R v Pratt and Sweeney; ex parte A-G [1998] QCA 302

2 The case the prosecution wished to advance before a jury was, in substance, this. The respondent and his brother, Michael Sweeney, were part of a group that became involved in an altercation with a rival group at the Samford Hotel. Outside the hotel, Michael Sweeney got behind the wheel of a sedan and started the engine. The respondent was about to get into the passenger seat of the car when he yelled out to his brother to "run over" the rival group and "kill" them. On the prosecution case, this outburst amounted to such encouragement to his brother to use violence as to make the respondent liable with his brother for the harm which resulted when, moments later, Michael Sweeney "revved" the engine and, with tyres screeching, drove the vehicle into the rival group, striking some of them. See s.7(1)(c) and (d) Criminal Code.

3 The judge decided that the prosecution should be stayed as an abuse of the court's process on two grounds. The first relates to the sentencing of the respondent's brother, who had pleaded guilty to dangerous driving causing grievous bodily harm and been sentenced to imprisonment for his part in the attack. The judge was persuaded that in those sentence proceedings the prosecutor had accepted that Michael Sweeney had not heard the incitement attributed to his brother. On the respondent's trial, however, the Crown case was that Michael Sweeney heard the respondent's outburst. Taking the view that in prosecuting the respondent the Crown ought not adopt a position so at odds with the stance taken when Michael Sweeney was sentenced, the judge considered that the respondent's prosecution must be restrained. Secondly, on a consideration of the evidence sketched by the prosecutor during argument, the judge thought it more likely than not that the respondent's brother had not heard the outburst. The prosecution case, therefore, would not succeed, and the case should not be put before a jury. The judge was mistaken.

4 His Honour erred in thinking that the Crown had sought to have Michael Sweeney sentenced on the footing that he had not heard what his brother had said when he got into the car. At Michael Sweeney's sentencing, his counsel submitted that he had not heard the words attributed to the respondent, adding "I understand from my learned friend that that's not contested". The prosecutor replied, "Well, I can't say what he heard ...". That response scarcely announced that the Crown was content that Michael Sweeney be sentenced on the basis that he had not heard what the respondent is now alleged to have said. Put shortly, there is no satisfactory factual foundation for the view that the Crown was seeking to adopt fundamentally inconsistent positions in the two cases, which makes it unnecessary to consider whether had such conduct by the prosecutor actually occurred, the inconsistency could have justified a stay.

5 The judge also erred in thinking that a conclusion by him that the case seemed likely to fail justified an order preventing its presentation to a jury. The case as outlined to the judge had some prospect of success. Eight witnesses were to be called to testify that they had heard the respondent call out words which could have encouraged Michael Sweeney to use the car as a weapon, or to kill, momentarily before Michael Sweeney drove the car into the rival group. And the prosecutor told the judge that at least one of those witnesses was expected to give evidence from which the jury might have determined that Michael Sweeney had indeed heard the respondent speak the words attributed to him. Certainly the prosecution case was not clearly foredoomed to fail. It should therefore have been permitted to proceed: cf Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 214-215; R v Smith [1995] VicRp 2; [1995] 1 VR 10, 14-16, 25-28.

6 Listing arrangements in the Brisbane District Court may mean that it is inappropriate to direct that the judge be the trial judge. It is therefore ordered that the judge's order staying the further prosecution of the proceedings until further order be set aside and that all necessary adjournments be entered up to enable the prosecution of the respondent upon the indictment to proceed according to law.