Spinosa v Crime and Corruption Commission
[2020] QSC 321
•22 October 2020
SUPREME COURT OF QUEENSLAND
CITATION:
Spinosa v Crime and Corruption Commission & Ors [2020] QSC 321
PARTIES:
DONATO SPINOSA
(Applicant)
v
CRIME AND CORRUPTION COMMISSION
(First Respondent)
and
QUEENSLAND POLICE SERVICE & OTHERS
(Second to Tenth Respondents)
FILE NO/S:
BS No 8212 of 2020
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
22 October 2020
DELIVERED AT:
Brisbane
HEARING DATE:
12 October 2020
JUDGE:
Bowskill J
ORDERS:
1. The application filed on 18 August 2020, and the proceeding, is dismissed.
2. The applicant pay the respondents’ costs of the proceeding (including the applications filed by each of the first respondent, and the second to tenth respondents, seeking dismissal of the proceeding).
CATCHWORDS:
ADMINISTRATIVE LAW – REASONS FOR ADMNISTRATIVE DECISIONS – EXCLUDED DECISIONS – application for a statement of reasons in relation to what are claimed to be decisions by police not to investigate, or further investigate complaints of alleged assaults, and decisions by the Crime and Corruption Commission not to investigate, or further investigate, allegations of police misconduct – whether such decisions are excluded decisions, for the purposes of part 4 of the Judicial Review Act 1991 (Qld)
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – APPLICATIONS – applications to dismiss the proceeding under s 48 of the Judicial Review Act 1991 (Qld), if it is taken to be an application for a statutory order of review
COUNSEL: The applicant appeared on his own behalf
M G Docwra (sol) for the first respondent
M C O’Brien (sol) for the second to tenth respondents
SOLICITORS: The applicant appeared on his own behalf
M G Docwra (sol) for the first respondent
M C O’Brien (sol) for the second to tenth respondents
On 18 August 2020, Mr Spinosa filed an application in this court headed “Application Relating to Statement of Reasons”. He purported to name the following as defendants:
“CCC
Qld Police
Ethical Standards Command
Holland Park Police
Boondall Police
Constable Rickards
Brisbane City Police
OIC S/Sgt Dan O’Connor
Dutton Park Police”
The body of the application reads:
“Application in relation to the decision of the respondent that (specify decision)
The applicant is aggrieved by the decision because –
1. The Police refuses to investigate assault QP1702188361 claiming my assault complaint is ‘vexatious’ because I didn’t have a mark when I told them I felt pain. Please refer to letter attached.
2. The Police refuses to investigate other assault matters, including very serious sexual assaults (grabbed by testicles) as outlined in the letter attached.
3. OIC’s and complaints agencies (ESC and CCC) refuses to investigate and address the issues I raised as outlined in letter attached.”
No decision is identified in the application.
The application was accompanied by two affidavits of Mr Spinosa, annexing documents identified as exhibits A (letter addressed to Judge of Supreme Court dated 29 July 2020), B (Police Report QP1702188361), C (police statement QP 1702188361), D (letter from OIC Holland Park QP 1702188361), E (psychologist letter of trauma suffered), F (evidence of medical certificates), G (police statement for Jose sexual assault matter and other assault matters) and H (police report QP 080081787).
The letter which is exhibit A begins by saying “I would like the decisions made by Police reviewed regarding the December 2017 Holland Park assault matter (QP1702188361) and other assault complaints”. The letter is lengthy and rambling. It also contains a great deal of offensive, abusive commentary directed at various police officers, the police service generally, and other people generally. But doing the best I can, it appears the applicant’s complaint(s) relates to:
(a)A decision made by one or more police officers refusing to investigate (or perhaps investigate further) an alleged assault complained of by Mr Spinosa.[1] This complaint appears to have been given the reference number QP 1702188361.[2] It seems to arise out of an allegation by Mr Spinosa that, in December 2017, he was assaulted by someone who was in a café Mr Spinosa had been to.[3]
(b)A decision made by one or more police officers refusing to investigate (or further investigate) alleged sexual and other assaults complained of by Mr Spinosa.[4] It seems to arise out of allegations by Mr Spinosa of sexual and other assault which he says occurred when he was working for a construction company in about 1990-1991, and then 1994. He may have made a complaint about this in about 2007; and then made a formal statement to police at the beginning of 2018.[5]
(c)A decision by the Crime and Corruption Commission refusing to investigate (or further investigate) the applicant’s complaints about police misconduct, which appear to arise out of the above, and other matters concerning various police officers raised by the applicant.[6]
[1]Page 1 of exhibit A.
