Odeh v New South Wales Police Service

Supreme Court of NSW|2019-03-29|Before: Hulme J, Mr P

Solicitors: Hall Partners Crown Solicitors File Number(s): 2019/73694

Judgment

HIS HONOUR: Mr Husam Ali Odeh is the subject of a criminal prosecution with a trial scheduled to commence in the District Court on 13 May 2019.
Mr Odeh filed a summons in this Court on 7 March 2019 naming the "New South Wales Police Service" as the defendant. He sought various forms of relief but the critical and determinative issue is the following: "A Declaration that the [criminal] proceedings are (in so far as concerns the investigation and prosecution of them) constituted by a fundamental defect in that the allegations subject of them have never been properly investigated and that in the circumstances the continued prosecution of them is an abuse of process, whereby in the event that the Plaintiff was required to stand trial concerning them, it would bring the administration of justice into disrepute and thereby would cause the administration of justice to fall into public scandal, into public ridicule, and into contempt."
The ancillary aspects of relief sought that would no doubt be pressed if the declaration sought was to be made are, namely, an order that the proceedings in the District Court be stayed and, if necessary, an interlocutory order restraining the District Court proceedings.

Fundamental problems

There are some fundamental problems with the proceedings that have been brought in this Court. The first and most obvious is that the name of the defendant is wrong. [1] Even if correctly described, the relief sought is not directly concerned with the NSW Police Force; it concerns a prosecution being conducted by the Director of Public Prosecutions (DPP) in the District Court of New South Wales.
A more fundamental problem is whether this Court has jurisdiction and, if so, whether it should be exercised.

Issues to be determined

The matter came before me as Duty Judge by way of referral from the Common Law Registrar on 29 March 2019, when it had been listed before him for directions. Both parties were anxious to have the matter resolved because the outcome will bear upon whether a criminal trial listed in about 6 weeks' time with an estimate of 10 weeks proceeds or not. It was indicated that the threshold issues of jurisdiction and discretion could be dealt with conveniently within the context of the duty list, although if the plaintiff was successful in respect of those matters, a hearing on the merits might take considerably longer. It was agreed that I should at least deal with the threshold issues.
Counsel for the defendant indicated that her solicitor had instructions from the DPP and so she did not wish to take any point about the inaptness of the identified defendant in the proceedings.

Other proceedings pending in this Court

Mr Odeh has brought other proceedings in this Court. A statement of claim nominating the State of New South Wales and two individuals as defendants was filed on 29 April 2016 (2016/131855). Those proceedings appear to be concerned with issues the same or similar to those giving rise to the present proceedings and some of the declaratory relief that is being sought partially overlaps with what is sought in the proceedings I am concerned with. The history of those proceedings (as set out in an affidavit of the defendant's solicitor) appears somewhat extraordinary but I do not need to dwell upon it. Suffice to say at the time of the hearing before me last Friday, the proceedings were at the stage of Rothman J having reserved judgment on 8 June 2018 on an application to further amend the statement of claim, following quite a number of amendments made previously.
As it happens, his Honour has given judgment earlier today: Odeh v State of New South Wales [2019] NSWSC 342. Nothing pertinent to the present matter arises from it.

