Stewart v Chief Commissioner of Police (No 2)
[2017] VSC 372
•23 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 00849
| KYLE STEWART | Plaintiff |
| v | |
| THE MAGISTRATES’ COURT OF VICTORIA | First Defendant |
| CHIEF COMMISSIONER OF POLICE | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 April 2017 |
DATE OF JUDGMENT: | 23 June 2017 |
CASE MAY BE CITED AS: | Stewart v Chief Commissioner of Police (No 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 372 |
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JUDICIAL REVIEW — Declaration — Magistrate’s decision to remand plaintiff — Previous decision by another Magistrate not to remand plaintiff — Whether later decision invalid — Abridgement of time - Whether application abuse of process — Previous release of plaintiff pursuant to writ of habeas corpus — Whether declaration should be made — Criminal Procedure Act 2009 ss 331, 337.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Richter | Balmer & Associates |
| For the Second Defendant | Mr R Gipp | Victorian Government Solicitors’ Office |
HIS HONOUR:
The Plaintiff, Kyle Stewart, seeks declarations concerning orders made by the Magistrates’ Court on the evening of 8 March 2017 that remanded him in custody. The declarations that Mr Stewart seeks are:
(a) The orders of [the Magistrates’ Court of Victoria] made on 8 March 2017 to abridge the matter where Watson is the informant to the evening of 8 March 2017 (the decision) and to adjourn the matter further, and to remand the plaintiff in custody, to 9 March were not made according to law by reason of the grounds of this originating motion;
(b) the orders made by [the Magistrates’ Court of Victoria] were invalid on the grounds of this originating motion.
Mr Stewart’s grounds are:
GROUND 1
The magistrate’s order to abridge the matter of Informant Watson was ultra vires because the necessary statutory preconditions of the exercise of such power were not met. The abridgement was a necessary preconditions for the making of orders for adjournment and remand, and they were, in effect, not made according to law and/or invalid.
Particulars
1.1Sections 331(3) and (4) of the Criminal Procedure Act 2009 permits the abridgment of a criminal matter in only two circumstances – where both parties consent, or where one party makes an application of reasonable notice to the other party.
1.2The magistrate purported to exercise this statutory power unilaterally where there was:
1.2.1. No consent by either party;
1.2.2 No application by either party;
1.2.3. No notice of any kind.
GROUND 2
2.The defendant erred in purporting to make orders in the matter of Kyle Stewart where Watson is the informant because the defendant had no power to hear the matter, as it was not properly before him.
Particulars
2.1The matter was not legally before the court because the matter had been adjourned by another magistrate that morning to 28 March 2017.
2.2Upon the adjournment of the matter to 28 March 2017, in the absence of a further order for the plaintiff to be remanded in custody, all legal basis for the plaintiff’s confinement, imprisonment, detention or remand in custody evaporated.
2.3The failure to release the plaintiff as soon as practicable after the initial legal adjournment on the morning of 8 March constituted an unlawful imprisonment by the officers overseeing the police gaol at which the plaintiff was being held.
2.4The orders of the magistrate were, thereby, procured by the unlawful detention of the plaintiff by Victoria Police.
GROUND 3
3.The order to remand the plaintiff in custody emerged from a police application to remand or “revoke” the plaintiff’s bail on the evening of 8 March 2017 at “night court”, which application was an abuse of process by the second defendant.
Particulars
3.1The matter was purported to be brought before the court subject to an application to revoke the plaintiff’s bail on a separate and unrelated matter that of informant Mullins.
3.2When the matter was called on, the police representative instead sought to have the plaintiff remanded on the Watson matter pursuant to a “remand warrant” under s 12. No such warrant existed, because the matter had been adjourned without a remand warrant being issued that morning.
3.3Following this tactic failing, the police reverted to their initial application to revoke bail.
3.3.1The officer who purported to bring the application had no authority to do so pursuant to s 18AE of the Bail Act 1977, because he was not the informant in the matter.
3.4The plaintiff’s attendance at the “night court” “hearing” was procured by compulsion and was the result of the unlawful imprisonment and transportation described above.
3.5The purpose of the police application and the listing of the hearing can only have been for the improper purpose of circumventing and frustrating the orders of the original magistrate at Sunshine Magistrates’ Court.
3.6The purpose of the defendant’s purported orders can only have been to circumvent the orders of his colleague at the Sunshine Magistrates’ Court.
