R v Pinzone & Di Carlo[2023] QDCPR 8

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant, Pinzone, is charged with one count of official corruption as follows:

That between the tenth day of October, 2016 and the seventh day of June, 2017 at Ipswich and elsewhere in the State of Queensland, SALVATORE DI CARLO and CHRISTOPHER PINZONE, corruptly gave and offered to give PAUL JOHN PISASALE, a person who was the holder of the office of Mayor of the Ipswich City Council, benefits on account of PAUL JOHN PISASALE having in the discharge of the duties of his office the promotion of the property development proposal at 285-313 Warwick Road, Yamato.

2. [2]
   He applies for a permanent stay of the prosecution.  His grounds are not wholly like those pleaded by di Carlo in his application, which I dismissed in February 2021.
3. [3]
   The applicant also seeks a separate trial from di Carlo.  That application is dealt with in other reasons.
4. [4]
   On 8 February 2023 I refused to grant the stay.  These are my reasons for refusing the stay.
5. [5]
   The categories of grounds upon which a court may stay an indictment are not closed.   But the power is to be used only in most exceptional circumstances.  Omitting citations, in Walton v Gardiner (1993) 177 CLR 387 at [23], Mason CJ, Deane and Dawson JJ, said:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them.  Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.  The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".^[1]

6. [6]
   The applicant asserts that six circumstances individually or cumulatively compel the stay.
7. [7]
   The first is that the applicant was “offered amnesty, and this was reneged on”.  The submission is that the applicant was promised immunity and the promise coaxed him into giving a statement, but ultimately the Director of Public Prosecutions (the DPP) did not refer the matter to the Attorney-General; the DPP has refused to disclose all relevant conduct and the proceeding should be stayed.
8. [8]
   In respect of the last point, the applicant sought for disclosure of various documents.  I refused to order disclosure of documents which were contained in a confidential affidavit.
9. [9]
   The assertion that the applicant was promised indemnity is not made out.  The applicant was examined by the Crime and Corruption Commission (the CCC) on 23 August 2017.  He relies on a statement by the chair of the CCC, who presided at the hearing, that, “You have complete protection from anything you’ve done that might amount to a criminal offence, but only if you tell us the truth here.”  Put in context, the statement could not reasonably be read as a promise of indemnity.  It followed a full explanation of the applicant’s situation.
10. [10]
    The presiding officer told the applicant:

“from what I have understood about what your evidence here might be um to give evidence truthfully, you may in fact end up incriminating yourself. You may end up dobbing yourself in for one or more criminal offences, and that can be a number of different things but generally speaking uh it might be the effect of your evidence. Because the Act requires you to answer all questions, it also gives you the important protection that where your answers to a question may incriminate you for a criminal offence, you have uh the protection uh against answers of that kind being used against you providing I direct you to answer. So what I am going to do now is tell you that pursuant to Section 197(5) of the Crime and Corruption Act 2001, I order that all answers given by you, Mr Chis PINZONE, are to be regarded as answers given on objection by you on the basis of a claim of self-incrimination privilege. I nonetheless override that objection and require and direct you to answer all such questions. Now, what does that mean? What it means is this simply, it means that nothing you say in this room today is now able to be used against you in criminal, civil, or administrative proceedings unless you consent to it being so used. So, what that means is you can answer all of the questions asked of you uh freely without being concerned about dobbing yourself in. Now, all of that’s well and good, you have that protection because of the order I’ve just made, but there is one um uh very important exception to that protection of you. You’re not protected against false or misleading evidence you give in answer to those questions. Do you understand? So you have complete protection so long as you tell the truth”.^[2]

11. [11]
    Later in the hearing counsel assisting, while questioning the applicant, said:

“You have been put in a quite unique legal framework here today. Um you’ve the benefit of the full protective orders that have been made with respect to your evidence. As has been said, you only have that benefit so long as you’re truthful.”^[3]