[2]See exhibit B.
[3]Page 6 of exhibit A.
[4]Pages 19 and 22 of exhibit A.
[5]See exhibit C.
[6]Page 28 of exhibit A.
Each of the first respondent (the Crime and Corruption Commission) and the second to tenth respondents (essentially represented by the second respondent, the Queensland Police Service) have applied for orders that the (originating) application filed by Mr Spinosa on 18 August 2020 be dismissed under s 48(1) of the Judicial Review Act 1991 (Qld), on the basis that it would be inappropriate for the proceedings in relation to the application to continue, no reasonable basis for the application is disclosed, the application is frivolous or vexatious and/or the application is an abuse of process.
Section 48(1) confers power on the court to dismiss an application made under ss 20, 21, 22 or 43 – which refer to various types of application for review of decisions, or conduct, or failure to make a decision.
It is not entirely clear on the face of the documents filed by Mr Spinosa what the nature of his application is. It is described as an “application relating to statement of reasons”; although having regard to exhibit A to Mr Spinosa’s affidavit filed on 18 August 2020, it seems he may have wished to apply for a statutory order of review. When asked by me at the hearing on 12 October 2020, Mr Spinosa said he had probably made a mistake, and should have applied for judicial review, but had “rushed through it”.
On either characterisation his application must fail.
If Mr Spinosa’s application is for an order requiring the provision of a statement of reasons for either the decisions of the police officers refusing to investigate, or the Crime and Corruption Commission refusing to investigate, it is appropriate to dismiss the application, for the following reasons:
(a)Under s 31 of the Judicial Review Act, a “decision to which this part [part 4] applies” means a decision to which the Judicial Review Act applies (as to which see s 4) but does not include a decision that includes, or is accompanied by, a statement giving reasons for the decision, or a decision included in the class of decisions set out in schedule 2;
(b)Schedule 2 identifies “decisions for which reasons need not be given”. These include:
(i)at item 1, decisions relating to the administration of criminal justice and, in particular, decisions in relation to the investigation or prosecution of persons for offences against the law of the State; and
(ii)at item 3, decisions in relation to the investigation of persons for corruption under the Crime and Corruption Act 2001 (Qld).
(c)The decisions which seem to be identified by Mr Spinosa in exhibit A, referred to in subparagraphs [5](a) and [5](b) above – refusing to investigate, or further investigate, complaints of alleged assaults – fall within item 1. Accordingly, neither the Queensland Police Service, nor any particular officer who may have made the decision, can be compelled under the Judicial Review Act to provide a statement of reasons.
(d)The decision(s) which seem to be identified by Mr Spinosa in exhibit A, referred to in subparagraph [5](c) above – refusing to investigate complaints of police misconduct – fall within item 3. It is appropriate to have regard to the definitions of “investigate” and “corruption” in the Crime and Corruption Act. “Corruption” is defined to mean corrupt conduct or police misconduct. “Investigate” includes “examine and consider”. Accordingly, the Crime and Corruption Commission cannot be compelled, under the Judicial Review Act, to provide a statement of reasons for a decision in relation to the investigation of a complaint of police misconduct.
(e)Further to (d) above, at least in so far as the Crime and Corruption Commission is concerned, on the material it appears the decisions, when communicated to Mr Spinosa in correspondence from the Commission, were accompanied with a statement of reasons.[7] This is a further reason why the application should be dismissed.
[7]See the correspondence exhibited to the affidavit of Ms Rumble, filed 18 September 2020.
If Mr Spinosa’s application could be regarded as an attempt to make an application for a statutory order of review, it is nevertheless appropriate that it be dismissed under s 48 of the Judicial Review Act because:
(a)The application does not properly identify the decision, or decisions, to which it applies.
