Mbuzi v Commissioner of Queensland Police Service
[2015] QSC 30
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- Unreported Judgment
- Mbuzi v Commissioner of Queensland Police Service[2015] QSC 30
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Mbuzi v Commissioner of Queensland Police Service[2015] QSC 30
Mbuzi v Commissioner of Queensland Police Service[2015] QSC 30
SUPREME COURT OF QUEENSLAND
CITATION: | Mbuzi v Commissioner of Queensland Police Service [2015] QSC 30 |
PARTIES: | JOSIYAS MBUZI |
FILE NO: | BS10617 of 2012 |
DIVISION: | Trial Division |
PROCEEDING: | Application for statutory orders of review |
DELIVERED ON: | 25 February 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 December 2014 |
JUDGE: | Mullins J |
ORDER: | 1.The respondent’s application to dismiss the proceeding is dismissed. 2.The proceeding is dismissed. 3.The question of costs is adjourned to a date to be fixed. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where applicant sought statutory order of review of decision of police officers to require him to accompany them to the police station – where applicant was detained on the basis of a notification on the police computer system of an outstanding warrant of arrest – where the applicant was allowed to leave the police station when a copy of the warrant was unable to be obtained – where the warrant was extant at the time of detention – where the applicant was not charged arising from his interaction with police on this occasion – whether any utility in reviewing the decision of the police officers ADMINISTRATIVE LAW – JUDICIAL REVIEW – EXISTENCE OF OTHER REVIEW OR APPEAL RIGHTS – where applicant sought statutory order of review of decision of police officers to arrest, assault and detain him rather than issue infringement notices for the charges of obstruct police officer and public nuisance – where applicant filed application for statutory order of review before the hearing of the charges in the Magistrates Court – where applicant delayed in obtaining a hearing date for the judicial review application – where applicant convicted of the two charges – where applicant appealed convictions – whether the judicial review application should proceed Criminal Code, s 255 Judicial Review Act 1991, s 4, s 12, s 13, s 31, s 48 Justices Act 1886, s 222, s 223, s 224, s 225 Police Powers and Responsibilities Act 2000, s 369, s 371, s 377 Clampett v Magistrate Cornack [2012] QSC 123, considered Commissioner of Police Service v Spencer [2014] 2 Qd R 23; [2013] QSC 202, considered Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83, considered Randall v State of New South Wales [2013] NSWDC 277, distinguished Schmidt v Argent [2003] QCA 507, distinguished Tasmania v Hall [2013] TASSC 75, considered |
COUNSEL: | The applicant appeared in person S A McLeod for the respondent |
SOLICITORS: | Public Safety Business Agency for the respondent |
- Mr Mbuzi is the subject of a vexatious proceeding order under the Vexatious Proceedings Act 2005, but was given leave to institute this proceeding for statutory orders of review against the Commissioner of Queensland Police Service. The application, as originally filed, sought a statement of reasons relating to the decision to arrest Mr Mbuzi on 6 November 2012 without production of a warrant of arrest and to review the decision to arrest, assault and detain him on 24 December 2011 before issuing infringement tickets. An amended application was subsequently filed on 18 January 2013 that relevantly also sought a declaration as unlawful the arrests and detentions of Mr Mbuzi on both 24 December 2011 and 6 November 2012.
- The hearing of the application proceeded on the basis that it was the decisions made respectively by police on 24 December 2011 and 6 November 2012 that were the subject of judicial review and that it was not necessary to deal with statements of reasons. Although Mr Mbuzi’s outline of submissions filed on 28 November 2014 still sought statements of reasons for the decisions made by the police in respect of the two incidents, the comprehensive affidavits made by all relevant police officers accompanied by contemporaneous audio recordings made any request for statements of reasons otiose.
- The hearing of the application, insofar as it related to the incident on 6 November 2012, was able to proceed without a formal statement of reasons. It is not necessary to deal with the respondent’s submission that, if officers Clark and McKellar’s request to Mr Mbuzi to go with them to The Gap police station was a decision to which the Judicial Review Act 1991 (the Act) applies, it was a decision relating to the administration of criminal justice for which a request for a statement of reasons is excluded by s 31(b) of the Act.
- There is a connection between the two incidents. The two charges against Mr Mbuzi arising from the incident on 24 December 2011 of obstruct police officer in performance of duties and commit public nuisance resulted in a warrant for Mr Mbuzi’s arrest being issued on 19 October 2012 that was notified in the Queensland Police Service information system QPRIME as at 6 November 2012.
- The incident on 6 November 2012 arose when the two police officers Clark and McKellar observed the vehicle that had been parked by Mr Mbuzi as displaying no number plates. The police officers approached Mr Mbuzi to question him about the lack of number plates and then requested him to produce his driver’s licence. Mr Mbuzi had the number plates in the vehicle, but was yet to get them fitted. By then, the police officers had the information from the police radio operator that there was the outstanding arrest warrant in respect of Mr Mbuzi.
