Lee v Commissioner of Police[2023] QCA 232

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Bond JA.
2. [2]
   BOND JA:  On 12 December 2017 the applicant was charged with the following offences:

   1. Charge 1: Between 21 November 2015 and 8 December 2017 at East Brisbane in the State of Queensland the applicant knowingly carried on the business of providing unlawful prostitution, contrary to s 229HB(1) of the Criminal Code (Qld).
   2. Charge 2: On 18 December 2015 at East Brisbane in the State of Queensland the applicant dealt with money and it was reasonable to suspect that the money was proceeds of crime and at the time of the dealing the value of the money was less than $100,000, contrary to s 400.9(1A) of the Criminal Code Act 1995 (Cth).
   3. Charge 3: On 7 December 2017 at East Brisbane in the State of Queensland the applicant dealt with money and it was reasonable to suspect that the money was proceeds of crime and at the time of the dealing the value of the money was less than $100,000, contrary to s 400.9(1A) of the Criminal Code Act 1995 (Cth).
   4. Charge 4: On 7 December 2017 at East Brisbane in the State of Queensland the applicant unlawfully had possession of a dangerous drug namely cannabis, contrary to 9(1) of the Drugs Misuse Act 1986 (Qld).
3. [3]
   The applicant faced trial in the Magistrates Court for those charges on 6 and 7 December 2018; 2, 3 and 4 April 2019 and 29 April 2019.  On 11 June 2019, she was convicted of all charges.  She was sentenced to 12 months imprisonment for charge 1, to be suspended forthwith for an operational period of 3 years.  She was sentenced to 2 and 3-months imprisonment respectively for charges 2 and 3, which were wholly suspended with an operational period of 12 and 15 months respectively.  She was convicted and not further punished for charge 4.  Monies the subject of charges 2 and 3 were ordered to be forfeited to the Crown.
4. [4]
   The applicant appealed her conviction to the District Court pursuant to s 222 of the Justices Act 1886 (Qld).  On 15 December 2021, her appeal against conviction was dismissed and the appeal against sentence in relation to count 1 was upheld with the term of six months substituted for the imposed term of 12 months.
5. [5]
   Pursuant to s 118 of the District Court of Queensland Act 1967 (Qld) the applicant applies to this Court for leave to appeal against the judgment of the District Court.  In written submissions filed before this Court the applicant abandoned all proposed grounds of appeal save for the following:

“[t]here was a substantial miscarriage of justice in relation to charges 1 – 3 because those charges had already been dismissed in the Magistrates Court of Queensland on 8 March 2017.”

6. [6]
   For the following reasons the application for leave should be refused.

Relevant factual background

7. [7]
   On 8 March 2017 the applicant was due to face trial in the Magistrates Court in respect of the following two offences:

   1. Charge 1: Knowingly carried on the business of providing unlawful prostitution between 22 November 2015 and 18 December 2015, contrary to s 229HB(1) of the Criminal Code (Qld).
   2. Charge 2: Possessing tainted property on 18 December 2015, contrary to s 252(1) of the Criminal Proceeds Confiscation Act 2002 (Qld).
8. [8]
   The applicant had not yet been required to enter a plea.  However, Mr Di Carlo of counsel had been briefed to appear for her at her trial, having been instructed by her that she was going to plead not guilty.  He had prepared for the trial.  On the morning of trial and before the trial had commenced he had discussions with Sgt Longhurst, the prosecutor.  Those discussions occurred in one of the interview rooms outside court.  Mr Di Carlo deposed:

“I explained to [Sgt] Longhurst, some of the evidentiary issues he was facing and asked if he would be willing to offer no evidence.  After a lengthy discussion, [Sgt] Longhurst indicated to me that the prosecution would be willing to offer no evidence.”

9. [9]
   The parties went back into court for the trial.  The transcript of what then transpired was placed before us.  It recorded the following:

“SGT M.R. LONGHURST: If your Honour will, please, take the matter of Choonhwa Lee, to begin with. May it please the court, Longhurst, initials M.R., Sergeant of Police for the prosecution.

BENCH: Yes.

MR S. DI CARLO: Good morning, your Honour. For the record, my name is Di Carlo, D-i C-a-r-1-o, initial S. I appear for Ms Choonhwa Lee, instructed by Grasso Searles and Romano, solicitors.

BENCH: Choonhwa Lee. It's here. Yes, got it.

MR DI CARLO: Thank you, your Honour.

BENCH: Thank you.

MR DI CARLO: Ms Lee is sitting there.

BENCH: Yes. Okay. Thank you. Yes, all right. Take a seat. What's happening on that.