(b)The application does not identify any ground of review, within the meaning of s 20(2) of the Act. In his oral submissions Mr Spinosa attempted to identify grounds which he would like to rely upon (including taking into account irrelevant considerations, improper exercise of power, acting on a fact for which there was no evidence and failure to make a decision). However, given the wholly unsatisfactory state of the originating application, this does not provide an answer to the respondents’ applications to dismiss the present proceeding.
(c)The application does not identify the relief sought, in a manner which indicates a power under s 30 of the Judicial Review Act is sought to be invoked.
(d)Although the decision(s) complained of by Mr Spinosa are not clearly identified, on any view, having regard to what appears to be the timing of the actions complained of, the application is outside the time limit for an application for review, under s 26 of the Judicial Review Act, and no adequate explanation for the delay is provided.[8]
(e)In so far as Mr Spinosa purports to identify decisions of the Queensland Police Service, or particular police officers, refusing to investigate, or further investigate, his allegations of sexual and other assault, there is authority that such decisions are not amenable to judicial review;[9] and, in any event, on the material exhibited to Mr Spinosa’s affidavits, there was no refusal to investigate – as opposed to a decision not to take further action in relation to the complaints made, on the basis of a lack of substantiation.[10]
(f)In so far as Mr Spinosa purports to identify decisions of the Crime and Corruption Commission, refusing to investigate, or further investigate, allegations of police misconduct, no reasonable basis for the application is disclosed, having regard to ss 41 and 42 of the Crime and Corruption Act (the responsibility of the commissioner of police to deal with complaints of police misconduct); the fact that, on the evidence before the court, the Commission has given the applicant responses, as required by s 46(5) of the Crime and Corruption Act; that it was within the power of the Commission to take no further action in relation to a complaint (s 46(2)(g) of that Act); and the Commission has also notified the applicant, as contemplated by s 216 of that Act, that further complaints about the same matters will not be investigated (placing the applicant at risk of the penalties provided for in s 216 if he makes the same, or substantially the same complaint again in the future).
[8]The only explanation appears at the beginning of the letter which is exhibit A to the applicant’s affidavit filed on 18 August 2020, which states: “Apologies for the delay, I was trying to sort it out with Police, ESC and CCC first before applying for a judicial review because it cost a lot of money. I have exhausted all avenues to make these complaints without any success. These dopey dyslexic dumb bastard Police officers are being ignorant, and pig headed and refusing to address these ridiculously numerous amounts of complaints I made about Police, I’m sick of making complaints about them”. In the letter exhibited to his further affidavit filed on 28 September 2020 Mr Spinosa seeks to elaborate on the reasons for the delay, referring to being a student for the past 10 years, and not being able to afford a lawyer to represent him in a judicial review proceeding, as well as a shoulder injury causing him difficulties using a computer and a mouse (at p 3).
[9]See R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118; Martin v Nalder [2016] WASC 138 at [41]-[42] and [43] to [56]; Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747 at [35].
[10]See also Likiardopoulos v R (2012) 247 CLR 265, as to the unavailability of judicial review in relation to the exercise of prosecutorial discretions.
In a letter annexed to a further affidavit of Mr Spinosa, filed on 28 September 2020, he asserts that he would like to “amend the judicial review to include about the CCC refusing to investigate or look into corruption at a university” (p 5), about which Mr Spinosa also appears to have made a statement to police (separately annexed to this affidavit). Given the wholly unsatisfactory state of the application which has been filed, even reading it generously by reference to the exhibits to the affidavits of Mr Spinosa, I am not persuaded that it would be appropriate to permit Mr Spinosa to “amend” his application in any way. The proposed amendment(s) does not cure any of the defects.
For all of those reasons, I am satisfied it is appropriate to dismiss the application filed 18 August 2020, and as that was an originating application, dismiss the proceeding.
It is appropriate also to order that the applicant pay the costs of the first respondent, and the second to tenth respondents, of the proceedings (including the applications filed by each of the first respondent, and the second to tenth respondents, seeking dismissal of the proceeding).
3
0