Dupois v Queensland Police[2022] QCA 240

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  The applicant before me, Mr Dupois, seeks urgent interlocutory relief consequent upon the refusal of similar relief by the Chief Justice on 3 November 2022.^[1]
2. [2]
   Mr Dupois is currently facing charges in the Magistrates Court.  They are: one charge of unlawful stalking (a domestic violence offence); one charge of using a carriage service to menace, harass or cause offence; two charges of personation (falsely representing himself to be another person); one charge of forgery and two charges of uttering.
3. [3]
   He was charged with those offences in May 2017.
4. [4]
   The procedural history of these charges through the Magistrates Court is outlined in a decision of Magistrate Strofield given on 16 June 2022.  The following summary^[2] is sufficient for present purposes.
5. [5]
   There has been significant delay.  In part that appears to have been due to Mr Dupois changing his “election” (more than once), as to whether the charges were to be dealt with summarily (by way of a summary hearing in the Magistrates Court) or on indictment and tried by a jury (in the District Court); as well as an application for a permanent stay brought by the applicant in the Magistrates Court.
6. [6]
   The stay application was heard by Magistrate Strofield, on various dates in September 2021, March and May 2022, and refused for the reasons given on 16 June 2022.  Relevantly, it was held that Mr Dupois had not discharged the heavy onus of satisfying the Magistrates Court that the prosecution was doomed to fail and that there was illegal or unlawful conduct in the prosecution evidence.
7. [7]
   At the time of Magistrate Strofield’s decision, the last election Mr Dupois had made was for the charges to be dealt with at a summary hearing in the Magistrates Court.  Since the stay was refused, it would follow that the trial should proceed.  However, following that decision, Mr Dupois sought to change his election again.  The prosecution consented to the reversal of the election and the charges were therefore to be tried by jury.
8. [8]
   That change triggered the process of an “examination of witnesses” before a Magistrate, with a view to a Magistrate determining whether or not the evidence is sufficient to commit Mr Dupois to be tried by a jury (a committal hearing).^[3]
9. [9]
   On 19 September 2022, there was a hearing in relation to the committal hearing, before Magistrate Quinn.  That was listed in order to deal with a dispute which had arisen, between the prosecution and Mr Dupois, in relation to the witnesses to be cross-examined at the committal hearing.  That did not progress on 19 September 2022, because Magistrate Quinn was informed that there was another proceeding in the Supreme Court which may or may not be relevant to the committal proceeding.  Magistrate Quinn was told that there was a listing in the Supreme Court on 18 October, and requested that the solicitor for Queensland Police, Mr O'Brien, or whoever who would be appearing before the Supreme Court on that day, “ask that this court seeks guidance from the Supreme Court as to whether the proceedings now before this court ought proceed to the listing of an application to hear a directions hearing dealing with cross-examination”.
10. [10]
    Magistrate Quinn made it clear that he was concerned not to be proceeding inconsistently with any order of the Supreme Court; but was also very concerned about the ongoing delays in relation to the criminal charges.
11. [11]
    Magistrate Quinn listed the matter for another mention on 31 October 2022,^[4] and then also listed the actual hearing of the issue in relation to witness cross-examination on 24 November 2022, so that, in the event that matters were resolved and clarified, consistently with the committal appropriately proceeding, there would not be further delays.
12. [12]
    There is at present no date set for the actual committal hearing to take place.  During the hearing before me it was agreed that the committal cannot take place this year.
13. [13]
    What occurred on 18 October 2022 was a review before Freeburn J, the judge in charge of the supervised case list for matters involving self-represented litigants.
14. [14]
    Then on 20 October 2022, Mr Dupois filed the “urgent interlocutory application” which was heard by the Chief Justice on 26 October 2022.  By that application the relief sought was a permanent stay “of all of the charges that [Mr Dupois] currently faces in the Magistrates Court”, on the basis that “there is no possible way that the Applicant would ever obtain a fair and impartial hearing as the proceedings in the Magistrates Court have already been determined before they have even begun”.^[5]
15. [15]
    The Chief Justice delivered her reasons on 3 November 2022, dismissing the application. Her Honour also ordered Mr Dupois to pay the costs.
16. [16]
    On 4 November 2022, Mr Dupois filed a Notice of Appeal in respect of the decision of the Chief Justice.  The relief sought in the Notice of Appeal is:

“That the Magistrates Courts committal proceedings process starting on the 24^th November 2022 or any other proceedings in that jurisdiction be urgently stayed pending the outcome of the pending trial in the Supreme Court File Number – 6119/22 which relates to the identical remedy sought in a Superior Court.”

