McEwan v Clark[2023] QCA 120

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  In 2019, the appellant was charged with 30 offences, alleged to have been committed under the Criminal Code (Cth) and the Criminal Code (Qld), which include allegations that she attempted to dishonestly obtain a financial advantage from the Australian Taxation Office (ATO), dishonestly influenced a Commonwealth official, and engaged in forgery and uttering.
2. [2]
   The charges have been brought by the second respondent, the ATO.  The fourth respondent, the Commonwealth Director of Public Prosecutions (CDPP), is prosecuting the charges on behalf of the ATO.
3. [3]
   In summary, the CDPP alleges in the ATO proceedings that:

   1. (a)
      the appellant attempted to defraud the ATO by authorising lodgement of a research and development tax offset claim on behalf of a company, Venika Biotech Pty Ltd, which stated that the company was involved in the research and development of a drug to treat cancer, falsely claimed that it incurred $8,456,800 in related expenditure in the financial year ending 30 June 2017, and sought a refund of $3,678,708 from the ATO;^[1] and
   2. (b)
      during a review of the research and development tax offset claim by the ATO, the appellant provided, or authorised the provision of, material and information, including forged documents, which were intended to mislead the ATO into accepting the research and development tax offset claim and paying the refund.^[2]
4. [4]
   The appellant is currently being prosecuted in the Magistrates Court with respect to those offences.
5. [5]
   On 12 December 2022, Magistrate Saggers made two relevant orders:

   1. (a)
      the first was that there be a disclosure hearing in the Magistrates Court on 9 March 2023; and
   2. (b)
      the second was that the committal hearing on the charges be set down for five days commencing on 8 May 2023.
6. [6]
   On 13 December 2022, the appellant filed an Originating Application in the Supreme Court seeking relief which can be characterised in the following way:

   1. (a)
      Order 1: that the committal hearing in the Magistrates Court be delisted;
   2. (b)
      Order 2: the ATO proceedings and the committal proceedings in the Magistrates Court be adjourned until a final determination is made on the appellant’s application for a permanent stay of the prosecutions in proceeding No. 9181/2022;
   3. (c)
      Order 3: all outstanding disclosure listed in the Disclosure Request served on the CDPP, ATO, and the Queensland Director of Public Prosecutions (DPP) under the directions of Judge Moynihan KC dated 4 November 2022, and again served on 21 November 2022 and 9 December 2022, be provided within seven days by 20 December 2022;^[3]
   4. (d)
      Order 4: all outstanding disclosure listed in the Disclosure Request served on the QPS dated 9 December, and again 13 December 2022, be provided directly to the appellant within seven days by 20 December 2022;
   5. (e)
      various other orders relating to disclosure in the Magistrates Court; and
   6. (f)
      Order 6: the ATO proceedings be placed on the Supreme Court Supervised Case List.
7. [7]
   On 21 December 2022, the Originating Application came before the learned primary judge.
8. [8]
   During oral submissions before the learned primary judge, the appellant sought to join Magistrate Saggers and Magistrate Merrin.  That was based on assertions of “abuse and fraud and being shut down in the Magistrates Court”.^[4]
9. [9]
   The learned primary judge:^[5]

   1. (a)
      dismissed the application for the committal proceeding to be delisted;
   2. (b)
      dismissed the applications for disclosure;
   3. (c)
      ordered that the appellant not file any further application in the Supreme Court, in relation to the committal proceeding presently being heard in the Magistrates Court Brisbane, without the leave of that Court; and
   4. (d)
      ordered the appellant pay the Eighth and Ninth Respondents’ costs of the application.
10. [10]
    The appellant challenges those orders in this appeal.  The appeal is based on several grounds, contending that there was error because the learned primary judge:

    1. (a)
       made an order dismissing the appellant’s application on the basis the Supreme Court does not fragment committal proceedings, but did so without acknowledging that the Supreme Court does fragment committal proceedings in exceptional circumstances;
    2. (b)
       denied the appellant natural justice and procedural fairness by not allowing the appellant a hearing for the Court to determine if there are exceptional circumstances warranting the committal proceedings be fragmented;
    3. (c)
       failed to apply the law;
    4. (d)
       made the decision where no reasonable decision maker would have made such a decision in the circumstances; and
    5. (e)
       caused injustice by the decision to dismiss the application.