- Mr Mbuzi disputed that the information was accurate, but the police officers requested him to lock his vehicle and accompany them back to The Gap police station to “sort it out”. The police recorded the interactions with Mr Mbuzi. Mr Mbuzi was unhappy about doing what the police asked him to do, as he was due to pick up a child from school. Mr Mbuzi asserts that he was arrested and taken to the police station against his will. Officers Clark and McKellar assert in their affidavits that Mr Mbuzi entered the back of the police vehicle “of his own free will” and that at no time did they apply force or apply handcuffs to him. The following extract from the recording of officers Clark and McKellar’s interactions with Mr Mbuzi speaks for itself:
CONST CLARK: So there’s your licence back. So I’m Constable Clark from the Gap Police. All right. So at this stage – there’s an outstanding matter. You’ve got a warrant out for yourself in relation to another matter that happened some time ago.
MR MBUZI: Whoever issued that warrant, you can tell them - - -
CONST CLARK: It’s on the system.
MR MBUZI: You can tell them - - -
CONST CLARK: What we need to do, okay – so I need for you to lock your vehicle and accompany us in that police car back to The Gap station and we’ll sort it out.
MR MBUZI: What is - - -
CONST CLARK: There’s a warrant outstanding for yourself at this present time.
MR MBUZI: Let me tell you, there is no warrant.
CONST CLARK: Sir, there is a warrant. I’m telling you there is a warrant, okay? And you need to come back to the station with us to try and sort it out.
MR MBUZI: Now, let me tell you - - -
…
CONST CLARK: [indistinct] lock your vehicle up. Okay. So lock your vehicle up. Wind your windows up and lock everything. Just take your coat and your wallet, whatever you need, okay, and come with us.
MR MBUZI: Now, can I say this - - -
CONST MCKELLAR: [indistinct]. Yeah. So - - -
MR MBUZI: - - - what if my child is held up at school, where I’m supposed to pick her? I’m pretty sure – I’m telling you – you are not even telling me – you are saying there is something. You know that you are required to explain to me.
CONST CLARK: There is a warrant out for yourself in relation to another matter.
MR MBUZI: Okay. Now - - -
CONST CLARK: That’s the reason I want you to accompany us back.
MR MBUZI: Can you ask me – do you realise that you are supposed to tell me that matter, or you don’t realise that? Do you realise you are supposed to tell me the matter for - - -
…
CONST MCKELLAR: I don’t have the computer in front of me. I’ve been told over the radio – let me finish. I’ve been told over the radio you have an outstanding matter. The whole point of you going back to the station is so we can sit down and work out - - -
MR MBUZI: [indistinct] - - -
CONST MCKELLAR: Can I just finish? See what the matter is and let you be on your way.
MR MBUZI: Let me tell you – I tell you, sir - - -
CONST MCKELLAR: Lock your car up. Lock your car up.
MR MBUZI: No. I’m just telling you. It’s very simple matter.
CONST CLARK: We’ve had enough. Lock your car up.
MR MBUZI: Do you know that when you are refusing me to explain Albany matter which you are – there is no basis for this, because - - -
CONST MCKELLAR: Sir, like I said - - -
MR MBUZI: Was it at petrol station?
CONST MCKELLAR: - - - we don’t know the whole grounds behind it. We have to go back - - -
MR MBUZI: I’m telling you, when you are - - -
CONST MCKELLAR: So lock your car up.
MR MBUZI: When you are yourself saying you are unsure, you weren’t being convenient. When you are – do you know you are saying you are unsure, yourself?
CONST MCKELLAR: Okay.
MR MBUZI: So you weren’t being – inconvenience me when you are unsure.
CONST MCKELLAR: Listen to me. There’s an arrest warrant outstanding for your arrest, easy as that. If you want to get down to the bottom of it, which I do, then we’ll sort it out at the station, okay?
MR MBUZI: And do you realise that if a person – assuming what you are claiming that there is the [indistinct] - - -
CONST MCKELLAR: We say – we’re going off what’s in the computer. So we’ll sit down at the computer, right in front of you, and tell you what it says to you.
MR MBUZI: No. I asked you a question. I said do you realise I’m supposed to pick my - - -
CONST MCKELLAR: [indistinct]
MR MBUZI: So how do I pick my child - - -
CONST MCKELLAR: [indistinct]. Come on. Got to sort this out [indistinct].
MR MBUZI: No. No. I told you you were [indistinct].
[Sounds of getting into car, faint conversation].
MR MBUZI: I can tell you - - -
CONST MCKELLAR: Have a seat. I don’t know exactly the grounds behind it.
MR MBUZI: Why don’t you find out instead of inconveniencing me? I’ve asked you three times - - -
CONST MCKELLAR: Sit in the car. Sit in the car. Sick of your bloody games.
MR MBUZI: Oh.