Submissions

Counsel for the defendant relied upon s 17 and the Third Schedule to the Supreme Court Act 1970 (NSW). Relevantly, they are in the following terms: 17 Criminal proceedings (1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule. … (3) Subsection (1) does not affect the operation of sections 1, 2, 5, 6, 7, 41, 53, 54, 55, 72, 101 (5) and 130.
I interpolate the observation that none of the sections mentioned in s 17(3) are of present relevance. Third Schedule Criminal proceedings (a) Proceedings in the Court for the prosecution of offenders on indictment … including the sentencing or otherwise dealing with persons convicted, (a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment … in the Court or in the District Court, (a2) proceedings (whether in the Court or the District Court) under sections 97 and 99 and Division 9 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, (b) gaol delivery, (c) proceedings in the Court under the Crimes Act 1900, other than proceedings under section 88 of that Act and applications for leave to institute prosecutions under section 172 of that Act, (d) proceedings in the Court under the Criminal Appeal Act of 1912, (e) (Repealed) (f) proceedings in the Court under Part 2 of the Children (Criminal Proceedings) Act 1987, (g) proceedings in the Court under the Habitual Criminals Act 1957, (h) proceedings in the Court under section 23 or section 26 of the Mental Health Act 1958, (i) proceedings in the Court for the grant of a certificate under the Costs in Criminal Cases Act 1967. (j), (k) (Repealed)
Mr Odeh contended that the Court had jurisdiction to grant the relief sought despite these provisions. In support of this he referred to Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 in which it was said to have been held that the "supervisory jurisdiction" of the Court remains.
Two bases were advanced upon which the supervisory jurisdiction should be invoked. First, there was said to be evidence of a policy within the NSW Police that in circumstances where a person is the subject of an assault, that alone means that an apprehended violence order should be issued and that the putative offender should be charged with a criminal offence. Secondly, Mr Odeh had, as a consequence of various complaints made against him, been arrested and charged on multiple occasions. This was said to have been the cause of him having to repeatedly amend the pleadings in the statement of claim filed in the proceedings presently pending before Rothman J in order that he could seek further damages.
It was submitted that despite Mr Odeh having provided the Office of the DPP with a very significant amount of information concerning objective evidence and witness accounts that would disprove evidence upon which the prosecution intended to rely, there had been no attempt to investigate it. As a consequence, the case was proceeding without any proper or adequate attempt to have exculpatory material gathered and made available. It was said that as recently as 8 March 2019, a prosecutor had said that the case was ready to proceed to trial. Mr Odeh characterised these matters as amounting to a fundamental denial of fairness.
It was submitted that the supervisory jurisdiction of this Court exists for obvious protective purposes and in the circumstances outlined it should be invoked.
Counsel for the defendant referred to Chamoun v District Court of New South Wales [2018] NSWCA 187. There, Gleeson JA made reference (at [30]) to Chow v Director of Public Prosecutions but counsel sought to emphasise that both cases were concerned with a supervisory jurisdiction in "the final appellate court of the State" (the Court of Appeal) to intervene in relation to asserted jurisdictional error (apprehended bias) in the District Court.
Counsel for the defendant argued most strongly in support of the Court declining to intervene in the exercise of discretion, even if jurisdiction was found. A number of factors were said to support the exercise of this discretion.
First, this proceeding represented the latest in a series of attempts by Mr Odeh to stay his trial: (i) Statement of Claim filed 29 April 2016 (2016/131855) being the proceedings that have been before Rothman J concerning a pleading issue. (ii) Statement of Claim filed 10 April 2017 (2017/108555). These proceedings were based upon similar factual issues and the first relief claimed was an interlocutory order restraining the DPP from pursuing the criminal prosecution. Following a letter of from the Crown Solicitor pointing out that the proceedings were misconceived they were discontinued on 19 July 2017. (iii) Notice of Motion filed in the criminal proceedings in the District Court on 7 March 2019 seeking similar relief (stay of prosecution) on a similar basis. On 8 March 2019, the Chief Judge of the District Court stood the hearing of the motion over to the first day of the trial, 13 May 2019.
Counsel questioned why, in the context of all of the legal manoeuvring in the past, the present application was now being brought as a matter of urgency with the prospective criminal trial imminent.
In so far as Mr Odeh complained about a "policy" relating to police charging decisions, counsel submitted that this was irrelevant as the arrest of Mr Odeh was some years ago and has been followed by his committal for trial.
Finally, it was submitted that the appropriate venue for the determination of the issues sought to be raised by Mr Odeh was in the court of trial as opposed to fragmenting the criminal process by seeking the supervisory intervention of this Court.

Jurisdiction

It is difficult to see how s 17 and the Third Schedule apply to the present proceedings. No submissions were made with any focus upon the actual text of those provisions. It appears clear, however, that there are no "proceedings in the Court which are specified in the Third Schedule" and there has been no "interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule". As a consequence I do not find that the Court lacks jurisdiction because of those provisions.

Discretion

However, there is in my view an overwhelming case made for this Court not to exercise any jurisdiction it may have for discretionary reasons.

