Mathews, R.G.H. v Jones, K.A.

[1993] FCA 831

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Attention:  Judgments Clerk -- - , -

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Herewith judgment by Cooper J. .i - 1 .

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in the matter of Mathews v. ? ' L

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831 43

Jones and Ors. QG 160 of 1993. .I . -.

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JUDGMENT No. ........ ...,...... I ..,., .... ,..

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DMSION	No. OG 160 of 1993
BETWEEN:

RUSSELL GORDON HAIG MATHEWS

Auulicant

m:

DETECTIVE CONSTABLE KERRY A JONES

(Australian Federal Pollce Officer)

First Resuondent

m:

DETECTIVE CONSTABLE JACEK MAJCHRZAK

{Australian Federal Police Officer)

Second Respondent

- AND-

THE COMMONWEALTH DIRECTOR OF PUBLIC

PROSECUTIONS

Thud Respondent

JUDGE MAKING ORDER:	Cooper J.
WHERE MADE:	Brisbane

RECEIVED

DATE OF ORDER:  19 November, 1993

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

blJN.JTES OF ORDER REGISTRY

THE COURT ORDERS:

That the application for interlocutory injunctive relief is refused.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA	--
OUEENSLAND DISTRICT REGISTRY

-	GENERAL DIVISION	No. OG 160 of 1993
BETWEEN:

RUSSELL GORDON HAIG MATHEWS

- AND:

DETECTIVE CONSTABLE KERRY A JONES

(Australian Federal Police Officer)

First Respondent

AND:

DETECTIVE CONSTABLE JACEK MAJCHRZAK

iAustralian Federal Police Officer)

Second Resoondent

AND:

THE COMMONWEALTH DIRECTOR OF PUBLIC

PROSECUTIONS

Third Resuondent

CORAM:	Cooper J.
PLACE:	Brisbane

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19 November, 1993

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REASONS FOR JUDGMENT

The applicant, Russell Gordon Haig Mathews was arrested on 17

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:	September, 1993 and charged with one count of intentionally and knowingly using
!	violence against a Commonwealth Officer, namely Anne Maria Scahiu, a senior legal officer with the Human Rights and Equal Opportunities Commission who was carrying out a duty of such an officer (Section 76(l)(a) of the Crimes Act 1914 (Cth)) and one count of unlawful assault against Anne Maria Scahill with a circumstance-of aggravation, namely that Anne Maria ScahiU was a female (Section 344 of the Criminal Code (Qld)). On or about 1 October, 1993 the charge of assault was amended to allege an offence against Section 339 of the Criminal Code, namely assault occasioning bodily harm.
The charges arise out of an incident which occurred in the Brisbane Registry of this court on 16 September, 1993. On that date Ms. Scahill attended to
settle an appeal record in relation to an appeal lodged by the applicant in proceedings brought against him by the Commission in this court which resulted in a judgment
against him for sexual harassment. The applicant in reliance upon the power of arrest given to a citlzen by section 546(d) of the Criminal Code arrested Miss Scahill for an
offence against Section 544 of the Cnminal Code, namely being a person who became an accessory after the fact to a crime.
The crime alleged by the applicant was misappropriation of property (Section 408C of the Criminal Code) by one Joanne Baker. Ms. Baker, a former
employee of a business in which the applicant had an interest, was the complainant in
the proceedings in the Human Rights Commission against the applicant and was the beneficiary of a compensation order made by the Commission and later by this court
in proceedings against the applicant. The applicant has previously brought a private
prosecution against Ms. Baker charging her with a number of offences including
misappropriation of property. On 9 October, 1992 Mr. Taylor, Stipendiary Magistrate, dismissed each matter of complaint and ordered the applicant pay costs.

The applicant in an affidavit filed in these proceedings exhibits a

statement as to his version as to what occurred. He says :-

"I then said that pursuant to section 544 of the Criminal

Code I was arrestiizg her as an accessory after tlze fact to section 40812 nlisappropriatiorz of properly by one Jomnle Barker and placed by [sic] Iland on her sl~oulder. She moved away so as to remove my llarzd froin her slzoulder. Slze tlisz said to the people belzind the counter 'call security'.

I repeated you're uiuier arrest are you going to go quietly or

are you going to resist' arzd put my hand back on her slzoulder, with illis she slapped violently my forean to remove my hand from lzer slloulder. Witlz this size moved closer to tlze counter I took hold of her hand and she proceeded to raise lzer knee to my groin. Slze did not hurt me severely but as she izad shown herself to be prepared to injury me I attempted to prct a head lock on her. With that I had her lefr a n in my lefr hand and her right a n with my right hand aid she was facing away from me mld struggling. nYo male ofj'icets fronz tlze Federal Court Registry came out of the ofjike towards me. As I viewed this as a merzacirzg action I then released my grasp on her arms. Slze was then ushered bellind the counter".