The primary judge’s approach

11. [11]
    The learned primary judge identified the essential features of the application, namely: (i) to delist the committal hearing; (ii) to adjourn the committal hearing until determination of a permanent stay application; (iii) to seek orders as to disclosure relevant to the committal; and (iv) to have the application listed on the Supervised Case List, with directions.^[6]
12. [12]
    His Honour then identified the essential aspect of the appellant’s contentions before him, namely that “she has no confidence in the process to be adopted by the Magistrates Court, and, in those circumstances, she has a right for this Court to exercise its supervisory jurisdiction in relation to the Magistrates Court proceedings”.^[7]
13. [13]
    His Honour then expressed his findings in this way:^[8]

“Having considered the material, I am satisfied it is not appropriate to make any of the orders sought by the applicant.

First, this Court does not use any supervisory jurisdiction to interfere with committal proceedings being conducted in another Court.  That is to fragment proceedings, and it is contrary to the interests of justice.

Second, the matter of disclosure is specifically to be the subject of a determination by the Magistrates Court, prior to the hearing of that committal proceeding.  It would equally be to fragment the process for this Court to interfere in that process.

In those circumstances, the application for the committal proceeding to be delisted and/or adjourned and the applications for disclosure are dismissed.”

Consideration

14. [14]
    By her amended outline, the appellant submits that “[t]he substance of the appeal relates to procedural fairness”.  The appellant characterises her application before the learned primary judge as being:^[9]

“… an application in the Supreme court to have the Committal proceedings uplifted to the Supreme court for supervision.  Within the substantive relief sought, the appellant sought an interlocutory order seeking, the prosecution and respondents comply with Judge Moynihan’s orders.”

15. [15]
    The substance of the appellant’s submission as to the procedural unfairness in the conduct of the proceedings before the learned primary judge is expressed this way:^[10]

“46. His Honour’s conduct constituted an obstacle and impediment by refusing to make the order.  The Primary Judge interfered with the proper administration of justice by refusing to provide procedural fairness to the appellant, especially when the allegations relating to the seriousness of the abuse of process complained of were serious.

...

48. There was no impediment for the Primary Judge to allow the appellant to receive the simple relief of listing a hearing where she could file her evidence and be afforded procedural fairness.

49. The Primary Judge had already made a determination in an earlier decision relating to the Supreme court’s power to intervene and fragment committal proceedings in exceptional circumstances.

50. The ratio behind the decision of the primary judge to make a contradictory determination against the appellant is unclear, any fair-minded decision maker would conclude the decision was unfair and prejudicial.

...

54. The relief sought by the appellant was to be allowed to file her material for the court to ‘determine if there were exceptional circumstances for the Supreme court to interfere in the committal proceedings.’  The appellant had not been afforded procedural fairness to file her material to be heard in this matter relating to the allegations relating to serious and ongoing abuses of process.”

