Citation: Simpson v Wilson & Anor [2001] NSWSC 982
Court: Supreme Court of New South Wales, Common Law Division
Date: 2 November 2001
Judge(s): Ireland AJ
Background
The plaintiff was charged with two counts of assault occasioning actual bodily harm (under s 59 of the Crimes Act 1900) following a physical confrontation at a hotel in Coonamble in March 2000. Both charges were dismissed after a defended hearing in the Local Court in June 2000. On the same day as those dismissals, the prosecution laid fresh charges of common assault (under s 61) in relation to the same incident, and shortly afterwards laid two further charges alleging breach of an Apprehended Domestic Violence Order (ADVO).
The plaintiff sought to have all subsequent proceedings permanently stayed. He argued before the Local Court Magistrate that the fresh charges constituted an abuse of process, and also attempted to invoke the doctrine of autrefois acquit (a plea in bar preventing a person from being tried again for an offence of which they have already been acquitted). The Magistrate rejected those submissions and ordered the matters to proceed to a hearing on the merits.
The plaintiff then appealed to the Supreme Court by way of summons under s 104 of the Justices Act 1902, seeking orders quashing the Magistrate's rulings and permanently staying the proceedings. The autrefois acquit ground was abandoned before the Supreme Court hearing commenced.
Legal Issues
- Whether the Magistrate erred in refusing to stay the common assault charge as an abuse of process, following the dismissal of the more serious charge arising from the same facts
- Whether the two ADVO breach charges similarly constituted an abuse of process
- Whether the prosecution's conduct in laying the fresh charges amounted to improper purpose, oppression, or repeated attempts to convict the plaintiff on the same conduct
Decision
Ireland AJ dismissed the summons. On the common assault charge, the Court accepted the prosecution's submission that the offences under s 59 and s 61 of the Crimes Act 1900 are plainly distinct. Assault occasioning actual bodily harm requires proof of actual bodily harm; common assault does not. Prosecuting a lesser charge after the more serious version fails does not, of itself, constitute an abuse of process.
The Court also rejected the plaintiff's argument that he had been subjected to repeated attempts at conviction causing improper anxiety and ordeal. Ireland AJ noted that the common assault charge could have been dealt with immediately after the s 59 dismissals. It was the plaintiff who elected to seek adjournments rather than have the matter resolved then and there. Having made that choice, the plaintiff could not characterise the continuation of those proceedings as "repeated" prosecutorial attempts to convict him.
On the ADVO charges, the Court found there had been no hearing of those matters, no suggestion that the plaintiff would be denied a fair trial, and no improper purpose identifiable in bringing them. The delay in bringing those charges was not itself argued to constitute an abuse of process. Accordingly, no basis for a permanent stay was established on any of the three charges.
Orders Made
- Amended Summons dismissed
- Plaintiff to pay the costs of the second defendant (the Director of Public Prosecutions)
- No order as to costs of the first defendant (the Magistrate, who filed a submitting appearance)
Key Takeaways
- Laying a charge of common assault after the dismissal of a charge of assault occasioning actual bodily harm is not automatically an abuse of process, because the two offences are distinct and the lesser charge does not constitute relitigation of the same matter.
- The doctrine of autrefois acquit does not extend to bar prosecution for a different, lesser offence arising from the same facts; the plaintiff here abandoned that ground before the Supreme Court.
- Where a defendant elects to adjourn proceedings rather than contest a charge immediately after related charges are dismissed, that adjournment weighs against a later claim of being subjected to repeated or oppressive prosecution attempts.
- A permanent stay on abuse of process grounds requires demonstration of improper purpose, real risk of unfair trial, or genuine oppression. The absence of any such element across all three charges was fatal to the plaintiff's application.
- In dismissing the summons, the Supreme Court affirmed the Magistrate's refusal of a stay and confirmed that courts will not lightly intervene to prevent prosecution of properly constituted charges on abuse of process grounds.
Legislation and Cases Referenced
Legislation:
- Justices Act 1902 (NSW), ss 104, 109
- Supreme Court Act 1970 (NSW), s 69
- Director of Public Prosecutions Act 1986 (NSW), ss 9, 10
- Crimes Act 1900 (NSW), ss 59, 61
Cases:
- May v O'Sullivan (1995) 92 CLR 654
- Evans v DPP [2000] NSWSC 1005
- Ex Parte Williams: Re Singleton (1928) 28 SR (NSW) 616
- Henderson v Henderson (1843) 3 Hare 100
- Port Melbourne v Anshun (1981) 147 CLR 598
- Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23
- Connelly v Director of Public Prosecutions [1964] AC 1254
- DPP v Humphrys [1977] AC 1
- Regina v Beedie [1997] 2 Cr App R 167
- Walton v Gardiner (1992 & 1993) 177 CLR 378