New South Wales Supreme Court CITATION : Simpson v Wilson & Anor [2001] NSWSC 982 FILE NUMBER(S) : SC 10657/01 HEARING DATE(S) : 20/08/01, 21/08/01 JUDGMENT DATE : 2 November 2001 Shane Simpson - Plaintiff PARTIES : Bryan Wilson - 1st defendant Director Public Prosecutions - 2nd defendant [pursuant to s 9 Director of Public Prosecutions Act, 1986] JUDGMENT OF : Ireland AJ at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT U8989 FILE NUMBER(S) : LOWER COURT B. Wilson, Local Court Magistrate JUDICIAL OFFICER : COUNSEL : Ms April Francis - Plaintiff Mr Mark Marien - Crown SOLICITORS : Ms Sharyn Hall - Western Aboriginal Legal Service - Plaintiff SE O'Connor - Crown CATCHWORDS : Criminal law - appeal from Local Court by way of summons - s 104 Justices Act, 1902. Whether Magistrate in error in refusing stay of proceedings - whether charge of assault and breaches of ADVO following dismissal of charge of assault occasioning actual bodily harm is an abuse of process. Justices Act, 1902 LEGISLATION CITED : Supreme Court Act, 1970 (NSW) Director of Public Prosecutions Act, 1986 Crimes Act, 1900 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 at 115; 67 ER 313 at 319 CASES CITED : 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 Prosecutors (1964) AC 1254 DPP v Humphrys (1977) AC 1 at 23 Regina v Beedie (1997) 2 Cr App R 167 Walton v Gardiner (1992 & 1993) 177 CLR 378 DECISION : Summons dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION IRELAND AJ Friday, 2 November, 2001 10657/01 - Shane SIMPSON v Bryan WILSON & Anor JUDGMENT 1 HIS HONOUR: By Amended Summons filed 20 August 2001 the plaintiff, Shane Simpson, by way of appeal pursuant to s 104 of the Justices Act, 1902, seeks the following relief:- 2 1. An order pursuant to s 109(a) of the Justices Act, 1902 (NSW) quashing the order of the first defendant made on 8 February 2001 at Coonamble Local Court, namely that the plaintiff is not entitled to raise a plea in bar in the nature of autrefois acquit with respect to the charge that the plaintiff, on 9 March, 2000, at Coonamble in the state of New South Wales did assault Nicholas Harris. 3 2. An order pursuant to s 109(a) of the Justices Act, 1902 (NSW) quashing the order of the first defendant made on 8 February, 2001 at Coonamble Local Court, namely that the charge that the plaintiff, on 9 March 2000 at Coonamble in the state of New South Wales did assault Nicholas Harris did not constitute an abuse of process. 4 3. An order pursuant to s 109(a) of the Justices Act, 1902 (NSW) quashing the order of the first defendant made on 8 February 2001 at Coonamble Local Court, namely that two charges that the plaintiff, on 9 March 2000, at Coonamble in the state of New South Wales did contravene the restrictions of an apprehended violence order, did not constitute an abuse of process. 5 4. An order in the nature of prohibition pursuant to s 69 of the Supreme Court Act, 1970 (NSW) restraining the defendants from proceeding on or in respect of the above charge (sic). 6 5. An order that the proceedings in respect of the above charges be permanently stayed. 7 6. Costs. 8 7. Such other order as this Honourable Court sees fit. 9 At the commencement of the proceedings, Ms Francis of counsel informed the Court that the relief specified in Order 1 above, i.e. an order founded upon autrefois acquit was not pressed. 10 On behalf of the first defendant Mr Bryan Wilson, a Local Court Magistrate, a submitting appearance except as to costs, has been filed. 11 By Notice dated 17 August 2001 filed in Court, the Director of Public Prosecutions, pursuant to s 9 of the Director of Public Prosecutions Act, 1986 has taken over as second defendant the appeal regarding the proceedings against the plaintiff for alleged contravention of restriction in apprehended violence orders pertaining to the victims Margaret Harris and Nicholas Harris. A notice pursuant to s 10 having previously been filed with regard to the assault charge. 12 The facts giving rise to the charges, which are the subject of this appeal, may be summarised as follows:- 13 On the evening of 9 March 2000 at physical confrontation occurred in the toilet of the Club House Hotel at Coonamble involving the plaintiff, Mr William Harris, and his son, Mr Nicholas Harris. 14 On 5 April 2000 the plaintiff appeared at Coonamble Local Court with respect to two informations which alleged assault occasioning actual bodily harm in contravention of s 59 of the Crimes Act, 1900. The alleged victims were Nicholas Harris and his father, William Harris. The prosecution brief was served on the plaintiff. On the plaintiff's application the matters were adjourned to 3 May 2000 for mention. 15 On 3 May 2000 the plaintiff entered pleas of not guilty to both s 59 informations. The matters were adjourned to 6 June 2000 for a defended hearing. 16 On 6 June 2000 the defended hearing with respect to the two s 59 informations commenced before the first defendant. 17 On 7 June 2000 the first defendant dismissed both informations. On that same day the prosecution laid two further informations against the plaintiff for common assault in contravention of s 61 of the Crimes Act, 1900. The alleged victims were Nicholas Harris and his father, William Harris. The information in relation to William Harris was later withdrawn. On the application of the plaintiff, the assault charge relating to Nicholas Harris was adjourned to 4 July 2000 for mention. 