CONST CLARK: Just put your seatbelt on. Thank you, sir.
- I find that Mr Mbuzi obeyed the request to accompany the police officers back to the police station, as it was apparent from how the request was made and its terms that, if he did not accompany them as requested, he would have been arrested on the basis of the outstanding warrant. That was, in fact, confirmed by Senior Constable McKellar in his oral evidence at the hearing.
- It was 4.28 pm when Mr Mbuzi was taken in the police car to the station. They arrived at The Gap police station at 4.38 pm. Mr Mbuzi was taken into a room inside the police station. Senior Sergeant Pemberton could not get a copy of the arrest warrant that appeared to have emanated from the Pine Rivers Traffic Branch and made the decision to remove Mr Mbuzi as a wanted person on the Queensland Police computer system, pending further inquiries which Senior Sergeant Pemberton advised Mr Mbuzi he would make about the warrant. Mr Mbuzi left the station at 4.57 pm with officers Clark and McKellar to return to his vehicle and they arrived back at the vehicle at 5.05 pm. Mr Mbuzi was not charged with any offence arising out of his dealings with the police on 6 November 2012.
- Senior Sergeant Pemberton then on 7 November 2012 established that the arrest warrant had been taken out by the Pine Rivers District Traffic Branch when the police had been unsuccessful in serving a summons on Mr Mbuzi as a result of his election to have the two infringement notices issued on 24 December 2011 dealt with in court. Mr Mbuzi was able to produce to Senior Sergeant Pemberton a letter dated 7 November 2012 from the Registrar at the Pine Rivers Court in respect of a search of the QWIC system (criminal matters) for any current warrants. The letter advised that the search was done for any criminal proceedings and there were no current warrants issued against him by the Pine Rivers Magistrates Court. Senior Sergeant Pemberton explained to Mr Mbuzi (as was the case) that the instrument of the arrest warrant was to get him before the court and “that the Pine Rivers Court would probably be unaware of the arrest warrant until it was executed and the matter brought before the court”. That letter from the court is not proof that no warrant was in existence in respect of Mr Mbuzi on 6 November 2012. The warrant was reinstated in the police computer system, but Senior Sergeant Pemberton did not arrest Mr Mbuzi on 7 November 2012 and encouraged him to see if he could sort the matter out with the Pine Rivers District Traffic Branch.
- It prompted Mr Mbuzi on 9 November 2012 to file the application for leave to bring this proceeding. In one of his affidavits in support of his application for leave, Mr Mbuzi asserted:
“I verily believe that I am being unfairly targeted by the Queensland Police and that I fear and believe that unless the orders sought are given, the police may again arrest me and consequently cause a lot of inconvenience, emotional distress and failure to go about doing my family duties of picking my daughter from school.”
- Inspector Ede became involved and on 9 November 2012 confirmed to Mr Mbuzi that the warrant which had been issued on 19 October 2012 existed and he may be arrested if he came into contact with police. Ultimately Inspector Ede made arrangements with Mr Mbuzi to serve him on 15 November 2012 with a notice to appear for the charges dated 24 December 2011 of commit public nuisance and obstruct a police officer, the warrant was withdrawn, and these two charges were prosecuted in the Pine Rivers Magistrates Court.
The charges arising from 24 December 2011
- Mr Mbuzi had been arrested on 24 December 2011 on the two charges, handcuffed, put into a police vehicle and taken to the Pine Rivers watchhouse. The arresting officers were Sergeant Holmes and Senior Constable Benn. Both officers swore affidavits for the purpose of this proceeding.
- Sergeant Holmes and Senior Constable Benn were required by Mr Mbuzi to attend the hearing to be cross-examined, but Sergeant Holmes did not appear. The letter dated 12 December 2014 from Sergeant Holmes’ treating doctor (exhibit 1 on the hearing on 16 December 2014) satisfied me that his current medical condition would have been adversely affected, if he attended. Mr Mbuzi argued that as the treating doctor was Sergeant Holmes’ doctor, his opinion was partisan. The treating doctor is a registered medical specialist. I had no hesitation in accepting the genuineness of the opinion that was given. Ultimately, the factual matters from Sergeant Holmes’ affidavit which I will now summarise relating to the administrative steps that Sergeant Holmes took in relation to the charges after Mr Mbuzi arrived at the watchouse were not contested, even though Mr Mbuzi did contest the effect of some of those steps.
- At the watchhouse Sergeant Holmes considered the provisions of s 377 of the Police Powers and Responsibilities Act 2000 (PPRA) and decided it was more appropriate to issue infringement notices to Mr Mbuzi rather than continue with the arrest and bail process. The two infringement notices were issued and the arrest discontinued. The penalty shown in each of the infringement notices was $300. Mr Mbuzi elected for the infringement notices to be dealt with by a court of law and they were referred in March 2012 to the Pine Rivers District Traffic Branch for prosecution.