12. [12]
    Even if the presiding officer’s statement had the potential to be misleading it did not amount to a promise of indemnity.  In any case, it was, of course, not for the chair of the CCC to make such a promise and the applicant must be taken to have known that, being represented by a solicitor at all times.  The statement the applicant gave in March 2021 is prefaced by an express acknowledgement that he had not been promised an indemnity and that that was a matter for the Attorney-General.  The evidence at the hearing of this application was that the DPP did not refer the matter to the Attorney-General.
13. [13]
    The second circumstance relates to the decision to charge the defendant and also asserts that the CCC acted with an ulterior purpose.  The applicant submits that the decision of the charging police officer, Edwards, was made without a proper foundation, that is, that Edwards had access to coerced material, was directed by the chair of the CCC, did not exercise an independent discretion, and despite his evidence that he reached an independent reasonable suspicion that the applicant committed the offence, did not state the basis for the conclusion and could not have reached the required position without reference to the coerced material.  The ingredients of the CCC’s ulterior purpose included: failing to proceed under s. 49 of the Crime and Corruption Act 2001 (Qld), as it then applied, by referring the matter to the DPP but instead using the device of having the seconded officer charge the applicant; the CCC’s culture of bias as found by the Parliamentary Crime and Corruption Committee report into the CCC’s investigation of former Logan City councillors; the CCC’s refusal to re-open the investigation which led to the applicant being charged to allow its conduct to be reviewed under s. 332 of the Crime and Corruption Act 2001 (Qld), following the decision of Davis J^[4] that the investigation having closed, the application made to the Supreme Court must fail; the applicant was not given the opportunity to cross examine other witnesses at the CCC hearings; the CCC employed unfair tactics in the taking of statements from witnesses.  The ulterior motive was also expressed during oral argument as a desire by the CCC to obtain positive favour with the press and the government by charging well known persons and also as the determination of the CCC to charge witnesses who did not give statements that would tend to support a conviction of Ipswich Mayor Pisasale.
14. [14]
    Officer Edwards was cross examined during the hearing of the application.  He confirmed his reaching, independently, a reasonable suspicion that the applicant committed the offence, based on evidence separate from the coerced material.^[5]  He said he considered the acts of di Carlo and the applicant, as well as surveillance and telephone intercept evidence.^[6]
15. [15]
    I am not satisfied the ‘ulterior purpose’ ground is made out – particularly given the standard of satisfaction the court would need to reach to support, even in combination with other matters, the making of a permanent stay.  Among other things, it is not established the CCC closed the investigation to avoid scrutiny by the Supreme Court.
16. [16]
    Any conduct alleged as having influenced the evidence witnesses gave was far from the sort of conduct – seen, for example, in R v Falzon [1990] 2 Qd R 436 where the trial judge found the behaviour was likely to produce inherently unreliable evidence - that could lead to the conclusion that the prosecution should be stayed.  The method employed – a seconded officer laying a charge and staying involved in the prosecution - is arguably inadvisable, given the practical difficulties in the conduct of the prosecution it can lead to, as in the present case where the prosecutor appearing in these applications is not the trial prosecutor.  But the failure to refer the matter to the DPP does not demonstrate an ulterior purpose nor otherwise call for the stay of the proceeding.  Note should be taken in this regard of the comment in the report of the Commission of Inquiry Relating to the CCC that while seconded police retain their charging function in relation to corruption inquires, other than in exceptional circumstances, before a charge is laid by a seconded police officer during or following a corruption inquiry, the CCC must seek the opinion of the DPP (8.4 of the Report).
17. [17]
    The applicant has not shown malice in the laying of the charge nor that the charging officer had no “reasonable and probable cause”.^[7]  And in any case, the prosecution continues, conducted by, I am told, a prosecutorial team quarantined from any coerced material of the applicant and di Carlo, after a decision by the DPP to proceed on the admissible evidence.
18. [18]
    The third circumstance is said to be that the DPP is not currently able to comply with its prosecutorial duties, in particular, the duty to continue a prosecution in the public interest.  The submission was as follows.  The DPP was required to review the strength of the case and consider the conduct of the CCC.  Since the Supreme Court, in PRS v Crime and Corruption Commission [2019] QSC 83, could not review the conduct of the CCC, it fell to the DPP to determine whether, after assessing the conduct of the CCC as set out in the materials before the Supreme Court, it was still in the public interest to continue the prosecution.  A product of the isolation of the trial prosecutor from the coerced materials is that she will not know whether a witness gives evidence completely inconsistent with the statement to the CCC.  That is, the prosecutor cannot assess the reliability of the evidence.
19. [19]
    I do not accept that the separation of the trial prosecutor from coerced material makes it impossible for that officer to carry out her role.  Indeed, the quarantined ‘prosecutorial team’ seems to have become the accepted solution in cases where the investigation included, if not proceeded from, inadmissible coerced evidence. 
20. [20]
    The fourth circumstance concerns the appearance, on 24 July 2019, of a particular senior barrister on behalf of the CCC opposing the application to the Supreme Court in PRS v Crime and Corruption Commission, who the next day appeared for Pisasale in relation to a charge of extortion.  This, it is submitted, tends to undermine public confidence in the administration of justice and the court should not take part in proceedings connected to such conduct. 
21. [21]
    The applicant’s concern does not support a stay of this prosecution.  The senior barrister has no role in this prosecution.  His brief was to act for the CCC to resist the application for a review of its investigation.  The day before, he acted for a co-accused of the applicant but not in this matter.  The applicant is not charged with the extortion that Pisasale was dealt with for on that occasion and is not said to been involved in the circumstances that led to that charge.
22. [22]
    The fifth circumstance is that the prosecution is doomed to fail.  I make no judgment about the strength of the prosecution case against the applicant but to conclude it has not been shown that it is foredoomed to failure such that, either for that reason alone or accumulated with other circumstances, the prosecution should be permanently stayed.  It is not necessary nor appropriate to set out the facts alleged and the evidence relied on in their proof.  They have been placed before the court.  Particulars, although not final, and a statement of facts, and so much of the evidence I have been referred to, lead to my conclusion.  It is not the law, as it seemed to be submitted, that because the case is circumstantial it is necessary at this stage for the prosecution to exclude beyond reasonable doubt an inference consistent with innocence.
23. [23]
    The final circumstance relied on is that the DPP has used or is using the coerced material in the sense that witnesses who gave evidence under compulsion were locked into their evidence from the time of the coercive hearing; if they give inconsistent evidence they risk being charged with perjury; the CCC officers who took the statements had the power to remind witnesses of their coerced answers; thereby determining the evidence of the witness to suit the prosecution case.  It is said this occurred in the case of the witness, Katelyn Moore – the applicant’s material includes a statement apparently made by her to that effect - and the danger is it happened with others.
24. [24]
    The respondent submits the matter raised in this ground is for examination at trial of the manner in which statements were taken.  It might be that the relevant police officer disputes the assertion.  It remains for the witness to decide what evidence to give.  The possibility that the witness lied to the CCC and so will give inconsistent evidence at trial is not a matter that should lead to the stay of the prosecution.
25. [25]
    In summary, none of the asserted circumstances relied on, alone or in combination, compel the extraordinary step of a permanent stay.