Mowen v McGowran

SUPREME COURT OF QUEENSLAND

CITATION:

Mowen v McGowran [2010] QCA 86

PARTIES:

MOWEN, Bevan Alan
(applicant/appellant)
v
MCGOWRAN, Brian
(respondent)

FILE NO/S:

CA No 10 of 2010
SC No 532 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2010

JUDGES:

Holmes, Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to adduce further evidence be refused;1.    

The appeal be dismissed with costs.2.    

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – PROSECUTION – LEAVE OR DIRECTION OF SUPREME COURT TO EXHIBIT CRIMINAL INFORMATION – DISCRETION TO GRANT OR REFUSE – GENERALLY – where primary judge dismissed appellant’s application under s 686 Criminal Code (Qld) to present information against respondent solicitor – where respondent solicitor represented appellant at a committal hearing for an indictable offence – where respondent solicitor did not cross-examine a witness at the committal hearing – where appellant alleged respondent solicitor attempted to pervert the course of justice – whether primary judge erred in dismissing application

Criminal Code 1899 (Qld), s 140, s 686

The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, cited

COUNSEL:

The appellant appeared on his own behalf
T Arnold, with L C Rundle, for the respondent

SOLICITORS:

The appellant appeared on his own behalf
John Williams & Associates for the respondent

1.   HOLMES JA:I agree with the reasons of Muir JA and the orders he proposes.

1. MUIR JA: The appellant appeals against an order of a judge of the trial division of this Court on 15 December 2009, dismissing his application under s 686 of the Criminal Code (Qld) to present an information against the respondent solicitor, who had represented the appellant at a committal hearing, for an indictable offence alleged to have been committed by the respondent. The offence specified in the application for leave to present an information was "s 140 attempting to pervert justice". It was particularised in the course of discussion between the appellant and the primary judge as failing to object to the failure by the prosecution to call a subpoenaed witness to give evidence at the committal hearing which was in respect of an offence of grievous bodily harm or, alternatively, of occasioning bodily harm allegedly committed by the appellant.

The evidence at first instance

1. The application was supported by four affidavits, two sworn by the appellant.  In one of the appellant's affidavits he deposed as follows.  He attended the Magistrates Court at Rockhampton with his neighbours, Mr and Mrs Young, and a Mr Vernon Johansen.  Mrs Young and Mr Johansen had been subpoenaed as witnesses in the committal hearing.  The respondent joined the group, after which Detective Zanella asked to speak to Mr Johansen.  Mr Johansen and the detective moved away.  After a short…