Re Smith

[1992] QCA 424

IN THE COURT OF APPEAL [1992] QCA 424

SUPREME COURT OF QUEENSLAND	No. 109 of 1991
BETWEEN:
HUGH ALAN SMITH
(Applicant)	Appellant
AND:
JANET CERON DR. DONALD SPENDER DR. MICHAEL DONNELLY DR. MICHAEL BEECH DR. JOHN ALLAN DR. TREVOR WOOD MR. B. BARLOW DR. PERCY TUCKER DR. IAN WILKEY DR. PATRICK KERRISK DR. JOHN BREINL MR. R. CAMBELL PROF. BASIL JAMES NGAIRE CALISTA CURTAYNE
MR. ROBERT BOWMAN and
MR. K.V. MCELLIGOTT(Respondents)	Respondents

REASONS FOR JUDGMENT OF THE COURT

Delivered the 2nd day of December 1992

The appellant was the unsuccessful applicant for leave of the

Supreme Court pursuant to s. 686 of the Criminal Code to present

an information against each of sixteen people for indictable offences. That section gives the Supreme Court power to grant such leave and does not, on its face, limit the discretion of the court in that respect in any way. Order IV r. 1 of The

Criminal Practice Rules of 1900 provides that applications for

such leave shall be made by motion in open court for an order calling on the accused person to show cause why leave should not be granted. That procedure was followed here.

The Supreme Court judge who heard the application refused leave and it is from the exercise of his discretion in that respect that this appeal is brought. Consequently, familiar principles

relevant to appeals against the exercise of discretion by a primary judge are applicable to this appeal. Familiar though they be to lawyers, we set them out because the appellant, who

is not a lawyer, argued his own appeal. It is not enough, in an

appeal of this kind, that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion; that the judge acted upon a wrong principle or allowed extraneous or irrelevant matters to guide or affect him or mistook the facts or failed to take into account some material consideration. Alternatively, if upon the facts the decision is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. See House v. The King (1936) 55 C.L.R. 499 at

504-5.

The indictable offences in respect of which the appellant sought

leave to institute proceedings included the offences of

deprivation of liberty (s. 355 of the Criminal Code), giving

false certificates by persons charged with duties relating to

liberty (s. 356), concealment of matters affecting liberty (s.

357), unlawful threats (s. 359), failure to do an act when a person undertakes to do an act the omission to do which may be

dangerous to human life or health (s. 290), stupefying in order

to commit an indictable offence (s. 316), and failing to supply

necessaries (s. 324). The sixteen respondents included doctors and staff at the psychiatric unit of the Townsville Hospital, officers of the Department of Health, the former Minister for Health, and a former woman friend of the appellant. It is

unnecessary for the purposes of this appeal to discuss the facts giving rise to the assertion by the appellant that any of the

sixteen respondents was guilty of a criminal offence. This appeal may be resolved without considering those facts or the precise allegations which the appellant makes against each of

the respondents.

Before us and apparently below the appellant asserted that he

had approached the police with a view to their instituting

proceedings but without success. The only evidence on this

question before us is in the appellant's affidavit of 9 October

1991 in which it is sworn that the Queensland Police Department

were approached "March 1991 to present" "resulting in inaction".
What the approach was does not appear though it may appear in
the appellant's earlier oral evidence referred to in that

affidavit. We are prepared to assume in the appellant's favour that, notwithstanding complaint having been made by the

appellant in respect of each of the offences leave to present an information in respect of which is now sought, the police have

failed to act.
Where proceedings are instituted by complaint, the offences in

respect of which the complaint is made are offences other than those of which injury to the person or property of the complainant is an element, and the complainant is a person other than a person in a specified official position, the procedure

set out in ss. 102A to 102H of the Justices Act 1886 must be complied with. The offences or at least most of the offences sought to be charged here appear to be of that kind and the appellant is not a person in any such specified position. Even where the offences are not of that kind but the complainant is a person other than one in such specified official position, the

defendant is not required to appear in person until the justices before whom the complaint is heard are satisfied that the

evidence is sufficient to put the defendant upon trial (s. 103A(1)) and if it is not sufficient for that purpose and the

defendant is in custody he or she is entitled to be discharged

(s. 104(2)).

