improper purpose.

The court examined the principles of malicious prosecution and the requirements for a stay of proceedings in such cases. It noted that the onus is on the applicant to establish a foundation for a claim of malicious prosecution, as outlined in Williams v Spautz. The court found that Malone had not provided sufficient evidence to support his claim that the charges were laid for an improper purpose. Consequently, the court held that the trial judge did not err in refusing to grant a permanent stay of proceedings. The appeal was dismissed, and leave to appeal was refused.

The court's reasoning was based on the lack of evidence provided by Malone to substantiate his claim of malicious prosecution. It was determined that there was no foundation for such a claim, and therefore, the trial judge's decision to deny the stay of proceedings was correct. The court concluded that the charges against Malone were not brought for an improper purpose, and thus, the appeal was unsuccessful. The final orders of the court were that the interlocutory appeal was dismissed, and leave to appeal was refused.

Orders