DPP v Heagney & Anor [1999] NSWSC 303 | Case summary

JUDGMENT 1 HIS HONOUR: In this matter the plaintiff, Director of Public Prosecutions, seeks the following orders: "1. A declaration that the First Defendant erred in law on 23 October 1998 at Burwood Local Court in ordering a permanent stay of seven informations laid by the Plaintiff against the Second Defendant alleging three counts of furious driving causing bodily harm contrary to s 53 of the Crimes Act 1900, one count of dangerous driving contrary to s 4(1) of the Traffic Act 1909, one count of negligent driving contrary to s 4(1) of the Traffic Act 1909, one count of furnishing false particulars contrary to s 8(5) of the Traffic Act 1909 and one count of unlicensed driving contrary to s 6(1)(a) of the Traffic Act 1909 ('the subject informations'). 2. An order setting aside the First Defendant's order of 23 October 1998 that the subject informations be permanently stayed. 3. An order pursuant to s 134 of the Justices Act 1902 that the subject informations be heard and determined according to law in the Local Court." 2 In the summons a further order was sought to restrain the first defendant, the magistrate whose decision is here under challenge, from hearing the matters, but that further order was not pursued. 3 The first defendant filed a submitting appearance, but the second defendant, for whom Mr Wendler of counsel appeared, has resisted the declaration and orders sought. 4 It is necessary to refer to the relevant facts in some detail. 5 The second defendant was arrested on 12 September 1997, and on 24 September 1997 he appeared before the Local Court at Bankstown where he was charged with a number of offences. Of particular relevance for present purposes were two charges arising out of events that allegedly occurred at Bankstown on 12 September 1997. I identify these charges from the charge sheets annexed to the affidavit of Stephen Irvin filed in support of the summons: 6 (i) Stealing from the person: s 94 of the Crimes Act This offence was expressed as follows: "That [the second defendant] on the 12th day of September 1997, at Bankstown, in the State of New South Wales, did steal money and property namely, a black leather handbag containing a brown leather purse, a black leather card holder, one Croatian passport, one Commonwealth Bank Visa card, one Commonwealth Bank Keycard, one Medicare card, various makeup, one pair of sunglasses, personal papers, three gold rings, one gold necklace, and $226.90 cash, the property of Fatima Hadziahmetovic from the said Fatima Hadziahmetovic." 7 (ii) Steal motor car: s 154(aa)(1): This offence was expressed as follows: "That [the second defendant] on the 12th day of September 1997, at Chullora, in the State of New South Wales, did steal a motor vehicle, to wit, a maroon coloured 1996 model Ford Falcon sedan registered number QNA542 the property of City Ford, Chullora." 8 When he appeared in the Bankstown Local Court on 24 September 1997, the second defendant pleaded guilty to the above offences and the magistrate was asked to consider a statement of facts identified in Annexure C to Mr Irvin's affidavit. It is desirable that I record these facts in full: "About 12:56 pm on Friday 12th September, 1997 vehicle QNA524 was being detailed at City Ford - 204 Hume Highway, Chullora. The vehicle was unattended with the ignition keys inside the vehicle. At this time the vehicle was stolen from this location. About 5.30 pm on Friday 12th September, 1997 the victim, Fatima Hadziahmetovic, was walking in the carpark of the Stacey Street, Mall - South Terrace, Bankstown. At this time the defendant and one other unidentified person drove behind the victim in vehicle QNA524. The defendant then lent from the rear passenger side window of this vehicle and grabbed the victims handbag from her right shoulder. The defendant pulled the handbag from the victims shoulder. As this was happening the passenger side of the vehicle has collided with the victims right calf causing her to spin and stumble forward. The offenders then drove off in a easterly direction along South Terrace. The vehicle was seen by Police a short time later at the intersection of South Terrace and Punchbowl Road, Punchbowl. The vehicle was then pursued by Police through a number of suburbs. The vehicle was eventually stopped after a collision with another vehicle. The occupants of the stolen vehicle then ran. The defendant was arrested outside 13 Queensborough Road, Croydon Park after a short foot pursuit. The defendant was conveyed to Campsie Police Station. The stolen vehicle was also conveyed to Campsie Police Station and in this vehicle was the victim's property. The defendant was interviewed regarding these matters and made full admissions to stealing the victims handbag. The defendant stated he had been picked up at Bankstown in the stolen vehicle at 5.30 pm this date. The defendant stated that at the time of being carried in the vehicle he was aware that it was stolen." 