Supreme Court of WA|2002-11-13|Before: Heenan J

Michael v Musk & Anor [2002] WASC 278 (13 November 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MICHAEL -v- MUSK & ANOR [2002] WASC 278

Prerogative writs - Certiorari and mandamus - Application for orders nisi to remove and quash a summary prosecution in Court of Petty Sessions - No arguable grounds shown - Applications dismissed

Second Defendant : State Director of Public Prosecutions

1 EM HEENAN J: There is before the Court an ex parte application for orders nisi for writs of mandamus and certiorari pursuant to the provisions of O 65A of the Supreme Court Rules and in addition pursuant to s 69 of the Justices Act. The first respondent to the application is her Worship, Mrs Jacqueline Gay Musk SM, who presided over the proceedings in the Court of Petty Sessions to which I shall refer. The second respondent is the Director of Public Prosecutions, who is represented before me today.

2 There is a long history to this application for prerogative relief and to the litigation which has generated it. Dr Shawky Michael, the applicant, at all material times has lived at 8 Tully Court, Bullcreek. It is his misfortune that there exists a long-standing animosity between him, the members of his family on the one hand and a neighbour, Mr Maughan, on the other, resulting in bad feeling and hostility between the families.

3 It is unnecessary to go into the background of this neighbour dispute, but on 3 December 2000, a Sunday, there was an incident in the Tully Court area on the verge, or close to the verge, of the Maughan and Michael homes. Just quite what exactly happened and what led to it is the subject of other proceedings and will be decided elsewhere, but there seems to have been an incident where there was recrimination between Dr Michael and Mr Maughan which led to a pepper spray being brandished and used against Mr Maughan. He suffered some injuries, apparently temporary and minor, and recovered after a period of hospitalisation.

4 Close to the Michael home is a system of surveillance cameras which by a video process record what has been happening in the vicinity over time. These cameras were evidently running on 3 December 2000, and Dr Michael believes that they have recorded a depiction of the altercation between himself and Mr Maughan which will demonstrate that his behaviour on that occasion was innocent or justified.

5 Nevertheless, arising from that incident Dr Michael was charged by the police with two offences. One was a summary offence of being in possession of a dangerous weapon, namely a pepper spray, and the second was an indictable offence of assaulting Mr Maughan and occasioning him actual bodily harm. It is important to emphasise that at all times Dr Michael has maintained that he is not guilty of these offences and that his conduct on the day in question was fully justified. Nevertheless, court proceedings have been commenced which should determine whether or not he is guilty of the summary offence or should be put on trial for the indictable offence.

6 As part of the investigations into this incident Dr Michael brought to the attention of the police the existence of the video surveillance system which I have mentioned and the police, so he explains, seized a number of the videotapes. Although that was nearly two years ago, the resulting court proceedings have only culminated in a preliminary hearing in the Court of Petty Sessions on 19 April this year before her Worship Mrs Musk in order to determine whether or not the evidence presented to that preliminary hearing warranted an order committing Dr Michael for trial on the indictable offence of assault occasioning bodily harm.

7 The other charge, the summary offence of being in possession of a dangerous weapon, was proceeding in parallel but was being successively stood over or adjourned pending progress with the indictable charge. At the preliminary hearing on 19 April evidence was led for the complainant. Mr Maughan, the neighbour, was called and gave evidence. It is sufficient to say that the substance of the evidence from Mr Maughan was to the effect that Dr Michael had assaulted him, that the assault had caused him harm, and that Dr Michael had been armed with a pepper spray at the time.

8 Dr Michael appeared on his own behalf before the learned Magistrate and attempted to cross-examine Mr Maughan. He made a series of submissions in answer to the issue of whether or not he ought be committed for trial. At the end of the proceedings the learned Magistrate concluded that there was a case which required that Dr Michael be committed for trial and made an order that he be committed to stand trial at the next available sittings of the District Court of Western Australia.