3.7The entire purpose of the hearing was to achieve the plaintiff’s remand at any cost and with complete disregard for the normal procedures of the court, and was therefore unlawful.
Background
On 20 February 2017, Mr Stewart was arrested and charged with unlicensed driving by informant Constable Watson of Victoria Police (‘the Watson matter’). Previously Mr Stewart had been at liberty whilst on bail pursuant to an application made by informant Constable Mullins of Victoria Police (‘the Mullins matter’)[1] and on summons for other matters. Mr Stewart was remanded and detained at Heidelberg Police Station.
[1]Transcript of proceedings of trial before Ginnane J on 27 April 2017, 20.
The Sunshine Hearing
On 21 February 2017, the Sunshine Magistrates’ Court issued a remand warrant to hold Mr Stewart in custody in the Heidelberg police station cells until the morning of 8 March 2017 when Mr Stewart was to appear either in person or via video link at the Sunshine Magistrates’ Court.[2]
[2]Affidavit of Anna Kate Balmer dated 9 March 2017, 1; Copy of Remand Warrant issued 21 February 2017 at Sunshine Magistrates Court – Exhibit ‘AB(2)’.
On the morning of 8 March 2017, the police did not convey Mr Stewart to the Sunshine Magistrates’ Court nor did they arrange for him to appear via video link. The Watson matter was called at approximately 10.30am before Magistrate Robertson. The solicitor for the plaintiff requested an adjournment of the matter, and three other matters for various unlicensed driving charges in order to obtain instructions. This course was not opposed by the Police Prosecutor. Magistrate Robertson granted an adjournment until 28 March 2017 and did not issue a further remand order.
Her Honour told the Police prosecutor that she was adjourning the Watson matter and was not in a position to make a further remand order pursuant to the other three matters because Mr Stewart was not in court and had not consented to any other application. Her Honour did not issue a further remand warrant and stated:
…you might have missed that I am adjourning it I am not remanding him…I am putting you on notice that it is my intention at this time subject to any further submissions, that he is not here, there is no potential for him to be brought here, and it is an application for an adjournment…The issue is that he is remanded on one of these matters…which appears to be the only thing that is holding him in custody…how can I, or why should I remand a person who has not been brought before the court pursuant to a warrant issued by this court which allowed him to be held.[3]
[3]Transcript of Proceeding, Sunshine Magistrates’ Court (8 March 2017 Magistrate Robertson), 2.
It appears that the Sunshine Police prosecution unit later contacted the Sunshine Court seeking to apply to have the Magistrate vary the orders, but her Honour did not do so.
The Hearing at Melbourne Magistrates’ Night Court on the evening of 8 March 2017
Following the hearing before Magistrate Robertson, Mr Stewart was not released from police custody.
At approximately 7.30pm on the same day, 8 March 2017, the police brought Mr Stewart before his Honour Magistrate Kumar at the Melbourne Magistrates’ Court in the after-hours bail court or ‘night court’. At about this time, Ms A Balmer, the solicitor for Mr Stewart, was informed that he was being transported to the night court, but Mr Stewart was not provided an opportunity to seek legal advice prior to his appearance.[4]
[4]Affidavit of Anna Kate Balmer dated 9 March 2017, 1.
At the night court hearing, the police prosecutor applied to revoke Mr Stewart’s bail in an unrelated matter to the Watson proceedings. A document being ‘an application by informant or Director of Public Prosecutions for an Order to revoke Bail’ was filed. The Applicant was named as Senior Constable M Toohey of Heidelberg Police Station. The nature of the charges listed were: ‘traffic methylamphetamine, possess methylamphetamine, deal property suspected proceed of crime, make false document’.
The transcript is 11 pages long and I will not include all of it. I set out below what appear to be the relevant parts of the transcript of the hearing at the Melbourne Magistrates’ Court on the evening of 8 March 2017. I have not set out all of the transcript because it is 11 pages:
Police Member/Prosecutor: The matter was called by the magistrate. I’m not sure of the name of the magistrate I can’t help you out there in that regards.
…
Police Member/Prosecutor: The matter was adjourned in his in his absence but there was no indication I believe in regards to bail or remand.
Magistrate:So bail was refused he was remanded in custody to today?
Police Member/Prosecutor: Yes, correct. I don’t believe there was previously an application for bail.
Magistrate:So Mr Stewart you’re not making any application for bail today is it?
…
Magistrate: Because you were remanded in custody? You can sit down.
