Supreme Court of WA|2002-08-07|Before: Miller J, Smith J

Re Section 720 Criminal Code (WA); Ex Parte Michael [2002] WASC 208 (7 August 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE SECTION 720 CRIMINAL CODE (WA); EX PARTE MICHAEL [2002] WASC 208

MATTER : Section 720 of the Criminal Code (WA)

Criminal law - Private prosecution - Application for leave to present information for indictable offence - Proposed accused committed by Magistrate for trial - Whether leave should be granted

Practice and procedure - Private prosecution - Application for leave to present information for indictable offence - Procedure

1 ROBERTS-SMITH J: This is an ex parte application by notice of an application dated 14 June 2002 under r 7 of the Criminal Procedure Rules 2000. Dr Michael applies for leave to continue a prosecution under s 720 of the Criminal Code. Although the application is made ex parte, Dr Michael has filed an affidavit of service which indicates that the application and supporting affidavit were in fact served on the proposed accused Mr Maughan.

2 Again, although expressed as an application for leave to continue a prosecution under s 720, in the terms of that section I take it to be an application for leave to present an information against a person for an indictable offence. Section 720 relevantly provides:

"Information by leave of the Supreme Court by private prosecutors

Any person may, by leave of the Supreme Court, present an information against any other person for any indictable offence not punishable with strict security life imprisonment, alleged to have been committed by such other person.

An information presented by leave of the Court is to be signed by the person on whose application the leave is granted, or some other person appointed by the Court in that behalf, and filed in the Supreme Court.

The person who signs the information is called the prosecutor.

The information is to be intituled 'The Queen on the prosecution of the prosecutor (naming him) against the accused person' (naming him), and must state that the prosecutor informs the Court by leave of the Court.

Except as otherwise expressly provided, the information and the proceedings upon it are subject to the same rules and incidents in all respects as an indictment presented by the Attorney General and the proceedings upon such an indictment as hereinbefore set forth."

3 The position on this application is to be contrasted with that which was considered by Miller J in the authority to which I was referred by Dr Michael, namely Rodgers v Simpson [2001] WASCA 223. In that case a Magistrate had dismissed proceedings on a complaint before him on the basis that leave of the Supreme Court had not been obtained for the private prosecution on that complaint pursuant to s 720 of the Code.

4 Miller J held that the requirements of s 720 apply only in respect of a prosecution which it is sought to pursue on indictment and did not impose a requirement for leave to pursue a private prosecution by way of complaint in a Court of Petty Sessions.

5 The Criminal Procedure Rules apply to and in relation to all proceedings in the criminal jurisdiction of the Supreme Court (see r 4). As this application is made pursuant to s 720 of the Criminal Code therefore, those Rules apply. However, unlike the Criminal Practice Rules of 1996, which they replaced, the Criminal Procedure Rules contain no provisions relating to applications for leave by private prosecutors to present an information in the Supreme Court under Chapter LXXIII of the Code. That has created something of a lacuna in a procedural sense. Order 4 of the Criminal Practice Rules set out a specific procedure for such applications. In particular O 4 r 1 required that applications for leave to present an information against any person for an indictable offence be made by motion to the Court or a Judge for an order calling on the defendant (as the proposed accused was referred to in those rules) to show cause why the leave should not be granted. Rule 2 has no application to the present case.

6 Rules 3 to 6 inclusive set various procedural requirements for the notification of the matter, appearance to the information and the recording of the plea by the defendant. There was, therefore, under the Criminal Practice Rules a two-stage process. The first required the making of an order calling upon a proposed defendant to show cause why leave should not be granted. If that step were taken, then the section and the rules contemplated a further hearing at which the defendant would have the right to appear and at which time the Court was to determine whether or not to grant leave for the information to be presented.

7 As I have said, the Criminal Procedure Rules make no provision for private informations. The only requirements, therefore, are those contained in s 720 of the Criminal Code. In short, that section simply requires that the applicant obtain leave. There is no requirement for notice to the potential accused of the application for leave.

