Stenner v Crime and Corruption Commission

Case [2019] QSC 202

SUPREME COURT OF QUEENSLAND

CITATION:

Stenner v Crime and Corruption Commission & Ors [2019] QSC 202

PARTIES:

MICHELLE STENNER

(applicant)

v
CRIME AND CORRUPTION COMMISSION
(first respondent)
CHAIRMAN OF THE CRIME AND CORRUPTION COMMISSION
(second respondent)
STATE OF QUEENSLAND

(third respondent)

FILE NO:

BS No 2947 of 2019

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2019

JUDGE:

Ryan J

ORDER:

1.     The application is dismissed.

2.     I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS – DECLARATIONS – GENERALLY – where the applicant was charged on indictment with offences of perjury which were before the District Court – where applicant applied for a declaration in the Supreme Court which, she contended, would have a “determinative” effect on the criminal proceedings – whether application should be dismissed in the exercise of the court’s discretion to ensure there was no fragmentation of the criminal proceedings – whether the case was exceptional, and warranted the Supreme Court’s intervention, including because the issue fell within the realm of administrative law – whether District Court a “singularly inapt” forum for the determination of such an issue by way of collateral challenge

Anderson v AG (NSW) (1987) 10 NSWLR 198

CEO of Customs v Jiang (2001) 111 FCR 395

Coco v Shaw [1994] 1 Qd R 469

Cousins v Merrington [2007] VSC 542

Director of Housing v Sudi (2011) 33 VR 559

Frugtniet v Attorney General (NSW) (1997) 41 NSWLR 588

Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120

Graves v Duroux [2014] QSC 198

Hinton Demolitions Pty Ltd v Lower (No 2) [1971] 1 SASR 512

Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531

Leisure Coolum Pty Ltd & Anor v Magistrate Court of Queensland & Ors [2019] QSC 8

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

Ousley v R (1997) 192 CLR 69

PRS v Crime and Corruption Commission [2019] QSC 83

Sankey v Whitlam (1978) 142 CLR 1

Sibelco Australia Ltd v Magistrate Graham C Lee & Anor [2013] QSC 270

The Queen v Iorlando and Another (1983) 151 CLR 678

COUNSEL:

JR Hunter QC and AD Scott for the applicant
JG Rennick SC and R Withana for the first and second respondents

JM Horton QC for the third respondent

SOLICITORS:

Creevey Russell for the applicant

Crime and Corruption Commission for the first and second respondents

Crown Solicitor for the third respondent

Table of Contents

Facts

The anti-fragmentation principle

Consideration of authorities

CEO of Customs v Jiang

Sibelco Australia Ltd v Magistrate Graham C Lee & Anor

PRS v CCC

Anderson v AG (NSW)

Gedeon v Commissioner of the NSW Crime Commission

Cousins v Merrington Pty Ltd

Graves v Duroux

The Queen v Iorlando and Another

Applicant’s submissions on discretionary considerations

DPP’s consent to the adjournment

That the declarations would likely have a decisive impact on the criminal proceedings

Director of…

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Stenner v Crime and Corruption Commission [2019] QSC 202
Case
[2019] QSC 202
Decision Date

CaseChat Overview and Summary

In the matter of Stenner v Crime and Corruption Commission, the applicant sought a declaration from the Supreme Court that would have a determinative effect on criminal proceedings against her for perjury, which were before the District Court. The applicant contended that the Supreme Court should intervene in the criminal proceedings to address the issue, which she considered fell within the realm of administrative law. The court was required to determine whether the application should be dismissed to prevent fragmentation of the criminal proceedings and whether the case was exceptional enough to warrant the Supreme Court's intervention.

The court considered the principle that civil courts generally deny judicial review of decisions taken in the context of the criminal justice process, particularly those that are unmeritorious and designed to cause delay. The court noted the desirability of not interrupting the ordinary course of criminal proceedings, as highlighted by the High Court in The Queen v Iorlando and Another. The applicant argued that special reasons existed in her case, warranting the Supreme Court's intervention, including the significance of the point at issue and the general importance of the matter. However, the court found that the consent of the Director of Public Prosecutions to the adjournment of the trial did not necessarily indicate that it was appropriate for the matter to be dealt with in the Supreme Court.