Kyle Stewart: Yeah I was meant to see my lawyer earlier today.
…
Police Member/Prosecutor: So---
…
Police Member/Prosecutor: And an application is made by or on behalf of the informant to remand the person in custody the court or bail justice before which his is first brought shall either grant bail for the attendance of the person on the day to which he remanded or shall refuse bail and shall certify the remand warrant.
…
Police Member/Prosecutor: So I would first put to the court that given the strange circumstances of this is his appearance before court today and that I would seek perhaps that the matter be adjourned to tomorrow unless there is an application for bail ah to be remanded in court til tomorrow and this matter can be sorted out.
…
Kyle Stewart: I’m not sure I thought I was going to make an application for bail today with my lawyer that’s all.
…
It was mentioned to me that I would go for bail today but I didn’t even go to court so I don’t know.
Magistrate:I have got the registrar to make sure that they[5] come and see you tomorrow so your matter will be remanded to this court for tomorrow and you’ve got other matters here as well. You understand that?
[5]Mr Stewart’s solicitor
Kyle Stewart: Yes.
Magistrate:It might be a good idea that you see them tomorrow, the for bail for you because you haven’t made an application for bail right or wrong?
…
Magistrate: There are no charges listed there so…
Clerk:Yes you honour so the problem with this one was the matter that was on today the Magistrate adjourned it he they didn’t actually remand him so what the prosecutor…
Magistrate: So I will just remand the…
Clerk:So what the prosecutor has done is the matters that he had tomorrow he is on bail for and the only way that they could get something before the court was to list an application for revocation of that bail.
…
Clerk:So if you literally revoke his bail that means he would be held in remand because he can’t be held in remand on that one for today Magistrate Robertson just adjourned it.
Magistrate: … All right.
…
Magistrate:It’s a very unsatisfactory state of affairs because…
Police Member/Prosecutor: Its it is its something I’ve never come across certainly before.
Kyle Stewart: That got adjourned today was it?
…
Police Member/Prosecutor: Your Honour I would submit perhaps that he was remanded in court till tomorrow morning and we can get onto Balmer and Associates and find out unless there is something on court file in regards to a specific date they want it adjourned to?
Magistrate:What I do intend to do is remand him in custody until tomorrow morning and his lawyers will come and make a decision whether they will intend to deal with this matter but at this stage relation to bail but at this stage (sic) all I have got is an application to revoke bail and eh was he taken in person he was not even taken?
Police Member/Prosecutor: And that’s where the administrative side ahh…
Magistrate: Why can’t why can’t you abridge the thing?
Clerk: Sorry abridge the one from tomorrow to today?
…
Magistrate:What I am saying is that the registrar will… the matters that were adjourned to 28 or 24 April she will abridge that today….
…
Magistrate:And obviously make an application for bail and then your application to revoke bail will be…
…
Magistrate:… so your lawyers did come up to court you didn’t see…
Kyle Stewart: I didn’t go to court your honour I was waiting for the van to come pick me up and it never came…
…
Kyle Stewart: I think they went to court and heard the case without me there and adjourned it til…
…
Kyle Stewart: I think the court adjourned the case til whenever without me being there Your Honour.
Magistrate:That’s why I don’t want you to be there so long because obviously your lawyers have got to have an opportunity to speak to you and it should be able to be able to (sic) have a chat.
Kyle Stewart: Yeah I understand just if the um judge adjourned me without remanding me I don’t understand what I am remanded on? Then I don’t understand how I was even at Heidelberg today.
…
Kyle Stewart: I don’t understand sir why they would revoke my bail when I was given bail in the first place.
Magistrate: Senior I have no idea how it happened in such a way.
Police Member/Prosecutor: As in what happened today?
Magistrate: You were the prosecutor?
Police Member/Prosecutor: No no I was a prosecutor here at Melbourne so I’m only being guided by the entries of the court system.
Kyle Stewart: So what am I remanded on your honour?
Magistrate:The matters that you are charged with possession of… I’ll tell you exactly what the charges are… unlicensed diving, fail to retention of stolen goods, prohibited person possession of firearm, prohibited person possessing firearm, and retention of stolen goods and committing indictable offence whilst on bail and commit indictable offences whilst on bail… so on those the lawyers will see you tomorrow alright?
Kyle Stewart: I thought that they were adjourned to the 28th.