18 On 15 June 2000 two informations were laid against the plaintiff each alleging contravention of an Apprehended Domestic Violence Order (ADVO). The "protected person" named in the ADVO was Margaret Anne Harris, the mother of Nicholas Harris. The first alleged contravention being the alleged assault of Nicholas Harris by the plaintiff. The prosecution alleges that perforce of his conduct, the plaintiff intimidated Nicholas Harris being a person having a domestic relationship with the protected person Margaret Anne Harris. The second contravention relates to alleged threats made by the plaintiff directly to Margaret Anne Harris. 19 On 4 July 2000 the two ADVO informations before Coonamble Local Court were adjourned to 8 August, 2000 on the plaintiff's application to allow the defence to put forward submissions in relation to the principle of autrefois acquit. The assault charge was also adjourned to that date. 20 On 8 August 2000 defence submissions were made on behalf of the plaintiff with regard to a plea of autrefois acquit, double jeopardy and res judicata. A permanent stay was also sought with regard to the two ADVO informations. All matters were adjourned to 4 October 2000 for prosecution submissions in reply. 21 On 4 October 2000 the prosecution submissions in reply were made and the matters were adjourned to 22 November for decision of the Court. 22 On 22 November 2000 the Court was unable to sit due to floods. All matters were adjourned to 6 December 2000. 23 On 6 December 2000 the plaintiff's solicitor was unable to attend Court and the matters were adjourned on the plaintiff's application to 2 February 2001. 24 On 2 February 2001 the first defendant delivered his decision rejecting the defence submissions and ordered that all matters proceed to a hearing on the merits at the earliest possible time. 25 It would appear from the transcript of proceedings in the Local Court, Coonamble, that the orders against which the plaintiff seeks relief were made by the first defendant on 2 February 2001 and that the date of 8 February 2001 appearing in orders 1, 2, and 3 of the Amended Summons is incorrect. 26 To the extent that the remedy sought by the plaintiff of a permanent stay as a result of abuse of process may be considered to be an interlocutory order requiring leave of this Court pursuant to s 104(4) of the Justices Act, it is common ground that the issues raised are questions of law and no objection is taken by the defendants to the granting of leave under that section. 27 The plaintiff contends that by virtue of the way in which the hearing of the charge of assault occasioning actual bodily harm against the plaintiff was heard on 6 and 7 June 2000 the subsequent charge against him of common assault and the two summons matters of breach of Apprehended Domestic Violence Orders (ADVO) constitute an abuse of process. 28 Central to the plaintiff's contention is an exchange between the Bench and the Prosecutor following evidence by the two complainants having been given on 6 June 2000 (page 29 line 40) where the following appears:- "BENCH: I note at this stage there is (sic) going to be two further prosecution witnesses. Subject to where they take it, and any submissions made at that stage I note there's no backup charge sergeant. The prosecution are only relying on the two matters before the court. PROSECUTOR: Not at this stage your Worship." 29 This exchange, it is submitted, put the Prosecutor on the clearest notice that there was a distinct possibility that the first defendant would find against him. As I understand the submission, there was an election by the Prosecution to proceed with only the matters before the Court and hence the hearing was conducted on the basis that the Prosecution was not "inviting" the presiding Magistrate to consider a "backup" count of assault in respect of Nicholas Harris. 30 As a consequence, so the submissions runs, the solicitor appearing on behalf of the plaintiff did not call evidence and made a successful May v O'Sullivan (1995) 92 CLR 654 submission. 31 The further submission is made that the presiding Magistrate, in whom was vested the power to orally charge the plaintiff with assault, see Evans v DPP [2000 NSW SC 1005 6.11.2000] and see also Ex Parte Williams: Re Singleton (1928) 28 SR (NSW 616), subject to considerations of procedural fairness, during the course of the proceedings should have done so. 32 The failure of the presiding Magistrate to follow this course, as I understand the submission, offended against the principle of finality of litigation between parties; relied upon are Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319; Port Melbourne v Anshun (1981) 147 CLR 598. 33 The plaintiff further contends that the failure on the part of the presiding Magistrate to follow the course of orally charging the plaintiff with assault at the hearing, constituted an abuse of process. In this regard reliance is placed upon Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23. Cited in support is the following passage from the judgment of Brennan J (as he then was) commencing at p 47:- "An abuse of process occurs when the process of the Court is put in motion for a purpose, which in the eye of the law, it is not intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused's conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him." 34 The plaintiff relies upon Connelly v Director of Public Prosecutions (1964) AC 1254 and the analysis of that authority by Viscount Dilhorne in DPP v Humphrys (1977) AC 1 at 23 where his Lordship said this:- "… in Connelly v Director of Public Prosecutions the House was not concerned with the power of a Court to quash any indictment it thought oppressive or vexatious. It was concerned with the propriety of a second trial on evidence on which the accused had already been tried for another offence." 