The applicant was arrested at his home premises on the evening of 17

September, 1993 a little after 6.00 p.m. by the first and second respondents, the two

police officers effecting the arrest in reliance upon the power of arrest contained in

section 8A of the Crimes Act 1914. Section 8A provides :-

'IAny constable may, without warrailt, arrest any person, if

the constable lras reasonable ground to believe:

fa)	that the person has committed an offence
agaiiwt a law of tlze Commorzwealtl~; mld
(b)	tlzat proceeduigs against the person by szmzmons would not be effective'!

The applicant was balled from the City Watch House later that evening.

His bail was subject to the normal conditions, including conditions that he not interfere with any Crown witness.

The applicant has been remanded to appear at a committal proceeding

in respect of the two charges laid against him.	The committal proceeding is listed to
commence on 30 November, 1993.

On 24 September, 1993 the applicant filed in this court an application

under Section 39B of the Judiciarv Act 1903 seeking injunctions and prerogative writs directed to the first respondent and the Magistrates Court of Queensland and declaratory relief that the charges against him were at an end. He also sought the

relief pursuant to sections 5, 6, 7 and 16 of the Administrative Decisions (Judicial Review) Act 1977. On 22 October, 1993 the applicant amended his application to join the second and third respondents and to include claims for damages for unlawful

arrest, false imprisonment, malicious prosecution. The applicant also sought

interlocutory relief.	The interlocutory relief sought was a declaration that the arrest
of the applicant by the respondent on 17 September, 1993 was unlawful;	a
declaration that the applicant is no longer subject to the bail order in respect of the	charges; an injunction restraining the respondent, Detective Kerry A. Jones, Federal
Police Officer, from proceeding further with the charges. The declarations sought are
clearly final relief and were not pressed by the applicant.
The applicant has today asked for an interlocutory order restraining each of the respondents from proceeding with the charges and the committal hearing until trial of the action.

The applicant contends that his arrest was unlawful in that there was no

basis for the police officers to believe that the proceedings against him by summons

would not be effective. He argues that from previous dealings with the Federal Police they were aware of his residential address and that he would answer any court summons served upon him. The respondents for their part contend that the arrest was lawful and that there were reasonable grounds for believing that the applicant, if served with a summons, would interfere with or intimidate Crown witnesses including Ms. Scahill. Such belief was based upon the applicant having previously been convicted of an offence of intimidating a witness.

The applicant further alleges that the proceedings against him are

improperly brought by the police at the request of the Human Rights and Equal

Opportunities Commission in order to protect Ms. Scahill from facing the charges in

respect of which the applicant says she was arrested by him and also to protect her from assault charges, she being alleged to have assaulted the applicant at the time of

being maintained to "save face" by the Federal Police because of the unlawful arrest	the arrest and from a charge of resisting arrest. The proceedings, he alleges, are only
and are a continuation by the Commission and the Federal Police of conduct which led to his being charged and convicted of intimidating a witness in proceedings in the
District Court in July, 1992. The proceedings, the applicant submlts, are brought for an improper purpose, are oppressive and vexatious.

That the applicant has been charged, bailed, and a date set for a

committal hearing means that the criminal process has been put m train.

The relevant decision which he seeks to obtain judicial review of is the

decision of the Federal Police officers and the Commonwealth Director of Public

Prosecutions to prosecute him.

The respondents contend that ths court does not have jurisdiction to

grant the relief sought. However, for the purposes of this application they are content

that I should assume that such a jurisdiction exists, but submit I should decline the
relief sought on discretionary grounds.

The High Court in Yates v. Wilson (1989) 168 CLR 338, in refusing special leave to appeal in relation to a review by the Federal Court of a Magistrates' decision to commit a person to trial, said (at 339) :-

"The undesirability of fragmeizting the criminal process is so powe@l a coruideration tlzat it requires no elaboration by us. It is a factor wlziclz should iizlzibit the Federal Court . .

from aercinjzg junkdiction urlder the Admmrsrm	tive
D&=	(Judicial Revkw) Act 1977 (Cth) and as well

inhibit this Court from granting special leave to appeal".

The High Court expressed a similar view in Vereker v. O'Donovan

(1988) 6 Leg.Rep. SL3.

The same view was expressed by a Full Court of this court in Smiles v.

