Henskens v Rudd

Peter Henskens (the plaintiff) seeks leave to appeal against the decision of Chicken LCM on 9 December 2019 refusing his application for a permanent stay of proceedings 2019/11018 (the image proceedings). His application is brought under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act). Detective Jarrad Rudd, the sixth defendant, is the police informant in the image proceedings. The other named defendants, apart from the seventh defendant who is referred to below, were removed as parties by order of Campbell J on 17 March 2020.

The sixth defendant opposes the orders sought on the basis that no question of law amenable to review under s 53(3)(b) of the Act has been raised and the case is not an appropriate one for leave to be granted.

The plaintiff, in a second further amended summons filed on 6 April 2020, purported to join Senior Constable Leah Hughes as the seventh defendant. Senior Constable Hughes is the police informant in the proceedings 2017/324995 (the AVO proceedings). The seventh defendant opposes the plaintiff’s claim for a permanent stay of the AVO proceedings on two grounds: first, no application for a stay has been made in the AVO proceedings; and, second, even if it had been, the appropriate forum for an appeal is the District Court pursuant to s 84 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The seventh defendant’s submissions are well-founded. This Court has no jurisdiction to determine the plaintiff’s application for a stay of the AVO proceedings. This is the only basis on which the seventh defendant is a party to the proceedings. Accordingly, she should be removed as a party from the proceedings.

The following narrative of facts is derived from the evidence (in the form of statements) which was before Chicken LCM at the hearing of the plaintiff’s application for a stay on 9 December 2019. At that hearing there was no cross-examination of any of the makers of the statements, whose evidence can accordingly be taken to have been unchallenged.

On 3 November 2017 Senior Constable Sally Butcher, who was stationed at the Toronto Police Station, received a complaint from the plaintiff’s then wife (the complainant) concerning the plaintiff. On 17 November 2017, after receiving further complaints, Senior Constable Butcher applied for an AVO, which was given proceedings number 2017/342995. The application included allegations that the plaintiff had hacked the complainant’s gmail account and that he continued to sexually assault, intimidate and harass her. The AVO application made no mention of any allegation that the plaintiff had intentionally recorded, or distributed, intimate images of the complainant.

On 21 November 2017 an Interim AVO was made by the Toronto Local Court and directions made for the filing of statements.

On 22 November 2017, the plaintiff sent an email to Senior Constable Butcher to which was attached a video of the plaintiff in a sexual encounter with the complainant. In the covering email the plaintiff said:

On 23 November 2017, the plaintiff sent an email to the Toronto Local Court to which the video was also attached. The email was copied to Senior Constable Butcher.

On 24 November 2017, Senior Constable Butcher returned from a number of rest days leave and read the emails referred to above. That day she received a phone call from a friend of the complainant’s who told her that the plaintiff had posted a sex video on Facebook. Later that day, the plaintiff phoned Senior Constable Butcher and admitted that he had filmed the video and posted it on Facebook. She told him that she would be investigating whether his conduct amounted to an offence.

Ultimately, on 3 December 2017, Senior Constable Butcher emailed Gianacas Argiris McDonald Solicitors, the plaintiff’s solicitors (who had been copied into the other emails which the plaintiff had sent to her) and requested that the solicitors contact her if necessary and that the plaintiff cease contacting her directly.

On 5 December 2017 Senior Constable Butcher received an email from Alexander Kontekakis confirming receipt of the email of 3 December 2017. He said that he had advised the plaintiff not to communicate directly with her. Subsequent to this email, the plaintiff again tried to contact Senior Constable Butcher. At about this time, the matter was transferred to another police officer to manage. Senior Constable Butcher phoned Mr Argiris to inform him that she was no longer the officer-in-charge but that she believed that charges would be laid.

On 20 November 2017 the sexual assault allegations, which had been made by the complainant to Senior Constable Butcher, were transferred to Detective Ash Cooper at Maitland Police Station. However, he had not been appointed officer-in-charge of the AVO proceedings after Senior Constable Butcher had ceased performing that role. Detective Cooper made several attempts to contact the complainant in order to obtain a statement from her in support of the sexual assault allegations.

