_Lumley v Crime and Misconduct Commission_

Judgment (41 paragraphs)

[1]

[1] MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.

[2]

[2] FRASER JA: This matter was by consent heard together with the applicant's appeal concerning a decision of the Commissioner of the Police Service Queensland, judgment in which is also delivered today. [1]

[3]

[3] On 10 November 2008 Dutney J acceded to the respondent Crime and Misconduct Commission's application pursuant to s 48 of the Judicial Review Act 1991 (Qld) (the "JR Act") to dismiss the applicant's application for judicial review of the commission's decision to refuse to investigate the appellant's allegations of police corruption. An appeal from that decision lies only with the leave of this Court: JR Act, s 48(5).

[4]

[4] On 17 December 2008 the applicant filed a notice of appeal and an application in this Court, each of which identified Dutney J's decision as "the judgment appealed against" but neither of which included an application for leave to appeal. Given the disadvantage the applicant suffers as a self-represented litigant it is appropriate to assume in his favour that he makes that necessary application.

[5]

[5] Shortly after the applicant's conviction on 5 March 2003 of one count of anal rape and one count of torture committed on or about 24 September 2001, the applicant commenced a chain of correspondence to the commission, the police commissioner (and others) in which he repeatedly complained that the charges against him and his convictions had been occasioned by misconduct of police officers and the failure of the applicant's lawyers to follow his instructions. In the first of those letters, the applicant's letter of 10 March 2003, he claimed that the arresting officer had caused the complainant to alter her evidence that she had no memory of the offences alleged against the applicant by telling her that he had confessed to inserting a bamboo cane into her anus; that this was established by hospital records; that two days before the committal hearing the arresting officer persuaded the complainant to make a new statement accusing the applicant of the anal rape by telling her that she would get nothing out of her original statement "but if you write a new one you'll get up to $270,000 in compensation"; and that the applicant's trial lawyers failed to follow his instructions, including by failing to prove the information upon which he relied in the hospital records. The applicant attributed the misconduct he alleged against the arresting officer to what the applicant alleged was his decisive role in providing to a New South Wales police commissioner at the end of 1999 information which the applicant alleged resulted in investigations of police corruption involving murder, and cocaine trafficking and the convictions of seven police detectives in New South Wales for cocaine trafficking. The applicant on many occasions later repeated and elaborated upon those and similar allegations in correspondence directed to the police commissioner, the Crime and Misconduct Commission, and others in subsequent years.

[6]

[6] Some of those complaints were agitated in the applicant's appeal against his convictions which was heard on 19 March 2004. On 23 April 2004 that appeal was dismissed and the applicant's application for leave to appeal against sentence was granted only to the extent of omitting the declaration that each offence of which the applicant was convicted was a serious violent offence. [2] On 21 March 2005 the High Court refused the applicant special leave to appeal from this Court's decision to dismiss his appeal against his convictions.[3] On 13 June 2008 this Court refused the applicant's later applications for an extension of time in which to appeal against his convictions and to adduce evidence before the Court.[4]

[7]

[7] By letter to the applicant dated 2 June 2005 the commission advised the applicant that it had decided to refer for investigation by the Queensland Police Service the information in the applicant's allegations that certain police officers had conspired against him in order to have him convicted and that another police officer was a drug dealer and carried on a prostitution business. In the same letter the commission reiterated advice it had earlier given the applicant in a letter dated 13 May 2003 that it had determined that no action by the commission or any other agency was deemed warranted in relation to the applicant's allegation that the arresting officer and another police officer told the complainant to sign a statement which they had prepared for her and which would ensure that she would be granted more compensation than otherwise would be the case.

[8]

[8] The applicant nevertheless continued to pursue the same complaints. On 27 June 2007 the commission wrote to the applicant that it considered no further action in relation to the applicant's complaints was warranted and that:

[9]

"Accordingly, having regard to the history of previous communications between you and the CMC, the nature of your concerns, the advice we have already given you in relation to those concerns, our limited resources, and the fact that no new information has been provided by you, I formally advise that the CMC does not propose to correspond with you further about these matters."

[10]

[9] The applicant nevertheless persisted with the same complaints in subsequent correspondence, culminating (so far as is presently relevant) in his letter to the respondent on 16 July 2008 reiterating his complaints and contending that he had found six "independent, objective eye-witnesses" which verified his complaints of "police perverting the course of justice".

[11]

[10] On 25 July 2008 Chesterman J acceded to the applicant's application against the Commissioner of the Police Service Queensland under the JR Act that the police commissioner be directed to investigate information in complaints by the applicant to the police commissioner. Those complaints mirrored the applicant's complaints to the commission.

