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Supreme Court 11 May 2020

Henskens v Rudd

[2020] NSWSC 533

Public order & justice offences
APPEALS MAGISTRATE APPLIED CORRECT PRINCIPLES FACTUAL FINDINGS OPEN LEAVE REFUSED

Citation: Henskens v Rudd [2020] NSWSC 533
Court: Supreme Court of NSW
Date: 11 May 2020
Judge: Adamson J

Background

The plaintiff sought leave to appeal to the Supreme Court against a Local Court magistrate's refusal to permanently stay criminal proceedings against him. The criminal proceedings (the "image proceedings") charged him with intentionally recording and distributing an intimate image of his then wife without her consent, contrary to the Crimes Act 1900 (NSW).

The plaintiff's case rested on a representation made to his solicitors by a police detective that no charges would be laid against him. That representation was made in the context of separate AVO proceedings arising from his wife's complaints. The detective who gave the assurance had searched the police database but was unaware of allegations relating to the recording and distribution of intimate images, which had been raised in the complainant's own statement.

When the complainant later attended a police station and formally requested charges over the images, new proceedings were commenced. The plaintiff then applied to the Local Court for a permanent stay on the basis that proceeding with those charges amounted to an abuse of process.

Legal Issues

  • Whether the magistrate applied the correct legal principles in refusing the permanent stay, including the principles from Strickland v DPP (Cth)
  • Whether the plaintiff was denied procedural fairness during the stay hearing (including allegations of being "gagged," incorrect evidence-serving sequence, and continuation of interim AVO orders)
  • Whether the magistrate's conduct revealed actual or apprehended bias
  • Whether police tendered evidence dishonestly or failed to tender all relevant material
  • Whether the evidence in the image proceedings was insufficiently strong to justify prosecution
  • Whether promissory estoppel precluded the prosecution from proceeding
  • Whether the double jeopardy principle barred the image proceedings
  • Whether this Court had jurisdiction to entertain an application for a stay of the AVO proceedings

Decision

Jurisdiction over the AVO proceedings: The Court disposed of the plaintiff's attempt to join a seventh defendant and seek a stay of the AVO proceedings. No stay application had been made in those proceedings in the Local Court, and any such appeal would lie to the District Court under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The seventh defendant was removed as a party (at [3]).

Ground 1: Incorrect application of legal principles (Strickland) / procedural fairness / bias: The magistrate had correctly identified and applied the governing principles from Strickland, including the central question of whether allowing the prosecution to proceed would bring the administration of justice into disrepute (at [46]-[48]). The magistrate accepted that an undertaking was given by Detective Cooper but also accepted his unchallenged evidence that he was entirely unaware of the image allegations when he gave it (at [37]). The plaintiff's complaints about being prevented from addressing the court directly were rejected: a represented party must speak through their legal representative (at [51]). The continuation of interim AVO orders without the plaintiff's express agreement was a matter of course requiring no separate application, and no denial of procedural fairness arose (at [53]). The allegation of bias was also rejected, as the magistrate's conduct was consistent with the orderly conduct of a hearing (at [54]).

Ground 2: Dishonest tendering of evidence: No objection was raised at the hearing below to the material tendered by police. The plaintiff, as applicant, bore the obligation to tender his own evidence, and his legal representative could have tendered any further material in reply. This ground was not made out (at [57]).

Grounds 3 and 4: Strength of the prosecution evidence / formulation of charges: The plaintiff's arguments that the formulation of the charges or the decision to serve a court attendance notice (rather than arrest him) indicated prosecutorial doubt were rejected. The formulation of charges is a matter for the prosecutor and is not subject to court review, following Green v The Queen; Quinn v The Queen (at [59]).

Ground 5: Promissory estoppel: There is no authority supporting the application of promissory estoppel (as recognised in Waltons Stores v Maher) to prevent a criminal prosecution. Authorities including Strickland necessarily imply that promissory estoppel principles do not apply in this context (at [61]).

Ground 6: Double jeopardy: The double jeopardy principle prohibits a person being charged twice for the same offence. An AVO application constitutes civil proceedings, not criminal proceedings, under the Civil Procedure Act 2005 (NSW) and related legislation. Accordingly, the AVO proceedings could not engage the double jeopardy principle, as confirmed in Adler v DPP. Additionally, the AVO application made no mention of the image charges in any event (at [62]).

Orders Made

  • Leave to appeal refused
  • Plaintiff to pay the costs of both the sixth and seventh defendants
  • Second further amended summons dismissed
  • Seventh defendant removed as a party to the proceedings

Key Takeaways

  • The Supreme Court confirmed that a magistrate's refusal to permanently stay criminal proceedings will survive a leave application where the magistrate correctly identified the governing test from Strickland, namely whether allowing the prosecution to proceed would bring the administration of justice into disrepute, and made factual findings open on the evidence (at [46]-[48]).

  • A police officer's undertaking that no charges would be laid does not automatically ground a permanent stay where the officer was genuinely unaware of a separate category of alleged offending at the time the undertaking was given; the representor's knowledge and the surrounding circumstances are central to the abuse-of-process analysis (at [37]).

  • Promissory estoppel, as established in civil law by Waltons Stores v Maher, does not apply to prevent criminal prosecution; Strickland necessarily implies this, and no authority supports importing that doctrine into the criminal context (at [61]).

  • An AVO application under the Crimes (Domestic and Personal Violence) Act constitutes civil proceedings, not criminal proceedings, meaning the double jeopardy principle has no application to it (at [62]).

  • A represented party in Local Court proceedings cannot address the court directly over the objection of the magistrate; the party is bound by the conduct of their legal representative, and the magistrate bears no obligation to invite further direct submissions in the absence of a request from counsel, following R v Birks (at [51]).

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), ss 3, 4, Sch 1
- Crimes Act 1900 (NSW), ss 91P, 91Q
- Crimes (Appeal and Review) Act 2001 (NSW), s 53
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 84, 91
- Local Court Act 2007 (NSW), Pt 4

Cases
- Adler v DPP [2004] NSWCCA 352
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
- L v Johnson & the DPP [2003] NSWSC 1246
- R v Birks (1990) 19 NSWLR 677
- Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 93 ALJR 1
- Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; [1988] HCA 7