9 The second defendant was convicted on the above and other offences and was sentenced to nineteen months imprisonment with a minimum term of seven months. It became necessary to return to the Local Court at Bankstown to correct an error as to the commencement date of the minimum term fixed, but it is unnecessary for present purposes to record the detail of that correction. 10 The prosecution subsequently laid seven informations in March 1998 in the Local Court at Burwood, and these are the informations referred to in the summons and detailed in paragraph 1 of that summons which I set out earlier. Each of those seven informations alleged the commission by the second defendant of a further offence on 12 September 1997, and six of those informations related to offences containing as an essential element that the second defendant was the driver of the vehicle at the relevant time. The vehicle in question was the vehicle QNA524 described in the statement of facts tendered in the Local Court at Bankstown in 1997. The seventh of the informations alleged that the second defendant gave false particulars contrary to s 8 of the Traffic Act. 11 When the matters came before the Local Court at Burwood on 17 September 1998, it was submitted on behalf of the second defendant that the proceedings should be stayed because of what had occurred at the Local Court at Bankstown in September 1997. That application proved to be successful and on 23 October 1998 the learned magistrate ordered that proceedings on all seven informations be permanently stayed. 12 The reasons for the magistrate's decision form an annexure to Mr Irvin's affidavit. I do not propose to record them fully but to record what was said as to the basis for the application made and the ultimate conclusion expressed: "It is the application of the defendant to have those matters stayed because, in his submission, to allow them to proceed would invite a judicial determination which is inconsistent with a judicial determination which has already been made that he was not the driver of the vehicle at the relevant time… It seems to me, therefore, that to allow the present matters to continue to be heard would be to invite a judicial determination which is inconsistent with a judicial determination which has already been made, and therefore I propose to permanently stay the proceedings which are presently before me." 13 The plaintiff has submitted that the decision of the magistrate was erroneous in law and indeed that there was jurisdictional error warranting the making of the orders now sought. 14 I have had the advantage of considering comprehensive written submissions presented on behalf of the plaintiff and on behalf of the second defendant. Having reflected upon those submissions, I have concluded that those advanced on behalf of the plaintiff are to be preferred. 15 Before analysing what I perceive to be the critical features in this case, it is appropriate to address matters of general principle. 16 Mr Wendler argued that issue estoppel applies in criminal proceedings. The High Court was divided over this issue in The Queen v Storey (1978) 140 CLR 364. Barwick CJ expressed the opinion (at 371): "That the technical and often involved principle described as issue estoppel has no place in the administration of the criminal law." 17 Gibbs J (at 388) regarded the main objections to the application of issue estoppel to criminal proceedings as being "compelling", and Mason J (at 400-401) expressed his agreement with what Lord Hailsham had said in DPP v Humphrys [1977] AC 1 at 40: "The doctrine of issue estoppel as it has been developed in civil proceedings is not applicable to criminal proceedings." 18 In Storey the Chief Justice and Gibbs and Mason JJ were in the minority concerning the place of issue estoppel in the criminal law; Stephen, Jacobs, Murphy and Aickin JJ expressed contrary opinions. 19 However Rogers v The Queen (1994) 181 CLR 251 tipped the balance the other way. In this case Mason CJ said at 254-255: "I adhere to the view which I expressed in Reg v Storey ((1978) 140 CLR 364 at 400-401)that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. The reasons which compel acceptance of that view are set out in the judgments of Barwick CJ, Gibbs J and myself in that case ((1978) 140 CLR at pp 371-374, per Barwick CJ; pp 379-389 per Gibbs J; pp 400-401, per Mason J). The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law. Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted. This view accords with the position reached in other common law jurisdictions (England: Reg v Humphrys, [1977] AC 1; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; New Zealand: Reg v Davis [1982] 1 NZLR 584; Bryant v Collector of Customs [1984] 1 NZLR 280; but cf. Duhamel v The Queen [1984] 2 SCR 555; (1984) 14 DLR (4th) 92.) 20 In their joint judgment Deane and Gaudron JJ said at 278: "Issue estoppel would not only overlap with the plea of autrefois acquit and with the doctrines that have already developed, but its importation into the realm of criminal proceedings could well impede the development of coherent principles which recognize and allow for the distinct character of such proceedings. The preferable course, in our view, is to accept that the principles which operate in this area are fundamental and that the pleas and the developed doctrines relating to the unassailable nature of acquittals and the need for consistency may not exhaust their operation." 21 The contrary opinion that issue estoppel is applicable in criminal proceedings was expressed by Brennan J (at 266-268) and by McHugh J (at 284), but it seems to me that following the decision of the High Court in Rogers v The Queen I should regard it as determined that issue estoppel as developed in relation to civil proceedings is not applicable to criminal proceedings. 22 The dicta of Mason CJ in Rogers set out above identify other measures of protection however that may originate from earlier criminal proceedings. Res judicata is an available doctrine in criminal cases, and it finds expression in defences of autrefois acquit and autrefois convict. See Spencer Bower Turner and Handley on Res Judicata, 3rd ed., at 310-311. 23 Autrefois acquit is available by way of a defence in bar where the essential elements of an offence charged are the same as those of an offence in respect of which a conviction has already occurred. In Pearce v R (1998) 156 ALR 684 Kirby J said, at 708-709 (para 103): "In this court, although the matter is sometimes complicated by the application of the language of criminal codes (Connolly v Meagher (1906) 3 CLR 682 considering the Criminal Code (Qld) s 16; cf R v Hull (No 2) [1902] St R Qd 53 per Griffith CJ (Qld)), the identity of the successive offences has repeatedly been stated as the test (Li Wan Quai v Christie (1906) 3 CLR 1125 at 1131). The rule has been explained as requiring not identical offences as such (Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 at 507-8; R v Sessions [1998] 2 VR 304 at 309-10) but identity of the essential elements of the offences under comparison so as to establish that the accused has previously been in a relevant peril of conviction. In Li Wan Quai v Christie, Griffith CJ said (1906) 3 CLR 1125 at 1131) 'In order that a previous conviction or discharge can be a bar to subsequent proceedings, the charges must be substantially the same. The true test whether such a plea is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first.' Thus the inquiry is not into what evidence might be given, but what must be proved to establish the commission of each of the offences. The test is therefore directed at the elements of the offences charged." 24 With the above considerations of principle in mind, I return to the circumstances of the present case. 25 It seems to me that the learned magistrate was wrong in the conclusion he expressed and which I have recorded above. In my opinion there was no judicial determination in September 1987 such as related to "the driver" issue that would be central to the informations, proceedings on which have been stayed. 26 A person who pleads guilty to an offence admits the essential elements of the offence and no more. In The Queen v Riley [1896] 1 KB 309 Hawkins J said at 318: "In regard to a question suggested in the case, whether a person by pleading guilty to an indictment thereby admits the truth of the facts stated in the depositions, I think it right to express my opinion that he does not. He admits simply that he is guilty of the offence as charged in the indictment, and nothing more." 27 To the like effect in Reg v O'Neill (1979) 2 NSWLR 502 Moffitt A-CJ said at 588: "…a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more." 28 The magistrate sitting at Bankstown was not asked to determine any disputed questions of fact nor did she do so. This magistrate did not make any finding that the second defendant was not the driver of the stolen car at Chullora, or at Bankstown, or at Croydon Park. Moreover the only relevant facts for the purposes of the charges to which the second defendant pleaded guilty were those essential to the proof of the ingredients of the two offences. Whether the second defendant later drove the stolen vehicle at Croydon Park, where the seven subsequent offences were allegedly committed, was irrelevant to the establishment of the offence charged under s 94 of the Crimes Act, and it was also irrelevant to prove the offence charged under s 154(aa)(1) of the Crimes Act. Moreover whether the second defendant drove the stolen car or not was not relevant to sentence. 