P v H - [2015] QSC 351

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SUPREME COURT OF QUEENSLAND

CITATION:

P v H [2015] QSC 351

PARTIES:

JP

(applicant)

v
H

(respondent)

FILE NO:

8327 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2015

JUDGE:

Applegarth J

ORDER:

1.   That the appellant provide security for the respondent’s costs on the appeal in the sum of $80,000 on or before 4 pm, 29 February 2016 in respect of the respondent’s costs up to and including the first day of the hearing of the appeal.

2.   In the event it appears to a judge of this Court at a pre-hearing review of this matter that there is a substantial possibility that the appeal will extend beyond a one-day hearing, or in the event the appeal hearing extends beyond one day, then the respondent provide further security in the sum of $15,000 per day, and that such further security be provided within 48 hours of the judge so indicating or, in the absence of such an indication, by no later than 4 pm on the first day of the hearing of the appeal.

3.   The security must be given in a form satisfactory to the Registrar.

4.   The appellant must as soon as practicable after giving security serve on the respondent written notice of the time when and the way in which the security was given.

5.   If security is not given under this order, the appeal is stayed so far as it concerns steps to be taken by the appellant.

6.   If security is not given the respondent may apply to dismiss the appeal.

7.   There be liberty to apply.

8.   Each party’s costs of the application be reserved.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER REASONS FOR SECURITY – where the respondent police officer killed the appellant’s son during a confrontation in the course of the police officer’s duties – where an inquest found that the appellant’s son was killed in self-defence after pointing a replica firearm at the police officer – where the appellant brought a private complaint against the police officer alleging murder and/or manslaughter – where a Magistrate dismissed the complaint as an abuse of process – where the appellant appeals the decision to dismiss to the Supreme Court for a hearing de novo – where the respondent applies for security for its costs of the appeal – whether security for costs should be granted and if so, in what amount

Acts Interpretation Act 1951 (Qld), s 14B
Justices Act 1886 (Qld), ss 42, 53, 102A, 102C, 102D, pt 2 div 5

Uniform Civil Procedure…

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.

Continue reading P v H

Details

AGLC: P v H [2015] QSC 351
Case: [2015] QSC 351
Decision Date: 11 December 2015

CaseChat Overview and Summary

The case of P v H involved an appeal by Mr P against the dismissal of a private complaint he had lodged against a police officer, PCC H. Mr P’s son was killed by PCC H during a confrontation, and an inquest found that the death occurred in self-defence. Mr P brought a private complaint against PCC H, alleging murder and/or manslaughter. The Magistrate dismissed the complaint as an abuse of process, a decision which Mr P appealed to the Supreme Court. PCC H subsequently applied for security for its costs of the appeal, arguing that Mr P should be required to provide security for those costs as the appeal appeared to have no reasonable prospect of success.

The court had to determine whether Division 2 of Part 5 of the relevant Act applied to the private complaint and, if so, whether the exclusion in s 102A applied. The court concluded that Division 2 did apply to the private complaint as it charged PCC H with an indictable offence. However, the exclusion in s 102A did not apply because the offence charged was not one of which injury to the person or property of the complainant was an element. The court found that Mr P’s interpretation of the section was inconsistent with the ordinary meaning of the words used by Parliament and would lead to absurd and unintended results. Therefore, the court granted the application for security for costs, ordering that Mr P provide security for PCC H’s costs on the appeal in the sum of $80,000, with additional security of $15,000 per day if the appeal extended beyond a one-day hearing.

The court’s decision on the issue of interpretation meant that it was unnecessary to decide whether injury to the person was an element of the offences of murder or manslaughter. The court noted that whilst most homicide cases involved an injury which caused death, injury was not itself an element of the offence. The court also found that the definitions of “injury” in other contexts were of no real assistance in the present context. The court ordered that the appellant provide security for the respondent’s costs on the appeal, with additional security to be provided if the appeal extended beyond a one-day hearing. The appellant was also required to serve written notice on the respondent of the time when and the way in which the security was given. If security was not given, the appeal would be stayed, and the respondent could apply to dismiss the appeal.

Orders

Orders of the court

1. That the appellant provide security for the respondent’s costs on the appeal in the sum of $80,000 on or before 4 pm, 29 February 2016 in respect of the respondent’s costs up to and including the first day of the hearing of the appeal.

2. In the event it appears to a judge of this Court at a pre-hearing review of this matter that there is a substantial possibility that the appeal will extend beyond a one-day hearing, or in the event the appeal hearing extends beyond one day, then the respondent provide further security in the sum of $15,000 per day, and that such further security be provided within 48 hours of the judge so indicating or, in the absence of such an indication, by no later than 4 pm on the first day of the hearing of the appeal.