35 In support of the principle that no man should be punished twice for offences arising out of the same or substantially the same set of facts Ms Francis, on behalf of the plaintiff, makes further reference to the speech of Lord Devlin in Connelly at 1347 where the following passage appears; "I consider it to be within this power for the Court to declare that the prosecutor must as a general rule join in the same indictment charges that "… are founded on the same facts, or form or are a part of a series of offences of the same or a similar character". 36 In this regard I note that the quotation to which his Lordship was making reference is an extract from the rules set out in a schedule to the Indictments Act, 1915 (Eng.) 37 Further reference is made to the speech of Lord Devlin in Connelly at 1360 where the qualification is added:- "But a second trial on the same or similar facts is not always and necessarily oppressive and there may in a particular case be special circumstances which make it just and convenient in that case. The Judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule." 38 In the speech of Lord Reid at 1296, upon which reliance is placed, his Lordship said this:- "So the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer. But in a case where it would have been improper to combine the charges in that way, or where the accused has accepted without demur the prosecutor's failure so to combine the charges, a second indictment is allowable." 39 The plaintiff contends that the authorities mandate the finding of special circumstances in order to justify the procedure adopted in the present case; see Connelly (ante) and see also Regina v Beedie (1997) 2 Cr App R 167, and that this was not done. 40 The plaintiff further contends that in declining to permanently stay further proceedings against the plaintiff as being an abuse of process, the first defendant failed to undertake the weighing process involving a subjective balancing of factors and considerations including fairness to the accused as well as the legitimate public interest in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice. Walton v Gardiner (1992-1993) 177 CLR 378 at 395-396 citing Jago (ante). 41 In oral submissions Ms Francis further submitted that the charge of assault upon Nicholas Harris offends the principle of double jeopardy. This argument was, however, not further developed. 42 The crux of the plaintiff's case is put by Ms Francis as being what she describes as "the abandonment" by the prosecution of further proceedings against the plaintiff during the course of the Local Court hearing. 43 Mr Marien on behalf of the second defendant submits firstly that as a matter of practical reality had the alleged common assault by the plaintiff upon Nicholas Harris been the subject of a backup charge to the s 59 charge of assault occasioning actual bodily harm, the latter charge would necessarily have been dealt with first. Had this order of proceedings not been followed an acquittal on the common assault charge would have attracted a plea in bar of autrefois acquit with respect to the s 59 charge. Further, had there been a finding of guilt on the s 59 charge there would have been no need to proceed on the common assault charge. 44 On the issue of abuse of process in relation to the common assault charge the second defendant submits that the laying and prosecution of this charge is not an attempt to "…litigate anew a case which had already been disposed of by earlier proceedings," in the sense those words are used in Walter v Gardiner (ante) at 393. The offence of common assault and an offence in contravention of s 59 of the Crimes Act 1900 are clearly different, the latter requiring proof of actual bodily harm; and see also Connelly (ante) per Lord Morris at 1304 where his lordship said:- "There is no abuse of process if to a charge which is properly brought before the court and which is framed in an indictment to which no objection can in any way be taken there is no plea such as that of autrefois acquit or convict which can successfully be made." I accept the force of this argument. 45 Insofar as there was delay in bringing the AVDO proceedings, the plaintiff does not assert that delay in the circumstances of this case constitutes an abuse of process. What is asserted by the plaintiff is that the plaintiff has been subjected to "repeated attempts to convict him, the embarrassment of further proceedings, further ordeal compelling him to live in a state of anxiety and as well, prosecutorial conduct enhancing the possibility of conviction." 46 I am unable to accept this submission. The charge of common assault could have been heard and determined on 7 June following delivery of the first defendant's decision on the s 59 charges. The plaintiff elected to seek an adjournment rather than rely upon the evidence then before the court or to call evidence or to relitigate the charge. He was perfectly within his rights to do so but cannot now be heard to say he is being subjected to "repeated" attempts to convict him. 47 As to the AVDO charges these have not been the subject of a hearing. It is not suggested the plaintiff will not receive a fair trial. There is, in my view, no improper purpose which can be ascribed to the bringing of the proposed proceedings. 48 Accordingly for the foregoing reasons the plaintiff is not entitled to the relief sought in the Amended Summons. 49 The Amended Summons is therefore dismissed. The plaintiff is to pay the costs of the second defendant. There will be no order as to the costs of the first defendant. ********** Last Modified: 11/06/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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