Subprathueng v Queensland Police Service
[2018] QMC 15
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- Unreported Judgment
- Subprathueng v Queensland Police Service[2018] QMC 15
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Subprathueng v Queensland Police Service[2018] QMC 15
Subprathueng v Queensland Police Service[2018] QMC 15
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Subprathueng v Queensland Police Service [2018] QMC 15 |
PARTIES: | Sirinton Subprathueng (Applicant) v Queensland Police Service (Respondent) |
FILE NO/S: | MAG-00046996/18(6) |
DIVISION: | Magistrates Courts |
PROCEEDING: | Criminal |
ORIGINATING COURT: | Mount Isa |
DELIVERED ON: | 14 November 2018 |
DELIVERED AT: | Mount Isa |
HEARING DATE: | 20 September 2018 |
MAGISTRATE: | J Morton |
ORDER: | Application dismissed |
CATCHWORDS: | CRIMINAL LAW – PRACTICE AND PROCEDURE – Charge struck out by learned magistrate for lack of particularisation – defendant later recharged – stay of proceedings for an abuse of process application by defendant – delay in recharging defendant – abuse of process Drugs Misuse Act 1986 (Qld), s 9 Jago v District Court (NSW) (1989) 168 CLR 1 R v W; Ex Parte A-G (Qld) [2002] QCA 329 Williamson v Trainor [1992] 2 Qd R 572 Grasby v The Queen (1989) 168 CLR 1 Higgins v Mr Comans, Acting Magistrate & DPP (Qld) [2005] QCA 234 Lillico v McKenna (1995) 5 Tas R 147 Walton v Gardiner (1993) 177 CLR 378 R v Higgins [2006] QDC 369 R v Barton (1980) 147 CLR 75 |
COUNSEL: |
|
SOLICITORS: | N Smith, for the defendant Senior Constable E Geddies for the Prosecution. |
- [1]This is an application for a permanent stay of the charge against the defendant on the grounds that it is an abuse of process.
- [2]It has been well recognised that the power to grant a permanent stay is to be used only in the most exceptional circumstances.[1] The case must be an extreme one to warrant a stay. A decision to stay proceedings is a discretionary judgment and as such should not be set aside in the absence of demonstrated error of fact or law.[2]
- [3]In consideration of an application for a stay on the grounds of delay, the following considerations need to be taken into account;
- The reasons for the delay
- The length of the delay
- The accused’s responsibility for and past attitude to the delay
- The prejudice suffered by the accused
- The public interest of having a person placed on trial against whom serious charges are preferred.
The Background of the Proceedings
- [4]The defendant was intercepted by police and charged that on 23 July 2015 she unlawfully had possession of a dangerous drug, pursuant to section 9 of the Drugs Misuse Act 1986 (Qld). This charge came about as a result of a search of a vehicle the defendant was travelling in, a package was found underneath the seat where the defendant was sitting resulting in the present charge.
- [5]On 17 August 2015 when the defendant appeared in the Mount Isa Magistrate’s Court, she was legally represented by a duty lawyer and it seems that the learned magistrate took the course of action to strike the matter out. The bench charge sheet notation indicates “that no drug was particularised”.[3] There is no transcript of the proceedings from the 17 August mention, however it was conceded on behalf of the defendant and the prosecution that the matter was struck out for lack of particularisation of any dangerous drug.
- [6]On 23 February 2018, the defendant was spoken to by police in relation to other matters, it was made clear to her that she was wanted for questioning in relation to the issuing of a notice to appear for the charge subject to this application.
- [7]It is submitted on behalf of the defendant, that the charge arising out of the 23 February 2018 notice to appear is exactly the same charge and the same facts as the previous charge that was originally struck out on 17 August 2015. That is conceded by the prosecution.
- [8]It is clear that the drug analysis certificate, dated 25 September 2015 tendered by the prosecution in this application relates to a drug commonly known as alpha pvp.[4] In this application, it was submitted on behalf of the defendant that the certificate was not available on the 17 August court mention date.
- [9]Upon inspection of the certificate, it is dated 25 September 2015, and it seems clear that this certificate was in the possession of the Queensland Police since 25 September 2015 until the arrest of the defendant on 23 February 2018. This, it is submitted can be factored into the reasons for the stay on the grounds of an abuse of process. There is no challenge to the admission of the certificate.
- [10]It was submitted that no satisfactory explanation has not been advanced to explain the delay in recharging the defendant. It was submitted that the defendant is a local resident of Mount Isa and she came to the attention of the police on numerous other occasions and at no time was she evading the police and not until February 2018 a Notice to Appear is given to the defendant relating to the same charge that was before the Mount Isa Magistrates Court and ultimately struck out on 17 August 2015.
- [11]To recharge the defendant and now rely upon the analysis certificate after over 2 years and 7 months, amounts to an abuse of process.[5]
Jurisdiction of the Magistrates Court
- [12]First it is necessary to consider whether this Court has the jurisdiction to stay proceedings which are an abuse of process: Jago v The District Court of NSW & others and Williamson v Trainor applies in my view.