17. [17]
    On the same day, Mr Dupois filed what was described as an “urgent interlocutory” application to be heard in the Court of Appeal.  That application seeks relief in precisely the same terms as is sought in paragraph 1 of the Notice of Appeal, then adds.

“2. That the entire Judgement of Justice Bowskill including the awarding of costs be overturned as it takes away all my legal and constitutional rights to obtain a fair and impartial hearing which will never occur in the Magistrates Court.

3. That her honour be recused from any further matters involving me.”

18. [18]
    Mr Dupois’ interlocutory application came before me on 10 November 2022.  On that occasion Mr D Keane of Counsel appeared for the first respondent.  Mr O'Higgins of Counsel appeared for the second respondent (Magistrate Strofield).  Early in the course of the hearing Mr O'Higgins indicated that his client would simply abide the order of the court, and he was excused from further attendance at the hearing.
19. [19]
    Prior to Mr Dupois mounting the arguments on the application, I drew to his attention the fact the interlocutory application seeks relief in identical terms to that in the notice of appeal.  Mr Dupois agreed that I should treat the application as being one for interlocutory relief pending the appeal itself.  The matter proceeded on that basis.
20. [20]
    One complicating factor in the present case is that Mr Dupois does not seek a stay of the orders made by the Chief Justice, except (perhaps) in respect of the costs order.  In truth, what Mr Dupois seeks by his interlocutory application is relief identical to that which was refused by the Chief Justice, and which is sought in his Notice of Appeal, namely that the committal proceedings in the Magistrates Court be stayed pending the outcome of his application for a stay of the charges, currently pending in the Supreme Court.
21. [21]
    The principles applicable to an interlocutory application seeking such relief were stated by the Chief Justice in her reasons below, in a way that may be adopted for present purposes:^[6]

“[23] I accept that the principles to be applied in considering whether to make the interlocutory order sought by the applicant are those which apply to an application for an interlocutory injunction. Relevantly, in order to persuade the court to make an order restraining the committal hearing procedure from continuing, pending the final hearing of the application for a permanent stay of the criminal charges, the applicant must show:

1. (a)
   first, that he has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the final hearing, the applicant will be held entitled to the relief that he seeks (a permanent stay); and

2. (b)
   second, that the balance of convenience favours the grant of the interlocutory order.

[24] As to the first matter, the reference to a prima facie case does not mean an applicant must show that it is more probable than not that at trial he will succeed; it is sufficient that he show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order he seeks.”

22. [22]
    However, the present application is made in circumstances where those issues have already been determined once, adversely to Mr Dupois.  He appeals against that determination and seeks the current relief pending the hearing of that appeal.  So understood, the application can only succeed if Mr Dupois demonstrates that there is a good arguable case that the Chief Justice erred in reaching the conclusions she did, and that the balance of convenience favours staying the proceedings in the Magistrates Court.  Mr Dupois proceeded on that basis.

Points made by Mr Dupois

23. [23]
    Mr Dupois had a sequence of points to make in support of his application.  It is convenient if I deal with them sequentially, although he contended that the accumulation of the points had to be considered.

Procedural fairness

24. [24]
    The point made by Mr Dupois in this respect was that procedural fairness would require a decision maker who was impartial and free from actual or apparent bias, and who can afford a fair hearing to the persons whose interests are affected.  No particular point was made except to submit that the decision made on his interlocutory application “could have a very deterrent affect and adversely prejudice” [his] case in the Supreme Court.