16. [16]
    For the reasons which follow, the appellant’s contentions must be dismissed.
17. [17]
    First, it is true to say that the essential elements of procedural fairness traditionally encompass two requirements, fairness and detachment, which relevantly involve “the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard”.^[11]
18. [18]
    Having read the transcript of the hearing below, it cannot be concluded that there was an absence of fairness or detachment on the part of the learned primary judge.  The appellant’s written submissions and affidavits were considered, she was able to make such oral submissions as she wished, and the primary judge’s engagement with her did not suggest any lack of fairness or lack of detachment.  The appellant was afforded a fair hearing.
19. [19]
    Secondly, what the appellant sought below was to have the Supreme Court interfere in the proceedings of the Magistrates Court.  More particularly, the substantive proceedings below are of essentially an administrative kind, namely the conduct of a committal hearing into charges on an indictment.  The appellant wrongly characterises that as an application to have the committal proceedings “uplifted to the Supreme Court for supervision”.  No such application was made.  The application was to have the committal proceedings delisted and adjourned pending the determination of a permanent stay application.
20. [20]
    An application for a permanent stay had been made in the Magistrates Court, but refused by Magistrate Merrin on 1 August 2022.  Whilst the stay application in the Supreme Court has previously been set for hearing, it has been adjourned pending the determination of an appeal concerning the issuing of subpoenas in that application.
21. [21]
    Whilst it is now sought that this Court order the “three Magistrates Court prosecutions be lifted out of the Magistrates Court and placed on the Supreme Court Supervised Case list”,^[12] that was not sought below.  Where the committal in respect of those charges has yet to be heard, no basis has been identified as to the jurisdiction of this Court to make such an order.
22. [22]
    Thirdly, in so far as the application below sought orders concerning disclosure relevant to the committal, both the Magistrates Court and the District Court had made relevant orders, and most importantly, a hearing had already been set in the Magistrates Court to deal with disclosure issues.  The appellant was thus seeking that the Supreme Court (and now, this Court) interfere in another court’s conduct concerning matters of practice and procedure.
23. [23]
    It is apparent that orders have been made as to disclosure in the Magistrates Court, and a hearing in that respect was set for 9 March 2023, though then adjourned.  While the Magistrates Court is seized of those issues, it would be wrong of this Court to intervene absent some clear evidence warranting such a rare course of action.  There is none beyond mere assertion by the appellant.
24. [24]
    Further, the orders sought below, and from this Court, are an impermissible attempt to challenge interlocutory decisions of the Magistrates Court made pursuant to s 83A of the Justices Act 1886 (Qld), a step prohibited by s 83A(7).
25. [25]
    Fourthly, in so far as the orders sought below, and in this Court, concern the delisting of the committal proceeding, a permanent stay has been sought in the Supreme Court.  As noted above, that application had previously been set for hearing, but adjourned pending the determination of an appeal concerning the issuing of subpoenas in that application.  The orders sought from this Court would unjustifiably interfere with the due hearing of that relief.
26. [26]
    Fifthly, the orders sought below, and in this Court, seek to overturn interlocutory orders made by the Magistrates Court.  Section 222 of the Justices Act 1886 (Qld), which is the statutory source of the right to appeal orders of the Magistrates Court, does not apply to interlocutory orders.^[13]
27. [27]
    Sixthly, beyond mere assertion by the appellant, there was no evidence of anything approaching the sort of exceptional circumstances that might justify the Supreme Court interfering in such a way that it would fragment criminal proceedings in another court.  It is well established that courts should not interfere with or fracture the course of a criminal proceeding except “where the need for such interference is absolutely plain and manifestly required”.^[14]  In Obeid, Gageler J adopted what was said by Kirby J in Frugtniet:^[15]

“This Court has more than once ... emphasised how rare it is to make orders which would have the effect of interfering in the conduct of a criminal trial.  No case has been brought to my notice where the Court has made a stay order equivalent to the one sought on this summons.  Although I do not doubt that, in a proper case, the Court would have the jurisdiction to make such an order to protect the utility of its process, it would be truly exceptional for it to do so.  The Court expressed its attitude of restraint most recently in its decision in R v Elliott.  There are many earlier such cases.  They evidence the strong disposition of appellate courts in Australia – and especially of this Court – not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required.  Analogous principles apply ... to the provision of a stay to prevent the commencement of a trial so as to permit a constitutional point to be argued.  That point will not be lost to the plaintiff.  If need be, at a later stage, it can be raised again.”

28. [28]
    Seventhly, the appellant’s approach wrongly assumes that the Supreme Court’s supervisory jurisdiction over inferior courts is at large or unconstrained.  It is not.  It extends to cases where the decision of the inferior court is affected by jurisdictional error in the sense discussed in Kirk v Industrial Court (NSW)^[16] and Craig v South Australia.^[17]  No such jurisdictional error has been identified.  A potentially erroneous decision of an inferior court acting within jurisdiction will not ordinarily be amenable to the Court’s supervisory jurisdiction.
29. [29]
    Eighthly, the decision of the learned primary judge was made in the exercise of his  Honour’s discretion.  In order to succeed, the appellant would have to show error of the kind referred to in House v The King;^[18] that is to say that the learned primary judge acted on wrong principle, allowed extraneous or irrelevant matters to affect him, mistook the facts, failed to take a material consideration into account, or that the decision was plainly unreasonable or unjust, thereby bespeaking error.  No such error has been demonstrated.
30. [30]
    Ninthly, the application below made insufficient discrimination between the respondents and their interests in the orders sought.  The appeal to this Court makes the same error.
31. [31]
    A clear example of that is apparent when one considers the position of the eighth and ninth respondents.  The eight respondent (the Commissioner of the Queensland Police Service) is not involved in the prosecution of the Commonwealth charges currently listed for committal in the Brisbane Magistrates Court, except to the limited extent that QPS officers (including the ninth respondent) have provided written statements regarding investigations they undertook which informed the investigation of the Commonwealth charges.
32. [32]
    Another example is Order 3.  It sought disclosure orders against the DPP.  The DPP is not the prosecutor in the Magistrates Court proceedings.  That role is being carried out by the CDPP.  Consequently, the disclosure obligations under Chapter 62, Division 3, Subdivision C of the Criminal Code (Qld) are inapplicable to it.  The orders made by Judge Moynihan KC did not extend to the DPP.^[19]  No basis is identified as the jurisdiction to grant relief against the DPP.
33. [33]
    It is not apparent how the grounds of appeal challenge the issue relating to disclosure as it relates to the seventh, eighth, and ninth respondents.  Whilst Order 4 in the Originating Application filed 13 December 2022 sought disclosure from the eighth respondent, the orders sought in this Court by the appellant do not identify any relief relating to disclosure against the eighth respondent.  No relief is sought against the ninth respondent.  No relief is available against the seventh respondent.