8 There may very well be good reasons for a requirement that such notice be given so that the potential accused would have an opportunity to show cause why leave should not be granted, but as the legislation and the rules stand, that is not a requirement. I should say that in my view the lack of such a rule would not preclude a Judge on an ex parte application under s 720 of the Criminal Code making procedural orders that notice be given and the potential accused be called upon to show cause why leave should not be granted, but in the present case I consider I am able to deal with the matter without taking that course.

9 As I understand it, from the limited material before me - to which I shall return in a moment - Dr Michael sees himself as "continuing" a prosecution because he originally initiated proceedings in a Court of Petty Sessions by a complaint under s 42 of the Justices Act 1902 (WA).

10 The complaint apparently alleged two offences, the first being that on 3 December 2000 the potential accused (who for convenience I shall refer to as the respondent, although he is not strictly such) unlawfully assaulted Dr Michael and caused him bodily harm contrary to s 317 of the Criminal Code. The second was a charge that on 7 February 2001 at Murdoch the respondent conspired to bring false accusations against the applicant under the Justices Act.

11 No particular offence was alleged to be the subject of the conspiracy. It is therefore unclear whether the conspiracy charge was to commit an indictable offence under s 558(1) of the Criminal Code, or an indictable offence triable summarily under s 559, or a simple offence under s 560 of the Criminal Code. It seems it was probably one of the first two.

12 In any event nothing now turns on that because the applicant does not seek leave to present an information in respect of the conspiracy charge for reasons which will become apparent.

13 The respondent is said to have elected trial by jury. The offence created by s 317 of the Criminal Code is triable summarily where the court considers it can be adequately dealt with in that way at the election of the defendant.

14 In the present case therefore it would appear the respondent did not elect to be dealt with summarily. I assume the same occurred in respect of the conspiracy charge. As a consequence the complaint was dealt with in accordance with Div 2 of Pt V of the Justices Act as proceedings of charges of indictable offences.

15 There was a preliminary hearing before a Magistrate in the Perth Court of Petty Sessions on 26 April 2002. In support of the present application the applicant has filed an affidavit sworn by him on 13 June 2002. It is quite brief and I shall set it out in full. He deposes as follows:

"(1) On 26 April 2002 I attended the Court of Petty Sessions (held in Perth) for a Preliminary Hearing in a private prosecution of the Defendant for Assault Occasioning Bodily Harm and for Conspiracy to bring False Accusation under section 317 of the Criminal Code (1913) respectively.

(2) His Worship Magistrate Cicchini SM found that the Defendant had a case to answer under sec 317 and for that offence he was remanded to a trial by jury in the District Court.

(3) The matter could be summarised in my 'Statement of Material Facts' as filed in the Court of Petty Sessions and shown herein as Annexure 'A' as well as a security camera video recording of the entire incident.

(4) Attached hereto as Annexure 'B' is a transcript from the Court of Petty Sessions of the judgment handed down by his Worship Magistrate Cicchini.

(5) The chances of this matter to succeed and the Defendant be found guilty is almost 100% due to the video evidence of the attack, and the poor credibility of the defendant in giving contradictory false statement under oath.

(6) Accordingly, I humbly hereby request that the Supreme Court grant me leave to proceed with the private prosecution under sec 720 of the Criminal Code (1913)."

16 Annexure "A" to the applicant's affidavit is headed "Statement of Material Facts". It is dated 9 October 2001. It recites:

"At about 9.15 am on Sunday 3 December the complainant was standing inside his driveway by his front gate at 8 Tully Court seeing his wife off on the way to the church. He saw the accused outside his house and could hear him shouting out abusively to the complainant. The accused then started to move towards the complainant. The complainant took out a small can of pepper spray from his pocket and warned the accused not to come any closer, if so the complainant would spray him. The accused stopped and momentarily stepped back but then suddenly charged at the complainant and the complainant sprayed the accused with the pepper spray to defend himself.

The accused then said, 'I'm going to kill you, you son of a bitch' and grabbed the complainant around the throat with both hands and punched the complainant in the right shoulder resulting in the complainant falling to the ground. The accused fell on top of the complainant still maintaining a grasp on the complainant.

Throughout the day and the weeks to follow the complainant suffered aches and pains and psychological trauma from the assault, especially around the throat and shoulders, and had to take pain relief medication and bed rest to recouperate (sic). The next day on 4 December 2000 the complainant attended his local doctor who confirmed the injuries sustained and advised further pain relief medication and rest until the symptons (sic) had passed."