- Sergeant Holmes attended at the address he had for Mr Mbuzi on 2 October 2012 to serve notices to appear on Mr Mbuzi in relation to the charges. He was unsuccessful in doing so. On 2 October 2012 he took out a complaint and summons in respect of each charge with a return date before the Pine Rivers Magistrates Court on 5 November 2012. Again, Sergeant Holmes was unsuccessful in serving Mr Mbuzi personally with the summonses. On 5 October 2012 Sergeant Holmes posted the summonses to Mr Mbuzi at the home address by registered post. The envelopes were returned to Sergeant Holmes as undelivered on the basis there was no postbox at the address. Sergeant Holmes formed the view that it would be inappropriate to continue with the summonses when Mr Mbuzi did not have notice of the return date and withdrew the summonses by offering no evidence on the return date of 5 November 2012 in the Pine Rivers Magistrates Court. That is why there is a verdict and judgment record issued by the Pine Rivers Magistrates Court for the two charges dated 5 November 2012 that is endorsed “no evidence to offer on both charges”. (That did not, however, preclude Sergeant Holmes continuing to prosecute the charges against Mr Mbuzi by starting a fresh proceeding.)
- Sergeant Holmes applied on 19 October 2012 for an arrest warrant to bring the charges before the court, relying on s 371 of the PPRA on the basis that proceeding by way of complaint and summons, attendance notice or notice to appear for the charges would be ineffective. The ground on which the warrant was sought was based on Sergeant Holmes’ experience in attempting to serve Mr Mbuzi respectively with the notices to appear and the summonses at his usual place of residence. The application noted:
“The defendant was not at home on both occasions. The defendant is unable to be located at his usual place of residence. Residents of the abode are hostile toward police and substituted service is not possible as residents will not open the security door to the residence for police.”
- The arrest warrant was issued on 19 October 2012 and it was that warrant that was notified in the police computer system when the search was undertaken on behalf of the officers during the incident on 6 November 2012. The full terms of the warrant were not in the police computer system on 6 November 2012, as Sergeant Holmes stated “the warrant had been inadvertently missed and had not been forwarded to the Warrant Bureau or scanned into QPRIME.” After being contacted by Senior Sergeant Pemberton, Sergeant Holmes caused the warrant to be forwarded to the Warrant Bureau. (What happened in the Magistrates Court on 5 November 2012 had nothing to do with the arrest warrant issued on 19 October 2012 to bring Mr Mbuzi before the court by different means, when the complaints and summonses that had been given the return date of 5 November 2012 were unable to be served on Mr Mbuzi.)
- There was a summary trial of the two charges arising from the incident on 24 December 2011 at Pine Rivers Magistrates Court on 9 October 2014. The applicant was found guilty of each charge and fined $1,000. On 7 November 2014 the Chief Justice gave leave to the applicant to file an appeal to the District Court against the orders of the Magistrate under s 222 of the Justices Act 1886 (JA). The appeal was filed by Mr Mbuzi in accordance with the leave. The Chief Justice also ordered, to the extent required, a stay of the execution of the order that Mr Mbuzi pay the fine of $1,000 and witness expenses of $162.50, pending the hearing of the District Court appeal or further order.
The course of this proceeding
- The focus of Mr Mbuzi’s application filed in this proceeding on 13 November 2012 was to seek a statement of reasons relating to the decision of the police to arrest him on 6 November 2012 without production of a warrant of arrest and to take him to the police station against his will and detain him there for about an hour. He also applied to review the decision of the police to arrest and detain him on 6 November 2012 without production of a warrant of arrest. Although it was the action of the police on 6 November 2012 that resulted in the application, Mr Mbuzi sought in the same application a review of the decisions of the police to arrest, assault and detain him on 24 December 2011 before issuing infringement tickets. Mr Mbuzi had not challenged the decisions made by the police officers involved in the incident of 24 December 2011 until prompted to do so by the incident on 6 November 2012.
- On 12 November 2012 Justice Douglas directed that leave be granted for Mr Mbuzi to file and serve the respondent, the Attorney-General and the Crown Solicitor with a copy of the application in this proceeding and his affidavits and a notice that those persons were entitled to appear and be heard on the application. As it turned out, only the respondent has participated in opposing the application.
- Mr Mbuzi filed a further affidavit on 7 December 2012 in this proceeding detailing what occurred in the Pine Rivers Magistrates Court when he requested that he not be required to enter a plea to the charges dated 24 December 2011 until the determination of his judicial review proceeding. Justice Applegarth on 10 December 2012 allowed Mr Mbuzi until 18 January 2013 to file any amended application and any application in the nature of an application to stay proceedings before the Magistrates Court at Pine Rivers on or before 18 January 2013. An amended application was filed by Mr Mbuzi on that date. He also filed a separate application for a stay of the proceedings in the Magistrates Court. On 1 February 2013 the respondent filed an application to the court seeking relief pursuant to s 48 of the Act. Under paragraph 1 of that application, the respondent applies for dismissal of the application for reasons and claims 1 to 6 contained in the review application filed on 13 November 2012 (which appear to relate to the 6 November 2012 incident) on the grounds set out in paragraphs (a) and (b) of s 48(1) of the Act. The respondent by paragraph 2 of the application seeks to have the application to review the incident on 24 December 2011 dismissed on identical grounds.
