Mowen v McGowran
[2010] QCA 86
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- Unreported Judgment
- Appeal Determined (QCA)
- Mowen v McGowran[2010] QCA 86
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Mowen v McGowran[2010] QCA 86
Mowen v McGowran[2010] QCA 86
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | SC No 532 of 2009 |
Court of Appeal | |
PROCEEDING: | Miscellaneous Application – Criminal |
ORIGINATING COURT: | |
DELIVERED ON: | 16 April 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 April 2010 |
JUDGES: | Holmes, Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1. The application for leave to adduce further evidence be refused;2. The appeal be dismissed with costs. |
CATCHWORDS: | CRIMINAL LAW – PROCEDURE – PROSECUTION – LEAVE OR DIRECTION OF SUPREME COURT TO EXHIBIT CRIMINAL INFORMATION – DISCRETION TO GRANT OR REFUSE – GENERALLY – where primary judge dismissed appellant’s application under s 686 Criminal Code (Qld) to present information against respondent solicitor – where respondent solicitor represented appellant at a committal hearing for an indictable offence – where respondent solicitor did not cross-examine a witness at the committal hearing – where appellant alleged respondent solicitor attempted to pervert the course of justice – whether primary judge erred in dismissing application Criminal Code 1899 (Qld), s 140, s 686 The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, cited |
COUNSEL: | The appellant appeared on his own behalf T Arnold, with L C Rundle, for the respondent |
SOLICITORS: | The appellant appeared on his own behalf John Williams & Associates for the respondent |
[1] HOLMES JA: I agree with the reasons of Muir JA and the orders he proposes.
[2] MUIR JA: The appellant appeals against an order of a judge of the trial division of this Court on 15 December 2009, dismissing his application under s 686 of the Criminal Code (Qld) to present an information against the respondent solicitor, who had represented the appellant at a committal hearing, for an indictable offence alleged to have been committed by the respondent. The offence specified in the application for leave to present an information was "s 140 attempting to pervert justice". It was particularised in the course of discussion between the appellant and the primary judge as failing to object to the failure by the prosecution to call a subpoenaed witness to give evidence at the committal hearing which was in respect of an offence of grievous bodily harm or, alternatively, of occasioning bodily harm allegedly committed by the appellant.
The evidence at first instance
[3] The application was supported by four affidavits, two sworn by the appellant. In one of the appellant's affidavits he deposed as follows. He attended the Magistrates Court at Rockhampton with his neighbours, Mr and Mrs Young, and a Mr Vernon Johansen. Mrs Young and Mr Johansen had been subpoenaed as witnesses in the committal hearing. The respondent joined the group, after which Detective Zanella asked to speak to Mr Johansen. Mr Johansen and the detective moved away. After a short while Mr Johansen returned and said that he had been told that he was excused from "the committal proceeding R v Mowen" by the detective. The appellant asked the respondent whether this could be allowed. The respondent replied, "… that's all right, what's one witness more or less".
[4] An affidavit sworn by Mr Johansen contained the following assertions. On 5 October 2007 he told Detective Zanella that "there were a lot of things on [his] statement [he] was not happy about, would be changing". He was then told by the detective that he would not be needed but that he was later "called to a voir dire where [he] gave evidence under closed court provisions in front (sic) Judge Samios, the prosecutor and [the appellant]". Mr Young, in his affidavit, also spoke of a conversation between Detective Zanella and Mr Johansen. He also swore that his wife had been called to give evidence.
[5] An affidavit sworn by the respondent exhibited a statement which Mr Johansen had given to the police. In the statement, Mr Johansen referred to a newspaper article in respect of an incident which occurred on a Saturday night in early August 2006 and stated that:[1]
"7.Later in that same week … I attended [the appellant's] house just to check on his welfare and make sure he was okay.
8.He told me certain things (a man called out from the gate something to do with loud music … I went out to see who was calling me and we fell to the ground. The axe got knocked to the ground as well. I got stuck into him with my fists and dragged him back out to his car and told him to keep going).
9.I saw that [the appellant] had gravel rash underneath his forearms and the back of his head. I do not know how he sustained these injuries I was only taking his word of what happened.
10.He appeared quite upset and he was of the opinion that the lady next door who owned the property had set him up or something. I do not know what he was talking about.
11.I myself haven't had any run-ins with him however I have heard loud music coming from his place at different times.
12.This is all I know about this matter."
[6] The respondent swore that this statement was tendered in the course of the committal hearing and that Mr Johansen was not required for cross-examination.
[7] Exhibited to the same affidavit was a copy of the following particulars provided by the appellant of his allegations against the respondent:
"1. That on the Fifth Day of October in the year 2007
2. At the Magistrates Court in Rockhampton
3. Under the presiding Justice, being one Magistrate Hennessy.
4. In the complaint Mowen Vs Police.
5.One Brian McGowran being a qualified Criminal Lawyer.
