Jack v Alexander[2008] QDC 64

HIS HONOUR: This is an appeal against refusal of an Acting Magistrate to grant a permanent stay of a prosecution against Mr Jack. That happened on the 31st of October 2007 and is a penultimate stage, this appeal being, for the moment, the last in a long saga, which I will attempt to summarise in a chronology shortly.

It is common ground at the Bar table that section 222 of the Justices Act 1886 can accommodate appeals in relation to the granting or refusal of a permanent stay of a prosecution. As it happens, I have had occasion recently to consider the leading authorities in relation to that topic in a matter of Lucy v. OCC Holdings Pty Ltd [2008] QDC 04.

It is accepted that the Court has jurisdiction to grant a stay of a prosecution and broadly on the basis that it should not allow its processes to be used in inappropriate ways. The leading authority is probably Williams v. Spautz (1992) 174 CLR 509, which considered in some detail the earlier High Court authority of Jago v. District Court (NSW) (1989) 168 CLR 23.

Mr Bradshaw for the applicant relied on comments in the judgment of Gaudron J in Jago, in particular at paragraphs 7 and 8 where her Honour said, omitting references to authority:

"The power of a Court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands. The terms frivolous, vexations and oppressive, when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process, such that in the interests of the administration of justice, they should attract the grant of a permanent stay, but the terms vexatious and oppressive may also import a consideration of the justice or fairness of the proceeding, those terms signifying an appropriate context proceedings which 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'".

At paragraph 17 her Honour noted that:

"The features which attend the criminal process enable the general considerations to be refined somewhat in their application to a grant of a permanent stay of criminal proceedings."

One particular feature relevant to criminal proceedings is that the question whether an indictment should be presented is and always has been seen as involving the exercise of an independent discretion inhering in and prosecution authorities, which discretion is not reviewable by the Courts. Paragraph 18 her Honour said:

"Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial Judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible, but which would operate unfairly against the accused. The exercise of the power to reject evidence, either alone or in combination with the trial Judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers when considered in the light of the necessarily limited scope of the power to grant a permanent stay served to indicate that a Court should have regard to the existence of all its various powers and should only grant a permanent stay, satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise goes to demand a grant of a permanent stay".

Ms Growden, resisting the appeal, referred to another passage in Jago in a judgment of Brennan J at paragraph 24, to the effect that:

"The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and on that account is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it's not possible to state exhaustively all the categories of abuse of process, it would generally be found in the use of criminal proceedings inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused's conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose."

If anything, Williams v. Spautz serves to extend the understanding of the availability of this common law based (or inherent) jurisdiction of the courts. The headnote of Williams v. Spautz contains the following:

"A lecturer commenced an action against a university for wrongful dismissal. The lecturer later laid informations against various officers of the university, alleging a number of offences, including criminal conspiracy to defame and conspiracy to injure him without justification and by illegal means. On the application of some of those persons for declaration is that particular prosecutions were an abuse of process, the Judge found that the lecturer's predominant purpose instituting and maintaining the criminal proceedings was to exert pressure upon the university to reinstate him and/or to agree to a favourable settlement of the case for wrongful dismissal. He made the declarations and stayed the prosecutions permanently."

It was held by Mason CJ, Brennan JJ, Dawson, Toohey and McHugh JJ, Deane and Gaudron JJ dissenting that:

"The prosecutions were an abuse of process and were properly stayed."

Per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ:

1. "The power to stay proceedings extends to the prevention of an abuse of process resulting in oppression, even if the moving party has or must be assumed to have a prima facie case.

2. Proceedings are brought for an improper purpose and thus constitute an abuse of process where the purpose of bringing them is not to prosecute them to a conclusion, but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers. An improper act by the party instituting the proceedings is not an essential ingredient in the concept of abuse of process".

Per Mason CJ, Dawson, Toohey and McHugh JJ:

1. "Where a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it is not necessary for the Court to satisfy itself that an unfair trial will ensue unless the prosecution is stopped. A stay may be granted where, even if the trial is fair, the proceedings have been brought for an improper purpose and hence are an abuse of process.

2. The improper purpose need not be the sole purpose of the moving party, so long as it is his predominant purpose".

The headnote goes on, I shall not read more. Mr Bradshaw faces the difficult task of bringing his client's prosecution within the category of abuse of process, as explained in the cases I have mentioned.

It is undoubtedly the case that, from Mr Jack's point of view, a series of actions having an appearance of oppressiveness have been brought against him by police. It is common ground that all of those matters have their genesis in a belief, which seems to be attributed to a police officer called Millward, in particular (he being seen as the inspiration for everything that has happened), a belief that Mr Jack in contravention of the Drugs Misuse Act revealed the identity of a police informer. That informer was assisting police by providing to them information about the banking and postal transactions of persons of interest to the police, that information coming to his attention in the course of his employment. It is information which one might ordinarily think would be kept confidential.

