Court of Appeal (Qld)|2009-04-07|Before: Muir and Fraser JJA and Douglas J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Muir and Fraser JJA and Douglas J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where
appellant convicted of one count of anal rape and one count
of torture –
where appellant made a complaint to the Crime and Misconduct Commission (CMC)
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – whereappellant convicted of one count of anal rape and one countof torture –where appellant made a complaint to the Crime and Misconduct Commission (CMC)and the Police Commissioner thatthese charges and the subsequent convictionswere occasioned by police corruption and the failure of the appellant’slawyersto follow instructions – where the Police Commissioner initiallyrefused to investigate the complaints, but later agreed anddrafted consentorders to this effect – where the appellant refused these consent ordersand applied for judicial review ofthe Police Commissioner’s refusal toinvestigate, on the basis that the primary judge should make the additionalorders soughtby the appellant – where the primary judge ordered thePolice Commissioner to investigate the appellant’s complaint,but refusedto make orders that the Commissioner acted “inappropriately and
conceivably corruptly” and that the Commissioner
should charge the police
officers involved – whether the primary judge erred in his exercise of the
discretion under the Judicial Review Act 1991 (Qld)
Crime and Misconduct Act 2001 (Qld), s 42(2), s 42(3)
Judicial Review Act 1991 (Qld), s 20, s 30
Penalties
and Sentences Act 1992 (Qld), s 161B(3)
Judgment (29 paragraphs)
[1]
Queensland Police Service Solicitor for the respondent
[2]
[1] MUIR JA: I agree with the reasons of Fraser JA and with the orders he proposes.
[3]
[2] FRASER JA: This appeal was by consent heard together with the appellant's applications concerning a decision of the Crime and Misconduct Commission, judgment in which is also delivered today.[1]
[4]
[3] On 5 March 2003 a jury found the appellant guilty of one count of rape (by penetration of the complainant's anus by a cane) and one count of torture, those offences having occurred on or about 24 September 2001. The appellant was convicted and sentenced to an effective term of imprisonment of eight years with a declaration that he was convicted of a serious violent offence under s 161B(3) of the Penalties and Sentences Act 1992 (Qld).
[5]
[4] Five days after the appellant was convicted, on 10 March 2003, he wrote a letter to the Queensland Police Service Commissioner and the Crime and Misconduct Commission (amongst many others) in which he made a variety of allegations directed to showing that he had been wrongly convicted. In particular, the appellant claimed that the arresting officer had caused the complainant to alter her evidence that she had no memory of the offences alleged against the appellant by telling her that the appellant 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 appellant 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 appellant's trial lawyers failed to follow his instructions, including by failing to prove the information upon which he relied in the hospital records. The appellant attributed the misconduct he alleged against the arresting officer to what the appellant alleged was his decisive role in providing to a New South Wales police commissioner at the end of 1999 information which the appellant 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 appellant 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]
[5] Some of those complaints were agitated in the appellant's appeal against his convictions which was heard on 19 March 2004.[2] On 23 April 2004 that appeal was dismissed and the appellant's application for leave to appeal against sentence was granted only to the extent of omitting the declaration that each offence of which the appellant was convicted was a serious violent offence. [3] On 21 March 2005 the High Court refused the appellant special leave to appeal from this Court's decision to dismiss the appellant's appeal against his convictions.[4] On 13 June 2008 this Court refused the appellant's later applications for an extension of time in which to appeal against his convictions and to adduce evidence before the Court.[5]
[7]
[6] On 12 July 2007 the appellant filed separate applications for a statutory order of review (presumably intended to invoke s 20 of the Judicial Review Act 1991 (Qld) (the "JR Act")) against the "Queensland Police Minister" and against the Crime and Misconduct Commission, in each case alleging and complaining of decisions not to investigate the alleged police corruption he claimed had resulted in his convictions and in each case seeking an order directing the respondent to investigate the appellant's allegations. The appellant discontinued both applications on 14 December 2007.
[8]
[7] The appellant's second application for judicial review against the Crime and Misconduct Commission filed on 4 March 2008 was dismissed by Martin J on 8 April 2008.