29 Autrefois convict was not available to the second defendant as a defence in bar, because the elements of the offences in respect of which he was convicted in the proceedings at Bankstown court, and the elements of the offences to which the later informations related were not identical. Those matters which had to be proved to establish the offences first charged were altogether different from what had to be proved in respect of the offences to which the later informations were directed. Whether the second defendant drove the stolen vehicle was, as I observed, irrelevant to both charges upon which he had been convicted, and it was irrelevant for the purposes of the pleas at Bankstown Local Court to determine who later drove the vehicle at Croydon Park. 30 Mr Wendler submitted that even if autrefois convict was not available in bar, the doctrine of abuse of process was broad enough to cover the present case and to justify the stay of proceedings ordered by the magistrate on discretionary grounds. 31 The Local Court has power to permanently stay criminal proceedings where such a course is required in the interests of justice: see Smiles v Commissioner of Taxation (1992) 37 FCR 538 and DPP v Shirvanian (1998) 44 NSWLR 129. 32 In Smiles Morling, Beaumont and Gummow JJ said (at 552): "It is clear that, in an appropriate case, the Local Court has the power to stay civil or criminal proceedings before it which are an abuse of process (see Jago [that is, Jago v District Court (1989) 168 CLR 23] (at 25-26), per Mason CJ; Spautz [that is, Williams v Spautz (1992) 174 CLR 509] (at 518-521); Newby v Moodie (1988) 83 ALR 523 at 526)…The power of a court to stay a proceeding as an abuse of its process is an essential attribute of the exercise of the jurisdiction with which it is invested: see Spautz (at 520-521)" 33 In Shirvanian, Mason P, with whose judgment Beazley JA agreed, expressed his agreement with the above statement of principle from Smiles. 34 What are the appropriate circumstances in which proceedings should be restrained as amounting to an abuse of process? 35 In Rogers (supra) Mason CJ said (at 255): "The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not the party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories (Hunter v Chief Constable [1982] AC at p 536, per Lord Diplock). Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process." 36 Earlier, in Walton v Gardiner (1993) 177 CLR 378 Mason CJ, Deane and Dawson JJ said at 392-393: "The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness… …proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings." 37 In Shirvanian Mason P said at 135: "Since the principle which gives rise to the power in a proper case to grant a stay is that 'the public interest in holding a trial does not warrant the holding of an unfair trial' (Jago (at 31), per Mason CJ), it follows that such power resides in a magistrate of the Local Court hearing a (summary) trial unless excluded by clear words. The duty to observe fairness, at least in its procedural sense, is a universal attribute of the judicial function. Those aspects of a fair trial known as the principles of natural justice apply by force of the common law and the presumed intent of parliament unless clearly excluded in a particular context. In my view, the same can be said about the power to prevent abuse of process as an incident of the duty to ensure a fair trial. And I can see no principled ground for excluding a power to grant a stay to prevent or nullify other categories of abuse of process." 38 I do not find in the above statements of principle a cause to stay the further proceedings against the second respondent. I do not consider that the prosecution of the second defendant for the alleged offences identified in the informations laid at the Local Court at Burwood involved injustice or unfairness in the relevant sense, particularly having regard to those essential elements of the offences alleged in such informations. They were, as I have already observed, altogether different from the elements of the offences on which the second defendant had been convicted. Nor could it be said that the second defendant compromised himself in some way in respect of the later informations by his pleas of guilty on the matters first charged. Nor could it be said that the pursuit of seven further convictions for events in which the second defendant was allegedly involved on 12 September 1997 necessarily involved unfairness or injustice. As Gleeson CJ said in R v Dodd (1991) 56 ACR 451 at 457: "In Australia it is not the law that a person cannot be prosecuted for a number of offences just because they all arise out of the same act or the same course of conduct." 