- The matter became before me on 11 February 2013 for the hearing of the s 48 application, the stay application and directions. I struck out paragraphs (g) to (x) of the grounds of the amended application filed on 18 January 2013 and paragraphs 7, 9 and 10 of the relief claimed in the amended application. I dismissed the application for a stay. I gave directions setting a timetable for disclosure of documents by the respondent and the filing and serving of further affidavits by the respondent and Mr Mbuzi. I adjourned the respondent’s s 48 application to be heard at the same time as Mr Mbuzi’s amended application and adjourned both applications for hearing in the civil list for a one day hearing. Contrary to what Mr Mbuzi has asserted in his various submissions since then, his substantive application and the s 48 application were not “part heard” before me, as a result of the hearing on 11 February 2013.
- The timetable for the directions expired on 11 March 2013. The parties complied with the directions for the filing of affidavits. The parties did not manage to have the matter set down for a one day hearing, as was contemplated by the direction made on 11 February 2013.
- On 11 July 2013 Mr Mbuzi filed a further affidavit in this proceeding in which he deposed to his appearance at the Pine Rivers Magistrates Court on 27 June 2013 for the two charges arising out of the incident on 24 December 2011 and reported that the presiding magistrate considered this Supreme Court proceeding had to be determined before the trial of the 24 December 2011 charges.
- It appears the delay in obtaining a hearing date for this proceeding was causing some consternation with the Pine Rivers Magistrates Court. The verdict and judgment record issued on 17 March 2014 in respect of the 24 December 2011 charges shows Magistrate Tynan giving a direction to Mr Mbuzi on steps to take to “seek re-listing of the judicial review proceeding”. The Magistrate’s direction refers to the re-listing matter before me, presumably on the basis of Mr Mbuzi’s view expressed to the Magistrate that I would continue to hear the matter.
- Although Mr Mbuzi attempted to explain from the Bar table during the hearing on 19 December 2014 why this application had not been set down for hearing upon the completion of the pre-hearing steps on 11 March 2013, there was no sworn evidence as to the reasons. The fact remains that Mr Mbuzi was given an opportunity to have this proceeding heard in a timely way in the Supreme Court after 11 March 2013 at a time when the 24 December 2011 charges were still pending in the Pine Rivers Magistrates Court, but it was not set down for hearing until Mr Mbuzi brought the matter back to the applications jurisdiction on 16 September 2014 before me to obtain the ultimate hearing date of 19 December 2014.
- It was Magistrate Tynan who ultimately heard and determined the two charges dated 24 December 2011 on 9 October 2014.
- At the hearing on 19 December 2014, the respondent raised as a threshold issue that Mr Mbuzi’s submissions relating to the decisions made by the police in respect of the 24 December 2011 incident before issuing infringement tickets could be dealt with in his appeal against conviction for the two charges dated 24 December 2011. I reserved my decision on the threshold issue, so that all the witnesses who attended could be cross-examined, in case it was necessary to consider their evidence.
Should any relief be granted?
- Mr Mbuzi has rolled up his concerns about two separate incidents into one application. No doubt it was the superficial similarity in the incidents where Mr Mbuzi was driving a motor vehicle, stopped, and was then questioned by police that attracted the grant of leave to bring the application in the first place. On closer analysis, however, the incidents involved separate decisions by the police officers involved in each incident in the circumstances that applied to that incident.
- I will deal first with the incident of 6 November 2012. It is not an apt description to describe, as the respondent did, that Mr Mbuzi voluntarily went to The Gap police station with the police officers on 6 November 2012. He was presented with no real choice by officers Clark and McKellar.
- The respondent relies on Tasmania v Hall [2013] TASSC 75 to support the contention that there was neither the arrest nor detention of Mr Mbuzi by officers Clark and McKellar. One of the issues in Hall was the timing of the defendant’s arrest. The police attended at the defendant’s home and said they would like him to come down to the police station. He was not told he was under arrest and he was not told that he had the option of not accompanying the police officers. Under cross-examination, the defendant said that he had been raised to have respect for the law, so that if a police officer knocked on the door, he would not sit there, and look at them, turn around and walk away. When he travelled to the police station, the two officers sat in the front of the car and he sat by himself in the back.
- In Hall Blow CJ at [17] applied the statement of King J in R v Lavery (1978) 19 SASR 515 at 516-517:
“A suspect may, voluntarily and without constraint, accede to a police officer’s request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect’s liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily. If such a situation comes into existence, and the police officer does not wish to make an arrest, it is incumbent upon him to make it clear by words or actions that the suspect is free to refuse the invitation and is free to depart.”