[9]
[8] On 20 March 2008 the appellant filed an application for a statutory order of review against the police commissioner. In this application the appellant asserted that the affidavit "of an eye-witness (Colin James)" of 3 December 2007 provided "substantial forensic evidence" to prove that the police arbitrarily arrested him, without complaint from the complainant, in retaliation for an earlier complaint "which saw police international drug dealers and murderers go to jail"; police then "interfered" with the complainant falsely telling her that the appellant had confessed to the anal rape of her with the stick so as to encourage her to make a false allegation of rape; although the complainant made a statement 10 days later referring to her lack of recollection of having been anally penetrated, the police kept the appellant in custody until the committal hearing; on 19 March 2002 Mr James observed and heard the police inducing the complainant to make a false allegation of rape in expectation of substantial financial damages; police then "interfered with my lawyers, getting them to drop me as a client until police got a lawyer that suited their purposes and would not present this evidence in court"; when the appellant persisted in trying to get a lawyer to present that evidence in court, police then tried to have the appellant murdered in custody; and the Crime and Misconduct Commission then refused to investigate on the basis that it should have been tested in court. The application elaborated upon the alleged corruption and misconduct of police and, like the appellant's earlier applications, sought an order directing the police commissioner to investigate the allegations.
[10]
[9] That application was amended on 18 April 2008 pursuant to an order of Martin J made on 17 April 2008. The amended application, filed on 30 April 2008, contained the same allegations but also identified the sections of the JR Act under which the application was made. It included submissions by the appellant seeking to challenge the police commissioner's decision to take no action on the complaint, contending that in view of the affidavit of Mr James there was no basis for a conclusion that the complaint was frivolous or vexatious, lacked substance or credibility, or that dealing with the complaint would be an unjustifiable use of resources.
[11]
[10] That submission referred to the grounds upon which the commissioner had evidently declined to investigate the appellant's complaints. Subsection 42(2) of the Crime and Misconduct Act 2001 (Qld) obliged the police commissioner to deal with a complaint about police misconduct in the way that the commissioner considered most appropriate. Subsection 42(3) provided that the commissioner might take no action to deal with the complaint if the commissioner was satisfied that the complaint was frivolous or vexatious or lacked substance or credibility, or, if the commissioner was satisfied that dealing with the complaint would be an unjustifiable use of resources.
[12]
[11] On 5 June 2008 the appellant filed an outline of submissions in accordance with a direction made by Martin J on 20 May 2008. The appellant argued that there were now six "independent, objective eye-witnesses to five separate incidents of the members of the Police Service Qld acting in an official capacity, perverting the course of justice" and that Mr James' affidavit demonstrated that police had used financial inducements of $250,000 to get the complainant to make a false criminal allegation. The outline of submissions criticised the conduct of the police commissioner in relation to the appellant's earlier applications for a statutory order of review and argued that the appellant had been falsely imprisoned for nearly seven years because of his "false conviction brought about by police serious misconduct and perversion of the course of justice".
[13]
[12] On 1 July 2008 a representative of the police commissioner wrote to the appellant conveying the commissioner's decision to investigate the allegations which the appellant had raised and enclosing a copy of a proposed consent order directing the police commissioner to conduct the investigation. Although the proposed consent order appeared to promise the appellant what he had for many years been seeking, namely a police investigation of his complaints, he declined to sign it.
[14]
[13] The appellant's reason for declining to consent to the proposed order, which he repeated and elaborated upon in the hearing of his application before Chesterman J and in this appeal from Chesterman J's decision, was that the appellant contended that the Court should make the findings and give the additional directions the appellant sought in his written submissions of 5 June 2008.