9 At a later date Dr Michael was brought before the District Court of Western Australia appearing before his Honour Judge Groves on one occasion on 15 July last. I am told that there were at least two other appearances following the order for committal but at neither of them nor at the hearing on 15 July was any indictment actually presented. Nevertheless, while before the District Court Dr Michael sought to have adduced and made available to him, if necessary by the issue of a subpoena, the original videotape recording from his surveillance system which recorded the events on 3 December 2000. His Honour Judge Groves directed that the videotapes should be produced or that the application for their production should be heard at a later date and that the prosecution should give due attention to Dr Michael's application. The most that had been produced up until that date were copies of the videotapes which had been made by the police and it was Dr Michael's contention that significant parts of the original videotaped surveillance records had not been included in the copies and it was to the originals that he was seeking access.

10 In parallel to these attempts in the District Court to obtain access to the original videotapes, Dr Michael had commenced the present proceedings in this court. On this application for an order nisi, as it first stood, he was seeking to have the order committing him for trial quashed on, among other grounds, the basis that at the conclusion of the case for the complainant before the learned Magistrate her Worship had omitted to put to him the statement required by s 102(1) of the Justices Act calling upon him to answer and offering him the opportunity to give evidence, and, further, had failed to ask the defendant pursuant to s 105 of the Justices Act, whether he desired to give evidence or call any witnesses or tender any written statements under s 69 in answer to the application that he should be committed for trial.

11 The application for orders nisi for certiorari and mandamus on those grounds came before Pullin J in this Court on 30 August. Dr Michael appeared on his own behalf and counsel appeared for the Director of Public Prosecutions. I am told that counsel for the DPP then acknowledged that there had been a fatal error of procedure in the Court of Petty Sessions on 19 April by reason of the Magistrate's failure to observe the procedures directed by s 102 and s 105 of the Justices Act and that in these circumstances the respondent accepted that there were grounds to review the decision committing Dr Michael for trial.

12 Accordingly, on 30 August Pullin J made orders granting an order nisi to review the decision to commit and thereupon made the order nisi absolute in the terms of the minute of proposed orders dated 30 August. His Honour then adjourned the balance of the application.

13 The effect of the order of Pullin J of 30 August was to quash the order for committal, release Dr Michael from any obligation further to appear before the District Court, and leave for resumption and continuation the committal hearing before her Worship Magistrate Musk in the Court of Petty Sessions. Part of the relief which Dr Michael had sought before Pullin J on 30 August was an order framed in his own words by Dr Michael, and I quote:

"In the alternative, the DPP on behalf of the Attorney-General informed the Court of Petty Sessions and the District Court that the action against the applicant be made nolle prosequi pursuant to section 581 of the Criminal Code."

14 That is the matter which was adjourned. As to that I should say that once the order for committal was quashed and the District Court no longer had any jurisdiction or cognisance over Dr Michael there was simply no basis for any nolle prosequi to be filed. Secondly, a nolle prosequi is only apposite in circumstances where an indictment has been presented and no indictment had ever been presented against Dr Michael in the District Court. Furthermore, and finally, the decision whether or not to present a nolle prosequi, like the decision to present an indictment, is one of those few remaining decisions of executive government which are not susceptible to review on applications for certiorari, mandamus or other prerogative relief. In my view it was not possible for this Court to make orders requiring the DPP or the Attorney-General or any other officer of the Crown to lodge a nolle prosequi even if an indictment had previously been lodged. Consequently, it is unnecessary for me to consider further the remaining third ground of the original application, namely that at this point an order should be made requiring the DPP to inform the Court of Petty Sessions and the District Court that there should be a nolle prosequi and I dismiss the application for any order nisi on that ground.

15 Following the quashing of the order for committal by the judgment of this Court on 30 May the proceedings in the Court of Petty Sessions before her Worship Mrs Musk resumed on 14 October. On that occasion Dr Michael attempted to insist that the learned Magistrate should dismiss the charges against him there and then summarily because of the provisions of s 614 of the Criminal Code or, otherwise, because of applications which he had sought to have agitated to the effect that the evidence of Mr Maughan, which had been given on 19 April was false, that there had been misrepresentations by the DPP to the Full Court, and that there had been evidence withheld from the Court by the DPP.

16 Dr Michael also sought to have the charge against him relating to the possession of the alleged unlawful weapon, the pepper spray, dismissed on the grounds that it was vexatious, frivolous, and calculated to prejudice and embarrass him or was an abuse of the process of the Court. His grounds for these contentions, essentially, were that it was lawful for any citizen to possess a pepper spray.