- [13]The Carters Criminal Code of Queensland, para 560.95, where Williamsons case is the authority for the proposition that the Magistrates Court does have the power to prevent an abuse of its own process and grant a stay in dealing with matters heard on a summary basis.
- [14]Bearing in mind the present matter was originally struck out for ‘no particularisation’ of any dangerous drug by the learned Magistrate. Before this Court, the Prosecution did not make any submissions regarding the jurisdiction of the Magistrates Court to order a stay, however, on behalf of the defendant it was submitted that this court has an inherent power to stay proceedings for an abuse of process.[6] In my view it is necessary to consider this issue.
- [15]In Neill v County Court of Victoria, it was held:
“In the absence of statutory limits a discretionary power to stay proceedings is necessarily implied. A Magistrate finally determining rights and obligations in the exercise of the courts summary jurisdiction has the power to stay a criminal proceedings before it which are an abuse of process. Such power is an essential attribute of the exercise of the jurisdiction with which it is invested.”[7]
- [16]Unlike in the matter of Higgins v Mr Comans, Acting Magistrate & DPP (Qld), where it was held:
that the Magistrates Court conducting an examination of witnesses pursuant to Part 5, Division 5 of the Justices Act 1886 (Qld) did not have the power to stay such proceedings as an abuse of process.[8]
- [17]The present application relates to a matter being dealt with in the Magistrates Courts summary jurisdiction and not a committal proceeding.
- [18]
“as a matter of principle, any court has the power to take appropriate steps which will prevent injustice for an abuse of its process. One possible step is to prevent the proceedings continuing. A superior court may prevent this by ordering a stay of proceedings. By reason of the nature of a court of petty sessions, which only comes into existence when justices or a magistrate sit in petty session and has no independent existence, it is inappropriate for such a court to grant a stay.”
- [19]In Williamson v Trainor it was said:
“the Magistrates Court has power to prevent an abuse of its own process. This power is based upon the interest the public has in court processes and proceedings being conducted fairly.”[10]
- [20]In Walton v Gardiner the joint judgment of Mason CJ, Deane and Dawson JJ relevant considerations were suggested, as follows (at 395 to 396);
“As is pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintainpublic confidence in the administration of justice.”[11]
- [21]I am of the view this court has jurisdiction to hear and determine whether a stay of proceedings ought to be granted.
Delay
- [22]One of the recognised grounds for a stay of proceedings for an abuse of process is ‘undue delay’. In seeking a stay for an abuse of process, the test is well settled that where an applicant seeks a stay on the grounds of delay, that applicant must be able to show actual prejudice, and the delay must be so great and the prejudice that has followed must be so manifest that there is nothing that a court can do to ensure a fair trial is afforded to the applicant.[12]
- [23]The discretion whether to grant or refuse leave to stay the proceedings in contested situations such as the present application, it is always necessary to look at the particular circumstances of each case to assess its merits. It is clear that the original charge that was struck out on 17 August 2015 particularised as “a dangerous drug” and the delay of over 2 years 7 months is said to be the ground for the stay application.[13]
- [24]In February 2018 the defendant is issued with a notice to appear in the Magistrates Court at Mount Isa for possession of a dangerous drug namely alpha pvp.[14] No objection is taken with the particulars of the drug in the present charge.
- [25]In oral submissions, the prosecutor provided no reasonable explanation as to the cause of the delay from August 2015 or at least when the drug analysis certificate was made available in September 2015 until the time of recharging the defendant in February 2018. There was no suggestion the delay was caused by the defendant.
- [26]The Prosecution submitted that since the analysis certificate was issued and when the defendant being recharged, she was subject to a protracted investigation by police in relation to other matters.[15]
- [27]In my view does not assist the prosecution, and the real issue here is the delay in police having possession of a drug analysis since at least September 2015 and doing nothing until February 2018, which in my view is totally unacceptable. The defendant lives locally in Mount Isa and nothing suggests that she was actively avoiding police during the time between August 2015 and February 2018.
- [28]On this application, it seems clear that no reasonable explanation for the delay can be made out by the prosecution.
- [29]When considering the issue of delay, the detriment that has followed as a result of that delay is an important factor to consider in the exercise of my discretion to grant a stay. In this case, there is no challenge by the prosecution that the original charge was ‘struck out’ and nothing further is done in relation to this matter from August 2015 until February 2018. Therefore, the issue of detriment to the defendant must be considered.
- [30]It was submitted on behalf of the defendant that the delay in re-charging the defendant:
And now having to defend herself with, unfortunately a large span of time going against her in terms of memory and potential witnesses and the like.[16]
- [31]On the strength of the evidence, as I see it, the delay in recharging the defendant is approximately 2 years and 7 months. The detriment that was submitted at its highest is the length of time that has elapsed affecting the defendant’s memory of events and potential witnesses in order to defend the matter.