Magistrate:The matter has been [visited] in this court now and you are brought in court here and that’s what I have given… that’s what I’ve done remanded to you to the first day that’s tomorrow here at this court. Yes you can remove him now… and no application for bail today…
Magistrate: Can you make sure…
Clerk: Balmer & Associates are made aware.[6]
[6]Minor interjections have been omitted.
The following points emerge from the transcript. The police prosecutor sought to revoke Mr Stewart’s bail with respect to the charges brought by informant Mullins. He stated that the matter was due to be heard the following day, on 9 March 2017 and that the plaintiff’s solicitors, Balmer & Associates, had written to request that the Mullins matter be adjourned until April 2017.
The police prosecutor told the Magistrate that earlier that day Magistrate Robertson had adjourned the Watson matter with ‘no indication [with] regards to bail or remand’. That information was clearly incorrect and Magistrate Kumar was misinformed about this important matter. The police prosecutor, in the alternative, applied for Mr Stewart to be remanded pursuant to s 12(1) of the Bail Act 1977 on the grounds that the plaintiff had ‘been brought to Court for the first time’. That was also incorrect and that application for revocation of bail was not pursued.
Mr Stewart, who was unrepresented, informed the Magistrate that at Heidelberg the police did not permit him to contact his lawyers, and that he had not had a chance to appear at, or receive advice concerning, his remand hearing at Sunshine that morning.
In response to the prosecutor’s dual applications, the Magistrate abridged the return date of the Watson charges that had been adjourned by Magistrate Robertson until 28 March 2017 and remanded Mr Stewart on those charges until the following morning, 9 March 2017, by which time it was anticipated that he might have been able to speak with his lawyers. His Honour’s ‘Notice of Order Made’ states the informant as Mr Watson, states in respect of ‘How before the Court’, ‘Information alone’ and states the charge to be ‘unlicensed driving’. The Court order states:
Remanded to MELBOURNE MAGISTRTATES’ COURT on 09/03/2017 9 30am.
The proceeding has been adjourned and, in accordance with section 42JA of the Evidence (Miscellaneous Provisions) Act 1958 accused is required to appear before the Magistrates’ Court at MELBOURNE on the 9th March 2017 via audio visual link at the time of 930am, unless the accused is held in a place without audio visual facilities, in which case the accused is to be brought physically before the Court at that time.
No application for bail was made.
Proceedings on 9 March 2017
On 9 March 2017 at approximately 1.00pm, Ms Balmer appeared before his Honour Magistrate Bourke at the Melbourne Magistrates’ Court. By then, Mr Stewart had been transferred to and was held in custody at the Melbourne Custody Centre of the Court. Ms Balmer submitted she had ‘grave concerns’ about the custody of her client and requested that the matter be stood down for a short period to allow her to determine an appropriate course of action.
At approximately 3.15pm, Ms S Vardy, a solicitor with Balmer & Associates, appeared before her Honour Magistrate Bazzani in the same Court and stated that it was intended to list the matter before the Practice Court of the Supreme Court of Victoria, but that this was unlikely to be achieved before the end of the day. Magistrate Bazzani noted that the matter would be brought before the Supreme Court, but that the application before the Magistrates’ Court needed to be dealt with. Her Honour remanded Mr Stewart until 16 March 2017 at 10:00am in respect of the charges brought by informants Mr Watson, Mr Mullins and summons for other matters.[7]
[7]Exhibit AB5 – Notice of Orders made by her Honour Magistrate Bazzani on 9 March 2017.
The Court has not been asked to consider the validity of Magistrate Bazzani’s orders.
On 10 March 2017, Mr Stewart sought an urgent hearing for an order in the nature of habeas corpus seeking his immediate release from the second defendant’s custody.[8] The application was supported by an affidavit of Ms Balmer sworn 10 March 2017. Justice McMillan heard the matter in the Practice Court of the Supreme Court that day and later granted the relief sought.[9] Her Honour found that the remand warrant of Mr Stewart expired at the hearing of the Watson matter when Magistrate Robertson adjourned the matter, and that the police’s continuation of Mr Stewart’s remand was unlawful from the morning of 8 March 2017 onwards. Her Honour concluded that:
[8]Pursuant to r 57.03(1)(b) or, in the alternative r 57.03(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015.
[9]Stewart v Chief Commissioner of Police[2017] VSC 110 [18]-[19].