The application to adduce evidence

34. [34]
    On 11 April 2023, the appellant filed an application seeking leave to adduce further evidence on the appeal.  It merely sought:

“Leave to adduce further evidence that is relevant to the appeal and opposing submissions made by Ms McDonald SC.”

35. [35]
    The basis of the application for the grant of leave is said to be:

“1. The submissions made by Barrister Ms McDonald SC that the allegations made by the appellant are unsubstantiated is false.

2. The evidence will demonstrate the appellant has exceptional circumstances why the appeal should be allowed, and refute the statements made by Ms McDonald about the appellant.

3. Ms McDonald has been appearing in the Brisbane Magistrates court and is in possession of documents and transcripts that supports the allegations made by the appellant are true, and there was no reasonable basis for Ms McDonald to make those statements to the court.”

36. [36]
    It is apparent that the application seeks to adduce the evidence to try and counter what was submitted by Senior Counsel for the CDPP in the written outline below.  As to that, the submission was made:^[20]

“Notably, whilst self-represented, the applicant continually makes unsubstantiated and at times scandalous allegations that investigative agency (the ATO), the prosecutorial agencies (the QPS, ODPP, and CDPP), as well as their employees/agents, and investors in one of her companies (Brisbane Angels), conspired with each other against her.  The allegations made by the applicant are unsubstantiated, and are rejected by the Respondents.”

37. [37]
    That submission was not repeated in the course of oral submissions before the learned primary judge.
38. [38]
    The foundation for that submission was in the affidavit of Ms Albert, which was read by leave on the hearing of the application below.  No objection was taken to its being relied upon.  For example, exhibits to that affidavit contained assertions by the appellant that: (i) the ATO and others conspired to bring false charges against her;^[21] (ii) there was evidence of criminality in the ATO and the prosecutors withholding evidence from the Court;^[22] (iii) the Commonwealth’s approach was disingenuous;^[23] (iv) the ATO prosecution involved use of the court’s procedures for “an illegitimate process”;^[24] (v) the third respondent had perjured himself, and those appearing for the Commonwealth were “dishonest”;^[25] (vi) the conduct in bringing charges against her was “criminal in nature”;^[26] (vii) the failure to disclose was fraudulent and a “dishonest attempt to conceal exculpatory evidence from the court”;^[27] (viii) the third respondent was a “criminal” and those involved in the prosecutions were “criminals”;^[28] (ix) Magistrate Merrin had “tried to bury the evidence”;^[29] and (x) the Magistrates Court was involved in a “conspiracy to prejudice” the appellant.^[30]
39. [39]
    Notably, on 6 December 2022, when appearing before Judge Barlow KC, the appellant responded to a submission by Senior Counsel for the CDPP to the effect that the appellant was making scandalous allegations.^[31]  That serves to demonstrate that the submission to which the application to adduce further evidence is directed is not new or surprising.
40. [40]
    No part of the decision by the learned primary judge turned upon a consideration of the issues to which this application is directed.  The evidence to be adduced consists of assertions that have been made before, and in the face of a similar submission to which the appellant now wishes to respond.  Further, the application seeks to adduce evidence that was not before the learned primary judge.
41. [41]
    There is no basis upon which leave to adduce the further evidence should be granted.

Conclusion

42. [42]
    For the reasons expressed above, the application to adduce further evidence must be refused and the appeal must be dismissed.
43. [43]
    The orders are:

1. The application for leave to adduce further evidence is refused.
2. The appeal is dismissed.
3. The appellant pay the respondents’ costs of and incidental to the appeal.