Ogilvie v Ogilvie

[2001] WASC 244

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   OGILVIE -v- OGILVIE & ANOR [2001] WASC 244

CORAM:   WHITE AUJ

HEARD:   14 AUGUST 2001

DELIVERED          :   14 AUGUST 2001

PUBLISHED           :  6 SEPTEMBER 2001

FILE NO/S:   MCS 37 of 2001

BETWEEN:   DUNCAN SWAN OGILVIE

Applicant

AND

MARIYANA OGILVIE
First Respondent

ANNA CARR
Second Respondent

Catchwords:

Criminal law - Private prosecution - Whether evidence sufficient to establish a charge of conspiracy to defeat the course of justice - Whether an applicant should be permitted to bring  a private prosecution for perjury - Turns on own facts

Legislation:

Nil

Result:

Application dismissed
Matter referred to Director of Public Prosecutions to consider allegations of perjury

Category:    B

Representation:

Counsel:

Applicant:     In person

First Respondent           :     Mr N Friedman

Second Respondent       :     Mr N Friedman

Solicitors:

Applicant:     In person

First Respondent           :     Friedman Lurie Singh

Second Respondent       :     Friedman Lurie Singh

Case(s) referred to in judgment(s):

Gouldham v Sharrett [1966] WAR 129

Case(s) also cited:

Nil

1. WHITE AUJ: This is an application for leave to present an information firstly against the applicant's wife, from whom he is estranged, and her solicitor, by way of a private prosecution for the alleged offences of conspiring to pervert the course of justice, contrary to the provisions of s 135 of the Criminal Code.

2. And secondly, for leave to present an information against the applicant's wife, by way of a private prosecution, for the alleged offence of perjury.

3. In a lengthy affidavit, the applicant has set out the basis of these applications.  The account disclosed by his affidavit is characteristic of the human tragedy which so often follows the break‑down of a marriage.  The applicant is of the view that his wife has acted vindictively against him, fabricating her testimony in order to ensure that he breached the terms of certain Violent Restraining Orders which she had obtained against him, also by false testimony, with the purpose of obtaining as much money or property from him as she could.  He has been arrested from time to time and imprisoned for breaches of the Orders and he regards himself as the victim of his wife's malice and the attitude of the Police who, he says, have not pursued his complaints against his wife.  There are three children of the marriage and the applicant has been forbidden to see or to contact them for a lengthy period.

4. The applicant expresses feelings of intense frustration at what he perceives as unfair treatment accorded to him by his wife, her solicitor and by the Police.

5. His attempts to obtain a fair hearing have, he feels, failed and he now seeks to bring a private prosecution in order to vindicate his conduct.

6. As I pointed out to the applicant the lengthy affidavit filed by him does not contain any evidence sufficient to make out the case of a conspiracy to pervert the course of justice and I would not grant leave to bring a private prosecution in respect of those charges.

7. In Gouldham v Sharrett [1966] WAR 129, Wolfe CJ (with whom Jackson and Neville JJ agreed) said, at 137 ‑ 138:

   "What should be the policy of the court in considering whether to grant leave under s 720?  I consider it should be guided by the following considerations:-

   (1)Is the type of offence of such grave character that the determination whether to prosecute should be left to the Attorney-General:  eg prosecutions for such offences as non-capital homicide, perjury and so on?

   (2)Is the admissible evidence in support of the application inherently credible and sufficient to found a prima facie case?

   (3)If there have been no proceedings for committal, is there any good reason why the usual proceedings for committal before justices should not be resorted to?

   (4)Has the accused already been committed for trial by a petty sessional court?

   (5)Has the Attorney-General entered a nolle prosequi or intimated that he will not file a bill?

   (6)Is the administration of justice likely to be impaired by reason of some discreditable motive on the part of the prosecutor?

   (7)Is the situation such that if leave is refused a grave injustice will be done to the applicant or somebody standing in close relationship to him?"

8. In the present case, the first of the considerations mentioned by Wolfe CJ is clearly applicable.  In so far as the application relates, therefore, to a proposed private prosecution for perjury, I consider that, applying Gouldham v Sharrett, I should refuse the application.

9. For these reasons, the applications must be dismissed.

10. However, I am of the opinion that the matter of the alleged perjury by the applicant's wife is one that should receive the consideration of the Director of Public Prosecutions, for his decision whether or not to prosecute the applicant's wife on that charge.

11. Accordingly, I direct that the matter be referred to the Director of Public Prosecutions, for the purpose indicated.