The Federal Commissioner of Taxation (1992) 109 ALR 449 at 463 - 464.

So too in Lamb v. Moss (1983) 76 FLR 296, the Full Court of this court

said in a joint judgment (at 308) :-

"It is sufticietzt, for immediate purposes, to observe that there

%ia coderable body of autlzoritative judicial opinwtz that

exceptional circumstances will getzerally be required before a superior court will consider interftiizg in committal proceedings, particularly at an interlocutory stage. FaiIure to permit criminal proceedings to follow their ordinary course will, in the absence of special circumstances, constitute an error of principle, as Gibbs C.J. pointed out in Sanlwy v.

Whirlam (srcpra) at 26".

This approach has been consistently followed by this court and it does

not usefully assist to cite further authority.

If the applicant is correct in his contention that his arrest was unlawful,

then he has available to him civil remedies. Indeed, he has sought to assert those remedies in this court. Even if his arrest was unlawful, a matter in respect of which I express no opinion, it does not necessarily follow the charges against him are tainted and that the criminal proceedings should be brought to an end by dismissal of the charges or the granting of a permanent stay. The applicant was at all relevant times

within the jurisdiction and amenable to the criminal processes of the Magistrates

Court or superior courts of the State of Queensland. It is not a case of the applicant

being forcibly and unlawfully brought into the jurisdiction to make him amenable to the criminal process. No authority has been cited to me to support a conclusion that an unlawful arrest in itself protects a person from being charged with a criminal offence where there exist facts which would support a reasonable belief that an offence has been committed. There is nothing in the circumstances of the arrest of

S.

the applicant, even assuming that he is correct in his contentions, which would justify

me in making any order to restrain the prosecut~on of the offences as charged.

The contention of the applicant that his conduct was not unlawful and

insufficient to sustain the charges against him relies upon a decision being made as to

whether his acts were authorised, justified or excused by law. If they are not, then on the material before me, includmg his own admission in the statement, there is evidence which, if accepted, would support at a minimum the assault charge. The legality of his conduct is peculiarly a matter to be determined by a committing

Magistrate, and ultimately if committed, by a criminal court of this State. The question of the legality of the applicant's conduct has not been ruled upon at this

time. There is simply no basis for this court to attempt to pre-empt the proper consideration by a Magistrate of the issue in committal proceedings or by a criminal court of this State if the applicant is committed.

Insofar as the applicant alleges that the decision to charge him with the

offences and the laying of the charges are improper and done for an improper

process as it is within the power of the criminal courts to stay prosecutions if the	purpose, that matter too is properly one to be determined as part of the criminal
applicant can persuade a crirmnal court that there are grounds for a stay (see Smiles v. The Federal Commissioner of Tax at 463 - 464; Newbv v. Moodie (1988) S3 ALR
523 at 529).
Even assuming in the applicant's favour that all of the matters of complaint raised by the applicant which he wishes determined in this court are correct each of them can be raised and determined as part of the criminal process. There is nothing which he seeks in this court by way of injunctive relief or judicial review which he cannot obtain either before the Magistrate who hears the committal (save perhaps the obtaining of a stay at that stage; see Grassbv v. The Queen (1989) 168 CLR 1 at 18) or if committed for trial, before the criminal court to which he is committed.
To succeed on an interlocutory injunction pending trial, the applicant must show that there is a serious question to be tried and that the balance of convenience lies in favour of making the order sought. In the instant case the authorities show that on the final hearing of these proceedings a proper exercise of the discretion vested in the court requires that criminal proceedings not be fragmented save in exceptional circumstances. There are in this case no exceptional
circumstances which would just@ the interference by this court in the decision to prosecute or the commencement of a committal hearing on 30 November, 1993. The
issues raised by the applicant can and will, I am sure, be raised in the criminal
proceedings and if made out by him will lead to such orders being made as are by law
required in the circumstances. Therefore there is not in my view a serious question to
be tried in relation to the issues of injunctive relief, judicial review or declaratory
relief.

As the applicant has failed to make out a serious question to be tried no

question of the balance of convenience arises (Mama AUovs & Research P@. Ltd. v.

Q&y [l9811 VR 23 at 29).

The application for interlocutory injunctive relief is refused.

I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Cooper.

Date:  19 November, 1993

&	m ?it. ~ d i C e ~ ; - w
Associate

Applicant in Person:	Russell Gordon Haig Mathews
Solicitor for the Respondent:	Mr. C. Porritt Director Public Prosecutions
Date of Hearing:	19 November, 1993
Place of Hearing:	Brisbane
Date of Judgment	19 November, 1993