I am satisfied that the actions of police in continuing to hold the plaintiff in custody after his hearing before Magistrate Robertson at approximately 10.35 am on 8 March 2017 was unlawful. It follows that the transport of the plaintiff by the police to the Melbourne Magistrates’ Court for the purpose of having the Watson matter effectively re-heard was also unlawful.[10]
Her Honour also stated:
To the extent that the defendant relies on the remand warrant issued by Magistrate Kumar in the evening of the same day, the validity of that warrant is questionable in the unusual circumstances of its creation. [11]
[10]Ibid [18].
[11]Ibid [17].
Her Honour stated that the application before the night court to revoke Mr Stewart’s bail with respect to the Mullins matter was unlawful as it was an attempt to have the matter ‘effectively reheard’.[12] Her Honour ordered that Mr Stewart be released from custody and referred his case for directions to the Judicial Review and Appeals List. After further directions, the case came on for hearing.
[12]Ibid [18].
Despite Mr Stewart’s successful Supreme Court application which secured his liberty, he contends that there is significant public interest in this Court making a specific declaration as to the defects in the proceedings below for the purposes of providing ‘unequivocal clarification’ of both the defendants’ separate duties; and to explain or remind the defendants of their obligations. The importance of making the declaration is bolstered by the seriousness of the effect of the orders, namely, the denial of his liberty. The second defendant contends that it is not appropriate to make a declaration.
Relevant Legislation
Criminal Procedure Act 2009
Power to adjourn proceeding
(1)A court may adjourn the hearing of a criminal proceeding before the court—
(a) to any time and place; and
(b) for any purpose; and
(c) on any terms as to costs or otherwise—
that it considers appropriate.
(2)If at any time a court adjourns the hearing of a criminal proceeding, the court may—
(a) allow the accused to go at large; or
(b) remand the accused in custody; or
(c) grant the accused bail or extend his or her bail.
Note
See section 333 of this Act and section 5A of the Bail Act 1977 where accused is undergoing a sentence of detention in a youth justice centre.
(3)If a court has adjourned the hearing of a criminal proceeding to a particular time, it may order that the hearing be held or resumed before that time.
(4) A court may only make an order under subsection (3)—
(a)with the consent of all the parties; or
(b)on the application of a party who has given reasonable notice of the application to the other parties.
(5)If a court adjourns a criminal proceeding in which a jury has been sworn, whether or not the accused is present, the court may discharge the jury from giving a verdict and order a new trial.
(6)If a court has adjourned the hearing of a criminal proceeding to a particular time and has remanded the accused in custody, the court may order that the accused be brought at any time before then—
(a)before the court; or
(b)to another place specified in the order where facilities exist to enable the accused to appear before the court by audio visual link (within the meaning of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958)—
in order that the hearing may be held or continued.
(7)The officer in charge of the prison or youth justice centre or other officer who has custody of the accused must obey an order under subsection (6).
337 Court may act on application or on own motion
(1) Unless the context otherwise requires, a power or discretion conferred on a court or by or under this Act may be exercised by the court on the application of a party or on its own motion.
(2) Unless the context otherwise requires, a power or discretion referred to in subsection (1) includes a power or discretion to revoke or vary a decision or order made in the exercise of that power or discretion.
Bail Act 1977
18 AE Application for revocation of bail
(1)The informant or the Director of Public Prosecutions may apply for revocation of bail granted to a person.
(2)An application under subsection (1) is to be made—
(a)in the case of a person charged with treason or murder, to the Supreme Court or a judge of the Supreme Court;
(b)in any other case, to the court to which the person is required to surrender under his or her conditions of bail.
Submissions
Mr Stewart seeks a declaration that the orders of Magistrate Kumar on 8 March 2017 at the after-hours bail court were invalid. The grounds Mr Stewart relies on are as follows.
First, the order to abridge the charges brought by informant Watson that had been adjourned by Magistrate Robertson earlier that day and was ultra vires because it was not made by application or consent of the parties as required by s 331(3) of the Criminal Procedure Act 2009 and was therefore not made according to law. Secondly, the Watson matter was not properly before his Honour because Mr Stewarts’s presence at the night court was procured through his unlawful detention. His detention became unlawful following the expiration of the remand warrant of 21 February 2017 at approximately 10.30 am on 8 March 2017, in circumstances where no further remand order was made. As a result, the Magistrate’s order was ultra vires.
