It is an understatement to say that it can be a shock to find that, what starts out as an employment or business dispute, finds its way into police involvement and having to front a court on criminal charges. Often, to gain leverage in a dispute, threats are made to refer the matter to police. Sometimes the threat is carried through.
Take the example of a recent case where our client was charged with fraud in a commercial transaction gone sour. The client originally was in an employment and business dispute over $30,000 which was deposited into an account controlled by the client to pay certain anticipated expenses. At the same time as the client was pressing claims over the employment issue, the police became involved in response to what really was a commercial dispute.
The effect for our client was to become embroiled in defending a criminal case, putting on hold dealing with the commercial issues.
The case raised some interesting and difficult legal issues. One was the intersection of civil and criminal proceedings. Would it have been adverse to the client's defence of the fraud charge to continue to pursue civil legal remedies over the commercial dispute? Could the client legitimately delay the civil claims until the fraud charge was resolved? Would the client have to effectively abandon the civil claims in order to avoid prejudicing the defence of the fraud charge?
It also raised the issue of whether the client should give a police interview. The client was advised not to do so and the result proved that this was the right advice.
Finally, there was the important decision on how the committal proceeding should be run after the client was charged.
Committal hearings are important preliminary hearings in which the prosecution case is tested to ensure that there is sufficient evidence to take the serious step of having a matter heard by a Judge and jury. The test is that there is sufficient evidence that a reasonable jury might convict the defendant of the charge - in this case, of fraud.
The decision to conduct a vigorous contest at the committal was justified. The prosecution case was thoroughly tested and the happy result for the client was that the Magistrate agreed that the prosecution could not satisfy the test. The charges were dismissed.
The lessons of this case are; great care is needed to negotiate handling civil claims where civil employment and commercial disputes turn into criminal charges; participating in a record of interview is often of little benefit because the laws of evidence favour the use of the interview against the person but make it of limited use to the defence; and finally, and very importantly, committal proceedings are a vital mechanism for protecting people from the expense and trauma of a full criminal trial as they allow weak prosecution cases to be sifted out.
But there is a footnote of warning on committals. The state government will be introducing legislation which will seriously undermine a client's rights to access the committal process . The right to conduct a committal will be seriously restricted as will the ability to call and cross-examine prosecution witnesses to challenge weak prosecution cases . The ability to ask questions will also be curtailed. All in all it is bad news for any client, but for our client on the fraud charge it can only be said that it was fortunate it happened when it did as under the new system a commercial dispute can turn into a much bigger nightmare than our client had to endure.
The proposed legislation is a result of the recent review of the Civil and Criminal Justice System in Queensland. If you want to find out more about the proposals that will take away your rights, the government's policy which will soon become law can be viewed at: http://www.justice.qld.gov.au/files/AboutUs/Queensland_Government_response_to_the_Review_of_the_civil_and_criminal_justice_system_in_Queensland.pdf
