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[2006] QCA 526
Court of Appeal (Qld)
2006-12-08
Keane JA, Jones and Douglas JJSeparate reasons for, judgment of each member of the Court, each concurring as to the orders, made
Original judgment source is linked above.
The applicant's legal representatives accepted this statement to have been correct up to the time of the application for the stay.[25]
[41] The learned Magistrate, despite having referred to that submission about evidence, nonetheless said -
"One would have thought that the loss of memory concerning completion of certain requirements would be in issue here, and this must cause some prejudice to the accused in my opinion."[26]
[42] The learned primary judge found, correctly in my view, that the Magistrate had failed to have due regard to the fact that the evidence to be presented was of such a nature as not to give rise to actual prejudice. He noted, in para [22] of the Reasons that the applicant's solicitor did not contend differently. The applicant asserts that this finding was "bizarre and incoherent"[27] contending that his legal representatives have for five years been challenging the evidence which the prosecution intended to rely upon.
[43] This comment in the Outline of Argument misses the point of whether the delay in the presentation of evidence of this kind is prejudicial. The applicant before this Court made reference to "fading memory" but as the applicant has not pointed to any specific prejudice caused by delay it was necessary for the learned primary judge to make the assessment of whether prejudice of a general kind was likely to flow having regard to the nature of the evidence. He did this and in so doing identified the error in the assessment made by the learned Magistrate. The factors referred to in Jago, which needed to be taken into account, were properly considered by the learned primary judge. The test of fairness, balancing the community's interest on the one hand and the accused's interest on the other was properly undertaken. The impact on the accused, physically, emotionally and financially has been fully ventilated in the proceedings in the courts below and again before us in the extensive Outline of Argument and Submissions in Response. The community interest in having criminal charges properly dealt with has been commented upon in each of the cases referred to us. The result is, in the words of Mason CJ, that "a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay only will accordingly be very rare"[28].
[44] In my view the learned primary judge correctly identified the errors which apparently influenced the decision of the learned Magistrate. He was correct in his assessment that the order granting the permanent stay was erroneous and should properly be set aside. I would therefore hold that this ground of appeal has not been made out.
[45] The applicant both in his Outline and in his Submission in Response makes substantial reference to principles relating to double jeopardy. This point was not particularly included in the grounds of appeal except tangentially in ground E by quoting from the Reasons of the learned Magistrate that - "the multiple prosecutions arising out of one set of events...is such that any trial held now would be an abuse of process and unfair".[29]
[46] That comment does not suggest that there was any consideration made below of whether the prosecution in these charges of statutory offences gives rise to double jeopardy, on their face they would appear not to. Relevantly to this appeal, double jeopardy was not a matter that attracted the attention of the learned primary judge. The fact that the applicant has been acquitted of other criminal charges is relevant as background to general considerations of delay, prejudice and unfairness but the focus on this appeal must be on the summary charges and whether they can now be fairly brought to trial. If, indeed the principle of double jeopardy is likely to be offended, then that is a matter for argument at trial. It does not properly arise in the context of this appeal and therefore requires no further consideration.
[47] For these reasons, I would allow the application for leave to appeal but on consideration of the issues dismiss the appeal. There should be no order for costs.
[48] DOUGLAS J: I also agree with the reasons of Jones J and with the orders proposed by his Honour.
[3] [1987] VicRp 80; [1987] VR 962 at 873
[7] See s 222(2) of the Justices Act
[10] See s 42 of the Justices Act
[13] See Edwards v Raabe [2000] VSC 471; (2000) 117 A Crim R 191
[14] Reasons for Judgment para [3] at Record p 144
Owen
Edwards [2006] QCA 526
[6] Attention to the summary charges was then renewed when these matters were first mentioned after the trial on 7 November 2003. On 19 December 2003 the Magistrate ordered that the prosecution provide particulars of the charges as well as a brief of evidence. By 5 March 2004 - a hearing mention date - the order had not been complied with and the prosecution argued that the brief made available for the District Court proceedings was sufficient for the purposes of the summary hearing. The defendant's solicitors objected to this and requested that all charges be dismissed. The hearing Magistrate thereupon dismissed the charges but his decision was overturned on appeal to the District Court on 4 March 2005. See Brown v Owen [2005] QDC 40.
"[22] Mr Owen has not attempted to demonstrate any actual prejudice, for example to point to any important witnesses or evidence favourable to him lost or unavailable due to the delay. Mr. Davis says that the case is essentially based on documents prepared in relation to each weapon. I have no doubt that the now almost 6 year course of criminal litigation undertaken by prosecuting authorities has subjected Mr Owen to physical and emotion strain and that it has been very expensive to defend, but absent any additional factors none of that can enliven the discretion to stay what are serious charges. As the learned Magistrate noted in her reasons, the prosecutor below submitted that the weapons the subject of the charge were made available to Mr Owen so that his experts could examine them and there is no suggestion that this expert evidence is no longer available because of the delay. The prosecutor also referred to the public interest in insuring that the weapons the subject of the charges were appropriately dismantled and deactivated so that the risk of unlawful weapons being available generally in the community was reduced. There was no demur from Mr Owen's solicitor to these propositions, nor is it suggested on appeal that they were wrong. The public interest in having the criminal law upheld is often mentioned as one of the factors to be balanced by a court when it is being asked to exercise the discretion to permanently halt a prosecution: R v Barton [1980] HCA 48; (1980) 147 CLR 75 at 102 and 106."
"...it will not be established merely by the applicant swearing that he 'feels aggrieved', for if that were the case a stranger to the proceedings, with no real or direct interest therein, could bring himself within the words by so swearing. These words were clearly intended to exclude from the operation of the section the common informer and other busybodies, who have no real or direct interest in the proceedings in which the decision sought to be reviewed was given, and to prevent them from intermeddling officiously therein. That this is the proper construction of the words in question here finds support, we think, in the speech of Lord Herschell LC in Powell v Birmingham Vinegar Brewery Co [1894] AC 8 at p 10, where the question he had to consider was whether the respondents were 'persons aggrieved' within the meaning of s 90 of the Trademarks Act 1883.
...
Whether he can bring himself within these words depends on the facts of the case, and whether he is able to show that he is really and directly interested in the proceedings." [12]
(1989) 168 CLR 23
(1993) 177 CLR 378
(1980) 147 CLR 75
(1993) 177 CLR 379