R v Flori[2017] QDCPR 28

DISTRICT COURT OF QUEENSLAND

Nature of the application

1. [1]
   This is an application by the defendant pursuant to s 590AA of the Criminal Code for a stay of the proceedings against him on the indictment. The application is based on two separate propositions. Firstly, it is contended that he has the benefit of statutory immunity from prosecution pursuant to the Public Interest Disclosure Act 2010 (Qld) (the “PID Act”) such that it would be an abuse of process to allow the prosecution to proceed. Presumably, this is based on the contention that the proceedings would necessarily fail, thus continuance thereof would be necessarily oppressive and vexatious.^[1] Secondly, that the decision to prosecute, and the conduct of the prosecution, is motivated by malice and improper collateral purpose such as to again engage the principles of abuse of process. These two aspects are argued to arise in a number of circumstances set out below.

The facts

2. [2]
   The indictment charges two counts of misconduct in relation to public office (Criminal Code, s 92A), the second being an alternative charge. Count 1 is that the defendant, being a public officer (i.e. a police officer), dealt with information gained because of public office, with intent to dishonestly cause a detriment to David Joachim. Joachim was a fellow serving police officer at the relevant time. The alternative in count 2 is in exactly the same terms except that the detriment is said to have been caused instead to the Commissioner of the Police Service.

The evidence

3. [3]
   It is uncontentious that the following narrative is a summary of the Crown case on evidence available to the prosecution. The defendant was a Sergeant of Police based at the Surfers Paradise Police Station in January/February 2012. Areas of the station were monitored by motion activated video cameras. Footage captured by these cameras was recorded on digital video recorders in a secure room known as the communications room. Access to this was restricted to officers of the rank of sergeant or above and an administrative officer. This was controlled by individual swipe cards issued to staff, including the applicant. There was a procedure for accessing and copying images recorded on the cameras where necessary, e.g. for evidentiary purposes.

4. [4]
   In the early hours of 29 January 2012, a man named Begic was detained by police and taken to the station where, in the basement, he was involved in a violent struggle with police. A camera in the basement recorded the events. Joachim was one of those present at the time and, shortly after 3.00 am on 29 January 2012, he accessed the recording and made a copy, which was stored on a portable drive. This is said to have been normal procedure. He advised Inspector Rosevear of the incident and showed the footage to Senior Sergeant Maloney when she took over as District Duty Officer later that morning.

5. [5]
   A complaint was made by Begic concerning these events on 6 February 2012. As a result, Senior Sergeant Kimber attended the communications room to access the footage. He observed Joachim had already downloaded the footage saving it in a folder labelled “Begic”. On 7 February, Kimber reported Begic’s complaint to Inspector Rosevear. Rosevear reported the matter to the Ethical Standards Command of Queensland Police (“ESC”) that day. An investigation commenced and, on 8 February, officers from the ESC attended Surfers Paradise Police Station to investigate the Begic complaint.

6. [6]
   On 9 February 2012, the applicant was rostered to work from 2.00 pm to 10.00 pm. Shortly after 8.00 pm, his access card was used to enter the communications room. He was seen leaving the room at about 8.15 pm. Upon completing his shift that day, the applicant commenced recreation leave and travelled to the United States between 12 February and 15 March 2012.

7. [7]
   On 15 February, the Courier Mail and other news outlets published articles concerning the incident on 29 January. These included footage from the camera in the basement of the police station. This release had not been authorised pursuant to s 10.2 of the Police Service Administration Act. An investigation into how the footage was obtained by the media commenced that day. It was led by Detective Inspector David Winter (of the ESC) who looked at the electronic report showing the applicant entering the communications room at around 8.00 pm on 9 February 2012.

8. [8]
   Information was obtained from News Limited as to emails from an account named “[email protected]”. The internet protocol address from the email header related to an account operated by a Cheryl Flori, the applicant’s wife, at their home. A search warrant of the applicant’s house was executed on 16 March by Winter and others.

9. [9]
   On a laptop computer in the home emails were found sent from the account “[email protected]”. An email was found dated 10 February 2012 to Jeremy Pierce, a journalist with Queensland Newspapers at the Gold Coast. The author of the email made reference to the Begic incident on 29 January and advised the incident had been captured on CCTV. The email said that the footage showed “Senior Sergeant David Joachim District Duty Officer condoning the practice to the extent of washing the blood off the concrete afterwards with a bucket of water”. The email offered a copy of the CCTV footage to Pierce.