Mr Dupois’ responses to the decision of Bowskill CJ

25. [25]
    Mr Dupois advanced arguments in respect of a number of paragraphs in the reasons of the Chief Justice.  I will deal with them sequentially.
26. [26]
    The first concerned the recitation of the procedural history of the charges.^[7]  Her Honour recorded that Magistrate Strofield had refused an application for a stay in that court, on 16 June 2022.  Relevantly her Honour recorded that Magistrate Strofield’s reasons were that Mr Dupois “had not discharged the heavy onus of satisfying the court that the prosecution was doomed to fail and that there was illegal or unlawful conduct in the prosecution evidence”.  Mr Dupois’ response was to submit that Magistrate Strofield had not read any of the material, had heard none of Mr Dupois’ recordings, and allowed no evidence to be presented by witnesses.  On that basis he submitted that the Magistrate could not have made a proper determination of the stay application.
27. [27]
    The difficulty with that submission is that no appeal was brought from the refusal by Magistrate Strofield to grant a stay of the then pending charges in the Magistrates Court.  Mr Dupois had made an election to be tried in a summary way in order that he could mount the application for a stay.  When the stay was refused, instead of appealing Magistrate Strofield’s decision, Mr Dupois launched proceedings in the Supreme Court seeking to prevent the charges being brought to trial.
28. [28]
    Further, as the Chief Justice referred to,^[8] subsequent to the refusal of a stay by Magistrate Strofield, Mr Dupois changed his election, with the consent of the prosecution, so that he elected now to be tried by a jury.  For that reason, the pending trial in the Magistrates Court was abandoned and replaced by standard committal proceedings leading to a trial by jury.
29. [29]
    Mr Dupois accepted that the Chief Justice was merely recording the procedural history but advanced a submission that no judicial officer could make a determination of any facts until they had listened to the witnesses, looked at all the material and made a proper and impartial finding on the facts.
30. [30]
    Mr Dupois then turned to what the Chief Justice said in response to his urging her to listen to three audio recordings of conversations between himself and two other persons.^[9]  The Chief Justice said of those recordings:^[10]

“[19] At the hearing of the present application, the applicant pressed for permission to be able to play three recordings.  Counsel for the first respondent objected, on the basis of admissibility.  Without ruling upon the objection, and subject to that, I permitted the applicant to play the recordings.  There is no evidence of what the recordings are.  The applicant informed the court, as part of his submissions, as follows:

1. (a)
   the first and second recordings are of a conversation(s) between the applicant and a ‘former detective’ (who was not aware the recording was being made);

2. (b)
   the third recording is a conversation between the applicant and a Ms Gittins, the prosecutor who previously had carriage of the charges (again, she was not aware the recording was being made).

[20] The recordings do not contain admissible evidence.  The fact of a conversation having taken place between the applicant and the ‘former detective’, or the prosecutor, is not relevant to any issue before the Court.  The applicant wants to rely on what the other party to those conversations said, as evidence of something.  That is inadmissible hearsay – out of court statements by third parties, sought to be relied upon as to its truth.  It may even be double-hearsay (to the extent the applicant wants to rely on something the other party to the conversation said, which was in turn conveying what yet another person said to them).

[21] If the applicant wishes to have evidence from, for example, the former detective, before the court, he needs to obtain a sworn statement (affidavit) from that person, or call him as a witness to give evidence (depending on the nature of a hearing).  The hearsay rule would still apply.  Purporting to tender a recording of what another person has said, made without the other person’s knowledge, as evidence that would or could be given by them is not permissible.”

31. [31]
    The recordings to which her Honour referred were placed on a USB stick and marked “A” for identification.
32. [32]
    Mr Dupois disputed what was said in paragraph [21] of the Reasons, contending that no detective or any other person in a position of power would come forth voluntarily in circumstances where they might be placed at risk of criminal charges or other serious consequences, “going against a legal system that has been designed to protect corruption instead of exposing it”.
33. [33]
    Mr Dupois sought that I listen to the same three recordings.  Mr Keane, for the first respondent, maintained his objection to admissibility, but accepted that I might listen to the recordings on the same basis as did the Chief Justice.  The recordings were played in open court, and I have listened to them.  Like the Chief Justice, in my view neither the former detective nor the prosecutor say anything of the kind for which Mr Dupois contends.  Mr Dupois has repeatedly asserted that those recordings offer irrefutable proof of the corruption he contends in respect of being heard on any question in the Magistrates Court.  The recordings do no such thing.  In the case of the prosecutor, Mr Dupois was making various assertions to her seeking that she respond.  In every case the prosecutor simply told Mr Dupois to put his assertions in writing and she would respond to that.  The suggestion by Mr Dupois before me, that the significance was that the prosecutor did not deny what he was asserting, is nonsensical.  The prosecutor was plainly not prepared to deal with Mr Dupois in a telephone conversation, but urged him to put those matters he wanted to raise in writing and she would respond to that.
34. [34]
    In respect of the former detective, the conversation is somewhat garbled at times, and strays away from anything that might suggest corruption in the Magistrates Court.^[11]  Insofar as the former detective offered his opinion about what might happen in the Magistrates Court, or Mr Dupois’ situation, it is nothing more than that, namely an opinion offered by the person without any foundation.  Mr Dupois relies upon the responses as establishing that in the Magistrates Court Mr Dupois will be “fucked over”, and that the Deputy Chief Magistrate will appoint some other Magistrate in order to achieve that result.  Those opinions are scandalous and offered without any basis.  They do not constitute admissible evidence of anything.
35. [35]
    Like the Chief Justice, in my view, the recordings provide no proof of any of the allegations made by Mr Dupois.
36. [36]
    Mr Dupois then turned to what the Chief Justice said in respect of one aspect of the necessity to establish a prima facie case for a permanent stay:^[12]

