CITATION: Police v Charlwood [2011] QMC 41
PARTIES: POLICE
(prosecution)
v
ANTHONY MICHAEL CHARLWOOD
(defendant)
FILE NO/S: MAG139501/10(1) DIVISION: Magistrates Courts
PROCEEDING: Charge – Application to reopen proceedings ORIGINATING
COURT: Magistrates Court at Southport DELIVERED ON: 19 October 2011
DELIVERED AT: Southport HEARING DATE: 6 October 2011 MAGISTRATE: Kilner RG
ORDER: Application dismissed
CATCHWORDS: CRIMINAL LAW – PRACTICE AND PROCEDURE – whether a charge on which no evidence was offered can be reopened
Justices Act 1886 (Qld), s 147A
Williamson v Trainor [1992] 2 Qd R 572 R v Hay [1981] Qd R 152
R v Williams ex parte Biggs [1989] 1 QdR 594 COUNSEL:
SOLICITORS:
Factual background
[1] Mr Charlwood was charged on 27 March 2010 with unlawful use of a motor vehicle under the Criminal Code (Qld) section 408A(1)(a).
[3] As was the practice in the Southport Magistrates court at that time the matter was reviewed by the court on 30 March 2011 to ascertain if it was ready in all respects to proceed on the allotted date.
[4] On that date the matter was confirmed by both parties as ready to proceed on 15 April 2011.
[5] When it was called on for hearing on 15 April 2011 the police prosecutor requested an adjournment. The basis of the requested adjournment was that the arresting officer had been informed at 8.45am that very day that a latent fingerprint belonging to the defendant had been found on the steering wheel of the subject motor vehicle, but this fact has not been entered onto the police computerised reporting system until 14 April by which time a full brief had been delivered to the defendant‟s solicitors.
[6] As the presiding Magistrate I was further informed by the prosecutor that the defendant‟s solicitor had subpoenaed from the police service all material evidence relating to fingerprints. No material was produced relating to the subpoena.
[7] I was further informed by the prosecutor that he was not in a position that day to provide any evidence relating to the fingerprint as he had no statements from experts or forensics as to the evidence with the consequence that he needed an adjournment.
[8] When asked why it took until April 2011 to find the latent finger print the prosecutor was unable to answer. Additionally he was, after speaking with the arresting officer, unable to give any explanation for the delay in finding the fingerprint evidence.
[9] I indicated that I would not be prepared to grant an adjournment as requested and that the matter could proceed on the existing evidence contained in the police brief. The prosecutor then asked for the matter to be stood down while he considered his position.
[10] When court resumed the prosecutor was unable to shed any more light on why the fingerprint evidence had been so late in being discovered and why the prosecution was not in a position to advance it at the trial that day.
[11] When pressed to proceed with his case the prosecutor offered no evidence on the charge.
[12] Counsel for the defendant then informed me that the prosecution was attempting to get an adjournment „through the back door‟. He further stated that he had been informed by the police that they intended to recharge the defendant as soon as he left the court that day. He then submitted that as the case was in trial mode it was appropriate to issue a certificate of dismissal under section 149 of the Justices Act 1886 (Qld).
[14] He was again reminded on 30 March 2011 the prosecution had indicated it was ready to proceed, yet at the hearing he offered no evidence.
[15] On that basis the charge was dismissed and the bench charge sheet noted accordingly.
Current Application.
[16] The prosecution on 12 May 2011 brought an application to reopen and rehear the proceedings which was dated 4 May 2011. The application came on for hearing on 5 October 2011.
[17] In the letter dated 4 May 2011 from the prosecution that formed the basis of the application, the applicant said in part that:-
“an error of law has occurred by the making of such an order (in that the charge was dismissed pursuant to the abovementioned section) and make application for the charge of unlawful use of a motor vehicle against the defendant be reopened pursuant to s 147A(3)(d) of the Justices Act 1886 (Qld).”
Submissions
[18] There are essentially 2 matters in dispute as a result of this application.
[19] The first deals with the ability to reopen a matter under the Justices Act 1886 (Qld) s 147A. The second, assuming that the proceedings can be reopened, is whether I correctly proceeded under s 700 of the Criminal Code(Qld) in dismissing the charge.
