Francis v Solicitor for Public Prosecutions [1999] VSC 181

Supreme Court of Victoria|1999-05-20|Before: BEACH, J.

On 24 June 1997 the plaintiff, James Scott Francis, was charged with two counts of theft of 20 wooden pallets belonging to Boemo Engineering and valued at $400.

The plaintiff elected to stand trial before a judge and jury in the County Court rather than to have the charges dealt with summarily by the Magistrates' Court.

Since the plaintiff was first charged with these offences he has constantly alleged that the Victoria Police has engaged in a repeated pattern of conduct designed to prevent him properly defending the charges brought against him. On numerous occasions the plaintiff has sought documents from the police and of more recent times the Director of Public Prosecutions which he says are vital to his defence. He has made numerous applications to Chief Judge Waldron in relation to the matter since he was committed for trial, the last being on 16 April 1999. On that occasion it would appear that there was mention or at least some debate concerning the evidentiary material in the possession of the Director of the type sought by the plaintiff. It is clear from the transcript of the hearing before Chief Judge Waldron that day that all the material that was in the possession of the Director is now in the possession of Chief Judge Waldron's Associate where it has been and is available for inspection by the plaintiff. It is clear that the plaintiff as yet has made no effort to inspect that material. In that regard I refer to the observations of Chief Judge Waldron made that day first at page 7 and later at page 8 of the transcript of that hearing. At page 7 his Honour said:

"I will direct that the documents, save for any specific application on the part of the accused for inspection of these documents in a controlled manner at the Office of Public Prosecutions at a time and at a precise location to be specified by the Office of Public Prosecutions, save for such an application on the part of the accused, I simply direct that the documents which have been produced by Inspector Beattie remain with my Associate until delivered to the Associate of the learned trial judge when that judge is ascertained prior to the trial of the matter."

"I content myself with this observation: Without having read the totality of the material which has been produced before me, it is abundantly clear that Mr Francis has not examined any of the documents which were taken into the custody of the Office of Public Prosecutions following their production to the court by Inspector Beattie. In those circumstances, I am confident that there cannot be any factual basis for an assertion, if an assertion has been made, that there has been any tampering with or improper interference with or indeed improper handling of that documentary material which went from Inspector Beattie to the court and then to the Office of Public Prosecutions."

During the hearing before me today the plaintiff confirmed the fact that he still has not inspected that documentation.

At all events on 28 April last the plaintiff filed an originating motion in the court pursuant to the provisions of Order 45 and it is that originating motion which is now before me. The originating motion runs to some 22 pages and contains a multiplicity of complaints against members of the Victoria Police and Chief Judge Waldron. In my opinion it is not inappropriate to describe the originating motion as being both vexatious and oppressive.

In the case of Murray Goulburn Co-Op Limited v Kevin Blennerhassett & Ors I said in an unreported decision of 25 January 1999 at page 5:

"There are many decisions of recent years where Courts of Appeal have pointed out the undesirability of 'fragmenting' the criminal process and will only interfere in the conduct of criminal trials in the clearest of cases where the need for such interference is absolutely plain and manifestly required. See in particular D.P.P. v Denysenko & Ors (1998) 1 V.R. 312 per Brooking J.A. at p.316 and Frugtniet v Victoria & Ors [1997] HCA 44; (1997) 148 A.L.R. 320."

In my opinion to file such an originating motion in this court is an abuse of process. If the plaintiff has any problem with the material made available by the Crown and which is now in the possession of the Associate to Chief Judge Waldron the first thing for the plaintiff to do, and it would seem to me to be stating the obvious, is to inspect that material. If the plaintiff is still dissatisfied he should then take steps to mention his trial before the trial judge when a trial judge has been appointed to preside at his trial before the date fixed for the actual trial so that he may draw the matter to his Honour's attention.

There is nothing I have heard from the applicant nor anything I have read in the papers on the court file which would indicate to me that there is a need for this Court to interfere in the criminal process involving the plaintiff at this stage of the proceedings.

The originating motion will therefore be dismissed.

I order that the plaintiff pay the first-named defendant's taxed costs of the proceeding.

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