17 The transcript of the committal proceedings contains only the reasons for decision of the learned Magistrate Mr Cicchini SM. There is no transcript of the evidence before his Worship nor has any other evidentiary material been provided to me in support of the application.

18 His Worship noted the evidence before him had come from three witnesses, they being the applicant himself, the applicant's wife and the Rev Dominic Spinosi. As to the conspiracy charge, the learned Magistrate noted that it failed to particularise the nature of the alleged conspiracy. He said the only evidence about it was from the Rev Spinosi to the effect that the respondent had fabricated allegations against the applicant with the assistance of or furthered by police. The police officers allegedly involved had not been identified. There was no evidence of conspiracy, nor going to any other party to it. His Worship held there was no case to answer in respect of that charge.

19 As to the assault charge, the applicant's evidence was that he was attacked by the respondent, as a consequence of which he suffered a scratch to his arm. His Worship said at page 4 of the transcript:

"How that came about, that is, the scratch to the arm, has not been fully explained by Dr Michael, but it is implicit from the evidence that he gave that the scratch was received in consequence of the defendant's actions in assaulting him. Now, as I said, the only evidence that I have in that regard is Dr Michael's evidence under oath in relation to the matter. The question becomes; is that sufficient? In my view, particularly having regard to the nature of the proceedings, for my purposes that is sufficient, because if a jury were to accept that occurred, then that could constitute bodily harm and I say that because scratching implies damage to the skin. I can't see how you could otherwise be scratched."

20 His Worship then referred to the decision of Heenan J in the case of Brown v Blake [2000] WASCA 132 and applied the test as to whether or not a prima facie case had been made out in accordance with the decision of the Full Court in Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482; 103 A Crim R 312.

21 As I have mentioned, on the question of what constitutes bodily harm for the purposes of s 317 of the Criminal Code, the learned Magistrate referred to Brown v Blake and concluded that on the evidence, as Dr Michael had testified that he had suffered a scratch, that implied a breaking of the skin and for those reasons his Worship held there was a case to answer in respect of the charge under s 317 of the Criminal Code.

22 He committed the respondent to the District Court at Perth for trial in the sittings commencing 15 July 2002 and ordered that the respondent be released.

23 There is no evidence before me of anything since 26 April 2002.

24 It may be assumed that following the order of committal the complaint and all relevant materials were transmitted to the Director of Public Prosecutions in accordance with s 127 of the Justices Act and s 11 and s 20 of the Director of Public Prosecutions Act 1991 (WA). There having been a committal for trial, the Director of Public Prosecutions ("the Director") had a duty to decide whether or not to present an indictment (s 578 and s 581 of the Criminal Code and s 20 of the Director of Public Prosecutions Act. There is no evidence before me as to whether or not the Director intends to proceed, although Dr Michael has indicated to me this morning from the bar table that the Director apparently intends to (as he put it) not interfere.

25 Presumably, if the Director were to proceed with the prosecution of the respondent on indictment in the District Court, the applicant, his wife and the Rev Spinosi would be called as witnesses by the Crown. In that circumstance the applicant would not have any potential liability for costs if the prosecution failed. He would have such a potential liability on a private prosecution (see s 721 and s 728 of the Criminal Code.

26 If the Director had decided not to proceed and the applicant wished to, he could then have applied for leave under s 720 of the Criminal Code. That, it seems to me, would have been the appropriate time. Nonetheless, Dr Michael has made the application and I shall deal with it and shall do so on the assumption that the Director does not intend to proceed.

27 The authorities make it clear that the process of private prosecution on indictment is to be regarded as one to be permitted only in exceptional circumstances, going beyond the particular interests of the prosecutor (Ex parte Marsh [1966] Qd R 357; Gouldham v Sharrett [1966] WAR 129; Walsh v Jewell, unreported; SCt of WA; Library No 980580; 2 October 1998, and M v JMP and RP (1999) 108 A Crim R 129.

28 Those cases established a number of considerations against which an application for leave should be considered. I do not take them to be exhaustive and nor will all of them have application to every case.

