Commissioner of Police v Timothy King [2026] QMC 13

MAGISTRATES COURTS OF QUEENSLAND CITATION: Commissioner of Police v. Timothy King [2026] QMC 13 PARTIES: COMMISIONER OF POLICE (Complainant/Respondent) v TIMOTHY KING (Defendant/Applicant) FILE NO/S: MAG-00165324/25(1) PROCEEDING: Application for a stay of proceedings ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 1 July 2026 DELIVERED AT: Brisbane HEARING DATE/S: 23 April 2026 and 29 May 2026 MAGISTRATE: Simpson ORDER: The application for a stay of proceedings is refused COUNSEL: Mr Theed (solicitor) for the Complainant/Respondent Mr Bell (solicitor) for the Defendant/Applicant SOLICITORS: Queensland Police Prosecution Corps for the Complainant/Respondent Bell Dore Lawyers for the Defendant/Applicant CATCHWORDS: CRIMINAL LAW – SUMMARY PROCEEDING - PROCEDURE – ABUSE OF PROCESS – STAY OF PROCEEDINGS – CASE CONFERENCING - Where a charge was discontinued by the prosecution after case conferencing- where the defendant was recharged soon thereafter with the same offence – whether the recharging amounts to an abuse of the court’s processes - whether a stay of proceedings should be granted CASES: Williamson v. Trainor [1992] 2 Qd R 572 Jago v. District Court of New South Wales (1989) 168 CLR 23 -- 1 of 7 -- Walton v Gardiner (1993) 177 CLR 378 Broome v Chenoweth (1946) 73 CLR 583 Ross v Commissioner of Police [2019] QCA 96 LEGISLATION: Magistrates Court Practice Direction No. 9 of 2010 Criminal Jurisdiction Reform Administrative Arrangement 2010 [1] Mr King seeks a stay of proceedings related to a charge against him pursuant to s.205A of the Criminal Code (Qld) – Contravening an order about information necessary to access information stored electronically (“the charged offence”). There is no dispute between the parties that this court, as part of controlling the proceedings, has the power to grant a stay of the proceedings. See Ambrose J in Williamson v. Trainor [1992] 2 Qd R 572 at p 580. Background [2] Some time in 2024, Mr King’s mobile telephones were seized by police. On 20 June 2024, a police officer applied to a magistrate for an order under s.154A of the Police Powers and Responsibilities Act 2000 requiring Mr King to, amongst other things, give a police officer access information for the devices seized. This is most commonly described as giving police your PIN for the telephone/s. The magistrate granted an order in the terms sought by police. [3] The charge alleges that on that same day, Mr King after being served with a copy of the magistrate’s order did not comply with it. Mr King was charged with this offence that day (the original charge) and he engaged solicitors to represent him. The matter was listed for hearing in the Brisbane Magistrates Court on 8 September 2025. Case Conferencing of the original charge [4] In late August 2025, prior to the hearing, the original charge was the subject of case conferencing. As part of that process, the solicitor for Mr King, pointed to what he says were deficiencies and incurable errors in the prosecution case. [5] On 3 September 2025 the original charge was discontinued by the prosecution after it offered no evidence to the court. -- 2 of 7 -- Subsequent conduct of the matter [6] On 18 September 2025 Mr King was recharged with the same offence, arising from the same facts (the current charge). Nothing about the law or evidence had changed since the previous charge had been discontinued. [7] This application is pursued on the basis that the recharging of Mr King following a previous discontinuance amounts to an abuse of the court’s processes. If I accept that proposition then the prosecution of the current charge should be permanently stayed. What is an abuse of process and what is the test for this type of application? [8] An abuse of process will arise when there is a fundamental defect which goes to the heart of the prosecution “of such a nature that nothing that the trial judge can do in the conduct of the trial can relive against its unfair consequences” See Mason CJ Jago v. District Court of New South Wales (1989) 168 CLR 23 at p 34. [9] In an earlier passage Mason CJ at p 30, quotes in agreement from Richardson J in Moevao . Department of Labour [1980] 1 NZLR 464 at p 481 "It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice." And at p 482 "The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this -- 3 of 7 -- way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court." [10] The majority in Walton v Gardiner (1993) 177 CLR 378 at pp 395-396 cited Jago with approval: …the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. [11] The summary of the above is that this type of application will only succeed in exceptional circumstances after balancing the various factors. The factors as I see them in this matter are: a. confidence in the case conferencing process; b. whether a decision to discontinue a charge is a bar to charging a person again; c. the nature and seriousness of the charge; d. whether the re-charging of Mr King with the same charge creates an unfairness of such a nature that nothing can be done to overcome its consequences. Confidence in the case conference process [12] I presume case conferencing of the original charge was done in the spirit of Magistrates Court Practice Direction No. 9 of 2010. [13] That practice direction gives effect to the Criminal Jurisdiction Reform Administrative Arrangement (made pursuant to S 706A of the Criminal Code)(the Moynihan Reforms) by encouraging the prosecution and defence to