Mr Bradshaw has stated from the Bar table, without any challenge from Ms Growden, that there is a protocol ordinarily observed when police seek information from banking and postal authorities, which, for all I know, may be a common occurrence, further, that the protocol was not observed here.

A brief chronology of events, for which I have to take sole responsibility as one was not provided, goes back to January 2000 when Mr Jack applied for and obtained authority under the Weapons Act to have weapons which could be kept on the conditions provided by law; those, in the interests of community safety, are onerous - as they should be.

The licence which was the result identified his residence and also the Commonwealth Bank at Kowanyama as the storage address for the weapons. It appears there have been changes to his residential address from time to time, which have been appropriately recorded by police.

On the 5th and 6th of October 2005 Mr Jack got direct from a fellow employee in the combined bank/post office operation, where he and others are employed to conduct relevant business activities for the local Council, that the fellow employee was giving information to the police in connection with suspected drug transactions of at least one identified person.

On the 12th of October 2005 Mr Jack generated an interoffice memo to his superior in the Council, Mr Japp, with regard to the fellow employee's supposed activities, which concerned him as a breach of a customer confidentiality.

From between about the 28th of October 2005 and the 5th of December 2005 Mr Jack was away from Kowanyama on leave. During that period on the 13th of November 2005 a warrant was obtained from a Magistrate in relation to an offence under "section 119 Drugs Misuse Act 1986 Protection of Informers that, on a date unknown at Kowanyama in the State of Queensland one David Bruce Jack unlawfully disclosed the identity of an informant to another."

Details of evidence that might be seized under the warrant were, "(1) Any records, including electronic records, relating to a letter purported to be written by David Bruce Jack to the Kowanyama Community Council containing information relating Todd Anthony Holford; (2) Typed letter from David Bruce Jack to the Kowanyama Council containing information relating to Todd Anthony Holford; (3) Computers, notes, diaries or documentation that may relate to information regarding Todd Anthony Holford."

The premises were raided while Mr Jack was still on leave, although police had the consideration to invite the person to look out for Mr Jack's interests. I am not surprised to hear from Mr Bradshaw that it was highly upsetting to Mr Jack to have strangers entering his premises, going through his personal belongings and the like. None of us would welcome intrusion of that kind. It may be that some of the property, such as the computer, is still to be returned.

The police effecting the raid noted that no weapons were found in the house. Certain observations were apparently made by those who troubled to go to the relevant part of the premises that there was no, or there might have been no, appropriate bolted down receptacle for keeping weapons in the house as the Act and/or Regulations required there.

By the 8th of December 2006, and probably some time in the month before, police knew from Holford, if not otherwise, that Mr Jack's weapons were stored at the bank premises. I confess to some confusion as to whether there is any distinction between the bank premises and the post office premises, which are certainly in the same building. They may be separate areas. I would be surprised if anything turns on whether storage was supposed to be occurring at the bank or at the post office.

It appears Holford had indicated that he was concerned about the presence of weapons in the workplace. The storage arrangements were that the bolts had been removed and kept in a locked safe, the three rifles themselves being kept in a cardboard box or boxes nearby.

The material available to the Court tends to suggest that that was out of view of the public. Differing views are attributed to different police officers as to whether the whole arrangement could be regarded as one big locked storage, or not.

In December 2005 police prepared a Bench charge sheet in respect of an offence under section 60, subsection (2) of the Weapons Act 1990 "That between the 28th day of October 2005 and the 5th day of December 2005 at Kowanyama", et cetera, "Jack, being the registered owner of firearms (described then in detail) failed to ensure that storage facilities for the firearms were available at the place shown in the firearms register as the place where the firearms were generally kept, namely Koltmomun Street, Kowanyama."

The date on that document appears to be 28 December 2005. The Bench charge sheet was part of the records of the Magistrates Court in 2005, as confirmed by the identifying numbers imprinted on it under the bar code at the top which relate to the year 2005. I am indebted to Registry staff who have looked out that document at my request.

On the 20th of January 2006, another Bench charge sheet was generated regarding an offence under section 60, subsection (1) of the Weapons Act, relating to the same charge period and to Kowanyama, this one charging that "David Bruce Jack, who was in possession of a weapon, namely three rifles, did not securely store such weapon in the way prescribed under section 60 of the Weapons Regulation 1996 when such weapon was not in his physical possession."

Whereas the earlier charge relates to facilities available for storage at the residence, identified as the place where the firearms were generally kept, the later charge relates to arrangements for the actual storage in the charge period of the three rifles at the bank. I confess to some mystification, given that the original license conditions referred to the bank being the place for storage but, of course, it is possible that those arrangements changed since 2000.

