R v Rollinson[2011] QDC 64

DISTRICT COURT OF QUEENSLAND

1. [1]
   In September 2005 the defendant was summonsed to appear in the Magistrates Court charged with causing grievous bodily harm to the complainant in December 2004. 

2. [2]
   A 4-day committal hearing was undertaken in 2006.  It involved the tender of a number of witness statements and extensive examination and cross-examination in the order of 300 pages. After considering the matter, on July 11, 2006 the magistrate declined to commit the defendant for trial on any indictable offence.

3. [3]
   In May 2008 the Director of Public Prosecutions presented, in this Court, an ex officio indictment again charging the defendant with causing grievous bodily harm to the complainant in 2004.

4. [4]
   In May 2009 Judge Dearden refused the defendant’s application to permanently stay those proceedings as an abuse of process, concluding that despite the delay by the prosecution and the difficulties in the prosecution case arising from failures in the investigative process, this was not a matter in which it was appropriate to grant a permanent stay.

5. [5]
   The trial was listed before me today, some 2 years after Judge Dearden’s ruling.  The prosecutor, Mr Kinsella, informed me that 6 further witnesses may be called.  He asked for a short adjournment so that those people could be interviewed and witness statements obtained.  I then indicated my concerns about whether a second prosecution was possible and whether it constituted an abuse of process and should be permanently stayed.

6. [6]
   Mr Kinsella drew my attention to R v His Honour Judge Grant-Taylor and the Attorney-General, ex parte Johnson [1980] Qd R 387. In that case an ex officio indictment was presented after a magistrate found there was insufficient evidence to place the defendants on trial and ordered them to be discharged.  The Full Court held that if the prosecution presented a second indictment the Court had no power to direct that it not be presented or to refuse to accept it and that that did not constitute an abuse of process. However, as Ms Mossop for the defendant submitted, the Crown declined to call 3 of its witnesses at the committal in Johnson and therefore that case is factually distinguishable from the present, where, apart from some possible additional witnesses who have yet to be interviewed, the Crown case now is exactly the same as it was when the magistrate found that there was insufficient evidence to commit the defendant on that charge.

7. [7]
   I accept Ms Mossop’s submission.  In my view, whilst Johnson established that a second indictment could be presented under section 561 of the Criminal Code, it does not preclude a finding in the present case that the presentation of the ex officio indictment could nevertheless constitute an abuse of process.

8. [8]
   The question, then, is whether there is “special reason” under section 590AA(3) of the Criminal Code for me to give leave to re-open Judge Dearden’s otherwise binding direction or ruling.

9. [9]
   In R v Steindl [2002] 2 Qd R 542 (CA), McMurdo P said at [11] that substantial disagreement with an earlier ruling may not always justify its re-opening. Thomas JA, with whom Davies JA agreed, said at [65] that in the ordinary case, the fact that the second judge disagrees with the opinion of another on a point of law would not be sufficient reason for re-opening the ruling, although his Honour said  he was not prepared to say this can never be done.

10. [10]
    Ms Mossop submitted that the further 2-year delay since Judge Dearden’s ruling, the fact that the prosecution case was still the same as that which was held by the magistrate to be insufficient and the possibility that there may be some additional witnesses were factors which were so prejudicial to the defendant as to constitute his further prosecution an abuse of process.

11. [11]
    In Walton v Gardiner (1993) 177 CLR 378, a majority of the High Court held (at 393) that the further prosecution of a case which had already been disposed of by earlier proceedings would constitute a case of abuse of process, such that those later proceedings should be permanently stayed.

12. [12]
    It does not appear that Judge Dearden was referred to that passage in Walton v Gardiner (which I regard as apposite for present purposes) or to Johnson (which was discussed earlier).

13. [13]
    Although it is correct, as Mr Kinsella submitted, that one cannot speculate as to what, if anything, the additional 6 witnesses may say and therefore whether or not any of them will be called as witnesses, the fact is that the prosecution case against the defendant is currently still precisely the same one that the magistrate held, after a full hearing 5 years ago, to be insufficient to place him on trial. To me that is a very powerful factor which militates in favour of my exercising my discretion to grant leave to re-open Judge Dearden’s ruling of 2 years ago, which I will now do. 

14. [14]
    In the present case the earlier prosecution was disposed of on its merits at the committal.  To then further prosecute that same case by way of an ex officio indictment 5 years later is unfair to the defendant, in my view; it constitutes an abuse of process.

15. [15]
    The ex officio indictment will be permanently stayed. The defendant is discharged.