Reopening under section 147A
[20] The short submission of the respondent to the application is that there can be no reopening under section 147A as there has been no factual error. If there is an error, he argues, it is one of law and section 147A has no application. The applicant in the letter cited above indeed claims that there had been an error of law, but in oral submissions he tried to argue that there had been an error induced by deceit and that section 147A(3)(d) was available to him to found his application.
[22] The case of R v Williams ex parte Biggs [1989] 1 QdR 594 is of some assistance. Firstly that case confirms that the power to reopen under s 147A is a limited one and secondly it confirms that subsection 3 is to be read subject to subsection 2.
[23] The factual error relied upon by the applicant here is not, to my mind, an error of facts already before the court, i.e an error of facts in the case against Mr Charlwood on the unlawful use of a motor vehicle charge. As I read Biggs case this is a
necessary element for s 142A to operate. In any event it could not be said that I was misled as to whether or not there had been a trial on the merits or not. Clearly there had been no trial as such. Counsel for Mr Charlwood made a submission that we were in trial mode and that this entitled me to dismiss the charge; but ultimately it was up to me to accept or reject that submission. The term „trial mode‟ is not one that I have come across before and it is to my mind not a term capable of specific definition. The position was that the court and the defence were ready for a trial and the prosecution had indicated on 30 March that it was also ready. All of these points were abundantly clear as at the hearing date. I can therefore find no deceit that led me into factual error. All that counsel for the defendant did at the trial of the charge was to submit that the court was in trial mode and that therefore I was at liberty to dismiss the complaint under section 700. It was ultimately up to me to accept or dismiss that submission.
[24] Clearly, if there was an error made in dismissing the charge then it was an error of law as initially submitted by the applicant and as such cannot be cured by an application under section 142A.
[25] The application must therefore fail on that point alone.
Dismissal of the complaint
[26] Whilst strictly speaking not necessary to decide the application I feel constrained to make some comment upon the second aspect of the applicant‟s argument as it to some extent impinges upon the first, namely whether there indeed has been a mistake of law in dismissing the charge and because the issue was dealt at some length in the submissions of the applicant.
[27] The applicant squarely relies upon the decision in Hay‟s case.
[28] At first blush this case seems to fully support the applicant‟s position, but a closer examination of that case in the light of what was said in Williamson v Trainor [1992] 2 Qd R 572 is appropriate.
[29] Firstly Hay’s case was factually different to the circumstances of this case. That case dealt with committal proceedings whereas here the charge was set for a summary trial.
[31] Thirdly there was no consideration in Hay’s case of a course of conduct by the prosecution that could be said was aimed at defeating the court‟s order that the trial should proceed on the appointed day; obtaining an „adjournment through the backdoor‟ as counsel for the defendant put it.
[32] These are significant distinguishing facts.
[33] The Court in Hay’s case put great stock in the case of Ward v Hodgkins [1957] VR 715 and the comments made by Herring C.J in that case. The emphasis was on the hearing and determination of the case before a certificate of dismissal could issue.
[34] In the case before me the matter was ready to proceed and the prosecution was told to proceed. The procedure was in place for a hearing that day; the court was ready to hear evidence and determine the case and the defence was ready to defend; it was the prosecution who offered no evidence; they produced no evidence to hear or to cross examine upon and to make findings upon despite being told to do so. Indeed they refused to proceed when called upon to do so and this was so in spite of them telling the court on 30 March 2011 that they were ready to proceed. There was no ultimatum put to the prosecutor in this case as there was in Ward’s case. In this case the prosecutor was simply told to get on with the job.
[35] The factual differences between this case and Hay’s and Ward’s cases are
compelling to a point where I believe that they are distinguishable and in that regard I refer to the words of Dowsett J. in Williamson’s case where his Honour says:-
“ I also doubt whether it is correct to say that there was no determination on the merits on 13 June 1990. If a prosecutor is called upon to present his case and declines to offer evidence at the appropriate time, he should usually be taken as indicating that he has no evidence to offer. This is a course not infrequently adopted in trials on indictment, and the result is a verdict of „not guilty‟ because of the presumption of innocence. It is generally not open to a party to avoid a trial at the appointed by declining to lead his evidence.”
[36] Williamson’s case is important for another reason. The facts of that case involved the prosecution proceeding to prosecute a defendant for a second time on a charge in which no evidence had been earlier offered and an indemnity agreed to between the prosecution and the defendant that they would not further pursue the defendant on the charge if he did not ask for costs of the aborted trial. The court of appeal found that there had been an abuse of process and further that the defendant had been prejudiced in his defence as a witness that he was proposing to call at the initial hearing was unavailable at the subsequent hearing.