enter into a case -- 4 of 7 -- conference in each case. [14] In paragraph 3 of the practice direction: “Case Conference” means negotiations, (including discussions as to whether or not negotiations will take place) between prosecutions and defence to discuss issues in dispute in order to bring about an early resolution to proceedings, which negotiations may result in, but are not limited to the amendment, substitution or withdrawal of charges and/or the agreement as to a factual basis of sentence and submissions on the sentence range. [15] Since the Moynihan Reforms this practice has been extensively used for the proper disposition of charges in a very busy court of summary jurisdiction. It is essential to good case management and in my view must be used in the spirit of justice and fairness. It signalled a charge from former times when the parties would often not speak to each other or negotiate. Defence counsel and solicitors would often keep their cards close to their chests and hope that the prosecution case fails after a trial. [16] Noting the above, case conferencing is not compulsory and remains a forensic judgment by the defendant’s lawyers. They must ask themselves: * What if my negotiations lead to the prosecution fixing their deficiency? * What if my negotiations are successful and saves my client the expense, stress and risks associated with a hearing? [17] In this matter, Mr Bell entered into negotiations with the prosecution with the second proposition, no doubt, in mind. As I noted above, he was successful enough to have a prosecutor accept his submission and withdraw the original charge. A hearing and it’s attendant expense was avoided. [18] Having accepted the submission, Mr Bell says in effect that the prosecution can not change their mind and start the prosecution again. He says that would undermine public confidence in the administration of justice. It is an argument with some force on it’s face but must be held in balance with the other factors I am considering. -- 5 of 7 -- Whether a decision to discontinue a charge is a bar to charging a person again [21] The short answer is no. Dixon J in Broome v Chenoweth (1946) 73 CLR 583 at pp598- 599 found that a discontinuance by a prosecutor of a charge before a magistrate without a determination on the merits or the calling of evidence did not bar a subsequent prosecution. I adopt that view in the circumstances of this matter. The nature and seriousness of the charge [22] Section 205A of the Criminal Code (Qld) provides: Contravening order about device information from digital device (1) A person who, without reasonable excuse, contravenes— (a) an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1); or (b) an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2); commits a crime. Maximum penalty—5 years imprisonment. [23] This is type of offence is viewed by the courts as a very serious breach of a court order that is used as an important and major investigative tool to combat serious criminal activity. As noted in Ross v Commissioner of Police [2019] QCA 96 those convicted of such an offence often receive terms of imprisonment. [24] The charge should be regarded as a serious offence. There would be legitimate public interest in the disposition of such a charge and in the conviction of those guilty of this crime. Whether the re-charging creates an unfairness of such a nature that nothing can be done to overcome its consequences [25] Was there any detriment or unfairness to Mr King by having original charges discontinued as they were? There wasn’t any costs argument or order foregone as the hearing of the matter never eventuated. In fact if anything it saved Mr King the expense of a hearing. So this of itself does not create an unfairness. [26] Has an unfairness to Mr King been created by the recharging? The starting point is -- 6 of 7 -- that the offering of no evidence does not provide a bar to further prosecution. The charges could always be brought again. [27] But what about holding the prosecution to their decision to discontinue? Should a deviation from that be deemed unfair? In my view, the restarting of the prosecution when nothing has changed in the evidence seems counter to the theme of negotiation encouraged by case conferencing practice direction. However, the parties are at liberty not to engage in case conferencing if they so choose. It is a forensic choice about what is discussed and what is hoped as a result of those discussions. There was always a risk in the case conferencing process in this matter. The prosecution might not have accepted the defence theory that the case was fatally flawed. They may have simply noted it, prepared a counter legal argument, and proceeded to a hearing. [28] So whilst Mr King is entitled to feel that the recharging of him was not in the spirit of cricket, it does not in my view go so far as to undermine the public’s confidence in the administration of justice. He has not lost any advantage in the law or evidence. The case for the prosecution has not improved. He retains his right to argue the merits of the case before a magistrate. He has not lost any right to apply for costs should that arise. There is no unfairness as described by Mason CJ in Jago that requires intervention. Disposition [29] Bringing my conclusions on potential unfairness to Mr King together with the undoubted seriousness of the charge this is not a case where a stay of the prosecution for an abuse of process is warranted. The application is refused. -- 7 of 7 --