17 The learned Magistrate declined to deal with those applications. In my opinion the learned Magistrate was correct to decline to deal with any application pursuant to s 614 of the Criminal Code. That is the section which deals with motions to quash indictments which have been presented against persons before a superior court and before any plea to the indictment has been entered. It is quite obvious that the Court of Petty Sessions was not a superior court, that the proceedings before that Court had not been commenced by an indictment, and that the procedure contemplated by s 614 was simply inappropriate.

18 In relation to the other contemporaneous applications to dismiss charges on grounds of the alleged false evidence of Mr Maughan, the alleged misrepresentation of the DPP, and the alleged withholding of evidence and the further application to dismiss the charge in relation to the possession of a prohibited weapon, namely the pepper pot, I consider that the learned Magistrate was correct in refusing to deal with those applications at that stage of the proceedings. All that the learned Magistrate was addressing on 14 October was an assessment of what would be required for the further hearing and determination of the unfinished committal hearing. Her Worship was simply inquiring about the time that would be needed for Dr Michael to give any evidence which he wished to adduce on his own behalf.

19 Having read the transcript, I am satisfied that the hearing on 14 October was in the nature of a directions hearing and that it was not appropriate for the applications to dismiss or stay the proceedings to be dealt with then. That does not mean that they cannot be renewed. Despite Dr Michael's submission that the learned Magistrate has made a final decision and is not prepared to re-examine his applications, I can see no basis for concluding that applications of that kind would not, or could not, be dealt with according to law by the magistrate when the hearing resumes.

20 The situation, therefore, which exists at present is that there is to be a further hearing before the Court of Petty Sessions presided over by her Worship Mrs Musk on 15 November, this coming Friday, with a view to a resumption of the committal proceedings in full on 22 November. By his amended application, dated 16 October, Dr Michael now seeks orders that those hearing dates should be vacated as being oppressive and a denial of natural justice; that the complaints be stayed until the determination of this application; and that there should be declarations by this Court that the evidence given by the DPP witness in April, presumably Mr Maughan, is of no substance and for it to be nullified. Dr Michael also seeks an order requiring the DPP to charge Mr Maughan with perjury. He also seeks orders that in the interests of the public the prosecution against him be withdrawn due to the following alleged causes: that the DPP misled his Honour Judge Groves on 15 July; that the DPP misled her Honour Judge Kennedy on 2 September; that in pursuing charges against him the applicant has ignored s 80 of the Director of Public Prosecutions Act; and, finally, that the remaining charge against him should be dismissed as being scandalous, vindictive and an abuse of process of the Court of Petty Sessions as being without merit.

21 To understand those assertions it is necessary to go back to the controversy about access to the videotape. Dr Michael apparently contends that he was assured by the prosecution and by the police that he would be provided with the videotape and later, after copies were made and given to him, that he had been provided with the videotape. It turned out that the copies which were made omitted sections of the original which he considered to be of critical importance and hence the assertions that in claiming he had been given a videotape, this was misleading. Another assertion of misleading conduct is that the DPP informed one, or both, of the Judges of the District Court before whom he was brought on the committal order that it did not have the original tape, whereas later it was demonstrated that the tape was obtained; and further, that the District Court was informed that although he could see copies of the tape he was not entitled to the original.

22 It is unnecessary to go into the exact details of just what was said and done in the District Court or said or done on behalf of the prosecution. It does, however, appear that Dr Michael persistently demanded access to the original videotape. It is also clear, that for one reason or another he was unable until recently to achieve this and that he was told, variously, that the copies which had been made were complete and that he was not entitled to have access to the original and that the DPP did not have the original in its possession. Dr Michael is most indignant about this because, in still yet different proceedings, he eventually obtained an order from the Full Court of the Supreme Court of Western Australia that he could have access to the original videotape and that he could make a copy of this under the supervision of the Chief Justice. The learned Chief Justice arranged with his Associate to supervise the copying process and a complete copy of the original has since been made and delivered to Dr Michael. Although I have not seen the videotape and cannot vouch for this, Dr Michael has submitted today that it contains about 15 minutes of critical footage, just before the incident, which is directly relevant and germane to the question of whether or not he assaulted Mr Maughan.