SGT LONGHURST: Your Honour, prosecution offers no evidence with respect to these two charges.

BENCH: Okay, thank you. And Mr Di Carlo, instructed by?

MR DI CARLO: Grasso Searles and Romano, thank you.

[BENCH:]^[1] All right. Two charges of – Ms Lee, one charge on the 22^nd of November two thou – between the 22^nd of November '15 and the 18^th of December '15 at East Brisbane, knowingly carried on the business of providing unlawful prostitution, and one charge on the 18^th of December '15 at East Brisbane, you possessed property, namely $51,400 cash, that may reasonably suspected of being tainted property. Prosecution offers no evidence. Those charges are struck out; you are discharged.

MR DI CARLO: Thank you, your Honour.

BENCH: Thank you.”

10. [10]
    Although the charges were ordered to be “struck out”, the formal Verdict and Judgment Record recorded the orders as dismissals:

Consideration

11. [11]
    It will immediately be apparent that the applicant’s contention that charges 1 to 3 as ultimately advanced had already been dismissed on 8 March 2017 is not accurate.  Charges 2 and 3 were charges of contravention of a Commonwealth statute, not a Queensland statute and charge 3 had not even occurred on 8 March 2017.  Although it is true to say that charge 1 was the same offence as the charge which was dismissed on 8 March 2017, the charge which was dismissed on 8 March 2017 alleged offending for a period of a little less than the one month period between 22 November 2015 and 18 December 2015, but charge 1 as ultimately advanced alleged offending for a little more than the 2 year period between 22 November 2015 and 8 December 2017.
12. [12]
    Nevertheless, the applicant contends that this Court should find that her conviction on charges 1 to 3 involved a substantial miscarriage of justice on the basis that, given what had occurred on 8 March 2017, it was abuse of process for the police thereafter to continue to investigate the applicant and some 9 months later for the prosecution to prefer charges 1 to 3 against her and subsequently to take those charges to trial.  The applicant contends that proceeding with the subsequent charges was contrary to an agreement reached on 8 March 2017.  She contends abuse of process occasioning a substantial miscarriage of justice was caused by:

    1. The financial and emotional burden on the applicant in relation to charging her again on the same facts in relation to part of charge 1, and on substantially the same facts for charges 2 and 3.  This financial burden was increased because ultimately the $51,400 forfeited, which ought to have been returned after she was discharged on 8 March 2017, was lost.
    2. The delay injustice in the applicant having to face the same facts which made up charges 2 and 3 again.
    3. The unfairness in the police resiling from their agreement.
13. [13]
    In my view the abuse of process contention does not withstand scrutiny.
14. [14]
    No agreement was reached on 8 March 2017.  Mr Di Carlo’s evidence does not justify that conclusion.  All that happened was that the applicant by her counsel convinced the prosecution not to proceed on that day, but left it open for the prosecution to proceed with reformulated charges on some later day if the evidentiary position ever improved.
15. [15]
    The applicant argues that if the prosecution had intended to secure that position the prosecution should have sought and obtained an adjournment.  But the procedural course which the prosecution took involved no determination of the charges on their merits and was taken with the apparent acquiescence of the applicant, by her counsel.  The applicant could have insisted on the trial proceeding but did not.  The applicant could have sought to forestall the possibility of reformulated charges by obtaining an agreement to the contrary in consideration of not seeking costs,^[2] but she did not take that course.  She could have insisted on being arraigned, pleading not guilty, and if the charges were then dismissed after no evidence was presented, sought a certificate pursuant to s 149 of the Justices Act which, if obtained, could then have been relied on as a bar to a subsequent prosecution, but she did not.
16. [16]
    After 8 March 2017 the police continued to investigate the applicant.  A search warrant was executed on 7 December 2017.  By 12 December 2017 the prosecution must have concluded that the evidentiary position then justified the preferment of further charges against the applicant.  Given the results in the Magistrates Court and the District Court, the prosecution was right to do so.  So proceeding did not involve any abuse of process.^[3]
17. [17]
    The applicant’s complaint concerning the monies which remained in police hands concerning the dismissed charge 2 is an irrelevance.  Once that charge had been dismissed the applicant could have sought the return of the monies, but she did not.  Indeed, the fact that she did not take that course confirms the correctness of my conclusion that there was no “agreement” of the character for which she now contends.  If there had been, then she would have been agitating for the return of her monies.
18. [18]
    The applicant’s proposed ground of appeal has no merit.

Conclusion

19. [19]
    The application for leave to appeal should be refused.
20. [20]
    FLANAGAN JA:  I agree with Bond JA.