I note that the chronology attached to the plaintiff’s statement dated 20 August 2019 made for the purposes of his motion for a stay includes the following entry for 22 January 2018:

The plaintiff was not a party to this conversation. The file note referred to in the entry was not tendered although Mr Argiris, the principal of the firm instructed by the plaintiff, made a statement in which no reference to that conversation was made. Mr Kontekakis did not give evidence in support of the stay and the police officer with whom he is alleged to have spoken on 22 January 2018 was not identified in the chronology extracted above.

The AVO proceedings were again listed in the Local Court on 23 January 2018 at which time a brief of evidence was served on the plaintiff. The brief of evidence included a statement from the complainant which was dated 5 December 2017 but which was not actually signed until 13 January 2018. In this statement, the complainant deposed as to the sexual assaults which the plaintiff had committed against her. She also deposed that, prior to making the statement, Senior Constable Butcher had shown her the video which the plaintiff had provided to police. She said, in paragraph 16 of her statement:

The matter was stood over to 20 February 2018 to enable any pending criminal charges to be considered.

On 20 February 2018 the Local Court directed the plaintiff to file his evidence in the AVO proceedings by 13 March 2018. According to Mr Argiris’s statement of 12 August 2019 (which was tendered in support of the stay application on 9 December 2019):

On 21 February 2018 the plaintiff’s solicitors wrote to Detective Cooper and informed him that the plaintiff would not file evidence in the AVO proceedings until he had received written confirmation from police that no criminal charges would be pursued against him.

On 1 March 2018 Mr Kontekakis rang Detective Cooper who told him that no formal statement had been made by the complainant but that if a statement was made a determination would be made about the charges. Mr Kontekakis made a file note of the conversation. Detective Cooper conducted a search of the plaintiff on the Computerised Operational Policing System (COPS) but, as there was no link shown, he did not appreciate that there was a link between the plaintiff and the historical sexual assault allegations. Detective Cooper contacted the complainant who told him that she was happy that the AVO had been made and did not want to make a formal statement regarding the alleged sexual assault. She also told him that she was not ready to go to court on a sexual assault charge and only wanted to proceed with the AVO.

Following these conversations, Detective Cooper sent an email dated 1 March 2018 to Mr Kontekakis which read as follows:

After further communications between the parties, Detective Cooper sent a further email to the plaintiff’s solicitors on 3 April 2018 which included the email he had sent on 1 March 2018 in which he said:

Detective Cooper’s uncontroverted evidence about his state of mind at that time was:

On 9 April 2018, Police Prosecutor Will Somers sent an email to Mr Argiris as follows:

Police Prosecutor Somers had not spoken with the complainant. He was entirely unaware of any allegation that the plaintiff had taken and distributed intimate images of the complainant. The only matters concerning the plaintiff of which he was aware were the matters contained in the AVO application referred to above.

By letter dated 20 April 2018 Mr Argiris wrote to the plaintiff as follows:

On 17 May 2018 the plaintiff filed a statement in reply to the AVO brief. On 6 August 2018 the final AVO was made by consent.

On 1 May 2019 the complainant attended Maitland police station and made a complaint regarding the plaintiff’s recording and distribution of the video. She said that she wanted charges to be laid regarding the matters concerning the video.

On 13 May 2019, Detective Rudd served the plaintiff with a court attendance notice which charged him with offences of intentionally recording and distributing an intimate image without consent contrary to ss 91P(1) and 91Q(1) of the Crimes Act 1900 (NSW). The recording of the plaintiff’s wife (the complainant) is alleged to have been made on 5 October 2017 (sequence 1); the image was alleged to have been intentionally distributed without her consent on 22 November 2017 (sequence 2) and on 23 November 2017 (sequence 3). These charges were the subject of the image proceedings.

The matter came before a Registrar of the Local Court at Maitland on 4 July 2019. On that occasion, the plaintiff appeared for himself and sought to have the matter adjourned to 25 July 2019 in order that Mr Santone could appear on his behalf. The plaintiff alleged that the image charges had been laid in breach of an undertaking given to him by police. On the adjourned date, 25 July 2019, Mr Santone appeared on behalf of the plaintiff when the matter was mentioned before Chicken LCM. Mr Santone told the Court that the plaintiff intended to apply for a stay of the image proceedings. Directions were made for the filing of evidence. Mr Santone, on 25 July 2019, said to the magistrate, in relation to the AVO proceedings, at tr 6.21-23:

In support of his application for a stay of the image proceedings, the plaintiff made a witness statement dated 20 August 2019 in which he deposed:

It is plain that the chronology was prepared for the purposes of legal proceedings and contains entries of communications to which the plaintiff was not a party.