The court ultimately dismissed the application, emphasising the importance of respecting the structure and process set out by the legislature for the trial and appeal of criminal contraventions. The court found that it should not interfere with the criminal process by substituting its own views for those entrusted to deal with the matter. The court also noted that the issue raised could be adequately addressed by the criminal courts.

The final orders of the court were that the application be dismissed, and the parties would be heard as to costs.

Orders

Orders of the court

1. The application is dismissed.

2. I will hear the parties as to costs.

Background

Background to the litigation

I will hear the parties as to costs.Facts Amy Borland, the daughter of a Chief Superintendent of Police, was appointed to a temporary, junior, administrative position in the Queensland Police Service on 10 May 2016. On 25 October 2016, the Crime and Corruption Commission (CCC) received an anonymous complaint that Ms Borland’s father, Chief Superintendent Borland, had used his influence to have her appointed, which would amount to corrupt conduct. The anonymous complainant alleged that the person influenced by Chief Superintendent Borland was the applicant, who was an acting Chief Superintendent of Police. On 17 November 2016, the CCC referred the complaint to the Ethical Standards Command (ESC) of the Queensland Police Service (QPS) for investigation. In the opinion of the ESC, having reviewed the documentation relating to the appointment of Ms Borland, and her resume, there had been no corrupt conduct. The CCC were so advised on 23 January 2017. The CCC did not agree with the ESC’s opinion, and the matter was returned to the ESC for further investigation on 8 February 2017. Detective Senior Constable Lockhart conducted that further investigation. In the course of it, on 23 March 2017, she interviewed Inspector Simon Chase, whose name appeared on a document relevant to the appointment of Ms Borland (that is, a form QP0320), which document he had never seen; nor had he been involved in the appointment of Ms Borland. She also interviewed Acting Senior Sergeant Henry, whose name and signature appeared on the same QP0320. Henry said she was given a document to sign in relation to the appointment of Ms Borland, which she did. She had no idea what she signed when she signed it but understood that there was an “administrative requirement” that she sign it. On 24 March 2017, ESC requested the CCC to assume responsibility for the matter, which it did. The CCC determined to continue the investigation of the complaint. The investigation was code named “Operation Access”. Those responsible for the investigation (that is, officers within the Corruption division of the CCC) planned an investigative strategy which included a pretext conversation with the applicant; the collection of relevant documents and emails; and interviews. They also wished the Commission to conduct a hearing at which Ms Borland, her father and the applicant might be examined. To that end, the “Assistant Director, Corruption Legal” prepared a document entitled – “APPLICATION TO COMMISSION FOR APPROVAL TO HOLD AN INVESTIGATIVE HEARINGCrime and Corruption CommissionSection 176(1)” The application referred to the matter as “CO-16-1986”. The application document recited the history of the matter, the investigative strategy for the matter and the purpose of an investigative hearing in the matter – namely “to further explore and/or identify the subject officer’s (sic) (Stenner and Borland) involvement in the employment of Amy Borland”. It set out the reasons why the Assistant Director considered a hearing appropriate. It also dealt with the question of whether the hearing ought to be public or not – arguing that the hearing ought to be closed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Court continued (my emphasis) – [12] It is clear that civil courts appreciate that it is of vital importance that regulatory bodies and law enforcement agencies not be hindered unduly in their task of investigating fully allegations of criminality. The civil courts also appreciate the need to ensure that the work of the criminal courts is not frustrated by such applications, particularly those which are quite unmeritorious and designed to achieve little more than delay. Most complaints regarding decisions taken in the context of the criminal justice process can adequately be addressed by the criminal courts. Civil courts generally deny judicial review of such decisions on discretionary grounds.[13] In M Aronson and B Dyer, Judicial Review of Administrative Action … the learned authors comment:“Underlying many of the cases denying judicial review on this discretionary ground is a sub-text that the courts are wary of allowing judicial review mechanisms to be abused by litigants wealthy enough to postpone their day of reckoning.”Sibelco Australia Ltd v Magistrate Graham C Lee & Anor In Sibelco, the applicant sought an order in the nature of certiorari, arguing that there was error of law on the face of the record, or jurisdictional error, affecting the decision of a Magistrate that the applicant had a case to answer on a charge brought under environmental protection legislation. Dalton J found that there was no error of law on the face of the record or jurisdictional error. Her Honour also dealt with the argument that she ought not to grant the relief sought on discretionary grounds. Her Honour noted the court’s traditional reluctance to interfere with the criminal process. Her Honour acknowledged that the matter was unusual, because the error relied upon was one of statutory construction which could be determined without the court hearing from witnesses and because the trial had been adjourned for other reasons, which meant that her Honour’s determination of the application could not itself result in the fragmentation of the summary trial before the Magistrate. However, even if there were grounds for making the order sought, her Honour would not have done so. Her Honour said (footnotes omitted) – [16] … The legislature has set out the process for the trial and appeal, after trial, of criminal contraventions such as the subject of this application. Respect ought to be accorded to that structure, and to that process. It cannot help but diminish that respect if this Court sits as some sort of supervisory body overseeing the process and substituting its own views for the views of those entrusted to deal with those matters. The criminal process here ought to be allowed to run its course … PRS v CCC In PRS v CCC, the applicant brought an application under section 332 of the Crime and Corruption Act 2001. That section provides for judicial review of the CCC’s activities in relation to corrupt conduct. The applicant sought orders regulating or stopping the CCC’s investigation of the applicant and a person, AB, including an order restraining the CCC from further hearings.