- [32]Naturally it is accepted that over the course of time a person’s memory can forget specific incidents and the like, however in this case it was submitted that the search was recorded on a digital recorder and the defendant took part in a recorded interview.[17] In my view this is an important factor. Is was also submitted that the passing of time has affected the ability to mount a proper defence.[18]
- [33]In considering this point, I am mindful of what his honour McGill DCJ said in R v Higgins, where his honour held that there must be evidence of detriment to a defendant in seeking the remedy of a stay application.[19]
- [34]In that case, the conduct of the Crown was the focus of the stay application on the grounds that it was oppressive. In the present application, there is no suggestion that the police have acted in an oppressive manner, however I am also conscious of the fact that nothing suggests that the defendant had any legitimate expectation that the matter would not proceed further simply because that charge was earlier struck out.[20]
- [35]It is further important to note that this is not a case where there is a loss of evidence, but rather some undefined loss of memory of the defendant and that of any potential witnesses. This must be weighed up against the public interest in the charge proceeding. Bearing their competing considerations in mind, I am not satisfied the defendant has demonstrated any real prejudice caused by the delay.
- [36]A further important consideration that was not raised in this application is the ‘public interest’ in having the criminal law upheld. In that regard, I am conscious that this is one of the factors to be balanced by a court when it is being asked to exercise its discretion to stay a prosecution.[21] This issue was not raised in this application, however in my view it is necessary to address it.
- [37]The stay application sought, arising from the conduct of the police in sitting idle on their case for approximately 2 years and 7 months, when it is clear they had ample opportunity and to do so is the abuse of process as stated by the defendant. In that respect, I consider it is totally unacceptable in modern day law enforcement. It is not to be condoned that the police act with gross inefficiency in such a manner that allows them to pick and choose a time frame to recommence court proceedings especially in the circumstances of this case.
- [38]Bearing that in mind, I am conscious that the defendant has been charged with the possession of a dangerous drug, and the public interest in bringing the defendant before the court, in my view outweighs other matters that would favour the exercise of the discretion to grant the stay application.
- [39]Upon inspection of the court file, it seems the matter progressed through the hands of various solicitors and at least two different law firms. No criticism is made in this regard.
- [40]This matter came before the court on 26 March 2018 for mention and it was adjourned to 9 April for further mention. On 9 April the defendant failed to appear in court a Bail Act warrant was issued. The matter was further mentioned on 16 May 2018, and a brief of evidence was sought including the disclosure of the analysis certificate. On 4 July 2018 the matter was listed for a further mention and adjourned to 30 July. On 30 July the matter was adjourned for a further mention to 13 August. On 13 August the matter was listed for mention and adjourned to 20 August for the present application.
- [41]It seems clear that there is at least some delay of about 5 months in the matter in 2018. The defendant failed to appear and various court mentions of the matter and adjournments sought. No argument is made about the delay in the proceedings in that aspect. It seems clear that the stay application is based on the time elapsed up to the recharging of the defendant and not the conduct of the proceedings in the 2018 court appearances.
- [42]In weighing up these issues, no evidence of any actual prejudice to the defendant has been established other than to the general lapse of time. These are essential factors to be established by an applicant seeking the remedy for the application to be granted.[22] In my view, the overall assessment of the background of this matter falls short of the settled principles referred to in Jago v District Court (NSW) warranting the granting of a stay.
- [43]In all the circumstances, I am not persuaded that this is a case where it is appropriate to stay the prosecution.
Order
The application to stay the proceedings is dismissed.
Footnotes
[1] Jago v District Court (NSW) (1989) 168 CLR 1.
[2] R v W: ex parte A-G (Qld) [2002] QCA 329.
[3] This matter was initially heard before another magistrate sitting in the Mt Isa Jurisdiction.
[4] alpha-Pyrrolidinovalerophenone.
[5] Transcript page 10 line 45 to 46.
[6] Transcript p.4 at line 40.
[7] (2003) 40 MVR 265.
[8] [2005] QCA 234 per Keane JA. cf Grassby v The Queen (1989) 168 CLR 1.
[9] (1995) 5 Tas R 147 per Zeeman J.
[10] [1992] 2 Qd R. 572 at 580 per Ambrose J.
[11] (1993) 177 CLR 378.
[12] Jago v District Court (NSW) (1989) 168 CLR 1.
[13] Transcript p.14 at line 4.
[14] alpha-Pyrrolidinovalerophenone.
[15] Transcript page 17 at line 17.
[16] Transcript page 5 line 3.
[17] Transcript page 15 line 15.
[18] Transcript page 15 line 18.
[19] [2006] QDC 369 [10].
[20] Ibid at [11].
[21] R v Barton (1980) 147 CLR 75 at 102 and 106.
[22] Jago v District Court (NSW) (1989) 168 CLR 1, Walton v Gardiner (1993) 177 CLR 378.