- Blow CJ observed at [19] that a person under compulsion would not have been left alone in the back seat of the police car and concluded at [20] that the defendant went with the police officers out of respect for their authority, and not as a result of compulsion.
- It is a question of fact whether there was an arrest or detention of Mr Mbuzi. Mr Mbuzi clearly did not wish to accompany officers Clark and McKellar voluntarily, and was not given the option of attending at a police station at another time to sort the matter out. Even though he sat in the back seat of the police car as instructed, he did so under compulsion and was therefore detained.
- Mr Mbuzi’s detention was due to the existence of a warrant for his arrest that was notified to officers Clark and McKellar. Mr Mbuzi’s contention is that there was no basis for an arrest warrant to be outstanding against him as at 6 November 2012. That is a different issue. Any review of the decision of officers Clark and McKellar to detain Mr Mbuzi by compelling him to accompany them to The Gap police station is concerned with the conduct and the decision of those officers. They had accurate information at the time that there was an outstanding warrant notified in the police computer system against Mr Mbuzi, but they did not have a copy of the warrant or the details of what the warrant related to. They did not purport to arrest him formally, but instead compelled him to accompany them to the police station. It was the existence of that warrant that informed their conduct. If they had not tried to sort the matter out by having Mr Mbuzi accompany them to the police station, the outstanding warrant would have remained a notification in the police computer system and that would have made Mr Mbuzi vulnerable to arrest on another occasion. As it turned out, the action of officers Clark and McKellar in taking Mr Mbuzi to the police station did sort the matter out eventually to the extent that Mr Mbuzi ultimately agreed to being served by Inspector Ede with notices to appear and the warrant was withdrawn. The approach of the officers to take Mr Mbuzi with them to sort the matter out was not unreasonable in the circumstances.
- It was implicit in Mr Mbuzi’s grounds of the amended application relating to the incident of 6 November 2012 that, if he were not shown a copy of the warrant or otherwise given details of the warrant at the time of his detention, the detention was unlawful. Mr Mbuzi did not develop this aspect of the matter in submissions. It was not addressed by the respondent, because of the position adopted that there was no arrest or detention. In the normal course, if the officers had been arresting Mr Mbuzi pursuant to the warrant dated 19 October 2012, they would have provided him with a copy of the warrant: Divisions 6A and 6B of the JA, s 369 of the PPRA (where arrest is defined to include detention) and s 255 of the Criminal Code. It remains an open question whether in the circumstances of this particular case failure to provide a copy of the warrant or the details of the subject matter of the warrant at the time Mr Mbuzi was requested to accompany the police officers to the police station made his detention unlawful. In the absence of relevant submissions and in view of the conclusion I have reached about whether, in any event, this is an appropriate matter for the court to grant any relief arising out of the incident on 6 November 2012, I am not proposing to deal further with the question.
- The decision made by officers Clark and McKellar to detain Mr Mbuzi when they had notice of a warrant that authorised his arrest does not appear to be a decision under an enactment to which the Act applies, in accordance with the definition in s 4 of the Act. Even if it were, the fact that the officers may have been entitled to arrest Mr Mbuzi on the outstanding warrant dated 19 October 2012 (if they obtained a copy of it) raises the issue of whether it is appropriate to make the declaration that Mr Mbuzi seeks in respect of his detention on 6 November 2012. This is particularly so, when the detention was for a short period, no charges arose out of the incident on 6 November 2012, Sergeant Pemberton made the decision not to arrest Mr Mbuzi on the basis of the outstanding warrant, until further inquiries were made about the details of the warrant, the detention was a step in resolving the matter of the outstanding warrant, and there is no utility in reviewing the decision as there was no lasting result adverse to Mr Mbuzi from the detention.
- The respondent’s argument about the incident on 6 November 2012 was limited to there being no reviewable decision to challenge on the basis that Mr Mbuzi was neither arrested nor detained unlawfully on 6 November 2012. I have concluded that he was detained. For the reasons set out in the preceding paragraph, even if there were a reviewable decision to detain Mr Mbuzi for the short period he was detained until Sergeant Pemberton allowed him to return to his vehicle, it is not appropriate in the circumstances to make any declaration relating to the fact of his detention.
- Mr Mbuzi sought to draw an analogy between his position and that of the plaintiff in Randall v State of New South Wales [2013] NSWDC 277 where the plaintiff was filming the police dealings with another person when he was sprayed with pepper spray, assaulted by the police, arrested and released after two hours. The plaintiff sued for damages for assault and false imprisonment. The plaintiff in that case was pursuing a civil cause of action against the State of New South Wales as being vicariously liable for the wrongs committed by the police. Compare Schmidt v Argent [2003] QCA 507 which also involved a claim for damages for false imprisonment, negligence and assault and battery for the conduct of the police in arresting Ms Schmidt. The application for statutory order of review in respect of the 6 November 2012 incident is concerned with the review of the decisions of the relevant police officers and is not a proceeding that can be used for making claims for damages for civil wrongs.
