R v Pratt and Sweeney; ex parte

[1998] QCA 302

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 11598 of 1997

Brisbane

[R v. Pratt and Sweeney; ex parte A-G]

THE QUEEN

v.

HIS HONOUR JUDGE PRATT Q.C.

- and -

JOSEPH VIVIAN SWEENEY

(Respondent)

EX PARTE THE ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

Pincus J.A.
McPherson J.A.

Byrne J.

Judgment delivered 2 October 1998

Judgment of the Court

APPLICATION GRANTED. ORDER THAT THE JUDGE'S ORDER STAYING THE FURTHER PROSECUTION OF THE PROCEEDINGS UNTIL FURTHER ORDER BE SET ASIDE AND THAT ALL NECESSARY ADJOURNMENTS BE ENTERED UP TO ENABLE THE PROSECUTION OF THE RESPONDENT UPON THE INDICTMENT TO PROCEED ACCORDING TO LAW.

CATCHWORDS:	CRIMINAL LAW - practice and procedure - stay of indictment set aside - respondent encouraged brother to drive dangerously causing grievous bodily harm - brother pleaded guilty, contending that he had not heard incitement - whether trial judge erred in staying the prosecution as an abuse of court's process - Crown was not seeking to adopt fundamentally inconsistent positions in the two cases - case had some prospect of success - s. 30 District Court Act 1967.
Counsel:	Mr M.C. Chowdhury for the applicant Mr B.G. Devereaux for the respondent, Sweeney
Solicitors:	Director of Public Prosecutions (Queensland) for the applicant Legal Aid Queensland for the respondent, Sweeney
Hearing Date:	7 September 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 11598 of 1997

Brisbane

Before Pincus J.A.

McPherson J.A.

Byrne J.

[R v. Pratt and Sweeney; ex parte A-G]

THE QUEEN

v.

HIS HONOUR JUDGE PRATT Q.C.

- and -

JOSEPH VIVIAN SWEENEY

(Respondent)

EX PARTE THE ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 2 October 1998

1. Joseph Sweeney (“the respondent”) was charged on indictment with dangerous driving

causing grievous bodily harm. On the day appointed for his trial, before he was called upon

to plead, a judge of the Brisbane District Court ordered that proceedings on the indictment be

stayed. Pursuant to s.30 District Court Act 1967, the Attorney-General now seeks to have the

stay set aside.

1. The case the prosecution wished to advance before a jury was, in substance, this. The

respondent and his brother, Michael Sweeney, were part of a group that became involved in

an altercation with a rival group at the Samford Hotel. Outside the hotel, Michael Sweeney

got behind the wheel of a sedan and started the engine. The respondent was about to get into the passenger seat of the car when he yelled out to his brother to “run over” the rival group

and “kill” them. On the prosecution case, this outburst amounted to such encouragement to

his brother to use violence as to make the respondent liable with his brother for the harm

which resulted when, moments later, Michael Sweeney “revved” the engine and, with tyres

screeching, drove the vehicle into the rival group, striking some of them. See s.7(1)(c) and (d)

Criminal Code.

1. The judge decided that the prosecution should be stayed as an abuse of the court's

process on two grounds. The first relates to the sentencing of the respondent's brother, who

had pleaded guilty to dangerous driving causing grievous bodily harm and been sentenced to

imprisonment for his part in the attack. The judge was persuaded that in those sentence

proceedings the prosecutor had accepted that Michael Sweeney had not heard the incitement

attributed to his brother. On the respondent's trial, however, the Crown case was that Michael

Sweeney heard the respondent's outburst. Taking the view that in prosecuting the respondent

the Crown ought not adopt a position so at odds with the stance taken when Michael Sweeney

was sentenced, the judge considered that the respondent's prosecution must be restrained.

Secondly, on a consideration of the evidence sketched by the prosecutor during argument, the

judge thought it more likely than not that the respondent's brother had not heard the outburst.

The prosecution case, therefore, would not succeed, and the case should not be put before a

jury. The judge was mistaken.

1. His Honour erred in thinking that the Crown had sought to have Michael Sweeney

sentenced on the footing that he had not heard what his brother had said when he got into the

car. At Michael Sweeney's sentencing, his counsel submitted that he had not heard the words

attributed to the respondent, adding “I understand from my learned friend that that's not

contested”. The prosecutor replied, “Well, I can't say what he heard ...”. That response

scarcely announced that the Crown was content that Michael Sweeney be sentenced on the

basis that he had not heard what the respondent is now alleged to have said. Put shortly, there

is no satisfactory factual foundation for the view that the Crown was seeking to adopt

fundamentally inconsistent positions in the two cases, which makes it unnecessary to consider

whether had such conduct by the prosecutor actually occurred, the inconsistency could have

justified a stay.

1. The judge also erred in thinking that a conclusion by him that the case seemed likely

to fail justified an order preventing its presentation to a jury. The case as outlined to the judge

had some prospect of success. Eight witnesses were to be called to testify that they had heard

the respondent call out words which could have encouraged Michael Sweeney to use the car

as a weapon, or to kill, momentarily before Michael Sweeney drove the car into the rival

group. And the prosecutor told the judge that at least one of those witnesses was expected to

give evidence from which the jury might have determined that Michael Sweeney had indeed

heard the respondent speak the words attributed to him. Certainly the prosecution case was

not clearly foredoomed to fail. It should therefore have been permitted to proceed: cf Doney

v The Queen (1990) 171 CLR 207, 214-215; R v Smith [1995] 1 VR 10, 14-16, 25-28.

1. Listing arrangements in the Brisbane District Court may mean that it is inappropriate

to direct that the judge be the trial judge. It is therefore ordered that the judge's order staying

the further prosecution of the proceedings until further order be set aside and that all necessary

adjournments be entered up to enable the prosecution of the respondent upon the indictment

to proceed according to law.