23 In short, by this process Dr Michael now has in his possession, and is able to use or deploy, the original videotape with the full footage. In those circumstances one might be excused from concluding that, having succeeded before Pullin J in having the committal order quashed and also succeeding in obtaining access to the entire videotape, Dr Michael is now in a much stronger position to present his case to defend or refute the allegations being made against him of assaulting Mr Maughan. He is assured, by the provisions of the Justices Act, that he will have an opportunity to give evidence on his own behalf and to adduce evidence or produce statements on the issue of whether or not he should be committed. He says, however, that that is not enough - that the evidence of Mr Maughan incriminating him in the assault has already been given. He also says that the evidence of other witnesses cannot be obtained in time for the hearing which is to take place, provisionally, on 22 November.

24 The conduct of the committal proceeding is not under my control. That is subject to the supervision and direction of Her Worship, Mrs Musk. However, there does not appear to me to be any reason why, when the hearing resumes or at any directions hearings before then, Dr Michael could not make an application to have Mr Maughan, or other relevant witnesses, recalled for further cross-examination. Admittedly, that is an unusual course and one which is seldom allowed but if there were circumstances in which there was important evidence which bore on the reliability or truthfulness of their testimony, and which could be used to contradict or refute that testimony in cross-examination, and if it was also the case that that evidence was not available to Dr Michael at the time those witnesses were cross-examined in April and could not have been obtained by him through reasonable diligence at that time, there may well be grounds to recall those witnesses and allow further cross-examination.

25 Whether the possession of the complete videotape, with the critical 15 minutes of extra footage, is evidence of that significance is a matter which may need to be decided but there does seem to me to be an opportunity for Dr Michael to raise that matter when the committal hearing resumes. That being the case, there does not seem to me to be any reason why, in the ordinary course, the law should not proceed and the committal hearing be completed, affording Dr Michael the opportunity to present such evidence as he considers relevant in defence of the case against him. Included in this, I should add, he will have an opportunity to make an application to recall any prosecution witness or witnesses for further cross-examination if this is made necessary by access to evidence which was not previously available to him.

26 I must say that when this was pointed out in the course of argument, Dr Michael accepted the force of this reasoning but he added to his application for orders nisi for mandamus and certiorari by submitting that the Court should stay the proceedings in the Court of Petty Sessions on the grounds that they were oppressive to him. No formal application to amend the application to seek an order for a stay of proceedings in lieu of certiorari or mandamus was made but I am content to treat that submission on its merits.

27 A number of grounds were relied upon by Dr Michael for the alleged oppression. Dr Michael cited from the work, "Criminal Law in Western Australia" by Messrs Colvin and Lindan, co-authored by the Honourable McKechnie J, particularly at pars 22.19 and 22.20, and also from "Criminal Law in Queensland and Western Australia", 5th edition by Kenney, which conveniently contain an accurate summary of the law relating to the occasions when criminal proceedings might be stayed, either at the preliminary stage or on indictment, because of the risk of oppression or abuse of process. However, it is clear that a superior court will not intervene in the course of criminal procedure other than in the most exceptional circumstances and will only do so if there is likely to be some irreparable damage which would otherwise go unremedied. In this case I can see no occasion why there would be any, still less irreparable, damage if the committal proceedings were to continue. If they run their course, a decision will be made either for the charge to be dismissed or for Dr Michael to be committed to stand trial in the District Court. In the event of an order for committal, there will be an opportunity to challenge that, as there has already occurred. An order for committal would not determine that Dr Michael was guilty of any offence. He would be remanded for trial in the ordinary way before the District Court which would later decide whether or not an offence had been committed. So he is not in immediate jeopardy of any irrevocable finding of guilt.

28 More importantly, the course which the committal proceedings are yet to take are designed to give Dr Michael an opportunity to present evidence and to refute the case against him and if, as I have indicated, that includes an opportunity to have Mr Maughan recalled for further cross-examination in the light of the video evidence, he may be able to use those opportunities to good effect. It is in the Court of Petty Sessions that the decision should be made on the evidence admissible in order to decide whether or not Dr Michael should be committed for trial. It is not for this Court to undertake that task.