“The applicant submitted that the court could not possibly determine the question whether a prima facie case (for a permanent stay) has been made out, without reading ‘all the material with supporting evidence and all of the attached self-evident and incriminating recordings on the USB’.  I have perused all of the affidavits which have been filed by the applicant in this proceeding.^[13]  I have not listened to all the recordings which the applicant says are on a USB which is included with one of the affidavits.  I have, however, listened to the three recordings that the applicant asked to be played in court, and which he submitted would demonstrate the corruption he insists has occurred.  As already explained, those recordings are not evidence of any such thing”.

37. [37]
    Mr Dupois’ submission in that respect was that the other recordings (that is, those which the Chief Justice was not asked to listen to) involved conversations with the arresting officer, who was in a sexual relationship with Mr Dupois’ ex-wife.  Mr Dupois asserted that there are “numerous discussions which are compelling”.  He went on to say that the Chief Justice “chose to not hear them”.  He complained further that the Chief Justice did not read the witness statements and numerous affidavits, nor did she allow witnesses to provide evidence by way of evidence under oath.
38. [38]
    By his complaint, Mr Dupois demonstrates a misunderstanding as to the nature of an application for interlocutory relief.  Of the material put forward to her Honour, most or all of it was read or considered.  Her Honour recorded so.  As to the audio recordings, her Honour listened to the three which she was asked to listen to.  Evidence advanced on an interlocutory application does not normally involve the calling of witnesses to give oral evidence or be cross-examined.
39. [39]
    Mr Dupois submitted that one could only conclude one of two things.  The first was the Chief Justice read the material and knew it would work against her judgment, or secondly, she did not read it at all.  I pause to note that the Chief Justice recorded that she had read the material and there is no reason to conclude otherwise.
40. [40]
    Mr Dupois’ submission was that the Chief Justice “did not do her job impartially” and that she had “already made her mind because she supports the prosecution”.^[14]  The submission is a scandalous one and I reject it.  Her Honour recorded that she had read the material, and Mr Dupois accepted that she had listened to the three audio recordings which he had urged.
41. [41]
    Mr Dupois next referred to the Chief Justice’s reasons where she said:^[15]

“[39] Of course it is not for me to finally determine the stay application – that is a matter to be heard at a later stage (as discussed below).  At this point, I am dealing only with what is in essence an interlocutory injunction to prevent the committal hearing proceeding.  Step one in determining that application is to consider whether a prima facie case has been shown.  I am not persuaded that it has, but I proceed to consider the next question, in case I could be wrong about that”.

42. [42]
    Mr Dupois’ submission here was that the above passage revealed that the Chief Justice clearly had not established what the true facts were.  He went on: “on that basis alone how could anyone be found guilty of any offence beyond reasonable doubt when the judicial officer herself doesn’t even know”.^[16]
43. [43]
    By that submission Mr Dupois reveals a misunderstanding of what the Chief Justice said.  Her Honour was simply saying that if she was later found to be incorrect on the question of whether there was a prima facie case, she should then proceed to consider the balance of convenience.  As her Honour noted, it was no part of her function to finally determine the stay application.
44. [44]
    Mr Dupois then referred to what her Honour had said concerning the question of the balance of convenience:^[17]

“[41] As already mentioned, it follows from the relevance of the public interest of the community in having those who are charged with criminal offences brought to trial that particular caution ought to be adopted when this Court is asked to exercise its supervisory jurisdiction to interfere in a committal process”.