10. [10]
    An email exchange led to arrangements for Pierce to collect the footage on a USB. The recording, or extracts thereof, were subsequently published.

11. [11]
    During the search, police also seized a SanDisk micro SD card contained in a Kingston USB adaptor. Examination of the equipment in the police communications room and items from the applicant’s home indicate a circumstantial case of a recording from the communications room to a Kingston USB adaptor, subsequently to the laptop computer and thereon on to a removal drive (inferentially, on the Crown case, the USB provided to Pierce) before being deleted at about 5.29 pm on 10 February.

12. [12]
    Conversations with police at the time included the applicant admitting access and recording the footage of the incident. He said he was told by another officer about the footage and that the other officer was going to make a new application for promotion because Joachim (who had been recently promoted) was going to be sacked as a result of a Begic incident. The applicant said he decided to record the footage for training purposes to prevent that sort of thing happening again.

13. [13]
    He said that the officer in charge, Inspector Rosevear, had indicated there was no issue with sergeants accessing the communications room and downloading such footage. He denied using the “[email protected]” email account.

The proceedings

14. [14]
    Initially, disciplinary proceedings were taken against the applicant in relation to the release of the material. However, in November 2014, the Supreme Court ruled that the evidence located during the search could not be used for the purpose of disciplinary proceedings.^[2] Investigating police thereafter reviewed their options and it was determined to proceed instead with criminal charges.^[3] Formal statements were taken during the first half of 2015, and on 19 June 2015 the applicant was served with a notice to appear in relation to one count of misconduct in public office. This has developed into the present indictment.

15. [15]
    Apart from the matters outlined above, the prosecution’s circumstantial case also relies on the following features:

-

The applicant had previously unsuccessfully sought promotion to Senior Sergeant.

-

Joachim was among the successful applicants. The applicant unsuccessfully sought a review of the decision appointing Joachim and four others.

-

In 2011, the applicant made a complaint about the panel process resulting in Joachim’s appointment – this was not substantiated.

The Crown therefore alleges a deliberate leaking of the material to discredit Joachim (i.e. cause him a detriment) and thus advantage Mr Flori.

The application

Circumstances 

Stewart – Price incident

16. [16]
    The applicant points to a number of circumstances, which may bear on the two broad categories of applications for a stay outlined above. One is an incident in 2010, when (now) Police Commissioner Ian Stewart announced in a press conference to the media details of an incident where an Airlie Beach police officer, Ben Price, unlawfully assaulted members of the public, again recorded on CCTV video. This is referred to by the applicant as apparently a parallel to his case where, on the Crown case, the applicant’s actions could be seen as being comparable (although the applicant denies releasing the material to the media). The idea behind this is hard to pin down, but it may be that, if Stewart or someone associated with him did a similar thing without criticism, it is unfair to pursue the applicant for the analogous behaviour and thus a stay may be justified.

17. [17]
    However, at the time then acting Commissioner Stewart or some other unknown person released the footage concerning Price to the media, Price had already been charged and, it seems, sentenced. This is in stark contrast to the present case, where the ESC were still investigating Begic’s complaint into the incident which had already been notified by Joachim to his superior. Moreover, the release of the footage to the journalist Pierce, rather than for example the CCC, (a) was not necessary to commence any investigation into the incident – the investigation had commenced and (b) had, on the prosecution case, the element of the dishonest cause of a detriment, something which appears to be entirely absent from the circumstances of the Stewart incident. The two sets of circumstances are not comparable.

Earlier disclosure

18. [18]
    The applicant also points to what he says is an earlier disclosure under the provisions of the Whistleblowers Protection Act 1994, of other alleged misconduct to the then Crime and Commission. This is said to have happened in 2010 and to be relevant to the applicant’s statutory immunity from reprisal under the PID Act.

Choice of charge

19. [19]
    The applicant also refers to the prosecuting authority’s choice of charge. He complains that the more serious charge of misconduct in relation to public office was chosen rather than the less serious offence of “improper disclosure of information” under s 10.1 of the Police Service and Administration Act 1990 (Qld).