[38] Another interesting point about Hay’s case is that the court did not consider the effect of section 345 as it then was in the Criminal Code. Admittedly the section has now been repealed, but the difference in the wording of the two sections,(which existed at the same time) must leave some doubt as to the legislature‟s true intent of the meaning of section 700 as interpreted by the court in Hay’s case. Why would the legislature specifically require a charge of assault „to be heard on the merits‟ before dismissing the charge under that section, but not specify a requirement that a case under section 700 „be heard on the merits‟ before dismissing a charge under that section? Failure to deal with this issue must leave some room for doubt on the authority of Hay’s case. It must also lend credence to the argument that the
legislature did not intend specifically for there to be a hearing on the merits before a charge is dismissed under section 700.
[39] That the prosecution‟s proposed course of action constitutes an abuse of process is to my mind without doubt. If it was not considered an abuse of process than what would have been the position if the trial had partly proceeded and the prosecution mid way through its case offered no further evidence and then recharged the defendant? Would that have amounted to an abuse of process? Clearly on the view taken in Hay’s case it would not. At what stage of a trial then could the prosecution offer no evidence and successfully recharge the defendant?
[40] These rhetorical questions need not be answered as they are asked merely to demonstrate the point. The question for an adjournment is one for the trial magistrate not the prosecutor. Had the prosecutor produced compelling evidence about the issue of the finger print then quite properly an adjournment could have been granted, but to simply make a statement from the bar table after earlier telling the court that the case was ready to proceed smacks of abuse of process. I now deal with that issue in more detail.
[41] The suggestion that there was further evidence of a latent finger print was accompanied by no supporting material, no explanation as to when it was
discovered and how, why it was omitted from the original brief and indeed if it was the defendant‟s finger print at all. All that the prosecution was able to do was to state that the Q Prime report identified the finger print as being that of the
defendant. There was not even a statutory declaration by some expert deposing to that fact; in short nothing reliable upon which a court could make any sort of finding. To support an application for an adjournment without any reliable source material is fraught with danger and makes it difficult for a court, trying to be impartial, to make any decision that is fair to both parties.
[42] The majority of the court in Williamson’s case concluded that a certificate under section 149 should not have issued because there had been no determination on the merits; they refused to allow the second prosecution to proceed because it would have constituted an abuse of process.
[43] Following this reasoning it may be that a dismissal of the charge under s 700 should not have occurred in the case currently before me, but what other mechanism is available to a Magistrates Court to ensure that there is no abuse of its process?
however it is hard to see how that proposition can be distilled. Certainly the court was of the view that a Magistrates court has power to prevent an abuse of its own process, but I can find no passage that extends that power to ordering a permanent stay of a criminal trial. Reference in Williams’ case was made to Jago v District Court (NSW) (1989) 168 CLR 23, but again no authority can be found there that gives a Magistrate power to order a permanent stay of summary hearings because of abuse of process.
[45] The unsatisfactory state of the law on the subject reinforces what Dowsett J. said in Williamson’s case that the issue needs to be clarified.
[46] The issue is further muddied when reference is had to the South Australian case of The Queen v O’Loughlin [1971] 1 SASR 219 and the Victorian case of Edebone v Allen [1991] 2 VR 659.Neither case was precisely on point but in the former case the full court of the South Australian Supreme Court held that there was no power in a Magistrate to order a stay of proceedings, yet in the latter case it was held that a Magistrate, for proper reasons, could order a permanent stay. In Allen’s case the court held that on the authority of Jago’s case it was inappropriate to order a permanent stay based on the issue of delay in bringing proceedings and in O’Laughlin’s case it was held that a Magistrate had no power to order a stay of a charge that amounted to a second charge arising out of the same facts. It held the appropriate procedure was to dismiss the second charge after the first charge had been disposed of and after first giving the prosecution a chance to withdraw the charge.
[47] Neither case dealt with the circumstances of this case.
[48] If I had proceeded as suggested in O’laughlin’s case then the prosecution would have obtained what it had originally sought and that to my mind would have constituted an abuse of process. If I had granted a permanent stay then that may have satisfied the defence, but that was not what the defence asked for. There was no submission made by the prosecution that I could not dismiss the charge and only grant a stay. In any event such an issue is a point of law and not a point of fact.