The appellant did not make any such complaint. Unless the judge below was mistaken he has given conflicting reasons for his

failure to do so. There is no evidence on that question, the

appellant's current explanation for his failure appearing in his notice of appeal and in his statements to us from the bar table.

From those it appears that, instead of informing a Justice of

the Peace that he wished to make complaints under the Justices

Act 1886 that persons were guilty of indictable offences, a

course which had been suggested to him by the Attorney-General in his letter of 1 July 1991, he apparently approached, in turn, two Justices of the Peace, telling each that he wished to

proceed pursuant to s. 686 of the Criminal Code. It is not

surprising that neither understood what he wanted to do.

Consideration of the question whether there is sufficient

evidence to put an accused on trial is "such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair": Barton v. The Queen (1980) 147 C.L.R. 75 at 100, 109; and compare 105. It confers on an accused the opportunity of being discharged by the magistrate without having to undergo a

trial, of gaining relatively precise knowledge of the case

against him, of hearing the Crown witnesses give evidence on oath and of testing that evidence by cross examination: Barton at 105. These considerations have circumscribed the discretion to present ex officio indictments: R. v. Webb (1960) Qd.R. 443

at 447-8.

The procedure provided by ss. 102A to 102H, which as we have

said would apply to proceedings in respect of most if not all of the above alleged offences, provides additional protection to an

accused. He or she may apply for an order that the complainant furnish in writing particulars of the charge in the complaint

and if such an order is made and the complainant does not furnish particulars which in the court's opinion are sufficient

it shall order the complaint to be struck out and may award

costs to the accused: s. 102B. The accused may apply for an order that the complaint be dismissed on the ground that it is an abuse of process or frivolous or vexatious, such application may be made orally, an order for security for costs may be made against the complainant and if the complaint is struck out for failure to provide security or dismissed, the complainant may be

ordered to pay the accused's costs: s. 102C. And if the complainant does not proceed with due diligence to prosecute the complaint the complaint may be struck out for want of prosecution, and again costs may be ordered against the

complainant: s. 102G.

The procedure under s. 686 and O. IV r. 1 would not ordinarily

involve committal proceedings unless a stay were granted in

circumstances to which we refer below and it does not, of course, involve the additional protection provided by ss. 102A to 102H. On the other hand, s. 686 is a valuable safeguard for

a private citizen against refusal by police and Justices of the

Peace to act where an offence has been committed.

In Ex parte Marsh (1966) Qd.R. 357 Wanstall J. (as he then was)

decided that the discretion under s. 686 should not be exercised

in favour of the presentation of an information in the absence

of some unusual if not extraordinary feature. He reached that
conclusion after considering:

(a)the historical precedent under the common law for such a

power from which might be inferred "a continuance of the

tradition of sparse use which in that time had been

judicially developed and maintained";

(b)the absence of any instance since 1899 of the use of this

procedure;

(c)the attitude adopted under analogous provisions in New South

Wales prior to 1899 "because it must be recognised as the

source of the legislature's understanding of the kind of discretion it was conferring on the judges in the Criminal Code"; and

(d)the existence of the protection which committal proceedings

provided to an accused person.

It was upon the last consideration that his Honour thought the

exercise of his discretion should be circumscribed. His Honour seemed to think that the presentation of an information pursuant to leave granted under s. 686 would eliminate the traditional

safeguard of a committal. If by that he meant that, in proceedings under that section, committal proceedings could

never take place, we disagree. We think that, in an appropriate case in which leave is granted, the Court may grant a stay so as to permit committal proceedings to take place: Barton at 96.

Nevertheless we think that this is an important consideration,

for reasons referred to above, when regard is had to two further

considerations: the existence of alternative means by which a private citizen may, without leave, institute criminal

proceedings for an indictable offence which have committal

proceedings as an integral element; and whether the applicant

has sought to utilise all of those means. Here the appellant

failed to seek to institute proceedings pursuant to s. 42 of the Justices Act 1886. He gave no satisfactory explanation for that

failure and there was no other feature of the case which made it

plainly unjust to refuse leave. Accordingly, his Honour was not in error in exercising the discretion in the way in which he

did.

The appeal should be dismissed with costs.