45. [45]
    Mr Dubois made a submission that her Honour’s statement was “absurd”, and questioned: “Where is the public interest to prosecute anyone for six years because, prior to any police intervention, they lawfully sued their ex-de facto wife to recover a debt of over $100,000?”^[18]
46. [46]
    Mr Dubois evidently misunderstood what her Honour was saying.  Her Honour’s reference to the public interest had been reflected in her Honour’s citation of the High Court decision in Dupas v The Queen.^[19]  There the High Court referred to the need, on an application for a permanent stay of criminal charges, to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial.  The fact is that Mr Dupois has been charged with criminal offences and steps are being taken to bring him to trial.  His resistance to that course involves repeated wild and unsubstantiated accusations that magistrates are part of a corrupt process to have him found guilty when he is innocent.  Like the Chief Justice, my conclusion is that Mr Dupois’ accusations offer no evidentiary support for a conclusion, even on the basis of a prima facie case, that there is any relevant conduct which would deny him a fair trial.
47. [47]
    Further, it must be borne in mind that Mr Dupois has reversed his election for summary trial.  All that is proceeding in the Magistrates Court at the present time are the steps preparatory to a committal hearing.  It was eventually accepted by both Mr Dupois and Mr Keane that there was no prospect of the committal occurring this year.  The currently pending steps involve, principally, that on 24 November 2022 there will be a hearing to determine which witnesses might be called and cross-examined at the committal proceeding.  That, of course, is an administrative step as part of the committal proceedings.  It involves no judicial determination of Mr Dupois’ guilt or innocence.  It is nonsensical to suggest that it might, given that Mr Dupois has elected for trial by a jury.
48. [48]
    Mr Dupois next addressed what the Chief Justice said concerning the current proceedings in the Magistrates Court:^[20]

“[42] The applicant argued vehemently that the proceedings in the Magistrates Court cannot continue, because the proceedings in this Court seek the ‘identical remedy’.  That submission is not correct.  The remedy sought in this Court is a stay of the criminal charges.  What is in progress in the Magistrates Court is a committal hearing – or more accurately, the procedural steps leading up to a committal hearing.  That committal hearing will result in no decision or determination or findings in relation to the criminal charges themselves.  At worst for the applicant, the outcome of the committal hearing would be that the evidence is sufficient to justify a trial, and he will be committed for trial (presumable in the District Court).  At best for the applicant, the outcome of the committal hearing would be that the evidence is not sufficient to justify a trial, and then he would be discharged by the Magistrate.  As counsel for the first respondent noted, however, even if a Magistrate does not commit the defendant (applicant) for trial, it is still open for an ex officio indictment to be presented, under s 561 of the Criminal Code”.

49. [49]
    Mr Dupois’ submission in respect of that passage was to say:

    1. (a)
       he completely disagreed with those remarks as “any findings made by the Magistrates Court will be findings made out of revenge as I am claiming criminal conduct by four Magistrates”; and
    2. (b)
       in the Magistrates Court “there is biased (sic) against me, there is planned revenge against me”, and in that respect Mr Dupois referred again to the recording from the former detective, asserting that if the Chief Justice had been really interested in applying justice “all she would have to do is allow my witnesses to give evidence under oath”.^[21]
50. [50]
    Nothing in Mr Dupois’ submissions in respect of that point advanced his case any further.  In essence, they consisted of repeated assertions of corruption in the Magistrates Court, made without any proper basis.
51. [51]
    Mr Dupois summarised his submission in respect of the decision of the Chief Justice, by contending that it was flawed, contradictory, not impartial and should be overturned.  Further, he contended that insofar as the Chief Justice referred to the committal as being an administrative function which “can’t hurt me”, he again asserted that the Magistrate hearing the committal would act “out of revenge to cause me further grief”.^[22]
52. [52]
    Mr Dupois sought to tender a copy of an email he had sent to the parties, indicating that he intended to join five named Magistrates as parties to the Supreme Court proceedings.  I raised with Mr Dupois the fact that even if he does so, that leaves many Magistrates available to hear the committal proceedings.  Mr Dupois accepted that he was not saying that every Magistrate was caught up in his corruption allegations,^[23] but he asserted that Deputy Chief Magistrate Gett would act as had been referred to by the former detective in the audio recording, namely that Magistrate Gett “will get one of his Magistrate mates to fuck me over”.^[24]
53. [53]
    There is not the slightest evidence to support such an assertion.  The sole basis for it seems to be what was said in the audio recording by a person said to be a “former detective”.  No foundation for the comment was offered by the person making it, no sensible foundation was offered by Mr Dupois as to why it should be accepted, it is inadmissible in its current form, and would probably be inadmissible even if the former detective chose to give oral evidence.
54. [54]
    Mr Dupois went on to assert that:^[25]

