COWDERY v O'Meara [2002] NSWSC 927

New South Wales Supreme Court

CITATION : COWDERY v O'Meara [2002] NSWSC 927 FILE NUMBER(S) : SC 10853/02 HEARING DATE(S) : 22/4/02 JUDGMENT DATE : 4 October 2002

PARTIES : Nicholas Richard COWDERY - Plaintiff Kenneth Ian O'Meara - Defendant JUDGMENT OF : Dowd J

COUNSEL : Mr P Johnson SC and Mr A Naylor - Plaintiff Defendant: In person SOLICITORS : Mr I V Knight Crown Solicitor - Plaintiff CATCHWORDS : Summons against DPP - Performance of statutory function not removable - Abuse of process - Stay Crimes Act 1900 (NSW) LEGISLATION CITED : Director of Public Prosecutions Act 1986 (NSW) Justices Act 1902 (NSW) Supreme Court Act 1970 (NSW) The Queen v Rogerson (1992) 174 CLR 268 John L Pty Limited v Attorney General for the State of NSW (1987) 163 CLR 508 Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 CASES CITED : Grassby v The Queen (1999) 168 CLR 1 Williams v Spautz (1992) 174 CLR 509 R V Smith [1995] 1 VR 10 Price v Ferris (1994) 34 NSWLR 704 Maxwell v The Queen (1996) 184 CLR 501 DECISION : (1) That the information laid by the first defendant be stayed (2) That the first defendant pay the plaintiff's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

4 October 2002 10853/02 Nicholas Richard COWDERY v Kenneth Ian O'MEARA JUDGMENT 1 DOWD J: By way of summons the plaintiff sought a declaration against Kenneth Ian O'Meara, the first defendant, that the information laid by the first defendant at Raymond Terrace Local Court on 29 November 2001 which alleged that the plaintiff, on or about 17 July 2001, at Raymond Terrace in the State of New South Wales did contravene the provisions of s319 of the Crimes Act 1900 ("the Act"), by taking over the private prosecutions commenced by Kenneth Ian O'Meara and declining to proceed with the prosecutions of Rodney John Grant, Rodney Leigh Brown, Stephen Graham McTackett and Marianne Louise Rogers (AKA Randall), despite substantial evidence produced as to their guilt, thereby obstructing and/or defeating the course of justice contrary to s319 of the Act; and as such, is an abuse of process. 2 The summons sought an order that the information be permanently stayed and alternatively an order that the summons issued upon the information be quashed and further, an order restraining the Clerk of the Court, Downing Centre Local Court, the second defendant, from causing the information to be listed for any purpose referred to in Div1 of Pt 4 of the Justices Act 1902 apart from the adjournment of the information pending the determination of the present summons by this Court. 3 The second defendant has filed a submitting appearance save as to costs. 4 There was proved by affidavit before me the facts as set out below. 5 The first defendant laid the information against the plaintiff alleging that he had committed an offence under s319 of the Act as alleged in paragraph 1 above. The proceedings were stood over to the Downing Street Local Court. The first defendant was ordered to serve a brief of evidence by 11 March 2002. 6 No materials have been served by the first defendant other than a written statement made by the first defendant on 9 January 2002 and a notice under s48D of the Justices Act 1902 that the plaintiff may inspect certain documents contained in boxes at the plaintiff's home at Heatherbrae. 7 The purported prosecution of the plaintiff arises from the plaintiff having exercised his statutory discretion under s9 of the Director of Public Prosecutions Act 1986 (NSW) ("the DPP Act") and taken over and terminated four private prosecutions brought by the first defendant against Grant, Brown, McTackett and Rogers identified above. Informations had been laid against each of these people alleging various offences under the Act. By letter, under the DPP Act, the plaintiff required the Clerk of the Local Court at Raymond Terrace, where the original information was laid, to furnish information connected with the information against him as the plaintiff was considering taking over the prosecutions. The plaintiff was so advised on the same day. 8 On 7 June the first defendant wrote to the plaintiff asserting that the first defendant had been arrested at Tahmoor on 15 February 1997 and charged with certain drug and firearm offences and that when he had appeared at court between February 1997 and September 1999 he had made it clear that he had evidence that would prove that he was not at Tahmoor at the relevant time, that evidence being statements from persons at Port Stephens who stated that he was actually at Port Stephens and a tape recording of police attending the property on 15 February 1997 saying words to the effect of "shoot the bastard and plant a gun on him". 9 The letter went on to say that on 23 September 1999 the four persons referred to as the defendants above executed a search warrant and carried off certain documents and computer programmes not covered by the warrant. The first defendant said that he had made a complaint to the New South Wales Police about the theft of the documents not covered by the warrant but no action was taken. 10 The first defendant asserted in his letter that in March 2001 Marianne Rogers returned copies of the bulk of the documents to the first defendant and copies of some of the files downloaded from the hard drive on his home computers and that he then laid the private prosecutions. 11 On 9 July 2001 the plaintiff advised the first defendant that pursuant to s10 of the DPP Act he had taken over the four prosecutions and that he had declined to proceed further with them. Facts of the original criminal proceedings 12 On 15 February 1997 a police helicopter was involved in the search of other premises when the crew sighted a large number of cannabis plants growing on the first defendant's property. The first defendant was observed standing on the verandah of his home when police attended from the ground. The defendant evaded police and was located hiding in the roof of the premises. A short time later he was arrested and conveyed to Picton police station where he was charged. A search warrant was obtained for the first defendant's premises at 71 Greenacre Drive, Tahmoor and the premises was searched and a further one hundred and twenty nine cannabis plants were located in a large shed being cultivated hydroponically. The shed was equipped with elaborate equipment with rotating lights, air ventilations, the shed's walls being lined with foil. 13 In a search of the first defendant's motor vehicle, parked in his garage, a Jennings .22 calibre pistol and magazine was located in the boot of the vehicle with numerous rounds of ammunition, the pistol was loaded and had a round in the breech. In the first defendant's bedroom a pump action shotgun was located with numerous rounds of ammunition. The shotgun was fully loaded with a round in the breech. The shotgun had been stolen from a break-in in 1993. Some 249.7 grams of cannabis leaf were found inside a greyhound kennel, the total number of cannabis plants located being five hundred and ninety eight. 14 On 25 February 1997 the first defendant was spoken to by police and charged at Picton concerning the cannabis plants, firearm offences, cannabis leaf and the goods in custody. On 29 August 1997 an indictment was presented alleging that the first defendant cultivated prohibited plants not less than the commercial quantity and a further count that he did possess a .22 calibre Jennings self loading pistol without having a licence or permit and that he possessed a 12 gauge shotgun without being licensed to do so. 15 There then ensued a series of interlocutory applications by the first defendant in the District Court where the proceedings were to be heard. A Supreme Court summons was then brought by the first defendant against various defendants, including the plaintiff. An application was then made to the Federal Court and the private prosecution of the plaintiff by the first defendant, the subject of these proceedings. The proceedings in the Supreme Court ultimately proceeded to the High Court where an application to remove the proceedings to that court was refused and the appeal deemed abandoned by the effect of the High Court rules.