A police charging "policy"

One of Mr Odeh's complaints is that there exists a "policy" whereby people are arrested and charged with criminal offences solely upon the basis that someone has made a complaint asserting criminal misconduct of a violent or sexual nature. I do not purport to make any finding about that; I indicated during the course of the hearing that I will proceed upon the assumption that such a contention can be made good on the evidence.
The point about that issue is that it is, in the context of these proceedings, of historical interest only. It has no bearing upon the prosecution of Mr Odeh in the District Court, following committal for trial from the Local Court and following the DPP finding a bill of indictment. In short, it is irrelevant.

Failure to investigate and obtain exculpatory material

Mr Odeh's main complaint is to the effect that potentially exculpatory material is available but police and prosecutors have failed to make any adequate attempt to obtain it. Again, this is a matter in respect of which it is unnecessary for me to make any factual finding.
Until recently, there has been no attempt made by Mr Odeh to raise this in the District Court as a basis for his trial being stayed. He was committed for trial on 24 November 2017. He was arraigned and entered pleas of not guilty on 14 December 2017. A trial date of 23 July 2018 was fixed. That trial did not proceed (and there is a dispute as to why it did not which need not be resolved). A further trial date of 13 May 2019 was fixed. It was not until 7 March 2019 that Mr Odeh filed any application for a stay of his trial on the basis of the matters relied upon for relief in this Court.
Returning to Chow v Director of Public Prosecutions, the judgment of Kirby P upon which Mr Odeh relied also includes the following (at 599-600): "The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases …. More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings."
In the present case there is a pending application in the District Court for a stay of proceedings that was only filed a little over 3 weeks ago and a little over 2 months before his trial is due to commence. Mr Odeh sought to justify this delay (of a magnitude I consider extraordinary) by referring to the fact that judgment had been reserved in the proceedings before Rothman J for a considerable time. That, with respect, is no explanation at all. If Mr Odeh felt he had a grievance which would justify a temporary or permanent stay of his trial it is not something that occurred recently. It could easily have been the subject of an application to the District Court sometime between his committal for trial late in 2017 and the first trial listing in mid-2018. Instead, Mr Odeh seems to have devoted considerable energy and expense in taking an indirect route, risky (because of its novelty) in terms of prospects of success, by bringing proceedings in this Court.
If this Court has a supervisory jurisdiction in the circumstances of a case such as this, it would only be exercised in extremely unusual circumstances where the issue has not been raised and ruled upon in the trial court. It is notable that Mr Odeh did not refer to any case in which a litigant had successfully attempted what he is trying to achieve in these proceedings.
No case has been made for the intervention of this Court, thereby fracturing the orderly conduct of criminal proceedings in the trial court. As was pointed out by Kirby P in the extract above, there should be an "avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions".
Mr Odeh does not suggest that if he is unable to ventilate his complaints in this Court he has no alternative means of achieving the relief he seeks. He has available to him the facility to make an application for a temporary or permanent stay of proceedings in the District Court (and such application has been made and has been listed for hearing). If he fails in that application, he may seek leave to appeal to the Court of Criminal Appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). Whether or not that avenue is pursued, if he is convicted at trial, it remains open for him to appeal against any conviction to the Court of Criminal Appeal pursuant to s 5(1) of the Criminal Appeal Act. As Kirby P observed, it must also be borne in mind that none of this may be necessary as sometimes "problems disappear, or are resolved, at first instance".
Another reason for this Court declining to entertain the matter is that doing so will require it to explore in much detail, make findings of fact, and rule upon the very same issues that will no doubt be the subject of much exploration in the proceedings in the District Court. Not only is that a grossly inefficient process, it is one that is likely to take considerable time and would put the commencement of the trial in the District Court on 13 May 2019 at risk.

Orders

I make the following orders: 1. The summons filed by the plaintiff on 7 March 2019 is dismissed. 2. Unless application is made and notified to my associate within 7 days for an alternative order, the plaintiff is to pay the defendant's costs.

Endnote

The "Police Service of New South Wales" was constituted under the Police Service Act 1990 (NSW) but it became "NSW Police" (and that Act became the Police Act 1990 (NSW)) with the enactment of the Police Service Amendment (NSW Police) Act 2002 (NSW). It became the "NSW Police Force" with the passage of the Police Amendment (Miscellaneous) Act 2006 (NSW). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2019

Police Service Act 1990(NSW)

Police) Act 2002(NSW)

Police Amendment (Miscellaneous) Act 2006(NSW)

Criminal Appeal Act 1912(NSW)s 5(1), 5F(3)

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