29 Dr Michael mentioned from the bar table this morning that this proposed prosecution arises out of a neighbourhood dispute which has now been going for some 5-1/2 years. He said he did request the Director to withdraw a charge against him, that apparently being a charge of assault causing bodily harm to Mr Maughan arising out of the same incident and apparently based on Dr Michael's use of the pepper spray, on the basis that Dr Michael would then withdraw the charge against Mr Maughan. He said that given the Director's position that he apparently declines to interfere in the matter, it is, as he put it, sad, that the matter is continuing but it is necessary for his charge against Mr Maughan to proceed so that self-defence can be raised.

30 An offence under s 317 of the Criminal Code is a serious offence. The maximum penalty on indictment for an offence committed prior to 24 December 2001 is 5 years' imprisonment. In my view, it is one in respect of which the decision to prosecute should be left to the Director who would have regard to all relevant considerations properly bearing upon it as set out in his Statement of Prosecution Policy and Guidelines. They would include not only whether there is a prima facie case but also whether or not the prosecution is one which should proceed having regard to the nature of the case, the circumstances and what the public interest requires.

31 I accept that the decision of the Director is not of itself determinative of an application for leave but it is, nonetheless, a matter of great weight (see Gouldham v Sharrett (supra) per Wolff CJ at 136).

32 The learned Magistrate has already held the admissible evidence in support of the prosecution is sufficient to found a prima facie case. I am in no position to make an assessment of that because the evidence itself is not before me. For present purposes I am prepared to rely upon the learned Magistrate's assessment but as I have already observed, whether or not there is a prima facie case is only one of a number of considerations.

33 There has been a committal hearing and the respondent has been committed for trial in the District Court. To that extent the ordinary processes have been followed even though by way of a private complaint by the applicant.

34 The next consideration identified in the authorities is whether or not the Director has entered a nolle prosequi or intimated he will not present an indictment. I have already said I am assuming he does not intend to proceed since otherwise there would be no need for this application. There does not seem to me to be any feature of this case which would be capable of carrying sufficient countervailing weight to conclude the prosecution should still continue notwithstanding a decision by the Director that it should not.

35 Whilst there is nothing to suggest the applicant has any discreditable motive in bringing the prosecution such as would be likely to impair the administration of justice on that account, there is an aspect of the matter, according to what he has put to me today, which is of some concern. Furthermore, it is clear even from the limited material before me that the alleged offence arose out of some deeply felt animosity between neighbours and that feelings are no doubt still running high.

36 In those circumstances, for the applicant to be permitted to personally conduct a prosecution of his neighbour for such a serious offence before a District Court Judge and jury seems to me to have a very real potential for impairing the administration of justice, particularly where by virtue of the order of committal the matter has already come within the objective purview of the proper officer of the State to make the determination whether or not the prosecution should proceed.

37 I think the reasons expressed to me today by Dr Michael for seeking to continue this prosecution strongly reinforce the conclusion that it is, on the face of it, an inappropriate matter to be left to a private prosecution. Likewise and for the same reasons, I do not consider that the applicant will suffer a grave injustice if leave is refused.

38 Further, whatever decision the Director may have made or may make about the criminal prosecution, the applicant has his civil remedy available to him should he wish to pursue it. More particularly, if, as he says, his purpose is to ensure the issue of self-defence in his use of the pepper spray is raised on the charge against him by Mr Maughan, apparently instigated by the police, that would properly be done by way of a defence in those proceedings. The charge he wishes to pursue would seem to be intended, therefore, for a collateral purpose.

39 For the foregoing reasons the applicant has not satisfied me that leave should be granted for him to present information against the respondent for the offence of assault occasioning bodily harm contrary to s 317 of the Criminal Code and the application will accordingly be dismissed.

Procedure Rules 2000

Public Prosecutions Act 1991

Re Section 720 Criminal Code (WA); Ex Parte Michael [2002] WASC 208 (7 August 2002)

At a glance

Court

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Before

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Judgment (50 paragraphs)

Re Section 720 Criminal Code (WA); Ex Parte Michael [2002] WASC 208 (7 August 2002)

Legislation Cited (3)

Cases Cited (1)