[15]
[14] In those submissions the appellant sought findings that the police commissioner acted "inappropriately and conceivably corruptly" in not properly investigating the appellant's allegations in his complaint of 10 March 2003 and his complaint of 28 January 2008, and "inappropriately and undoubtedly corruptly" in not investigating the allegations contained in the affidavit of Mr James dated 6 March 2008 when the commissioner first received that affidavit with the appellant's judicial review application filed on 23 March 2008; and that the police commissioner "attempted to use his position in a intimidatory, predatory way to deter a judicial review of his decision to refuse to investigate police misconduct". The purpose of seeking those findings may have been to justify the second and third of the claimed directions (1) that the police commissioner investigate the appellant's allegation, (2) that the police commissioner "unless he can prove the six witnesses perjured themselves does charge the police concerned", and (3) that the police commissioner pay some costs the appellant claimed he incurred in hiring solicitors and private investigators in relation to his applications to the Court.
[16]
[15] Chesterman J accepted that in light of the police commissioner's concession it was appropriate to direct the commissioner to investigate the information in the appellant's complaint. Chesterman J declined to make the findings and the second direction sought in the appellant's written submissions for the reasons that the findings were unnecessary for the purpose of establishing the appropriateness of the direction conceded by the commissioner and the Court did not have access to all of the evidence relevant to the findings and the second direction.
[17]
[16] In relation to the third direction sought by the appellant, Chesterman J directed that if the appellant was to proceed with that application he should give the police commissioner notice of the basis on which he sought the costs, full information about the quantum of the costs, the date on which they were paid, the person to whom they were paid and the circumstances in which they were paid, and that the application was not to be brought on further hearing until that material had been provided.
[18]
[17] Section 30 of the JR Act conferred upon the primary judge a discretion to make all or any of a number of different kinds of orders, including an order directing any of the parties to do or to refrain from doing anything the Court considered necessary to do justice between the parties.
[19]
[18] The appellant contended that Chesterman J erred in failing to make the findings which he sought. It is not easy to précis his very lengthy and repetitive submissions in support of that contention but I will refer to prominent aspects of them. In the appellant's written submissions and affidavit material he argued that the findings he sought were necessary to justify the first direction he had sought and which was made by Chesterman J and the other directions he had sought. He argued that Chesterman J's decision was in conflict with various articles in the International Covenant of Civil and Political Rights, of which Australia is a signatory, and that Chesterman J erred in concluding that the evidence was insufficient to support the findings which he sought. In the appellant's extensive written and oral submissions he emphasised the bulk and, so he argued, persuasive nature of the material upon which he relied, including his own affidavit material. He argued that "all 15 lawyers" who had represented him in his various legal proceedings had failed to follow his instructions to present his evidence against "armed drug cartel members" who, he argued, "used a quarter of a million dollars to gain false testimony". That is far from being a comprehensive summary of the appellant's arguments but it does indicate their broad nature.
[20]
[19] It is unnecessary in these reasons to say more about the detail of the appellant's arguments, which were mainly directed to the merits of his allegations that his convictions and the failure of his appeals against those convictions were consequences of serious misconduct by police and his various lawyers' failures to withstand pressure or threats and to protect the appellant's interests. It was unnecessary for Chesterman J to make the findings of fact sought by the appellant in order to justify making the direction, which the police commissioner conceded was appropriate, that the commissioner investigate the information in the appellant's complaints.
[21]
[20] It would also have been quite inappropriate to make those findings. In addition to the irrelevance of the findings to available relief in the appellant's judicial review application, it would have been wrong to make findings suggestive of serious misconduct in circumstances in which the appellant's own application for a direction that his allegations be investigated indicated, as was in any event plainly the case, that the material before the Court was only a part of the evidence relevant to such findings.
[22]
[21] The appellant's submissions did not raise an arguable case that the primary judge erred in the exercise of the discretion under the JR Act.
[23]
[22] I would dismiss the appeal with costs to be assessed on the standard basis.
[24]
[23] DOUGLAS J: I agree with the reasons of Fraser JA and with the orders he proposes.
[25]
[1]Lumley v Crime and Misconduct Commission Queensland[2009] QCA 79.
[26]
[2] Those complaints which were considered in that appeal are identified in my reasons in Lumley v Crime and Misconduct Commission Queensland[2009] QCA 79.
[5]R v Lumley[2008] QCA 155. Those applications were dismissed on the ground that the Court's jurisdiction was exhausted when it dismissed the appellant's first appeal.