    1. (a)
       he was not concerned about the validity of his case because the police case is “rubbish”;
    2. (b)
       he was concerned “about being framed”; and
    3. (c)
       he was asking for “a judge and jury trial” in the Supreme Court because “then I feel comfortable that a jury will make a determination once they hear the evidence, see the witnesses, listen to everything … then I can have my life back”.
55. [55]
    I pause to note that a jury trial is what will be the outcome if Mr Dupois is committed for trial.  There will be no hearing in a summary way in the Magistrates Court.  The process presently occurring in the Magistrates Court is to achieve precisely that which Mr Dupois says he wants, a jury trial.
56. [56]
    Mr Dupois then went on to advance more general criticisms of the Chief Justice’s decision, including:

    1. (a)
       he questioned why certain material had been sealed by order of Justice Freeburn;
    2. (b)
       the Chief Justice “watered down everything … to clearly assist in my view of the respondents”;
    3. (c)
       the Chief Justice had relied on matters that were completely irrelevant as the matter “before this court had nothing to do with me asking her to permanently stay the proceedings”;
    4. (d)
       her Honour should have assessed the application on the basis that there was an identical remedy being sought in the Supreme Court as was being sought in the Magistrates Court; and
    5. (e)
       he relied on comments on Justice Kelly in a previous hearing that “this is very serious matter”, and that on 9 June 2022 Justice Kelly had stated “on numerous occasions that the lower court matter should be placed on hold as the superior court has got control over the inferior court so those proceedings should not continue”.^[26]
57. [57]
    Those submissions proceed on at least one flawed basis, and overstate another matter.  As the Chief Justice pointed out the relief sought in the Supreme Court is not identical to that in respect of the Magistrates Court.  In the Supreme Court what is sought is a permanent stay of the charges themselves.  What was being sought from her Honour was an order staying the committal proceedings in the Magistrates Court.  The considerations are quite different.
58. [58]
    Further, Mr Dupois’ reliance on comments by Justice Kelly on 9 June 2022 are misplaced.  Justice Kelly was not suggesting that proceedings in the Magistrates Court should be placed on hold.  No such finding was made.
59. [59]
    In subsequent submissions Mr Dupois repeated, again and again, his assertion that “the Deputy Chief Magistrate who controls his team will tell whoever he may choose to run that committal to fuck me over”.^[27]
60. [60]
    No further substance was added to that assertion.  It remains bereft of any form of proof.
61. [61]
    Mr Dupois also continued to assert that relief should be granted on his interlocutory application because the “identical remedy” is being sought in the Magistrates Court, as it is in the Supreme Court.  As noted above, there is no substance to that argument.
62. [62]
    Mr Dupois’ assertions, made in submissions that then followed included that “the magistrates and prosecutors … are in cohoots”.^[28]  Again no basis was offered to substantiate that assertion.
63. [63]
    Mr Dupois sought to make a point about what had happened to him in a recent hearing before Magistrate Quinn.  His complaint was that Magistrate Quinn had asked for security to be brought to the courtroom prior to Mr Dupois arrival or appearance, and that was something that had never happened to Mr Dupois before.  Mr Dupois sought to play the audio recording of what occurred in court.  It would not play in the courtroom for technical reasons, but I have listened to it since.  It is true that Magistrate Quinn asked for security to be brought to the courtroom prior to Mr Dupois’ appearance.  Nothing arises from that.  No doubt, given that Mr Dupois had made allegations of corruption against Magistrate Quinn, his Honour was apprehensive about what might happen.  The hearing was entirely orthodox and concerned solely with the question of whether the hearing that day should be adjourned because the decision of the Chief Justice had not then been handed down.  Before me Mr Dupois made his grievance plain in respect of security being called.  However, that does not mean that he received an unfair hearing that day, or any other day.  Further, Magistrate Quinn is one of the Magistrates Mr Dupois intends to join in the Supreme Court proceedings.  If that occurs, it is extremely unlikely, in my view, that Magistrate Quinn would deal with Mr Dupois’ committal.

