Meredith v Gough; R v Meredith
[2003] QSC 482
•5 December 2003
SUPREME COURT OF QUEENSLAND
CITATION:
Meredith v Gough & Anor
R v Meredith [2003] QSC 482PARTIES:
SCOTT ANDREW MEREDITH
(applicant)
v
JASON GORDON GOUGH
(first respondent)
ACTING MAGISTRATE ROGER STARK
(second respondent)
DIRECTOR OF PUBLIC PROSECUTIONS(third respondent)
THE QUEEN
v
SCOTT ANDREW MEREDITH
(applicant)FILE NO/S:
S9789/03
Ind 301/03DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
5 December 2003
DELIVERED AT:
Brisbane
HEARING DATE:
2 December 2003
JUDGE:
Douglas J
ORDER:
Applications dismissed.
CATCHWORDS:
Criminal law – Jurisdiction, practice and procedure -Adjournment, stay of proceedings or order restraining proceedings – Stay of proceedings – Abuse of process.
COUNSEL:
A. Boe (Sol) for the Applicant
W. T. McMillan (Sol) for the First Respondent
M. Bobic for the Second Respondent
P. L. Feeney for the Third Respondent
SOLICITORS:
Boe Lawyers (A. Boe) for the Applicant
Carne Reidy Herd for the First Respondent
C. H. Lohe, Crown Solicitor for the Second Respondent
Director of Public Prosecutions for the Third Respondent
The applicant, Mr Meredith, seeks to quash an indictment charging him with possessing a dangerous drug, cannabis sativa, alternatively a temporary stay of those proceedings, and, among other orders, an order to restrain permanently the further prosecution of another part heard committal hearing for another charge of trafficking in that substance. His grounds for seeking that relief are that there has been an abuse of process because the police officers who investigated the charges misconducted themselves in the investigations. They are said to have misled a Magistrate who issued a warrant, not to have obtained search warrants for a car and some real property when they could and should have done so and to have lied to the Magistrates’ Court during committal hearings about the reasons why Mr Meredith's car was pulled over and it and his real property searched.
The alleged misconduct by the police officers was revealed through evidence that became available on the second of two committal hearings. The first hearing was into the charge of possession while the second, which is not yet complete, is into the charge of trafficking. During the second committal hearing some of the officers claimed privilege against self incrimination in respect of their reasons for searching Mr Meredith’s car and property.
On the material before me there is no real controversy about the facts that give rise to these assertions against the officers. They were summarized in the applicant's submissions in reply in the following terms:
14. The applicant points in this regard to the clear evidence that:
14.1. Police officers King and Shore misled the magistrate at the first committal as to the reasons for their interception and search of the applicant’s vehicle.
14.2. Police officer Stagoll swore a false statement in his application for a post search approval order in respect of the search of 99 Levington Rd, Eight Mile Plains: document “c” to Exhibit “A” to the second affidavit of Jeffrey David Finch dated 28 November 2003.
14.3. Stagoll then misled the magistrate at the first committal as to the reasons for and the legal justification surrounding the search of 99 Levington Rd.
14.4. Police Officer Gough then presented evidence from Stagoll, Shore and King to the DPP for prosecution of the applicant for a further offence. He does this after having every reason to believe that each of them had misled the first magistrate in this material.[1]
[1]Second Committal deps: Detective Gough: P29, L19-40.
14.5. The DPP prosecutor David Finch was informed of these “problems”, before any evidence is presented,[2] yet:
[2]Second Committal deps: Detective Gough: P33, L29-35.
14.5.1. No disclosure was made to the applicant’s lawyers about these matters.
14.5.2. The magistrate was not informed that statements being tendered under section 110A contained this misleading evidence.
14.5.3. The searches were still sought to be justified on this misleading material.
14.6. Stagoll, Shore and King, after being warned and permitted to obtain legal advice, each, in essence, claimed privilege from answering any questions surrounding their roles in the searching of the applicant’s vehicle and property, on the grounds that any such answer may tend to incriminate them of a criminal offence.