Supreme Court ruling

20. [20]
    The applicant points to his success in the Supreme Court proceedings, indicating that, because the Supreme Court ruled that the products of the search warrant should not be used for disciplinary proceedings, this was an indication of mala fides on the part of the investigating police. When challenged about this in cross-examination, Detective Inspector Winter said, (a) the investigation commenced, as all such investigations do, as both criminal and disciplinary; (b) prior to the decision in the Supreme Court, warrants had been used in that way in Queensland for 150 years. Thus it was not, to that point, an unusual procedure, on the evidence; (c) after the decision, the matter necessarily reverted to a criminal one.

21. [21]
    The applicant also seems to rely on the filing of the Supreme Court proceedings as in themselves representing a proper disclosure under the PID Act. This is referred to below.

Disciplinary proceedings still on foot

22. [22]
    The applicant also points to the circumstance that, as far as he is aware, the disciplinary proceedings against him remain open and questions the propriety of this. He also submits he took proceedings against one of his superiors, Deputy Commissioner Gollschewski, concerning the disciplinary process, which were apparently settled in 2015; and shortly thereafter the criminal proceedings were commenced.

Interference with legal representation

23. [23]
    The applicant also complains about remarks allegedly made by the arresting officer to the applicant’s legal representative, Calvin Gnech (Police Union Legal Group), regarding the Union funding for the applicant’s representation. The remarks attributed to Detective Inspector Winter were denied by him in cross-examination. The applicant also complains that he is suspended without pay.

Legal principles regarding a stay

Abuse of process

24. [24]
    Courts possess the power to stay proceedings upon indictments presented before them where this is necessary to prevent an abuse of process and ensure a fair trial for an accused.^[4]

25. [25]
    These cases are rare. Some conduct on the part of the prosecuting authority must be shown to result in prejudice to the accused person obtaining a fair trial.^[5]

26. [26]
    Obstacles which may impact upon the fairness of a trial are often encountered. These include matters such as adverse publicity in the reporting of notorious crimes; adverse revelations from a public enquiry; difficulties with competent representation or the death or unavailability of witnesses. In a separate category is the contention that proceedings may be initiated or maintained for an improper collateral purpose.

27. [27]
    These problems do not routinely cause proceedings to be permanently stayed:

‘Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and to determine the issues. The responsibility is discharged by controlling the procedures…by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.

More radical remedies may be needed to prevent an abuse of process. An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. 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 is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process 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. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law.’^[6](emphasis added)

The prosecution also refers to R v Johannesen and Chambers (1996) 87 A Crim R 126 at 135 per Fitzgerald P as follows:

‘…there is a strong predisposition toward permitting prosecutions to proceed, with procedural and other rulings and directions moulded to achieve a fair trial which produces a result free of the taint of risk of miscarriage of justice… A stay should not be granted if the prosecution can proceed, uninfluenced by improper purpose, without unfairness to the accused, with a legitimate prospect of success and, in the event of conviction, no significant risk that, because of delay or other fault on the part of the prosecution, an innocent person will have been convicted.’

28. [28]
    Thus, the prosecution argues in this case that the purpose here is only to hear and determine finally whether the accused has engaged in conduct that amounts to an offence and, on that account, is deserving of punishment. If so, no abuse of process arises.

29. [29]
    The prosecution also refers to Williams v Spautz for the proposition that to succeed on the basis of an improper purpose the applicant must show, ‘… the purpose of bringing the proceedings 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’.^[7]  The applicant bears the onus of proving the improper purpose as being the predominant purpose of the proceedings.^[8] The prosecution submits that the applicant cannot discharge this onus.

30. [30]
    Apart from the question of an improper collateral purpose, the prosecution submits that none of the other features referred to by Mr Flori amount to any significant obstacle to a fair trial such as to compel a refusal to exercise the court’s jurisdiction to hear and determine the issues. Mr Cash QC submits in summary:

–

The release of comparable footage in the Price matter by now Commissioner Stewart at the end of the judicial process is no more than an interesting anecdote which highlights the impropriety of the applicant’s alleged actions;

–

There is no engagement with the provisions of the PID Act, for reasons which are set out in more detail below;

–

The choice of charge is within the discretion of the prosecuting authority;

–

The Supreme Court ruling is no indication of mala fides, nor is the feature that the disciplinary proceedings are still on foot;

–

There is no substance in any complaint that there was any endeavour to interfere with the applicant’s legal representation.

Applicant’s bases:

1. Statutory immunity

31. [31]
    The PID Act  commenced on 1 January 2011. It replaced the Whistleblowers Protection Act 1994. The applicant submits the proceedings amount to an abuse of process, because he has statutory immunity as set out in s 36 of the PID Act:

‘Immunity from liability

A person who makes a public interest disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process, including disciplinary action, for making the disclosure.’