- My reasons for refusing to grant any relief do not fall within paragraph 1 of the s 48 application, so that I will dispose of the review of the incident on 6 November 2012 either by the exercise of the discretion on whether or not to grant the relief that was sought by Mr Mbuzi in respect of his detention (without formal arrest) or on the court’s own motion under s 48 of the Act. The breadth of the power conferred by s 48 of the Act was confirmed in Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83 at [57] where the court of its own motion dismissed an application for leave to appeal against the dismissal of the applicant’s application for a statutory order of review on the basis it would be inappropriate to grant the application. It is inappropriate to grant the relief sought by Mr Mbuzi in respect of the decision of the 6 November 2012 and I decline to grant the relief.
- The respondent submits that the proceeding, insofar as it relates to the charges dated 24 December 2011, should be dismissed, by virtue of the threshold issue, as the criminal process has overtaken the judicial review matter in relation to the incident on 24 December 2011 and all arguments that Mr Mbuzi wishes to put forward in respect of his arrest on those charges can be dealt with in the appeal.
- Mr Mbuzi opposes the respondent being permitted to make such submission, on the basis that the respondent did not seek leave to amend the s 48 application to include this new ground. Mr Mbuzi submits that, as a self-represented litigant, he did not have the opportunity to seek legal advice in respect of this new ground.
- The respondent makes the point that his submissions were filed and served on 8 December 2014 and those submissions set out in paragraphs 17 to 23 the argument based on the existence of the appeal against conviction to the District Court. The respondent submits that Mr Mbuzi did not complain at the review on 16 December 2014 or at the hearing on 19 December 2014 about the respondent’s submissions. Mr Mbuzi did not object to the respondent’s reliance on the affidavit of Mr Fraser filed on 12 December 2014 deposing to Mr Mbuzi’s appeal under s 222 of the JA.
- The fact that the two charges dated 24 December 2011 were dealt with in the Magistrates Court and the subject of an appeal to the District Court before the hearing of this proceeding took place on 19 December 2014 was a relevant factual matter to be placed before the court in dealing with the judicial review application relating to the same charges. If the respondent needed leave technically to rely on that additional matter for its s 48 application, I would have been disposed to give the leave, if requested. Irrespective of the position with respect to the s 48 application, the conviction of Mr Mbuzi of those charges and the extant appeal to the District Court are relevant factual matters for dealing with the application for statutory review relating to the 24 December 2011 charges. It would be nonsensical for the judicial review application to be decided by ignoring the fact that those charges were disposed of in the criminal jurisdiction of the Magistrates Court and Mr Mbuzi has been given leave to appeal to the District Court against those convictions.
- I will therefore permit the respondent in this proceeding to rely on the events that have occurred in the criminal proceeding in respect of the 24 December 2011 charges.
- The respondent submits I should follow the approach taken in Commissioner of Police Service v Spencer [2014] 2 Qd R 23 and dismiss the application for statutory order of review in respect of the 24 December 2011 charges, because Mr Mbuzi has appealed to the District Court in respect of his convictions and judicial review should not be allowed to fragment the criminal justice process.
- Spencer concerned a decision of a Magistrate to re-open sentence and treat it as a nullity. The defendant pleaded guilty in the Magistrates Court to failing to stop a motor vehicle when directed and the first Magistrate sentenced him in the mistaken belief that the imposition of a fine was mandatory. Later the same day the first Magistrate re-opened the sentence, found the sentencing order was a nullity, and re-listed the matter before the second Magistrate. The second Magistrate sentenced the defendant afresh. The Commissioner sought a review under s 43 of the Act of each of those decisions. Henry J found the first Magistrate erred in re-opening the matter and re-listing the matter before the second Magistrate, but the second Magistrate did not err in hearing and determining the matter that was properly before him. It was held that since the Commissioner could have sought relief by way of an appeal under s 222 of the JA, s 12 and s 13 of the Act made provision for the dismissal of the proceedings.
- Henry J found at [94] that a District Court judge hearing an appeal under s 222 of the JA had broad power under s 225(1) of the JA to make any other order in the matter the judge considers just which would extend to the orders appealed from and the ruling of the second Magistrate against the submission that the matter had not been re-opened according to law. On the basis that s 12 and s 13 of the Act apply where there is the avenue to appeal a Magistrate’s decision made in the exercise of the criminal jurisdiction, Henry J concluded at [101] that “The avenue of a s 222 appeal in respect of the orders of the first Magistrate subsequent to the initial sentence and the orders of the second Magistrate attracts the application of both ss 12 and 13 of the Judicial Review Act.” Although the Commissioner had shown there was error, the application was dismissed pursuant to each of s 12, s 13 and s 48 of the Act, Henry J noting at [102]:
“It is in the interests of justice that the time and resources of the courts and parties not be consumed by pursuit of judicial review that is unnecessary because the law provides for a conventional remedy under the appellate system.”