Investigations, still on foot, by the Crime and Misconduct Commission and the Parliamentary Crime and Misconduct Committee are under way into these events. The Director of Public Prosecution’s proposal to deal with this situation at the trial is to seek to prove the case against Mr Meredith through witnesses other than those whose evidence has been affected by the conduct described above. The proposal is contained in her counsel Mr Feeney’s written submissions as follows:
7.2Witnesses not involved in any misleading can be called to prove the finding of cannabis on 27 August 2002 at “places” occupied by Meredith. Section 129 of the Drugs Misuse Act would apply in such circumstances.
7.3In the absence of any ruling as to the exclusion of evidence the Crown case would include:
7.3.1Telephone intercepts where Meredith has had conversations with persons whose phones were monitored;
7.3.2Telephone intercepts where Meredith was not a party Tripodi, Ahern;
7.3.3An incident in August 2000 where a man named Quirk was charged both as evidence of substantial supply and evidence of a system Martin v Osborne.
7.3.4Documentation found on 27 August 2002 interpreted as drug related accounts;
7.3.5The finding of packaged cannabis on 27 August 2002 in Meredith’s car proved by a combination of witnesses;
7.3.6The finding of 23kg of cannabis in a shed at his premises with light and fan operating to dry the cannabis proved by a combination of witnesses;
7.3.7Proof of the events of 27 August 2002 by witnesses from an amalgamation of the two existing briefs including:
7.3.7.1Surveillance police following Meredith on 27 August;
7.3.7.2Police called to assist at the roadside;
7.3.7.3Scenes of crime officers
7.3.7.4Police from Slacks Creek and from the Drug Squad who searched Meredith’s premises;
7.3.7.5Proof of occupation of premises.
7.3.8Some further matters eg. Post arrest conduct of false identification and accounts; possession of various telephone SIMS;
7.3.9In some regards the investigation is not complete eg. Financial analysis.
It is also proposed on behalf of the Director that a nolle prosequi be entered in respect of the existing indictment, because it was an unnecessary “stop gap” indictment, there being an existing charge of trafficking which, if proceeded with on indictment, would be joined perhaps with counts of supply and possession of the drug.
The most authoritative discussion of the circumstances in which the power to stay criminal proceedings may be exercised is the decision of the High Court in Jago v District Court (NSW) (1989) 168 CLR 23. It is a power to be used exceptionally where there has been a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.[3]
“Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer”.[4]
[3]Barton v The Queen (1980) 147 CLR 75, 111 adopted by Mason CJ in Jago at 34. See also Deane J at 56-60.
[4]Jago at 47 per Brennan J. See also Gaudron J at 75-78.
Brennan J went on to consider the more radical remedies that may be needed when there has been an abuse of process and concluded at 48 that:
“When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court’s control unless it be said that an accused person’s liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law.”
The problem posed by this case is created most acutely by the claims to privilege at the second committal hearing by the police officers who may previously have given false evidence. If those claims are maintained at any trial, argues Mr Boe, then his client’s ability to challenge the admissibility of the evidence of possession on the discretionary grounds discussed in decisions such as Bunning v Cross (1978) 141 CLR 54 will be severely compromised. Further he argues that their claims to privilege have compromised the conduct of the second committal hearing in preventing his client from discovering the evidence that will be used against him.
Both of these are legitimate concerns but I am not convinced that a trial judge will be unable to cope with the problems caused by their existence so as to permit a fair trial to take place. The same considerations lead me to the view that it would also be inappropriate to stay the committal proceedings. It is apparent from Mr Feeney’s written and oral submissions that the Director is alive to the issues, is not seeking to rely on the “tainted” witnesses in the committal hearing or at any trial, and is aware of the Bunning v Cross issues by Mr Feeney’s suggestion that the trial Court may be assisted by “a series of admissions by the Crown or by materials gathered in the course of the inquiry by the CMC”.[5]
[5]See the Transcript of these proceedings on 2 December 2003 at p. 24.
The existence of the CMC inquiry and the inability to predict at this stage whether the officers who have claimed privilege will continue to do so indefinitely are also matters that discourage me from now quashing or staying either the indictment or the committal hearings. In other words I am not convinced that the proceedings will involve irremediable prejudice to the accused that interferes with the conduct of a fair trial.[6] It is also important to keep in mind the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.[7]
[6]See DPP v Shirvanian (1998) 44 NSWLR 129, 133-134 and Bou-Simon v A-G (Cth) (2000) 96 FCR 325, 338-339.
[7]Walton v Gardiner (1993) 177 CLR 378, 396.
I dismiss the applications.
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