32. [32]
    The applicant submits he made an earlier disclosure in 2010 concerning a separate issue. This disclosure was made anonymously to the CMC, as the organisation was then known. Part of the applicant’s argument is the continuation of the present proceedings represents an unlawful reprisal for the (properly and anonymously made) 2010 disclosure, which came to the attention of investigating police at the time of the execution of the search warrant in the present proceedings.^[9]

33. [33]
    The applicant also submits he has protection for the disclosure said to be the subject of the present indictment, if the prosecution succeed in establishing that he did make that disclosure.

Prosecution response as to immunity for 2012 disclosure

34. [34]
    On this topic, the prosecution submits that what the applicant is said to have done (the alleged 2012 disclosure the subject of the indictment) does not come within the meaning of a “public interest disclosure”. Relevant aspects of the statutory scheme include the fact that s 11 of the Act, in defining the meaning of “public interest disclosure”, refers to disclosure to a “proper authority”. This is also present in s 13(2) which governs the applicant’s situation. A “proper authority” may include a member of the legislative assembly (s 14) or a “public sector entity”. This includes the various categories of such entities in s 6 of the Act, and would include the Crime and Corruption Commission and the Queensland Police Service.

35. [35]
    The prosecution submits that disclosure to a journalist, which is, on the Crown case, what happened on this occasion, may only be made in the limited circumstances provided for by s 20 of the Act. That is, where there had been a proper disclosure to a relevant entity and no action was taken. This had not occurred here.

36. [36]
    The prosecution therefore submits that if it is established the applicant made the alleged disclosure to the journalist, it was not done pursuant to the Act because no previous disclosure had been made to a proper authority and s 20 was not engaged. That being the case, no question of immunity under s 36 arises and thus no question of a stay of the indictment.

Prosecution response as to immunity for 2010 disclosure

37. [37]
    As to the earlier disclosure, this was made under the now repealed Whistleblowers Protection Act 1994. Transitional provisions in the PID Act deem a public interest disclosure under the earlier legislation to be such under the present legislation. However, the prosecution points out that s 36 protects “the” disclosure, that is, the particular disclosure under consideration. In this case, the prosecution submits, that this is in context a reference to the 2012 disclosure. It is argued that if the disclosure in 2010 was a public interest disclosure the applicant would be immune from liability arising from his making of that disclosure. However, that is unrelated to the events of 2012 and no immunity carries over from the earlier disclosure to the one which is the subject of the indictment. To interpret the legislation otherwise would be, in effect, to grant a perpetual immunity to a person who had on one occasion made a public interest disclosure. It is also submitted that there is no causal connection between the 2010 disclosure and the present case; there is no basis to conclude this prosecution to be a reprisal for that disclosure. It was, at best, an incidental finding during the search.

“Reprisal”?

38. [38]
    The applicant also relies on an argument that the proceedings represent a statutory reprisal in contravention of ss 40 and 41 of the PID Act. Section 40 forbids the causing or attempting to cause a detriment to a person because the other person had made a public interest disclosure. Section 41 makes this conduct an offence. The prosecution submits, because there has been no public interest disclosure of the footage the subject of these proceedings, it cannot be suggested anyone involved in the prosecution committed a reprisal in the statutory sense and thus no basis for a stay of indictment arises.

39. [39]
    However, the applicant’s argument goes somewhat further. He argues the reprisal is constituted by all of the conduct related to the institution and continuation of the proceedings the subject of the indictment, and these actions are a reprisal for the previous public interest disclosure that he made in 2010 and which was discovered by the investigating police during the investigation of the present matter. Detective Inspector Winter was cross-examined about his discovery of the applicant’s complaint to the CCC, but it was not suggested to him that the discovery of that matter was in anyway a motivating factor for any of Winter’s actions. Nor was it suggested that Winter was acting in reprisal for that earlier disclosure.^[10] Thus, there is no evidentiary basis for the applicant’s submission. It is therefore stillborn.

2. Improper purpose

40. [40]
    The applicant argues that because the Queensland Police Service failed in its disciplinary proceedings because of the Supreme Court ruling, the continuation of the criminal prosecution arising out of the same incident is for an improper purpose.