- Spencer is relevant as an example of the application of s 12, s 13 and s 48 of the Act to avoid the fragmentation of the criminal appeal process. Mr Mbuzi sought to distinguish Spencer on the basis that it was concerned with the decision of the Magistrate and not the decision of a police officer. It is the broader principle for which Spencer is the example, rather than the decision confined to the facts of the case, that is relevant for this matter. Another example of an application for judicial review in respect of a decision of a Magistrate in the criminal jurisdiction where adequate provision was made by s 222 of the JA for the applicant to seek a review of the Magistrate’s decisions is Clampett v Magistrate Cornack [2012] QSC 123 at [21] and [26]-[29].
- One reservation I have in respect of the respondent’s argument that I should apply either s 12 or s 13 of the Act which was not addressed in submissions is whether those provisions apply when, at the time the application for statutory order of review was made, there was not such an entitlement to seek a review of the matter by another court. The alternative avenue of appeal to the District Court arose only after the conviction of Mr Mbuzi on those 24 December 2011 charges. On its terms, s 12 of the Act appears to apply to an alternative review that had been instituted prior to making the application for statutory order of review or an entitlement to seek such a review that was in existence at the time the application for statutory order of review was filed. The same argument can be put in relation to s 13(b) of the Act. The respondent’s threshold argument does not rest only on the application of s 12 or s 13 of the Act.
- Relief by way of statutory order of review in respect of the charges dated 24 December 2011 would not address the conviction of Mr Mbuzi of those charges. Mr Mbuzi’s appeal to the District Court against the conviction has the scope (by virtue of the powers conferred by s 223, s 224 and s 225 of the JA) for covering any of the issues that Mr Mbuzi may wish to raise about his original arrest on those charges, whether the evidence (including any new evidence for which Mr Mbuzi can establish special grounds to obtain leave to adduce) proved the charges, whether the Magistrate was mistaken about whether this proceeding related to the circumstances of his arrest on 24 December 2011, and whether the Magistrate should have proceeded with the trial of these charges when this proceeding had been set down for hearing.
- The respondent’s threshold argument must succeed, because it is not appropriate for the application for statutory order of review in respect of the 24 December 2011 charges to continue when the same arguments may be canvassed in the District Court appeal by Mr Mbuzi against his conviction on the 24 December 2011 charges and to deal now with the application for the statutory order of review would fragment the criminal proceedings. This proceeding cannot be used as a de facto appeal against Mr Mbuzi’s convictions. Again, this was not a matter that the respondent raised at the stage of the s 48 application. I will not dismiss the application for statutory order of review pursuant to the respondent’s s 48 application, but on the basis of the court’s own motion in reliance on s 48(1)(a) of the Act.
- I have deliberately not recited or analysed the evidence relating to the events that occurred on 24 December 2011 that resulted in the charges of that date, as that may be traversed in the appeal to the District Court. Mr Mbuzi endeavoured to arrange for the court staff dealing with District Court appeals to make available to me the transcript of the proceeding before Magistrate Tynan on 9 October 2014, as part of his further submissions in this proceeding. Although that was done by Mr Mbuzi in response to the respondent’s reliance on the threshold issue, it is neither necessary nor appropriate for me to peruse the transcript of the hearing of the charges of which Mr Mbuzi was convicted. Mr Mbuzi’s application for statutory review in respect of the decisions made by the police officers on 24 December 2011 was overtaken by the criminal trial in respect of the two charges that resulted from the 24 December 2011 incident. The failure of Mr Mbuzi to have his application for statutory orders of review listed for final hearing in a timely way contributed to this result.
Orders
- In order to pursue the s 48 application, the respondent had to file almost all the material he relied on to respond to the substance of Mr Mbuzi’s application. It is also not irrelevant, that Mr Mbuzi’s application, insofar as it related to the 24 December 2011 charges, was affected by Mr Mbuzi’s subsequent conviction of those charges in the Magistrates Court.
- In the circumstances, I decline to dismiss either aspect of the proceeding pursuant to the s 48 application, but instead dismiss the s 48 application and the proceeding in relation to both incidents for the reasons that I have set out above.
- I will allow the parties to make written submissions on costs, if they wish to have the question of costs dealt with. To facilitate their agreeing on a timetable for filing and serving submissions, I will order that the question of costs is adjourned to a date to be fixed. If the parties indicate in any written submissions that they are willing for the question of costs to be decided on the papers, I am happy to do so.
- The orders I make therefore are:
- The respondent’s application to dismiss the proceeding is dismissed.
- The proceeding is dismissed.
- The question of costs is adjourned to a date to be fixed.