Consideration

64. [64]
    The Chief Justice dealt with two aspects of the question before her.  The first was whether a prima facie case had been established concerning whether a permanent stay of the charges might be ordered.  The second was whether the balance of convenience favoured the grant of relief preventing further steps in the committal in the Magistrates Court.
65. [65]
    Her Honour reached the conclusion that a prima facie case had not been established.^[29]  I have reached the same conclusion.  Mr Dupois’ challenge rests on the suggestion that the charges have been improperly brought and are now improperly maintained in circumstances where various magistrates and prosecutors are part of a corrupt conspiracy to see him found guilty.  Those propositions are advanced vehemently and repeatedly, but no proper foundation is discernible for them.
66. [66]
    It seems to me, therefore, that the prospects on the appeal in that respect are fairly poor.
67. [67]
    However, there is a greater obstacle confronting Mr Dupois’ application before me.  That stems from the fact that the Chief Justice found that the balance of convenience did not favour the grant of relief.  The reasons for that were succinctly explained by the Chief Justice:^[30]

“[43] The following factors weigh the balance strongly against granting the relief the applicant seeks:

1. (a)
   The improbability of a permanent stay of the criminal charges being granted;
2. (b)
   The need for caution in exercising this Court’s arguable supervisory jurisdiction in relation to a committal hearing – which in turn warrants an even stronger probability of success being shown.

But even if the grant of a permanent stay had some likelihood of success:

3. (c)
   As already mentioned, the committal process is essentially administrative, not judicial, and will result in no decision or determination of the charges themselves, nor binding findings of fact in relation to any matters that are raised in relation to those charges.  There is, in that sense, no prejudice to the applicant in enabling the committal process to take its course.
4. (d)
   There has already been considerable delay in the progress of the criminal charges.
5. (e)
   The applicant has not prosecuted his application for a permanent stay with any diligence.  Even now, five months after filing it, the applicant says he is not ready for the application to be listed for hearing and cannot commit to a time when he will be.  He foreshadows further delay, by his contemplated broadening of the proceedings in this court to join multiple judicial officers.  That is not a proper justification to further delay the progress of the criminal charges.
6. (f)
   There is as yet no date set for the committal hearing – the only date set is a mention (now, I understand, on 7 November 2022, adjourned from 31 October 2022 awaiting this decision) and then a further mention on 24 November 2022 to deal with the issue of cross-examination of witnesses.
7. (g)
   There is no reason why the applicant’s application for a permanent stay could not have been – or be – heard and determined before the committal hearing takes place”.

68. [68]
    The result of making those findings was that her Honour exercised a judicial discretion against the grant of relief.  The considerable obstacle confronting Mr Dupois’ challenge on the appeal is to show that her Honour’s exercise of discretion was one which was not open to be made, or affected by some sort of error of the nature of that set out in House v The King.^[31]
69. [69]
    In my view, the prospects of Mr Dupois’ succeeding in that respect is very poor.  In my respectful view, the Chief Justice was right to set out the considerations she did.  To that may be added this:

    1. (a)
       there is no prospect of the committal hearing being heard this year; what is scheduled on 24 November 2022 is a hearing about witnesses to be called or cross-examined;
    2. (b)
       Mr Dupois made the defiant announcement before me that he would challenge, whether by way of appeal or judicial review, virtually every decision made in that process; the prospect is thus for further delay;
    3. (c)
       there is no foundation whatever for the view repeatedly made by Mr Dupois, that the Deputy Chief Magistrate will direct another Magistrate to act improperly;
    4. (d)
       the committal proceedings will not result in any determination of Mr Dupois’ guilt or innocence on the charges; and
    5. (e)
       there is a plain public interest in having those who have been the subject of criminal charges, properly brought to trial.
70. [70]
    In my view, Mr Dupois has not demonstrated any basis upon which the relief he seeks in this interlocutory application should be granted.
71. [71]
    For the above reasons, the orders made on 23 November 2022 were:

1. Application dismissed.
2. The applicant pay the first respondent’s costs of incidental to the application.