Ward v Saleh [2023] QMC 18

Outstaying your welcome

The case Ward v Saleh [2023] QMC 18 involved an application for a strikeout or permanent stay of proceedings in the Proserpine Magistrates Court.

The court permanently stayed a private criminal prosecution initiated by Ms. Ward against the Defendant, a police officer, alleging failure to investigate domestic violence and criminal allegations. The case raised issues regarding the adequacy of the complaint, abuse of process, and the court's jurisdiction to deal with and amend complaints.

Proceedings

The Defendant sought to have the complaint struck out or the proceedings permanently stayed.

As a private prosecutor, Ms. Ward provided a brief of evidence but failed to provide the particulars - despite attempts by the Defendant's legal representatives to clarify, Ms. Ward's responses were deemed inadequate. Further orders were made for better particulars, but the response provided was still said to be insufficient by the Defendant's representatives.

Ms. Ward responded with submissions defending her position. She argued against the need to extensively explain further particulars, considering the Defendant had not entered a plea yet (in most matters of summary jurisdiction, defendants are not required to enter a plea until the charges are read by the Magistrate at the beginning of trial). She expressed concern that accommodating such requests would bog down the court system, especially given the resources available to the Defendant. Ms. Ward emphasised the societal importance of police officers' duty to investigate domestic violence and questioned if the Defendant's requests themselves, amounted to an abuse of court process.

The Defendant requested the following orders:

Under the implied powers of the Court:

• (a) The private complaint should be struck out due to its failure to specify the 'essential factual ingredients' of the charge.
• (b) Alternatively, the proceedings should be permanently stayed on grounds of abuse of process, frivolity, or vexatiousness.
• (c) Alternatively, the proceedings should be dismissed as they were doomed to fail and there was no case to answer based on the evidence provided.
• The defendant also sought costs under section 158 of the Justices Act 1886 (Qld), in line with the Justices Regulation 2014 (Qld), schedule 2.

Abuse of Process

The law regarding what constitutes an abuse of process, frivolousness, or vexatiousness in legal proceedings is relatively settled, however the Court set out the relevant principles as follows:

• The High Court of Australia has established that a proceeding may be deemed an abuse of process if it is unjustifiably oppressive, manifestly unfair, or brings the administration of justice into disrepute.
• The President of the Court of Appeal, in the case of Re Cameron, outlined factors to consider when determining if a proceeding is vexatious. These factors include assessing the reasonableness of the claims, the motives of the litigant, compliance with court procedures, and the use of court processes to circumvent decisions or abuse them.
• In the case of P v H, the Court discussed circumstances indicating that a private complaint may be an abuse of process or frivolous or vexatious. These circumstances include if the complaint is destined to fail, if the prosecution is conducted in an abusive or frivolous manner, if it lacks a proper purpose, if it is hopeless and lacks prospects of success, or if it will not be fairly conducted.
• The sincerity and belief of a private prosecutor in the correctness of their cause do not prevent a prosecution from being considered an abuse of process or vexatious

Regarding the implied powers of the Magistrates Court, the Court confirmed the following:

• The Magistrates Court of Queensland has been recognised to possess implied powers necessary for effective exercise of its jurisdiction. These include regulating procedures to ensure fairness and preventing abuse of process.
• Decisions such as Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors have affirmed that the Magistrates Court has implied powers, such as the power to strike out non-compliant complaints, to ensure fairness in trial procedures and prevent abuse of process.
• These implied powers enable the Magistrates Court to determine issues like whether a prosecution is time-barred, whether a complaint should be dismissed on a no-case submission, and to determine preliminary questions of law.
• The High Court, in cases like Jago v District Court (NSW), has emphasised that delay alone does not justify permanently staying criminal proceedings. Instead, a permanent stay may be warranted when there is a fundamental defect that cannot be remedied, leading to unfairness.
• In Pelechowski v The Registrar, Court of Appeal (NSW), the High Court clarified the implied powers of inferior courts, stating that these courts possess implied powers reasonably required or legally ancillary to their jurisdiction as specified in legislation.

The Defendant's application for strike out, permanent stay, or dismissal of the complaint was based on three alternative grounds. Firstly, defence Counsel argued that the complainant failed to particularise the essential factual ingredients of the alleged offence. Secondly, Counsel contended that the complainant did not sufficiently particularised the charge itself. Finally, Counsel asserted that the complaint is doomed to fail.

The Court upheld the Defendant's argument that the Complainant had failed to particularise the duty alleged to have been breached, emphasising the importance of identifying the specific duty. This duty is intrinsic to the criminality of the alleged act or omission. Despite multiple opportunities and various submissions made by the complainant, the duty was not properly particularised. This lack of specificity deprived the Court of its ability to determine whether the alleged offence occurred and hindered the Defendant's ability to defend himself.

Moreover, the deficiency in specifying the alleged duty was compounded by the allegation regarding the adequacy of the Defendant's actions. Without a clear identification of the duty and the standard against which the Defendant's actions were to be assessed, the Court could not properly adjudicate the matter.

The Court found that the complainant's failure to specify the duty alleged to have been breached rendered the complaint deficient and incapable of being properly adjudicated.

The issue of whether the Complainant has sufficiently particularised the charge is closely linked to the question of whether the essential factual ingredients have been adequately specified.

The Defendant argued that the Complainant failed to provide sufficient particulars in several key areas, including:

• Electing which of the two alleged omissions in investigations to proceed with in order to demonstrate a single identifiable transaction meeting the description of the charged offence.
• Identifying the specific source and nature of the duty alleged to have been breached by the Defendant.
• Describing the nature and requirements of the duty, including the alleged adequacy standard derived from it.
• Stating what should have been done to achieve adequacy, and what wasn’t done, thereby failing the standard.
• Explaining why and how the Defendant’s alleged omissions breached the duty.
• Justifying why the alleged omission is said to be ‘without lawful excuse.’

Despite the Court's orders to particularise the charge, the Complainant failed to do so adequately. This failure deprived the Defendant of procedural fairness and the ability to properly prepare for trial.

The Court agreed that the prosecution's case could not succeed as it could not exclude other reasonable hypotheses. Therefore, the Court found that the Defendant had no case to answer, and the complaint was foredoomed to fail. Based on the analysis provided, the complaint was deemed not amenable to amendment, as the Complainant failed to adequately specify the essential factual ingredients of the charge.

Considering these factors, ordering an amendment of the complaint would not have ensured fair proceedings. Furthermore, the Court found that the proceeding constituted an abuse of process, as it lacked essential particulars, was foredoomed to fail, and was not likely to be fairly conducted. Therefore, in the interests of justice, the Court exercised its implied power to permanently stay the proceeding. This decision prevented the abuse of the Court's processes and ensured fairness to the Defendant.

Conclusion

Whilst private prosecutions are a rarity, the principles in this judgment are equally applicable across all summary prosecutions. Ward v Saleh is timely reminder of the ability of magistrates to use their implied powers to prevent an abuse of process, and of the significant power of the Court in summary prosecutions to amend complaints, tempered against whether permitting such amendment constitutes an injustice.

Cosmo Cater

Stay of Proceedings - Suggested Reading

Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130

Jago v District Court (NSW) (1989) 168 CLR 23

Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435

Power v Heyward [2007] 2 Qd.R 6