29 Further grounds in support of the alleged oppression which would be involved with the continuation of these proceedings were developed by Dr Michael in argument. He submitted that he was not being given a fair hearing before the Court of Petty Sessions, that there were continual interruptions both from the prosecution and from the bench, that he felt intimidated by security guards in the courtroom who stood close to him and, on occasions, insisted that he be quiet or sit down and spoke sotto voce to him in most inappropriate and offensive terms. The truth of those allegations cannot be tested in these proceedings, but I would be very surprised to find that Dr Michael's submissions were not given a fair hearing or that he was not permitted to develop cogent arguments material to his case or that he felt threatened by Court staff. I can well imagine that some misunderstandings may have occurred. Dr Michael is not, by training, a lawyer. His first language is not English. He tends, when approaching moments of distress, to become concerned. Quite often he can veer from the point, but allowances for all these personal tendencies should, in my view, always be forthcoming in any court, and I expect that a fair hearing will certainly be accorded to him, together with the freedom to develop a cogent argument material to his case as he considers proper.

30 If it should emerge that Dr Michael's ability to present his case fairly and without coercion or intimidation is encroached upon, that would undoubtedly provide grounds subsequently to review and challenge any order which might be made in the Court of Petty Sessions. However, I am very far from being convinced that there is any material risk of that occurring.

31 The remaining issues relied upon by Dr Michael relate to the alleged misleading conduct of the DPP in relation to the proceedings in the District Court and in relation to the access to the videotape. It seems to me that the most that can be said about these is that, for reasons which turned out to be mistaken but were nevertheless conscientiously believed, certain officers within the prosecution authorities and perhaps in the police wrongly believed that Dr Michael was not entitled to access to the original tape. I also consider that it is probable that there was some mistake caused through nothing more than oversight within the DPP as to where the original tape was. There may also have been some misunderstanding as to whether the copies which had been made by the police were in fact complete, a mistake which could not be eradicated until the original had been fully processed by technology which was only available from Dr Michael himself.

32 Whatever may be the case, the situation now is that full access to the original tape has been obtained, that Dr Michael has been allowed to make a copy of the complete original tape, including the critical 15 minutes, and that he is in a position to use this for whatever utility it may have at the resumed committal hearing. It does not seem to me that any mistaken information or errors which may have occurred in relation to the locality of the original tape or Dr Michael's right of access to or inspection of it can or will affect the course of the continued committal hearing. That being the case, I conclude that there is no oppression likely to arise to Dr Michael in the sense in which that is meant in the law by continuation of the preliminary hearing, and I dismiss the applications for orders nisi for mandamus or certiorari or for a stay of proceedings insofar as they rely upon those grounds.

33 There is one final subject which needs to be addressed. It is quite evident that Dr Michael is convinced that he is not guilty of the charges which have been laid against him and that Mr Maughan has given false evidence in the Court of Petty Sessions. He argues that it is unjust that he should have to answer these charges. He considers and has submitted strongly today that so obvious is his innocence and the weakness of the case against him that it is oppressive for him to have to undergo the investigation which the preliminary hearing itself entails. All I can say in relation to those submissions is that these charges are prosecutions which have been laid by the police. They are being prosecuted by the Director of Public Prosecutions, an independent, responsible public authority, and whether the charges are justified or not, it will be for the normal process of the criminal law to decide whether or not he should be put on trial.

34 Dr Michael may consider that the fate of these proceedings is self-evident and the case against him is groundless, but it is not his opinion which counts. So long as those authorities consider that the prosecution should be maintained it will be the duty of the Court of Petty Sessions to hear the evidence and to decide whether or not it is sufficient, after hearing Dr Michael's own explanations, to put him on trial for the indictable offence or for him to be convicted of the summary offence. It is not appropriate simply to stop the proceedings halfway through. It will be necessary for Dr Michael to make his defence and to give his answers to the Court of Petty Sessions.

35 For those reasons, I refuse the applications for orders nisi for writs of mandamus and certiorari and I also refuse the application which has been maintained by oral submissions by Dr Michael today for a stay of proceedings of the committal proceedings or of the summary prosecution pending in the Court of Petty Sessions.

Michael v Musk & Anor [2002] WASC 278

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Judgment (44 paragraphs)

Michael v Musk & Anor [2002] WASC 278 (13 November 2002)

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