Police v Luca
[2011] QMC 34
•10 June 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Luca [2011] QMC 34
PARTIES:
POLICE
(prosecution)
v
CHRISTIAN LUCA
(defendant)
FILE NO/S:
MAG92349/11(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge – Application to stay proceeding
ORIGINATING COURT:
Magistrates Court at Beenleigh
DELIVERED ON:
10 June 2011
DELIVERED AT:
Beenleigh
HEARING DATE:
30 May 2011
MAGISTRATE:
McDougall J
ORDER:
The charge is permanently stayed.
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – STAY OF PROCEEDING – abuse of process
Criminal Code (Qld), s 119B
R v Ensbey; ex parte A-G (Qld) [2004] QCA 335
Doonan –v- McKay [2002] QCA 514
COUNSEL:
Longhurst (Constable) for prosecution
Crowley for defendant
SOLICITORS:
Prosecution appeared on own behalf
Legal Aid Queensland for defendant
Reasons for Decision
On 17 August 2009 the Police charged the defendant Christian Luca with the following charge:
That on the 16th day of August 2009 at Eagleby in the State of Queensland one Christian Luca did an act namely threaten violence which act was likely to cause Jessica Garland to fear bodily harm to herself.
On 30 May 2011 the prosecution offered no evidence on that charge and the charge was struck out.
On 30 May 2011 the prosecution sought to substitute the above mentioned charged with the following charge:
“That on the 16th day of August 2009 at Eagleby in the State of Queensland one Christian Luca without reasonable cause threatened to cause detriment to one Jessica Maree Lang a witness for intimidation because of evidence which may lawfully done(sic) by one Jessica Maree Garland in a judicial proceeding namely a criminal trial.”
Leaving aside the grammatical incoherence of that charge, counsel for the defence Mr Crowley made application to the Court for a permanent stay of prosecution on this charge. The reason given for the application was that the charge did not reflect the state of the law as contained in section 119B(b) of the Criminal Code as at 16 August 2009.
Section 119B of the Criminal Code was introduced to the Code by the Criminal Law Amendment Act 2002. The wording of the charge at that time was as follows:
“119B Retaliation against judicial officer, juror, witness or family.
A person who, without reasonable cause, causes, or threatens to cause, any injury or detriment to a judicial officer, juror, witness or member of the family of a judicial officer, juror or witness in retaliation because of –(a)anything lawfully done by the judicial officer as a judicial officer; or
(b)anything lawfully done by the juror or witness in any judicial proceeding;
Is guilty of a crime.”
“Judicial proceeding” is defined in section 9 of the Criminal Law Amendment Act 2002 as follows:
“Judicial proceeding” includes any proceeding had or taken in or before any Court, Tribunal or person, in which evidence may be taken on oath.”
As at 16 August 2009 there had been nothing done by Jessica Garland (presumably a witness) in any judicial proceeding. The Criminal Organisation Amendment Act 2009 commenced on the date of ascent 03 December 2009. Section 119B was amended by section 148(3). That subsection provides as follows:
“148 Amendment of section 119B (retaliation against judicial officer, juror, witness etc)
Subsection 3 section 119B(1), paragraphs (a) to (c), after “done” – insert – “or omitted to be done or that may be lawfully done or omitted to be done”.
Section 119B on 16 August 2009 was considered in the Court of Appeal in R v Ensbey; ex parte A-G (Qld)[1]. Jerrard JA said:-
[46] “The definition of “judicial proceeding” provided in s 119 of the Code is an inclusive definition, and includes proceedings “had or taken or in or before any Court, Tribunal or person, in which evidence may be taken on oath”. That inclusive definition suggests a proceeding on foot or completed, but the term is used in chapter 16 of the Code in differing ways. In s 123, dealing with the offence of perjury, it is provided: ‘Any person who in any proceeding, or for the purpose of instituting any proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime, which is called “perjury’.”
[47] The term “judicial proceeding” as used therein includes a proceeding which is in contemplation only. By way of contrast s119B, dealing with retaliation against a judicial officer, juror, witness or member of the family of one of those, the term is used to describe a proceeding in which something has already been lawfully done by a juror or witness, and accordingly a proceeding which has occurred or is still taking place.”
[1] [2004] QCA 335
The prosecution proposed to amend the charge. I am uncertain as to what the final wording of the charge might be after that amendment however it cannot overcome the fact that the charge must relate to something that has “already been lawfully done by the witness”. The very purpose of the amendment to s119B by the Criminal Organisation Act 2009 was to overcome this problem.
The defendant argues that as the charge is doomed to fail it should be permanently stayed as an abuse of process. The defendant also argues that he is prejudiced by the delay in bringing the charge and had he been charged with the offence in its current form in 2009 he would have dealt with it then along with other charges before a Jury in the District Court.
Can I stay the proceedings?
In Neill –v- County Court of Victoria[2] Redlich J said:-
[31] “There are numerous illustrations of the powers of a Magistrate which arise by necessary implication. A magistrate may give leave to an informant to withdraw any information prior to or during the course of the hearing. The implied power to stay proceedings has been invoked in a series of cases in which offenders were unlawfully brought within the Court’s jurisdiction. The power of a Magistrate to compel production of documents by an informant is necessarily implied to achieve fairness.
[32] In the absence of statutory limits a discretionary power to stay proceedings is necessarily implied. A Magistrate fully determining rights and obligations in the exercise of the Court’s summary jurisdiction has power to stay criminal proceedings before it would show an abuse of process.”
[2] [2003] VSC 328
In Doonan –v- McKay[3] Williams JA said:-
[12]“Williams –v- Spautz[4] (at 518) confirms that Australian Superior Courts have inherent jurisdiction to stay proceedings which are an abuse of process. Nothing was said in argument in this case as to the jurisdiction of a Magistrates Court (or District Court) to stay proceedings in such circumstances and it may be assumed for present purposes that the jurisdiction is the same in all Courts associated with this case. The critical principal established by Williams v Spautz (at 522) is that proceedings may be stayed where there have been instituted for an improper purpose even where there were reasonable grounds for commencing the proceeding, and even where the moving party had established a prima face case. The type of improper purpose discussed in that case was using the proceedings as a means of extorting a pecuniary benefit from the defendant, or obtaining some other collateral benefit, rather than prosecuting the proceedings to a conclusion.”
[3] [2002] QCA 514
[4] Williams –v- Spautz [1992] HCA 34
It is not argued by the defendant that these proceedings were commenced for an “improper purpose”. At [15] Williams JA said “The High Court in Walton –v- Gardner[5] following and applying Jago –v- District Court (NSW)[6] considered when criminal proceedings should be permanently stayed on the ground of abuse of process and indicated that the answer was to be reached “by a weighing process involving a subjective balancing of a variety of factors and considerations. Among these factors and considerations are the requirements of fairness to the accused, the legitimate public interest in disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”
[5] 1992-1993 177 CLR 378
[6] [1989] HCA 46
I find that pursuit of a charge doomed to failure as I find this charge is, is not fair to the accused, not in the public interest and would do nothing to maintain public confidence in the administration of justice.
In the circumstances I find that the charge has no prospect of success against the defendant and should be permanently stayed.
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