The plaintiff’s application for a stay was heard by Chicken LCM on 9 December 2019. Mr Santone appeared on behalf of the plaintiff. The evidence tendered is summarised in the following table:

The evidence was admitted without objection. No oral evidence was adduced and there was no cross-examination. The magistrate adjourned the court so that his Honour could read the material tendered. He returned to the bench at midday for submissions.

In submissions in the Court below, Mr Santone referred to previous proceedings for breach of the AVO which had been dismissed. He asked the Court rhetorically: “when is this going to stop?”. He continued, “Although it may not be the strongest of submissions, but the issue of delay is certainly alive here …”.

Also in the course of submissions, the magistrate asked Mr Santone to identify any prejudice to the plaintiff if the image proceedings were not stayed. At that point, the transcript (tr. 7.1) recorded the plaintiff as saying, “Well--”, to which his Honour responded:

Mr Santone submitted to the magistrate that there had been “general prejudice” but accepted that he was unable to articulate any specific prejudice. Shortly before the luncheon adjournment, at tr. 10.19, the magistrate asked Mr Santone if there was anything else he wanted to say. Mr Santone made further submissions. The magistrate then indicated that he would return after lunch to give a decision on the stay application. After the luncheon adjournment, the magistrate announced that he proposed to refuse the stay. His Honour then marked all the statements tendered as individual exhibits and gave reasons for his decision.

His Honour found that an undertaking was given by Detective Cooper that no charges would be laid, which raised an expectation in the plaintiff that there would be no criminal charges laid. His Honour accepted that Detective Cooper had no knowledge of the image allegations when he gave the undertaking although he had tried to find whether there were any other charges outstanding when he searched the COPS database.

His Honour characterised the basis for the application for a stay as being the allegation that it would be an abuse of process for the image charges to proceed. His Honour cited from L v Johnson & the DPP [2003] NSWSC 1246 (Hidden J), which, in turn, cited Jago v The District Court of New South Wales (1989) 168 CLR 23 (Jago) at 33-34 (Mason CJ); [1989] HCA 46. The magistrate cited the following passage from L v Johnson & the DPP:

The magistrate found that the issue of delay was not a matter of particular concern. His Honour identified the issue as being whether to allow the prosecution to proceed would bring the administration of justice into disrepute. His Honour cited Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 93 ALJR 1 (Strickland). His Honour read from [99] of Strickland where the plurality (Kiefel CJ, Bell and Nettle JJ) said:

His Honour also read out [100] from Strickland as follows:

His Honour continued at tr. 14-15:

Section 53(3)(b) of the Act provides that any person against whom an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to this Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Court.

The plaintiff, in his second further amended summons raised several grounds of appeal. In substance, these grounds are as follows:

These grounds fall into 6 categories, which will be addressed in turn.

I note that ground 12 has been withdrawn.

The plaintiff argued that the magistrate failed to apply the correct legal principles in Strickland and that, had his Honour applied the principles correctly, the stay would have been granted. It is apparent from his Honour’s reasons that his Honour was aware of, and had considered, Strickland. His Honour cited from it and other authorities. The magistrate approached the application on the basis that an undertaking had been given and that the plaintiff had understood from the content of the undertaking that he would not be charged in relation to the images and that it was on this basis that the plaintiff had given evidence in opposition to the AVO application (to which he subsequently consented).

His Honour carefully considered the evidence as to how it came about that Detective Cooper had failed to appreciate that evidence relating to the images was included in the complainant’s statement dated 5 December 2017. However, his Honour accepted Detective Cooper’s unchallenged evidence that he had not read that statement and was entirely unaware that any images had been taken when he gave the undertaking. His Honour correctly identified the competing interests in a consideration of whether a stay ought be ordered.

The plaintiff has failed to demonstrate that any question addressed or legal principle applied by the magistrate was wrong. To the contrary, the magistrate’s reasons indicate that his Honour was aware of the governing principles and applied them to the facts of the present case.

As referred to above, there are substantial forensic difficulties relating to the entry for 21 January 2018 which affect its weight. It is neither a business record, nor supported by a business record; the police officer who was alleged to be party to the conversation has not been identified and Mr Kontekakis did not give evidence. The weight to be attributed to particular pieces of evidence was a matter for the magistrate. His Honour’s findings about what was known and appreciated by each party were findings of fact. His Honour accepted, in the plaintiff’s favour, that the plaintiff had an expectation that he would not be charged.