Prosecution response

41. [41]
    In response, the prosecution submits there is no basis to conclude that the indictment was presented in order to gain some collateral advantage as opposed to simply prosecuting the proceedings to a conclusion. The prosecution refer to the evidence of Detective Inspector Winter. When pressed about these matters, he swore that every investigation of this kind, including this one, commences as both a criminal and disciplinary matter. Eventually in the ordinary course of events a choice is made by the officer in charge of the investigation (in this case, himself) as to whether a disciplinary or criminal path would be chosen. Although a disciplinary path was initially chosen, this was changed by the decision in the Supreme Court, resulting in his decision to continue with criminal proceedings. This was not the pursuit of a collateral advantage. Rather, it was the choice of two equally open paths where one such path had been removed by the court decision. Thus, it is submitted, the alleged improper purpose simply has no basis in fact. In my conclusion, this is correct.

Other circumstances

Representation/evidence of Gnech

42. [42]
    On the evidence of Mr Flori’s solicitor, Mr Gnech, Detective Inspector Winter said a strange and concerning thing in a conversation on 18 June 2015,^[11] indicative of a concern the Police Union was defending Mr Flori and a possible intention to interfere with that representation. I would tend to accept Mr Gnech’s evidence as to the details; he was disturbed about what was said and made a note immediately thereafter, although it is also true that Winter denied those details and his account of the conversation is both innocent and logical.

43. [43]
    However, in my view it is not necessary to resolve this contest. It is clear that Winter did not do anything about steps to interfere with the representation, or anything else untoward outside the normal processes. Thus, the conversation, while unfortunate and possibly concerning, has no wider ramifications and is no basis for a stay. It may possibly be a basis for cross examination as to credit, although Mr Flori would probably be prevented from leading the contradictory evidence from Mr Gnech by the collateral evidence rule.

“Punish”?

44. [44]
    Mr Gnech also deposes that there was a later conversation in which Winter said he intended to “punish” Flori by criminal action. This was also denied. If it occurred, it is also inappropriate language, but in my view nothing more.

Direction?

45. [45]
    Mr Gnech also deposes that Assistant Commissioner O'Regan said to him in May 2015 that he had “directed” Flori be criminally charged. O'Regan was not called to give evidence. Winter was not said to have been present when it was said. Winter denied he was directed, although he did discuss the matter with superiors. Nothing turns on this alleged exchange and it is no basis for a stay.

Intention to circumvent

46. [46]
    Finally, Mr Gnech gave evidence of conversations with police from ESU, particularly Inspector Harland, to the effect that, after the criminal proceedings, documents gained by the search warrant process would then, having been tendered, be in the public domain and thus usable in disciplinary proceedings despite the Supreme Court ruling. This is said to be an intention to circumvent the ruling, and thus an improper collateral purpose. However, again there is simply no evidence that this is Winter’s purpose, although he is aware of the theory.^[12] His only interest or aim was to conclude the criminal process.

47. [47]
    In my view, it may be concerning if there is a theory to circumvent the Supreme Court ruling in this way. I am satisfied that is not Winter’s purpose. However, if there is such an intention on the part of some police, and if it is ever put into action, then in my view that would be the correct forum to agitate arguments as to a stay of those proceedings on the basis of the Supreme Court ruling. The full armory of the court’s remedies would be available at that stage to prevent any injustice or improper circumvention of the ruling. That stage has not yet arisen.

Choice of charge

48. [48]
    As to the choice of charge, this is a matter within the discretion of the prosecuting authorities and no impropriety arises from such a choice. The Director’s guidelines mention a preference for summary charges unless the conduct could not be adequately punished other than on indictment. This evaluation is clearly one for the Director. The discretion to prosecute is a wide one, not easily challenged; for example, it is not susceptible to judicial review as are other administrative decisions under the Judicial Review Act 1991 (Qld).^[13] The choice complained of does not form a basis for a stay of proceedings.

Gollschewski

49. [49]
    Finally, Mr Flori complains he was charged immediately following some proceedings he had taken against Deputy Commissioner Gollschewski were settled. However, in my view this demonstrates propriety, not impropriety. It would only be if he were charged while those matters were still on foot, such that the charges could be seen as a lever in negotiations, that there could be a suggestion of improper collateral purpose. The converse applies here.

Conclusion

50. [50]
    In conclusion, none of the grounds argued for the basis of a stay of proceedings, or any of the surrounding circumstances put forward as forming a basis of those grounds, have any substance. In the circumstances, the application is dismissed.