3. The security must be given in a form satisfactory to the Registrar.

4. The appellant must as soon as practicable after giving security serve on the respondent written notice of the time when and the way in which the security was given.

5. If security is not given under this order, the appeal is stayed so far as it concerns steps to be taken by the appellant.

6. If security is not given the respondent may apply to dismiss the appeal.

7. There be liberty to apply.

8. Each party’s costs of the application be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr P’s construction of s 102A does not achieve the purpose for which Division 2 was enacted and, if accepted, would lead to absurd and unintended results. Conclusion on the issue of interpretation Division 2 of Part 5 of the Act does not prevent private prosecutions from being brought. Instead, it regulates the procedure by which certain private prosecutions are brought and contains protections against private prosecutions which are found to be an abuse of process, frivolous or vexatious. Private prosecutions which charge a person with an indictable offence of which injury to the person or property of the complainant is an element are not subject to the procedures and protections contained in Division 2 Part 5. In such a case the complainant is treated as having a sufficient interest in the prosecution. Where a private prosecution alleges conduct to be an offence with respect to a victim who is not the complainant, then the complainant may bring the prosecution, subject to the procedures contained in Division 2. In such a case, the interest of the complainant may be strong or slight. A strong interest is not sufficient to engage the exclusion contained in s 102A. It may, however, be relevant to a determination of whether the private prosecution is an abuse of process, frivolous or vexatious. I conclude that s 102A to s 102G apply to the private complaint brought by the complainant, Mr P. This is because the charge of murder or manslaughter is a private complaint charging PCC H with an indictable offence. The offence charged is not an offence of which injury to the person or property of the complainant (Mr P Snr) is an element. The words of the section confine the relevant exclusion to a private complaint for an indictable offence charging a person with an offence of which injury to the person or property of the complainant is an element. The words “of the complainant” qualify the preceding words “the person or property”. The interpretation for which Mr P contends would require different words to be used in s 102A. His interpretation is inconsistent with the ordinary meaning of the section. The interpretation for which PCC H contends accords with the ordinary meaning of the words used by the Parliament, best achieves the purpose of the legislation and avoids absurd outcomes. My conclusion on the issue of interpretation, and the fact that the complaint does not concern injury to the person of the complainant (Mr P Snr), make it unnecessary to decide the issue of whether injury to the person is an element of the offences of murder or manslaughter. Mr P’s submissions are that “arguably” an injury to the person is an element of murder or manslaughter as a person cannot be unlawfully killed without first suffering an injury. However, there is a competing strong argument. Whilst in fact most homicide cases involve an injury which causes death, injury is not itself an element of the offence. Also, whereas murder may be proved in some cases by an intent to cause grievous bodily harm, this does not make the suffering of injury (whether the intended injury or some other injury) an element of the offence. Definitions of “injury” in other contexts are of no real assistance in the present context.

Ratio Decidendi

Legal Principle Established

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CITATION:	P v H [2015] QSC 351
PARTIES:	JP (applicant) v H (respondent)
FILE NO:	8327 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2015
JUDGE:	Applegarth J
ORDER:	1. That the appellant provide security for the respondent’s costs on the appeal in the sum of $80,000 on or before 4 pm, 29 February 2016 in respect of the respondent’s costs up to and including the first day of the hearing of the appeal. 2. In the event it appears to a judge of this Court at a pre-hearing review of this matter that there is a substantial possibility that the appeal will extend beyond a one-day hearing, or in the event the appeal hearing extends beyond one day, then the respondent provide further security in the sum of $15,000 per day, and that such further security be provided within 48 hours of the judge so indicating or, in the absence of such an indication, by no later than 4 pm on the first day of the hearing of the appeal. 3. The security must be given in a form satisfactory to the Registrar. 4. The appellant must as soon as practicable after giving security serve on the respondent written notice of the time when and the way in which the security was given. 5. If security is not given under this order, the appeal is stayed so far as it concerns steps to be taken by the appellant. 6. If security is not given the respondent may apply to dismiss the appeal. 7. There be liberty to apply. 8. Each party’s costs of the application be reserved.
CATCHWORDS:	PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER REASONS FOR SECURITY – where the respondent police officer killed the appellant’s son during a confrontation in the course of the police officer’s duties – where an inquest found that the appellant’s son was killed in self-defence after pointing a replica firearm at the police officer – where the appellant brought a private complaint against the police officer alleging murder and/or manslaughter – where a Magistrate dismissed the complaint as an abuse of process – where the appellant appeals the decision to dismiss to the Supreme Court for a hearing de novo – where the respondent applies for security for its costs of the appeal – whether security for costs should be granted and if so, in what amount Acts Interpretation Act 1951 (Qld), s 14B Justices Act 1886 (Qld), ss 42, 53, 102A, 102C, 102D, pt 2 div 5 Uniform Civil Procedure…