Ratio Decidendi

Legal Principle Established

In response to a question from me about whether there was some efficiency in my dealing with the matter now that it was before me and had been argued, the State referred me to the decision of the High Court in The Queen v Iorlando and Another,[31] in which the High Court emphasised the undesirability of interrupting criminal proceedings, even though in that case it had determined the Crown’s application to review a ruling made by a trial judge which concerned the interpretation of the Customs Act 1901 (Cth). The Court said –[32] … it seems necessary to repeat that it is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purposes of challenging rulings on questions of admissibility of evidence. The fact that the Court has expressed its conclusion on the substantive question in the present case is not intended to encourage applications of this kind.[31] (1983) 151 CLR 678.[32] At 680.Applicant’s submissions on discretionary considerations The applicant submitted that special reasons existed in her case, warranting this court’s intervention in the criminal proceedings. The special reasons were that – ·the consent of the Crown to the adjournment indicated that it was appropriate for the matter to be dealt with in this court;·the declarations were likely to have a decisive impact on the District Court proceedings and dealt with a matter which was fundamental to those proceedings; and ·the issue raised was one of “general importance” and the Supreme Court was the most suitable forum for its resolution. I will deal with the first two of those special reasons immediately. The applicant argued that a “solid answer” to the complaint about fragmentation was that the Director of Public Prosecutions himself did not oppose the adjournment of the trial to allow the applicant to bring this application and conceded the significance of the point at issue. I note also that while the Director’s letter to the CCC recognises that the criminal courts would be able to deal with the question whether the CCC hearing was a judicial proceeding pre-trial, it makes no reference to the public interest in the non-interference by civil courts in criminal matters. The respondents all submitted that it was not to the point that the Director of Public Prosecutions consented to the adjournment of the trial to allow this application to be brought. Queen’s Counsel for the applicant contrasted the position of the Director here, in taking no active role himself in the proceedings, with the position of the Commonwealth Director of Public Prosecutions in Palmer Leisure Coolum Pty Ltd & Anor v Magistrate Court of Queensland & Ors[33]. In Palmer, the Commonwealth Director applied to strike out the criminal defendants’ applications for declarations, relying on the anti-fragmentation principle. Queen’s Counsel argued that it was a “weighty matter” that the Director of Public Prosecutions did not complain that the applicant was fragmenting the criminal proceedings and was “quite content” to allow these proceedings to occur.[34] [33] [2019] QSC 8. [34] Transcript of hearing 1 – 59.