39 In his written submissions Mr Wendler argued that the informations laid at Burwood Court involved an attempt to re-litigate the issue of the identity of the stolen vehicle and this warranted the permanent stay of what would be an abuse of process. I do not accept that submission, and for the reasons already expressed the issue as to who was for relevant purposes the driver of the stolen vehicle has not been litigated. 40 I am satisfied that the learned magistrate has erred in law in ordering a permanent stay of proceedings on the seven informations that have been laid. 41 Should this Court now grant the relief sought by the plaintiff? 42 The plaintiff seeks an order under s 134 of the Justices Act, and plainly not every error of law would warrant the making of such an order. A succinct statement of relevant principle is to be found in the judgment of Hunt J in Waterhouse v Gilmore (1988) 12 NSWLR 270 at 276: "However, not every error of law justifies the grant of such relief, for mandamus does not provide a form of general appeal upon questions of law: Barton v Berman [1980] 1 NSWLR 63 at 71. The mistake of law must be one which shows that the determination arrived at in the purported exercise of jurisdiction is nugatory and void, so that the ostensible determination by the magistrate was not a real performance of the duty imposed by law upon him: (ibid at 71-72); R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243. It must be shown that the magistrate misunderstood the nature of the jurisdiction which he purported to exercise in the matter before him: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; 64 WN 107 at 109. Jordan CJ in that case included within the scope of mandamus the application of 'a wrong and inadmissible test' (Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917) and a misunderstanding by the magistrate as to 'the nature of the opinion which [he] is to form': R v Connell (1944) 69 CLR 407 at 432." 43 I consider there was in this case an error of the kind warranting the intervention of this Court. There was a fundamental misapprehension of the jurisdiction which the learned magistrate purported to exercise so that there was "not a real performance of the duty imposed by law upon him". 44 Mr Wendler submitted that this Court should not grant the relief sought because it is unlikely that the second defendant would have received a greater punishment than he has already received in respect of the convictions that have been recorded. 45 It is not for me at this stage to determine what view a magistrate would or should take as to penalty should the second defendant ultimately be convicted of the additional offences, but in rejecting this submission as I do, it suffices that I observe that three of the informations alleging furious driving include as an essential element the causing of bodily harm. 46 The further argument that the stay ordered had the effect of discharging the second defendant and that the Local Court would have no jurisdiction to require his return before that court is also to be rejected. The dicta of Brennan CJ in Nicholas v The Queen (1998) 72 ALJR 456 at 467 (para 41) are directly in point, addressing the very issue as to the effect of a stay order: "An order staying a criminal trial is not a judicial decree conferring an immunity from punishment for a criminal offence. It is not the equivalent of a verdict and judgment of acquittal. It confers no vested right. A stay does not determine the matter charged in the indictment. There is concededly power to lift a stay and, if the stay be lifted, the trial on the indictment can proceed." 47 Upon the making of the orders sought in the amended summons, there is no reason why the informations cannot be dealt with in the Local Court according to law. 48 The plaintiff has made good its claim to the relief sought in the amended summons. Accordingly I make the following declaration and orders: (1) The declaration sought in para 1 thereof; (2) The order sought in para 2; (3) The order sought in para 3; (4) I reserve costs to afford the opportunity for the parties to make appropriate submissions. **********

DPP v Heagney & Anor

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