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MAGISTRATES COURTS OF QUEENSLAND
Mrunal Parekh v Queensland Police Service  QMC 7
Mrunal Narendra Parekh
Queensland Police Service
MAG – 129005/19(0)
Application for Stay Pending Costs
Southport Magistrates Court
1 July 2020
10 June 2020
Justices Act 1886 S.83A
R v Mosley (1992) 28 NSWLR 735
Attorney – General for the State of Queensland & Anor v Wands  QCA 125
Williamson v Trainor  2 Qd R 572
Higgins v Mr Comans, Acting Magistrate & DPP (Qld)  QCA 234
Grassby v The Queen (1989) 168 CLR 1
Committal Proceeding – Application to Stay – ‘Mosley Order’
Mr A S McDougall instructed by Grant Lawyers
Ms C Usher solicitor , Police Prosecutor
Reasons for Decision
- Mr Parekh seeks an order that the prosecution of him be stayed pending the payment of costs for previous proceedings which were discontinued on 22 February 2019.
- On 3 March 2016, police executed a search warrant at a business premises said to be linked to Mr Parekh. In July 2018 he was charged with fraud between 6 July 2015 to 4 September 2015.
- Following communication between Mr Parekh’s lawyers and the prosecution, the case was listed for an application for orders as to cross-examination and disclosure on 22 February 2019 in the Southport Magistrates Court.
- The defence were informed on 21 February 2019 of the prosecutor’s intention to discontinue the matter, and on 22 February 2019 the prosecution offered no evidence to the charge.
- I accept that Mr Parekh incurred costs of legal representation up until 22 February 2019 and the court has been provided with an affidavit of Mr Parekh, sworn on 24 March 2020. Attached to that affidavit are a number of invoices.
- In July 2019 Mr Parekh was re-charged. The new charge has some slight differences but is in essence the same charge as the original.
- On 6 January 2020 a “new brief” was disclosed. The prosecution submit that the subsequent brief contains the following additional material:
- (1)forensic computer analysis;
- (2)an additional witness statement from co-accused Dean McCarthy.
- The defence submit that there is no discernible difference between the two briefs of evidence.
- As a result, a new application for an order for disclosure and cross-examination has been foreshadowed by the defence. It follows that further legal costs will be incurred.
- Mr Parekh argues that in the absence of any new evidence his re-charging is an abuse of the court processes.
- He is asking the court to stay the committal proceedings until the prosecution pay the costs “thrown away” as a result of being re-charged (which is known as a “Mosley” order, after a decision in that name in New South Wales.).
- The application seeks a direction pursuant to Section 83A of the Justices Act 1886.
- Section 83A(5) introduces a number of specific kinds of directions which a magistrate may give in a proceeding for an offence with the words:
“At a direction hearing, a magistrate may give a direction he or she is entitled to make at law about any aspect of the conduct of proceedings, including, for example, about any of the following….”
- There is no specific power in section 83A(5) for a direction to stay a committal hearing. The applicant argues that to stay the prosecution until the payment of the costs ‘thrown away’, is a legitimate exercise of a Magistrate’s inherent jurisdiction – put in another way - a direction the court is entitled to make at law.
- The order this court is being asked to make is similar to that made in 1992 in the case of R v Mosley.
- A Mosley order has been made by the District Court in Queensland on two occasions on which I am aware.
- Such an order has never been made in the Magistrates Court.
- The applicant is not seeking a costs order. Indeed, there is no jurisdiction in this court to award costs in a committal proceeding.
- The law about the making of a Mosley order was discussed by the Court of Appeal in the case of Attorney General for the State of Queensland & Anor v Wands. His Honour Justice Davis considered the making of a Mosley order in circumstances where there was a criminal prosecution on an indictment (as opposed to a civil proceeding).
- His Honour said; “Many occasions will arise when either party will cause expense to the other party that might have been avoided. However, few such instances would justify a Mosley order. This is because such an order constitutes an interference with the right of the Crown to prosecute its indictment... The only justification can be that, in the absence of the stay, the continuation of the prosecution would be unfair to the accused to a degree that justifies stopping the prosecution until the party that has caused it has alleviated the unfairness. Whether or not the asserted unfairness reaches that level is the judgement that lies at the heart of the exercise of the discretion.”
- By its very nature, a Mosley order stays the proceedings until the payment of costs has been made.
- Before this court can consider whether the circumstances of this case would provide a basis for such an order, there is a threshold question to be determined.
Can the Magistrates Court Stay Committal Proceedings?
- ‘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: Jago v District Court (NSW) (1989) 168 C.L.R. 23.’ Ambrose J in Williamson v Trainor  2 Qd R 572 at 580.