Third, the application before the’ night court’ to revoke Mr Stewart’s bail under s 18AE of the Bail Act 1977 in the matter concerning informant Mullins was entirely unrelated to the Watson matter, which had previously provided the basis for his lawful detention. The purpose of bringing Mr Stewart before the ‘night court’ was to achieve retrospective validation of his unlawful detention that day, and to secure his continued detention at whatever cost. The listing of the matter in the ‘night court’ was an abuse of process because it involved the police seeking to litigate one matter to achieve an outcome desired in another matter, but which Magistrate Robertson had previously denied.[13]
[13]Transcript of proceedings, trial before Ginnane J on 27 April 2017, 24.
The second defendant submitted that the Court could only grant declaratory relief if Mr Stewart could identify a ‘real interest’ and if the making of the declaration would produce some ‘identifiable practical effect’.[14] No legal or practical consequence turned on the making of the declaration, which involved discretionary relief, and absent practical effects, should rarely be granted. Mr Stewart had been released from custody; and the Supreme Court had already expressed a view as to the illegality of his detention on 8 March 2017. The making of a declaration would serve no purpose. Unless sufficient locus standi can be established, Mr Stewart lacks the requisite ‘special interest’ to entitle him to pursue this public interest via judicial review.[15]
[14]Egan v Willis (1998) 195 CLR 424, 439 [5], Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Gardner v Dairy Industry Authority (NSW) (1977) 18 ALR 55, 188.
[15]Transcript of proceedings, trial before Ginnane J on 27 April 2017, 66-71.
The second defendant submitted that the appropriate means for the examination of the lawfulness of Mr Stewart’s imprisonment was by way of a common law action for false imprisonment. That would permit him to ventilate more appropriately the issue of whether the orders of Magistrate Kumar and Magistrate Bazzani justified the police keeping Mr Stewart in custody between 9 March and 15 March 2017. Further, if the declaration was granted, it would essentially bind a civil damages court in determining whether or not false imprisonment occurred and that would preclude the State of Victoria from its entitlement to defend against a false imprisonment claim. The State would bear the onus of justifying the detention.
In response to the third ‘abuse of process’ ground, the second defendant argued the following. The second defendant did not dispute that the prosecutor’s reliance on s 12 of the Bail Act 1977 was misplaced because it was not the first time that the plaintiff had been brought to the court in regard to the Watson charges, rather, the plaintiff had been before the court on 20 February 2017 which lead to the issuing of the remand order dated 21 February 2017. However, the revocation of bail application brought under s18AE was not an abuse of process. The Police were entitled to make that application in circumstances where:
(a)the plaintiff had not been brought before Magistrate Robertson on 8 March 2017;
(b)There was a valid remand warrant for the plaintiff from 21 February 2017;
(c)the criminal charges were adjourned by Magistrate Robertson in the plaintiff’s absence to 28 March 2017;
(d)the plaintiff had not (and could not) make a bail application on 8 March 2017;
(e) Magistrate Robertson refused or failed to make an order further remanding the plaintiff or granting him bail.
More than inadvertence or misunderstanding by the police in a proceeding, or the conduct of the proceeding, are required to constitute an abuse of process.[16] An abuse of process could only be found to have occurred if the application by the police was tainted by improper purpose, impropriety, was unjustifiably oppressive to the plaintiff, or was likely to bring the administration of justice into disrepute. The evidence did not establish such matters. The application was none of these things because the police were entitled to bring an application to revoke Mr Stewart’s bail because Magistrate Robertson’s order did not either release, remand or grant him bail.
[16]Reliance was placed on Monti v the Queen (2011) 245 CLR 546 [10]-[11] citing Batistatos v Roads and Traffic Authority (2006) 226 CLR 256.
Consideration of submissions
The Court’s power to grant declaratory relief is broad but not unlimited.[17] In Ainsworth v Criminal Justice Commission, Mason CJ, Dawson, Toohey and Gaudron JJ stated:
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.’ However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have a ‘real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’. [18]
[17]Supreme Court Act 1986 s 36.
[18]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-2 (citations omitted).
I consider that Mr Stewart is entitled to seek the declaration he claims. In my opinion, it is insufficient to say to him that he has been released from custody and can sue for damages if he so chooses. He is entitled to the Court’s decision on whether the orders made against him on the evening of 8 March 2017 were valid. The lawfulness of his detention raises important issues that certainly affect him. That person not only had an interest in obtaining an order that he be released, but also to obtain Court orders concerning the steps leading to his detention.