6. And being the Legal Aid appointed Representative of Mowen.
7. And being in the company of Mr and Mrs Young, Mr. Vernon
Johansen and his client Mr. Mowen.
8. One Brian McGowran was present and witness to;
9. One Detective David Zanella preventing a witness from attending.
10. The Witness being one Vernon Johansen.
11.This action coming under Section 130 of the Queensland criminal Code, Preventing a Witness Attending.
12.This action was brought to the attention of Brian McGowran by his client after Brian McGowran failed to raise objection to the actions of Detective Zanella, performed in his presence and which he witnessed.
13.Brian McGowran failed to question the actions of Detective Zanella.
14.Brian McGowran did not bring this action by Detective Zanella to the attention of Magistrate Hennessy, the presiding Justice on the day.
15.Nor did he raise an objection to this action by Detective Zanella with the presiding Magistrate, being one Magistrate Hennessy.
16. Being a Criminal Lawyer, and failing to report a questionable action, which should have been to his training the field of criminal law, knowledge of a criminal action, and worthy of investigation or objection."
The primary judge's reasons
[8] The primary judge, in her ex tempore reasons, explained that:
"On the 21st of November 2008, the respondent withdrew as the applicant's legal representative with leave. Now, by the material which has been filed by the applicant and on the basis of his submissions here today, it would seem that there are three complaints that the applicant makes against Mr McGowran. They are that a Mr Johansen did not give evidence at the committal hearing, that Mr McGowran sought instructions from Mr Mowen for a psychiatrist's report in relation to the proceedings and that Mr McGowran did not notify Mr Mowen that he was going to withdraw as a solicitor.
It would seem that on the basis of the submissions today, the substance of the complaint which the applicant makes is that his solicitor failed in the opportunity to object to a witness [Mr Johansen] not being called by police at the committal."
Consideration
[9] From the particularised allegations the appellant seeks to make out a case that the respondent attempted to pervert the course of justice.[2] The principal thrust of the appellant's case, as particularised, was that the respondent, who was representing the appellant at the committal hearing, failed to object or otherwise intervene when Detective Zanella told Mr Johansen that he was no longer required as a witness, with the result that the prosecutor failed to call a subpoenaed witness at the appellant's committal hearing.
[10] The allegations betray a misunderstanding of the legal process. The appellant's legal representative had no power or right to require the prosecutor to call any witness: that was a matter entirely within the discretion of the prosecutor.[3] The presiding magistrate also lacked power to require the prosecutor to call a particular witness.[4] However, the complaint centering on the respondent's alleged failure to ensure that Mr Johansen gave evidence, appears to have been misguided. There was in evidence before the primary judge an affidavit of the respondent in which he swore that Mr Johansen's statement was, in fact, tendered in the committal hearing. When this was drawn to the appellant's attention on the hearing of the appeal, the focus of his argument changed to a complaint that the respondent had not taken appropriate steps to cross-examine Mr Johansen.
[11] Mr Johansen's statement, relevantly, contained some hearsay statements in paragraph 8 admissible against the appellant as statements against interest and Mr Johansen's observations of gravel rash on the appellant. On the hearing of the appeal, the appellant asserted that he had succeeded on a voir dire in the course of his District Court trial in having some parts of Mr Johansen's statement ruled inadmissible. He did not claim that he attempted to have paragraph 8 excluded.
[12] There was nothing in the evidence before the primary judge or before this Court which suggested that the content of paragraph 8 was harmful to the appellant's case or that it would have been desirable for the respondent to attempt to cross-examine Mr Johansen on it or in relation to anything else. There was no evidence before the primary judge which asserted or suggested that the content of that paragraph was wrong in whole or in part and Mr Johansen was not said to have been a witness to the incident which gave rise to the charge.
[13] There are thus no grounds for concluding that the respondent was in any way derelict in his duty for not attempting to persuade the prosecutor to call Mr Johansen so that he could be cross-examined, or for not attempting to have Mr Johansen remain in the courthouse and available to be called as a witness.
[14] The other two complaints referred to in the primary judge's reasons were not particularised and were not developed in argument at first instance or on appeal, except insofar as the appellant contended on appeal, in effect, that the respondent should not have sought to obtain a psychiatric report from a psychiatrist who was not the appellant's treating psychiatrist. Nothing was said in relation to both these complaints which suggested that, even if substantiated, they might lend the faintest support to the allegation that the respondent had attempted to pervert the course of justice.
[15] As no vestige of an arguable case against the respondent was demonstrated by the appellant, it would have been wrong for the primary judge to grant leave to the appellant to present an information against the respondent. The appellant has not shown any error of law or fact in the primary judge's reasons. Even if such an error had been shown, for the reasons just given, it would not have been appropriate for leave to be given under s 686 of the Code.
[16] The appellant also made application for leave to adduce further evidence on the hearing of the appeal, namely, the oral evidence of the Magistrate before whom the committal hearing took place with a view to: