Petrak v QPS

[2014] QMC 9

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Petrak v QPS [2014] QMC 9

PARTIES:

MELISSA JANE PETRAK

(applicant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

M232/14

DIVISION:

Magistrates Court

PROCEEDING:

Application for stay of proceedings

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

23 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2014

MAGISTRATE:

Thacker AC

ORDER:

Application granted

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE - charges on which no evidence was offered and dismissed  and later re-charged – abuse of process for being oppressive application by defendant – power in Magistrates Court – factors considered in light of more recent legislative amendments consequent on Moynihan Report.

CITATION

Jago v The District Court of NSW & Others (1989) 168 CLR 23
Williamson v Trainor [1992] 2 Qd R 572
The Queen v O’Loughlin [1971] 1 SASR 219

Edebone vAllen [1991] 2 VR 659

Walton v Gardiner (1993) 177 CLR 378

Bradley James Rankin and Alan Leslie Roberts v Police

Gaby Rona v District Court of South Australia and Ors

(1995) 63 SASR 223

COUNSEL:

Ms Capellano for the applicant

SOLICITORS:

Guest Lawyers for the applicant

QPS Prosecutions Corp Brisbane Solicitor for the respondent

1. The applicant (referred to as the defendant hereafter) is the defendant in criminal proceedings alleging charges against her for four offences occurring on 27th January 2012: (1) Assault occasioning bodily harm to a security guard. (2) Serious assault of a police officer (3) Wilful damage and (4) Public nuisance offence.

1. The defendant is seeking to stay the criminal proceedings on the grounds they are an abuse of process for being oppressive given she had previously been charged in 2012 with the same charges (“the 2012 case”) and the matter was resolved.

1. In the 2012 case the chronology of events was as follows: On 11^th April 2012 Directions made pursuant to section 83A Justices Act were made and the trial was Ordered to be listed to be heard on 1st June 2012 with a Direction the Prosecutor deliver to the defendant the brief of evidence by 16th May 2012. Despite repeated requests by the defendant the prosecution did not provided neither the brief of evidence nor any explanation for the delay in providing it. Albeit very late in the scheme of things, on 14^th and 16^th May 2012 admissible prosecution witness statements were prepared by the informant and provided to the Prosecutor but not disclosed to the defendant.

1. On 1^st June 2012 the prosecution brief of evidence still had not been provided to the defendant and the trial did not go ahead. Rather, the prosecutor offered no evidence in respect of all the charges and the charges were consequently dismissed.

1. Approximately one and a half years later - in January 2014 the defendant has been re-charged.

1. Firstly, I am satisfied this court has the jurisdiction to stay proceedings which are an abuse of process: Jago v The District Court of NSW & Others (1989) 168 CLR 23 and Williamson v Trainor [1992] 2 Qd R 572 applies in my view despite some comments by Magistrate R. Kilner, Southport Magistrates Court in the matter of Police v Charlwood [2011] QMC 41. In that case the question was whether a charge on which no evidence was offered could be reopened. In that context, the Magistrate took a contrary view about whether or not the Magistrates Court has power to order a permanent stay of summary hearings because of abuse of process. There may be something in the difference between “a stay of proceedings” and “a permanent stay of proceedings”. It was not raised before me. I notice Magistrate Kilner comments:

[44]The annotations to Carter’s Criminal Code of Queensland para 560.95 cite Williamson’s case as authority for the proposition that Magistrates have power to stay permanently summary criminal trials. When Williamson’s case is examined however it is hard to see how that proposition can be distilled. Certainly the court was of the view that a Magistrates court has power to prevent an abuse of its own process, but I can find no passage that extends that power to ordering a permanent stay of a criminal trial. Reference in Williams’ case was made to Jago v District Court (NSW) (1989) 168 CLR 23, but again no authority can be found there that gives a Magistrate power to order a permanent stay of summary hearings because of abuse of process.

[45]The unsatisfactory state of the law on the subject reinforces what Dowsett J. said in Williamson’s case that the issue needs to be clarified.

[46]The issue is further muddied when reference is had to the South Australian case of The Queen v O’Loughlin [1971] 1 SASR 219 and the Victorian case of Edebone v Allen [1991] 2 VR 659. Neither case was precisely on point but in the former case the full court of the South Australian Supreme Court held that there was no power in a Magistrate to order a stay of proceedings, yet in the latter case it was held that a Magistrate, for proper reasons, could order a permanent stay. In Allen’s case the court held that on the authority of Jago’s case it was inappropriate to order a permanent stay based on the issue of delay in bringing proceedings and in O’Loughlin’s case it was held that a Magistrate had no power to order a stay of a charge that amounted to a second charge arising out of the same facts. It held the appropriate procedure was to dismiss the second charge after the first charge had been disposed of and after first giving the prosecution a chance to withdraw the charge.