[12]

[11] Section 45 of the Crime and Misconduct Act 2001 (Qld) conferred upon the commission primary responsibility for dealing with complaints about, or information or matter involving, official misconduct and it provided that the commission was responsible for monitoring how the police commissioner dealt with police misconduct. Section 46(1) provided that the commission "deals with the complaint about, or information or matter . . . involving, misconduct" by expeditiously assessing each complaint about it and "(b) taking the action the commission considers most appropriate in the circumstances having regard to the principles set out in s 34". Subsection 46(2) identified the action which the commission was empowered to take, including that the commission might:

[13]

(ii) dealing with the complaint would be an unjustifiable use of resources;

[14]

[12] On 4 August 2008 the commission decided that as the applicant had not raised any new issues or a new complaint in his letter of 16 July 2008 the commission would not enter into any further communication with the applicant. It is that deemed refusal to investigate the applicant's complaints in his letter of 16 July 2008 which was the subject of the applicant's judicial review application dismissed by Dutney J.

[15]

[13] Dutney J referred to the applicant's reliance upon entries in hospital records indicating that when the complainant was admitted to hospital after the alleged offences by the applicant the complainant had no recollection or specific recollection of the anal rape of which the applicant was later convicted, to the complainant's subsequent evidence that she did have such a recollection, and to the applicant's contention that her evidence resulted from an approach from police. Dutney J pointed out that the content of the applicant's original statement and of the hospital records was known at the trial, as appeared from the previous decisions of the courts.

[16]

[14] I interpolate here that Dutney J's observation is borne out by an examination of this Court's decision refusing the applicant's appeal against his convictions.[5] In rejecting the applicant's contention in that appeal that the guilty verdict of anal rape was unreasonable the Court conducted an extensive review of the evidence at the trial, including evidence given by the appellant on a voir dire.[6] The applicant did not give or call evidence at his trial, but his case was that he inserted a cane into the complainant's vagina either with her consent or honestly and reasonably believing that she was consenting, but that he did not insert the cane into the complainant's anus. On the count of torture the applicant's case was that when he caned the complainant he believed that he was giving her pleasure and that he did not intentionally inflict the severe pain of which she complained. There was evidence that very shortly after the alleged offences, the complainant had complained to others of rape including by penetration of her anus. There was also evidence of the complainant's distress and pain in the anal area, and evidence by a Government medical officer that she suffered from an "anal spasm". (The application for leave to adduce new expert medical evidence in the appeal, which was directed to demonstrating that anal spasm can occur from causes other than anal injuries, was rejected. The Court concluded that the new evidence was not "fresh", because it was plainly available at the time of the trial, and that it was in any event not inconsistent with the evidence of the Government medical officer given at trial.[7])

[17]

[15] In dismissing the applicant's appeal against his convictions, this Court referred to the applicant's argument in that appeal which emphasised that the complainant originally made no complaint to police about penetration of the vagina or anus with the cane and that she told the Government medical officer that she had no memory of the events; and this Court also took into account the hospital records tendered at trial, which indicated that the complainant's further statement to police on 19 March 2002, when the complainant told police for the first time that the appellant had inserted the cane into her vagina and anus, was given after someone had told the complainant that the appellant had admitted using a cane to beat the complainant and that he had inserted it in her anus.[8]

[18]

[16] Dutney J's reasons referred also to the applicant's complaints about the conduct of his lawyers at this trial and observed that none of the material relied upon by the applicant showed any direct or indirect connection between the way in which the applicant's trial had been conducted and any police corruption. (The respondent commission had no jurisdiction to investigate the lawyer's conduct in the absence of the connection of that kind which had been alleged by the applicant.)

[19]

[17] In that respect it is relevant to note that in the course of dismissing the appellant's appeal against his convictions this Court rejected the appellant's contention that he had been the victim of a miscarriage of justice arising out of the conduct of his legal advisers at the trial. The Court preferred the evidence of the appellant's trial solicitor and trial barrister, holding that it amply demonstrated an objectively reasonable explanation for the advice given to the appellant, and his own decision after considering that advice not to give or call evidence.[9]

[20]

[18] I return again to Dutney J's reasons in this matter. Dutney J recorded that in the course of argument the only direct, documented evidence to which the applicant was able to refer in support of his application was an affidavit by Mr Colin James and that the applicant particularly relied upon two paragraphs of that affidavit. Those paragraphs were in the following terms:

[21]

"(5) In 2002 I became aware that [the complainant] made a complaint to the police. [The complainant] had a visit from two policemen, and I overheard parts of that conversation. I was not aware of the names of the policemen. They were prompting [the complainant] to change her statement. [The complainant] was told that if she sued him, she could "get $200,000 to $250,000 from him." (6) I overheard the conversation from inside my unit through an open window. They did not see me."