None of the grounds in category (1) has been made out and none warrant a grant of leave.

The plaintiff alleged in this Court that he had been “gagged” by the magistrate because, when he tried to address the Court directly, he was prevented from doing so as the magistrate allowed him only to address the Court through his representative, Mr Santone. I reject this submission. A person who has chosen to appear by a legal representative, is not entitled to address the court directly, but must speak through the legal representative. The plaintiff is bound by the conduct of his legal representative: R v Birks (1990) 19 NSWLR 677 at 684-685 (Gleeson CJ, McInerney J agreeing). Mr Santone, having been alerted to something which the plaintiff wanted to communicate to the court, did not seek (as far as the transcript revealed) to consult his client before concluding his submissions on his behalf. There was no further obligation on the magistrate to allow this to occur in the absence of a request from Mr Santone.

The plaintiff further alleged that he ought not to have been required to serve his evidence in support of his stay application before the police were required to serve their evidence in opposition to the application or the brief of evidence in the image proceedings. The order of proceedings in a criminal hearing or trial (where the prosecutor must adduce all evidence first before the accused person is called upon to respond) does not apply to interlocutory applications. As the plaintiff was the applicant for the stay, he was obliged to tender his evidence first and make his submissions first. The magistrate adopted an entirely orthodox approach. Further, Mr Santone did not raise any issue with this approach at the hearing.

The plaintiff contended that there had been a denial of procedural fairness by reason of his not having been asked whether he agreed to a continuation of the interim AVO orders at the conclusion of the hearing on 9 December 2019, before they were in fact continued. As set out above, Mr Santone, on 25 July 2019, had asked that the other matters be stood over until after the determination of the stay application. In these circumstances the interim AVO orders were to be continued until a date after the determination of the stay application. The magistrate did not have to concern himself with the interim AVO orders, which were continued as a matter of course. Such orders, as with continuation of bail orders, are made to avoid any doubt and to confirm the status quo, even though no application to vary the existing orders was made. No denial of procedural fairness has been made out.

It was alleged that the matters referred to above revealed bias by the magistrate or gave rise to a reasonable apprehension of bias. I reject this submission. The magistrate’s conduct was consistent with the orderly and orthodox conduct of a hearing.

None of the grounds in this category has been made out and none warrants a grant of leave.

Ground 2 contains an allegation that the police dishonestly tendered, in opposition to the stay, statements which supported the images charges and failed to tender all of the evidence relating to those charges. The brief in relation to the images charges had not been served at the time the proceedings were heard by the magistrate.

Once again, the principle that the plaintiff is bound by the conduct of his legal representative applies. There was no objection to the material tendered by the police in opposition to the stay, either as to relevance or form. Had Mr Santone considered that any further evidence ought be tendered in reply, he could have tendered any such evidence. Ground 2 has not been made out and does not warrant a grant of leave.

As referred to above, in the Court below, Mr Santone raised that one of the earlier alleged breaches of the AVO had been dismissed. He conceded that it was not his strongest submission. Mr Santone did not make any submission that the evidence in the images proceedings was other than strong. Nor was any such submission open. Although not all of the emails the plaintiff had sent to Senior Constable Butcher were in evidence, Senior Constable Butcher had extracted the relevant text in her statement dated 5 December 2017. Further, her statement contained admissions by the plaintiff that he had filmed the complainant and sent the video to the police and to the Court. It is understandable that Mr Santone did not make submissions about the strength of this evidence, particularly in circumstances where the brief of evidence for the image offences had not yet been served.

The plaintiff also argued that it was significant that the police did not include the allegation that the plaintiff shared the video on social media in the current images proceedings which suggested that the police were sceptical of the veracity of the allegations. He further argued that the fact that he was served with a court attendance notice rather than arrested indicated that the police did not regard their evidence as sufficiently strong to result in a conviction. The formulation of charges is a matter for the prosecutor and is not subject to review by a court: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30] (French CJ, Crennan and Kiefel JJ). It would not be appropriate to speculate as to the content of the charge, its formulation and its particulars. Further, this matter was not raised by Mr Santone in the Court below and ought not be entertained here. I do not regard the distinction between the service of a court attendance notice and the arrest of an accused person as bearing on any conclusion that might be reached as to the prosecutor’s view of the strength of the prosecutor’s case.