1. Moving to a consideration of the application then, I commence with the guidance provided in Walton v Gardiner (1993) 177 CLR 378. In the joint judgment of Mason CJ, Deane and Dawson JJ relevant considerations were suggested, as follows (at 395 - 396):

As was pointed out in Jago, the question whether criminal        proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crimes, and the need to maintain public confidence in the administration of justice.

1. The criminal justice system in Queensland at least has refined further since 1993 and recently again by the introduction of the legislative amendments caused by the Moynihan Report to the Queensland Government. Court management of criminal charges is undertaken to a very close degree now by use of directions – such as the court direction given to the prosecutor to disclose the brief of evidence to the defendant by 16 May 2012 in the 2012 case.

1. Consequently, added to the Walton v Gardiner list is a consideration of the Queensland laws and policy considerations attached to the passing of the amendments to the Justices Act, especially the introduction of section 83A – Directions hearings in preparation for trials.

1. Also, I refer to Chapter 62 Criminal Code dealing with the rules about bringing a person to trial. That chapter commences with the requirement that the Prosecutor must present the indictment no later than 6 months after the date on which the person was committed for trial…. I refer to that because it demonstrates the gravity with which the changes to the criminal justice system must be considered. It is based upon the premise that criminal charges should be resolved in a timely fashion unless there is a very good reason for delay.

1. The discretion to grant or not grant leave to stay the proceedings in contested situations such as this one will always look at the particular circumstances of each case. So I asked: what was the reasoning detail for offering no evidence on the initial charges? The prosecution itself is not clear about that and concedes the better course would have been to seek an adjournment and pay the costs thrown away by the failure to be ready on time with the brief of evidence. Better still an earlier attendance to the looming problem would have avoided the situation reached at 1^st June 2012. That is all in hind sight I accept.

1. I understand the reason for delay in preparation by the prosecution of the original charges in this matter were caused by the informant being on holidays and not returning to work until the day before the brief was due. In any event the witness statements were prepared in good time. The problem is that the prosecutor not only failed or refused to disclose this to the defendant, no indication of the problem was revealed to the court. Further, the prosecutor chose not to seek an adjournment and not to withdraw the charge but simply offered no evidence against the defendant on 1^st June – the trial date.

1. The two most important considerations of the circumstances in which the power to stay these criminal proceedings may be exercised, are to my mind:

1.The court maintains control of proceedings and must ensure transparent application of rules. No party is immune from the legislated case management regime. In other words, there must be compliance with court orders and directions and they cannot be circumvented in the way proposed by the prosecution in this case: see similar observation by Derrington J in Williamson v Trainor [1992] 2 Qd R 572 at p. 583.

2.That the court must take care when exercising criminal jurisdiction not to undermine the intentions of the legislature to have an efficient disposal of criminal prosecutions in a way that maintains public confidence in the administration of justice. That must translate to requiring the QPS prosecution equally with all other parties to comply with court orders and directions.

1. While not referred to by either party before me, nor binding on me, I have also had the opportunity to read some decisions of other Magistrates:  In particular, Magistrate D. Heilpern, NSW Local Court at Lismore in the matter Bradley James Rankin and Alan Leslie Roberts v Police decided 30 October 2013. It canvasses many of the same considerations required in this matter. In particular, factors related to the court’s maintenance of control over the management of trials and doing so in an efficient way. Consideration was given to the case of Gaby Rona v District Court of South Australia and Ors (1995) 63 SASR 223, a case where the South Australian DPP had failed to comply with a practice direction, and the matter could not go to trial. The trial judge stayed the proceedings. His decision was overturned on appeal and the matter re-mitted, on the basis that his orders were clearly to punish the prosecution, rather than applying the correct criteria on a stay application. However, the Supreme Court (per King CJ) emphasised that court management of its resources was an appropriate matter to consider in a stay application, including in a situation where otherwise it might mean the prosecution would be immune from the case management regime and the power of the court to control its own process and proceedings would be defeated see paras 48 – 49.

1. The important matters to be considered are therefore:

• the imperative for the Magistrates Court to manage proceedings before it according to the current legislative amendments; and especially,
• the more recent amendments to the criminal justice system referred to above; and
• the imperative for all parties to comply with court orders and directions and not act to avoid them; and
• the absence of any potent reason why the prosecutor withdrew the charges on the 1^st June 2012 that would justify the matter being re-litigated.

1. I can reach only one conclusion, that there is no basis upon which I can allow the prosecution to have a second chance to present their case as that would undermine the criminal justice system now in place in this state. In other words, unless there is some special reason change in the circumstances of the case not available to the Prosecutor at the time of the initial charge and trial preparation, there should be a true finalisation of a matter as ordered by the court - the charges were dismissed on 1^st June 2012.

1. I Order:

1.          The application to stay the proceedings is granted.

2.The prosecution (QPS Prosecutions Corp) pay costs of the defendant fixed in the sum of $2,500.00 within 30 days.