Deane J, in a false imprisonment case, wrote:
Arrest is the deprivation of liberty. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest of detain an individual should be strictly confined, plainly stated and ascertainable.[19]
[19]Donaldson v Brumby (1982) 40 ALR 525, 526.
The invalidity of the order
In my opinion, with respect, the order made on the evening of 8 March 2017 was invalid. It is clear that the Magistrate was given incorrect information at the commencement of the proceedings and that may well have affected the course that was later followed. He then received further information from the Clerk and Mr Stewart. He did not have a copy of Magistrate Robertson’s order. His Honour was obviously concerned to ensure that Mr Stewart had access to legal advice the following day.
However, the proceeding involving the charges brought by Mr Watson had been adjourned by Magistrate Robertson earlier in the day. There was no consent to relist them in the hearing before the Magistrate that evening. Mr Stewart was unrepresented. I do not consider that in this case the power of the Court to act on its own motion overcame that problem. Sections 331(3) and (4) of the Criminal Procedure Act. Even if, in a particular case, the ‘own motion power’ in s 337 might permit abridgement, I do not consider that the circumstances existed here for it to be utilised, particularly as Mr Stewart was unrepresented.
The second defendant submitted that Magistrate Robertson should have expressly adopted one of the three courses mentioned in s331(2) of the Criminal Procedure Act ie allow Mr Stewart ‘to go at large’, remand him in custody or grant him bail or extend his bail. Although, s 331(1) contains the verb ‘may’, it appears to provide for only three options. But, it is clear enough that Magistrate Robertson intended that Mr Stewart be able to go at large. Her Honour made that sufficiently clear in her statements to the prosecutor. The fact that she did not record that in her order did not invalidate it. The order adjourned the three sets of charges until 28 March 2017 and contained no remand order.
I therefore consider that the Magistrate’s order made on the evening of 8 March 2017 was invalid on grounds one and two in the amended originating motion.
So far at the third ground, the abuse of process ground, is concerned, the applicable principles were discussed by the High Court in Moti v The Queen.[20] The plurality stated:
In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: ‘(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.
[20](2011) 245 CLR 456, 464 [10].
In Batistatos v Road and Traffic Authority of New South Wales,[21] in a civil case, the High Court concluded that it was not necessary for a party seeking relief against an abuse of process to show misconduct of some kind on the part of the plaintiff.
[21](2006) 226 CLR 256.
However, in this case Mr Stewart does allege misconduct namely ‘to have the plaintiff remanded in custody at any cost to the administration or reputation of the administration of justice’.
I do not consider that Mr Stewart established such a case. The events of the relevant nine hours of 8 March 2017 are equally, or more, consistent with miscommunication of what Magistrate Robertson had said and the effect of her order and a desire to deal with an uncertain situation. A number of people must have been involved, including probably the prosecutor at Sunshine, police at Heidelberg and the prosecutor at the night court who said that he was ‘only being guided by the entries of the court system’. The possibility of miscommunication of information was considerable. There is no evidence that suggests that Senior Constable Toohey’s application was made for an improper purpose, whether or not he had the standing to make it. It is unlikely that the application would have been made if the terms of the Magistrate Robertson’s order were known. His Honour Magistrate Kumar accurately described the situation as a ‘very unsatisfactory state of affairs’.
I have considered whether despite the wider basis on which Mr Stewart argued his abuse of process ground, that I should find that the applications made to Magistrate Kumar were an abuse of process because the Police made them without proper knowledge or understanding of the result of the proceedings before Magistrate Robertson. On balance, I have decided that such a case has not been established on the evidence. The prosecutor’s statements at the evening hearing on 8 March 2017, support the conclusion that police involved in the night court application did not have accurate knowledge of the outcome of the proceedings before Magistrate Robertson. They apparently sought to relist the matter before her Honour and with Mr Stewart in custody brought him before the Court that evening to seek to obtain orders to keep in custody, ultimately until the following morning. These events are equally consistent with misunderstanding or lack of communication as improper purpose.
However, the case is a salutary reminder for police prosecutors of the need to have accurate information to convey to a Magistrate when making an urgent application, especially when it involves the liberty of an unrepresented person. Prosecutors, and those who instruct them, owe a duty to the Court and may be held personally accountable if they provide the Court with inaccurate information.
Conclusion
I will declare that the order of Magistrate Kumar of 8 March 2017 was not made according to law and was invalid.
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