- In that case, the appellant was arrested and charged with an offence which was brought before the Magistrates Court. It was fixed for a hearing on 13 June 1990. On that date a police prosecutor requested an adjournment to which the appellant objected. The magistrate refused the adjournment and later the same day the police informed the magistrate that they proposed to offer no evidence and the magistrate therefore discharged the appellant. Then on the 7 September 1990 a complaint alleging the same offence by the appellant was sworn. That complaint came on for hearing on 7 February 1991. Another magistrate refused the appellant’s application for a stay of proceedings and convicted him after a hearing. The Court of Criminal Appeal held that in the circumstances the proceedings leading to the conviction amounted to an abuse of the process of the court, which the magistrate in the exercise his discretion, ought to have stayed, and that the conviction should therefore be set aside.
- The proceedings before this court are committal proceedings which are not judicial proceedings, but an administrative function conducted by a judicial officer. This distinction is important when considering whether the court has power to stay committal proceedings.
- The powers of a magistrate conducting an examination of witnesses are conferred by ss 104-111 of the Justices Act. Those provisions do not include an express power to stay committal proceedings
- In the absence of any express power does the Magistrates Court have a power to stay committal proceedings as a matter of necessary implication?
- This issue is discussed by Keane JA (as he then was) in Higgins v Mr. Comans, Acting Magistrate and DPP (Qld).
- In that case the appellant was charged on 15 February 2003 with offences against his former de-facto partner. The charges were dismissed on 18 November 2003 when a committal hearing was unable to proceed because of the complainant’s ill health. He was re-charged on 1 May 2004 and on 3 September 2004 the charges were listed for committal hearing. He sought to have the committal hearing stayed as an abuse of process.
- His Honour referred to section 108(1) of the Justices Act and said:
“Is apparent that the statute confers on the Magistrates Court jurisdiction to undertake an examination of all the evidence able to be put forward on behalf of the prosecution so that it can be determined whether this evidence is sufficient to put the accused on trial. If there is sufficient evidence then the accused must be committed for trial, while if there is not sufficient evidence the accused must be discharged. As with the legislation that the High Court was considering in Grassby; “…the scheme of that section, far from requiring the implication of a general power to stay proceedings, is such to impose an obligation upon the magistrate to dispose of the information which brings the defendant before him by discharging the defendant as to it or by committing him for trial.”
- His Honour went on to say:
“It is difficult to see how a power to stay proceedings can be said to be necessary to a magistrate carrying out his or her statutory function of determining whether or not there is sufficient evidence for a person to stand trial. Rather in, in my opinion, the existence in such a power is impliedly precluded by a statutory scheme which requires that a magistrate reach one of only two end points – commitment of the accused for trial or discharge of the accused on the grounds of insufficient evidence.”
- At paragraph 28 his Honour said “Whatever the merits that might attach to a power to stay committal proceedings, it cannot be said that such a power is reasonably necessary for those proceedings to be carried out. The result is that it is impossible to imply a power of the type contended for by the appellant. This was precisely the consideration that led Dawson J to conclude in Grassby that:-”;
“There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way which he would not otherwise be, but the ultimate determination whether he does in fact stand trial does not rest with the magistrate. The power to order a stay where there is an abuse of the process of the trial court is not to be found in the committing magistrate and the considerations which would guide the exercise of that power have little relevance to the function which the magistrate is required to perform.”
- At paragraph 29, His Honour said “These observations are equally applicable to the examination that a magistrate is required to undertake pursuant to sections 104 – 111 of the Justices Act.”
- At paragraphs 38 his Honour said “In my respectful opinion, an examining magistrate has no power to permanently stay the proceeding. Whether or not proceedings on indictment should be stayed as an abuse of process is a decision for the court which tries the matters charged on indictment.”
- In the case before me, the applicant is seeking a stay of the proceedings pending an event (the payment of costs). It seems to me that the law is clear on the issue of a stay of committal proceedings, and that there is no power in the Magistrates Court to order a stay.
- I therefore dismiss the application.
 R v Mosley (1992) 28 NSWLR 735
 Commissioner of Police Service v Hall & Anor  QSC 388 at (22)
  QCA 125
 Page 21 paragraph 84
 D’Orta-Ekenaike v Victoria Legal Aid  HCA 12 at 
  QCA 234
 Paragraph (26)
 Paragraph (27)
 Grassby v The Queen (1989) 168 CLR 1 (at 18)
- Published Case Name:
Mrunal Parekh v Queensland Police Service
- Shortened Case Name:
Mrunal Parekh v Queensland Police Service
 QMC 7
01 Jul 2020