For present purposes, I accept that the second charge was generated after Sergeant Alexander, who has some responsibility for both, learned that Mr Jack was going to contest the first one. On the 18th of April 2007, Mr Jack was convicted in Kowanyama Magistrates Court of an offence under section 60, subsection (2). No conviction was recorded. He was fined $75. The Magistrate accepted that she should not hear the other charge, if only on the basis that, on a conflict of evidence, she had preferred police evidence to Mr Jack's.

On the 10th of August 2007, Judge Dodds allowed an appeal against that conviction. His Honour considered that the charge had not been proved to the requisite standard of proof. What it seemed to come down to was conflicting inferences that might be drawn about what storage facilities might have been available on the site at an earlier time. The police had insufficient evidence of actual observations of what lockable, bolted down facilities were there in the charge period.

On the 31st of October 2007, as I have already indicated, the Magistrate refused a permanent stay as sought of the section 60, subsection (1) charge. Because of failures of technology, the Court hears no transcript of the proceeding is available, nor any reasons the Acting Magistrate gave. It is a difficult task to have to reconstruct, from the outlines of argument presented to him, what occurred, but perhaps none of that matters greatly.

It is necessary to add to that chronology matters arising under the Drugs Misuse Act. Without going into the full details of it, Mr Jack ended up not facing the charge which underlay the search warrant, a feature which Mr Bradshaw submits taints any evidence gathered or any charge arising in consequence.

Mr Bradshaw tells the Court that he himself has been charged with similar wrong-doing under the Drugs Misuse Act on the basis of a memorandum prepared by him in connection with his work as counsel for Mr Jack which names the police informer.

He told me that on the 25th of March this year he will appearing before Justice White in the Tribunal in connection with that matter, which has the extra significance that it would make him unavailable to represent Mr Jack on the date presently fixed for the hearing of the remaining charge.

Another detail omitted from the chronology concerns a charge under the Liquor Act in relation to a couple of bottles of alcohol located in the raid. One way or another that one has gone away as well. Mr Bradshaw suggested the bottles contained "home brew", which Mr Jack was entitled to produce and/or have.

From Mr Jack's perspective, and, indeed, perhaps from the perspective of anyone hearing the above details, it might appear that some kind of campaign is being pursued against Mr Jack to try to get him convicted of something.

Notwithstanding those observations, I am not persuaded that the present circumstances can be brought within Williams v Spautz. Although the authorities might well have determined to accept things as they lay after the 10th of August 2007, what they are seeking to do is pursue a charge which had been instituted on the 20th of January 2006, albeit not one judged worthy of pursuing at the end of the month before when the other Weapons Act charge was instituted.

This may say something about the police view of seriousness of the charge. Any comment that I might have made during the hearing to suggest that the police may have shown inadequate concern about keeping the weapons out of harm's way would be inappropriate. On the 8th of December 2006 when police spoke to Mr Jack, after having spoken to other people first, they took the weapons into their custody for safe keeping.

Mr Jack, the Court is pleased to hear, has, with some expedition, equipped himself with a proper lockable safe, which is at his residence. His version of the history of storage arrangements at times when he was on leave is that for some years the police were willing to store the weapons at the station, acquiescing in his judgment that, for reasons of possible access by children, it was not appropriate to leave them unattended in his house. A change of command at the station led to the police declining to provide that storage facility and to Mr Jack adopting the use of his workplace which has been mentioned.

In reference to Williams v Spautz, this is a situation in which there would appear to be a prima facie case. The future may show whether fuller investigation of the circumstances shows there is not a proper case at all. The charge has been on foot for some time now, rather than being one only recently thought about.

It was Mr Jack's doing that the two charges got separated in the way that has happened. I am totally unable to identify this prosecution as one which the authorities are not bent on pursuing to this conclusion, which they hope will be a finding of guilty.

The doctrine relating to permanent stays as appearing from cases such as Williams v Spautz does not seem to me to avail persons like Mr Jack, however genuine they may be, and however justified they may be in thinking that they are being singled out for prosecution to a possibly excessive degree.

The appeal fails.

I might conclude by saying I agree with Mr Bradshaw that there is a serious question here of the best way to allocate limited public resources, whether in the police service, prosecution, the DPP, or the courts. Historically, in any event, the local Council has, understandably, provided financial support for Mr Jack's defence.

Much time, effort and money has already been expended on steps calculated to get Mr Jack convicted of something. The prospect still with some life in it - the subject of this appeal - should it succeed might lead to a $75 fine with no conviction recorded, if the immediate predecessor prosecution is a guide.

The community would expect those responsible for making decisions about what should happen now to consider how worthwhile the continuation of the prosecution is.

It is for the prosecutorial authorities to make the decision, not for the Court, given my view that the conditions for the extraordinary jurisdiction to permanently stay have not been established.

...

HIS HONOUR: I am not going to order costs.