[22]

[19] Dutney J observed that the allegation by Mr James was in the most general of terms, and that it was in any event directed to an allegation that had been made previously and which had been the subject of an earlier investigation. Dutney J concluded that the information contained in Mr James' affidavit could not of itself result in the substantiation of an allegation not otherwise able to be substantiated and that, having regard to the fact that the police had in any event been directed by Chesterman J's order to investigate precisely the same allegations, the commission's decision not to investigate the applicant's complaints was open to the commission on the evidence and that it was not inappropriate or reviewable for any reason.

[23]

[20] Although the grounds of the applicant's application contended that Dutney J erred, the applicant's very extensive written and oral submissions (including those set out in substantially identical terms in the purported notice of appeal and the application and those included within the affidavit material) instead focussed on the alleged merits of the applicant's claim that he had been the victim of official corruption. It is not easy to isolate from this mass of material the particular errors for which the applicant contended in Dutney J's decision, but I have endeavoured to articulate what appear to be the only arguably material assertions of error in what follows.

[24]

[21] First, the applicant contended that Dutney J erred in construing legislation. The applicant referred, for example, to ss 45 and 333 of the Crime and Misconduct Act 2001 (Qld), but the particular errors and the relevance of them to the result were not made clear. The applicant did argue that the commission's failure to interview seven "separate, independent, objective, eye-witnesses" alleging five "separate instances of police serious misconduct involved in a single matter that resulted in a conviction" demonstrated error by the commission, but that argument did not come to grips with Dutney J's reasons for dismissing the application: those reasons did not involve the resolution of any disputed or arguable question of statutory construction. If the argument should instead be read as contending that the decision of the commission was unreasonable it must be rejected for the reasons given by Dutney J.

[25]

[22] Secondly, the applicant argued that Dutney J erred by not allowing for an "expansion of submissions on the imputations and credit of the parties before the Court"; but the transcript demonstrates that Dutney J allowed the applicant to make the submissions about the issues potentially relevant to his application which the applicant sought to make. The applicant's related complaint that he was not given a reasonable opportunity to read material provided by the commission must be rejected for a similar reason: the transcript demonstrates that the applicant declined Dutney J's offer of an adjournment to enable the applicant to consider all of the material before being called upon to argue his application.

[26]

[23] Thirdly, the applicant contends that Dutney J did not read all of the material. The transcript again requires the rejection of this contention. It reveals that the judge familiarised himself with the material relied upon by the applicant and his arguments.

[27]

[24] Fourthly, the applicant contended that Dutney J misdirected himself by considering whether Colin James' statement "conclusively forensically proved corruption" rather than considering whether that statement was sufficient to show that the commission should have interviewed Mr James during the preceding period of almost six years. Dutney J's reasons demonstrate that he did not misdirect himself in that way.

[28]

[25] The applicant has not shown any reasonably arguable error in Dutney J's decision. Furthermore, given the history I have outlined and given that the information in the applicant's complaints to the commission mirrored the information in the applicant's complaints to the police commissioner which Chesterman J ordered were to be investigated by the police, there would be little utility in the proposed appeal.

[29]

[26] I conclude that the proposed appeal would lack both merit and utility. It is therefore inappropriate to grant leave to appeal.

[30]

[27] I should add that the application (and perhaps also the purported notice of appeal, though both documents are ambiguous, prolix and repetitive) purported also to invoke this Court's original jurisdiction to make orders under the JR Act. No basis has been shown to justify this Court exercising original jurisdiction in circumstances in which the applicant had earlier invoked the same jurisdiction in the trial division and now seeks to appeal against the resulting decision.

[31]

[28] I would strike out the applicant's notice of appeal and refuse the applicant's application. The applicant should be ordered to pay the respondent's costs of both proceedings, to be assessed on the standard basis.

[32]

[29] DOUGLAS J: I agree with the reasons of Fraser JA and with the orders he proposes.

[33]

[1] Lumley v The Police Commissioner [2009] QCA 78.

[34]

[2] R v Lumley [2004] QCA 120.

[35]

[3] Lumley v The Queen [2005] HCATrans 174 (21 March 2005).

[36]

[4] R v Lumley [2008] QCA 155. Those applications were dismissed on the ground that the Court's jurisdiction was exhausted when it dismissed the applicant's first appeal.

[37]

[5] R v Lumley [2004] QCA 120.

[38]

[6] [2004] QCA 120 at [5]- [34].

[39]

[7] [2004] QCA 120 at [73]- [79], particularly at [76].

[40]

[8] [2004] QCA 120 at [31].

[41]

[9] [2004] QCA 120 at [71].