The grounds in this category have not been made out. None warrants a grant of leave.

There is no authority to support the proposition that a promissory estoppel, such as was recognised in Waltons Stores (Interstate) Limited v Maher applies in the present circumstances. Indeed, authorities such as Strickland make it clear, as a matter of necessary implication, that the principles of promissory estoppel do not apply. Accordingly, there is no substance to this ground, which does not warrant a grant of leave.

The principle of double jeopardy, relevantly, prohibits a person being charged twice for the same offence. It is difficult to see how this arises in the present case. The images charges have not been proceeded with previously. The plaintiff argued that the AVO application was a criminal matter and that it covered the images charges. First, an AVO application constitutes “civil proceedings” within the meaning of ss 3 and 4 of the Civil Procedure Act 2005 (NSW) and therefore does not constitute criminal proceedings: Sch 1 to the Civil Procedure Act, which refers to s 91 of the Crimes (Domestic and Personal Violence) Act, for which the Local Court has special jurisdiction under Part 4 of the Local Court Act 2007 (NSW). In these circumstances the principle of double jeopardy does not apply: Adler v DPP [2004] NSWCCA 352 at [40]. Secondly, the AVO application made no mention of the images charges. There is no merit to this ground and accordingly no grant of leave is warranted.

The plaintiff has failed to persuade me that leave ought be granted under s 53(3)(b) of the Act in respect of any of the grounds. In order to address the question of jurisdiction (whether a question of law alone is involved) and whether leave ought be granted it has been necessary to review the grounds. In doing so I have addressed the merit of the grounds in this context. For the reasons given above, I am not persuaded that any of the grounds warrants a grant of leave.

During the hearing of the matter, the plaintiff contended that the court book which had been prepared by the sixth defendant was deficient in that it contained a statement of Senior Constable Butcher dated 5 December 2017 to which the wrong documents had been annexed. In order to rectify this, I allowed the annexures in the court book to be removed and replaced by pages supplied by the plaintiff (which formed part of Annexure “E” to his evidentiary statement filed on 8 April 2020). Ms Curry, who appeared for the sixth (and seventh) defendants, accepted that the substitution ought be made.

In an email sent to my Associate on Sunday 10 May 2020, the plaintiff made allegations about the conduct of police in failing to have the correct annexures attached to the statement which was in the court book. In a further email dated 11 May 2020, the plaintiff has noted that the image charge documents are in a different format in the court book than those attached to his affidavit (which I rejected). He also contended that he understood that this Court’s decision was to be limited to the documents which were before the magistrate.

I note that it was the plaintiff’s obligation to provide the documents to the court for his proceedings. The plaintiff, instead, chose to file an affidavit of 8 April 2020, which was objected to because it contained material which was not before the magistrate. It was in this context that the sixth defendant indicated to the Court that he would provide a court book with the material which was before the magistrate. Ms Curry accepted that there had been an error in this process which was limited to the annexures to Senior Constable Butcher’s statement referred to above. I have no reason to believe that the error was other than inadvertent. The annexures which had been included in error in the court book were the emails sent by the plaintiff, which were extrapolated in the statements in any event.

As to the charge documents, the versions in the court book are three separate court attendance notices. The document annexed to the plaintiff’s affidavit contains the three charges in the one notice. The offences charged are otherwise identical. Nothing turns on the differences. It was appropriate that this Court have the charge documents before it for the purposes of the application for leave to appeal.

In these circumstances, the matters raised by the plaintiff in his emails do not affect the questions for my determination. It has, in these circumstances, not been necessary to hear from the sixth defendant on the plaintiff’s further submissions and observations.

Ms Curry sought costs if the sixth defendant was successful. The plaintiff submitted that, even if he were unsuccessful, he should not be required to pay the sixth defendant’s costs because of the error relating to the contents of the court book. As referred to above, the error in the court book was immaterial and apparently inadvertent. It provides no reason why the plaintiff ought not be ordered to pay the sixth defendant’s costs of the proceedings.

As referred to above, the seventh defendant was not a proper party to the proceedings and ought be removed as a party. In these circumstances, the plaintiff ought be ordered to pay the seventh defendant’s costs of the proceedings as well as those of the sixth defendant.

For the reasons given above, I make the following orders: