Clark v State of New South Wales; Clark v Commissioner of Corrective Services NSW

Case •

[2024] NSWSC 1328

•

22 October 2024

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Clark v State of New South Wales; Clark v Commissioner of Corrective Services NSW [2024] NSWSC 1328
Hearing dates: 14-15 October 2024
Date of orders: 15 and 22 October 2024
Decision date: 22 October 2024
Jurisdiction:Common Law
Before: Chen J
Decision:

(1) Order that the plaintiff’s notice of motion filed 23 July 2024 be dismissed.

(2) Order that the plaintiff pay the respondents’ costs of, and incidental to, the notice of motion.

(3) Order that the amended summons dated 9 August 2024 be dismissed.

(4) Order that the plaintiff pay the respondents’ costs of, and incidental to, the amended summons.

(5) Direct that the Court forward a copy of this judgment to the plaintiff.

Catchwords:

ADMINISTRATIVE LAW – Writ of habeas corpus – Where self-represented plaintiff is held in custody bail refused on charges currently before the Local and District Court – Where plaintiff asks the Court to undertake a broader enquiry into the legitimacy of the charges against him – Detention of the plaintiff neither illegal nor unlawful – Application dismissed

CIVIL PROCEDURE – Stay of proceedings – Where plaintiff seeks permanent stay of extant criminal proceedings before the Local and District Court on the basis that they are an “abuse of process” and productive of “unfair prejudice” – Where dealing with the substance of the plaintiff’s arguments would lead to the fragmentation of the criminal justice process – No “special reason” or “exceptional or extraordinary” circumstance to displace the general principle against fragmentation – Application for stay of proceedings dismissed

CIVIL PROCEDURE – Notices to produce – Before hearing – Where plaintiff seeks an order requiring compliance with notice to produce – Where notice to produce impermissibly sought material from non-parties to the proceedings and in circumvention of the requirement for leave for self-represented parties to issue a subpoena – No “apparent relevance” of the documents sought to the proceedings – Application dismissed

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1900 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Evidence Act 1995 (NSW)

Felons (Civil Proceedings) Act 1981 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377

Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41

Calleija v The Queen [2012] NSWCCA 37; (2012) 223 A Crim R 391

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593

Clark v R (No 2) [2015] NSWCCA 271

Clark v State of New South Wales [2021] NSWSC 380

Commissioner of Corrective Services v Hamzy [2024] NSWCA 240

Dacich v Commissioner of Corrective Services [2020] NSWCA 359

Director of Public Prosecutions (NSW) v Hamzy (2019) 101 NSWLR 405; [2019] NSWCA 314

Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129

Ex parte Williams (1934) 51 CLR 545

Frugtniet v Victoria [1997] HCA 44; (1997) 71 ALJR 1598

Gamage v Riashi [2023] NSWSC 390

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46

Jol v State of New South Wales (1998) 45 NSWLR 283

Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24

La Rocca v R [2023] NSWCCA 45

Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177

Obeid v The Queen [2016] HCA 9; (2016) 90 ALJR 447

PFC v R [2011] NSWCCA 275

Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622

R v Edwards [2009] HCA 20; (2009) 83 ALJR 717

R v Secretary of State for the Home Department, Ex parteCheblak [1991] 1 WLR 890

Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; (1994) 123 ALR 478

Re Stanbridge’s Application (1996) 70 ALJR 640

Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

State of New South Wales v TD (2013) 83 NSWLR 566; [2013] NSWCA 32

Tootle v R [2017] NSWCCA 328

Webb v The Queen; R v Webb [2012] NSWCCA 216; (2012) 225 A Crim R 550

Wehbe v Giotopoulos [2022] NSWSC 1566

Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653

Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262

Category:Principal judgment
Parties:

Proceedings 2002/00069098
Peter Frederick Clark (Plaintiff)
State of New South Wales (Defendant/First Respondent)
Commissioner NSW Police Service (Second Respondent)
Director of Public Prosecutions NSW (Third Respondent)

Proceedings 2024/00271486
Peter Frederick Clark (Plaintiff)
Commissioner of Corrective Services New South Wales (First Defendant)
Commissioner of Police Service New South Wales (Second Defendant)
Director of Public Prosecutions New South Wales (Third Defendant)
State of New South Wales (Fourth Defendant)
Representation:

Counsel:
Plaintiff (self-represented)
A Bhasin (Defendants)

Solicitors:
NSW Crown Solicitor’s Office (Defendants)
File Number(s): 2002/00069098 & 2024/00271486
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), there is a statutory non-publication order in place in regard to any matter which identifies, or which is likely to lead to the identification of, the complainants in the plaintiff’s criminal proceedings, anonymised in these reasons as CG and MS.

JUDGMENT

Introduction

  1. As long ago as 2002, Peter Clark (‘the plaintiff’) commenced proceedings for damages in this Court against the State of New South Wales alleging, amongst other matters, that he was falsely imprisoned and maliciously prosecuted by certain police officers in connection with offending that was alleged to have occurred in the period 1997-2000 (‘the 2002 proceedings’).   

  2. Those proceedings have a long and well-documented procedural history. That history has been collated in many decisions of the Court, most recently by Wright J in Clark v State of New South Wales [2021] NSWSC 380 at [4]-[37].

  3. In the 2002 proceedings, notwithstanding the sole defendant is the State of New South Wales (‘the State’) and the pleaded events relied upon to support the causes of action, the plaintiff on 23 July 2024 filed a notice of motion seeking orders against the State, the “Commissioner NSW Police Service” and the Director of Public Prosecutions NSW, essentially as follows: that a search warrant executed on 16 November 2023 “be set aside as false and an abuse of process” (prayer 1); that the respondents comply with the plaintiff’s notice to produce requiring the production of “all the things seized by police in connection with the search warrant on 16 November 2023” and that ultimately they be returned to the plaintiff (prayers 2 and 3).

  4. Additionally, by amended summons dated 9 August 2024, the plaintiff seeks a raft of procedural orders (three of which overlap precisely with the orders sought in the notice of motion, referred to above) and a series of substantive orders relating to criminal proceedings that are currently in the Local and District Court. As to the substantive orders, put simply, the plaintiff seeks one of three orders: that those proceedings be dismissed, set aside or permanently stayed. The respondents to that summons are the State, the Commissioner of Corrective Services NSW, the Commissioner of Police Service NSW and the Director of Public Prosecutions NSW.

  5. The State and the respondents to the notice of motion and amended summons oppose the orders sought by the plaintiff.

  6. The plaintiff gave no particular attention to the correct defendant/respondent to each of the orders sought, and there was no argument by him about such matters. The State and the respondent parties appeared through the same counsel. Given these matters, and the fact that I propose to dismiss the amended summons and the notice of motion, it is convenient (unless the context dictates otherwise) to refer to the respondent parties generally merely as ‘the State’.

Preliminary issues: the timing of the applications and habeas corpus

  1. The matter was listed for hearing on 14 and 15 October 2024, albeit that the plaintiff’s proceedings in the Local Court, which deal with the alleged possession of child abuse material, are listed for hearing on 24 October 2024. It is unclear why the plaintiff did not seek expedition, and an urgent hearing, of his amended summons given this listing and the nature of the relief sought.

  2. That is particularly so given the plaintiff sought the issue of a writ of habeas corpus. On the face of the amended summons, the basis for that writ to issue was misconceived: it was sought, by prayer 2 of the amended summons, to facilitate his appearance “before the Court via Audio Video Link (AVL)”, notwithstanding an order had been made under s 77(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) requiring the plaintiff “to be produced” in order for him to appear by AVL.

  3. That the basis for this relief was expressed in that manner undoubtedly explains why the amended summons was not given (or, at a minimum, a hearing of the application for the writ to issue) an immediate listing. Had the plaintiff identified a basis beyond the terms as expressed in prayer 2 of the amended summons for the writ to issue (as he sought to do at the hearing), an urgent hearing of the claim would have resulted: the “liberty of the citizen under the law is the most fundamental of all freedoms… an application for a writ of habeas corpus has virtually absolute priority over all other court business”: R v Secretary of State for the Home Department, Ex parte Cheblak [1991] 1 WLR 890, 894 (‘Cheblak’). That he did not do so explains why the amended summons and notice of motion were listed for hearing in the ordinary way.

  4. During the course of oral submissions, however, the plaintiff argued that a writ of habeas corpus should issue for a different reason to the one identified in prayer 2 – essentially on the ground that the child abuse material charges were legally bound to fail and, in any event, those charges and other charges brought against the plaintiff for child sexual assault were “drummed up” and brought for an improper purpose. Consistent with the directive in Cheblak, I determined, following argument, that application by making an order dismissing prayer 2 of the amended summons dated 9 August 2024, with reasons to be provided.

  5. My reasons for making that order are later set out: see [35]-[47], below.

Background

  1. As is apparent from the brief introduction, it is necessary to outline some of the background facts. I will do this across three parts: first, a short summary of the 2002 proceedings; secondly, the circumstances surrounding the search warrant executed on 16 November 2023 and the charges that followed; and, thirdly, the plaintiff’s current criminal proceedings before the Local and District Court.

A short summary of the 2002 proceedings

  1. The current version of the plaintiff’s pleading is the further amended statement of claim filed 24 July 2020 (‘FASOC’) albeit that paragraph 27 was amended by an order made by Wright J on 16 April 2021.

  2. The key allegations made by the plaintiff in the FASOC are as follows:

  1. On 21 February 2000, the plaintiff was arrested and charged by Detective Sergeant Muxlow and Detective Senior Constable Metcalf with seven counts of making and/or using false instruments: FASOC, pars 4-5.

  2. The plaintiff entered pleas of not guilty to the charges: FASOC, par 6.

  3. On 8 August 2000, when the matter was listed for hearing in the Local Court at Taree, the prosecution offered no evidence and each of the charges were withdrawn and dismissed: FASOC, par 7.

  4. The plaintiff alleges that he was falsely imprisoned, following his arrest, and that he was maliciously prosecuted: FASOC, pars 5 and 9-11.

  5. On 29 February 2000, the plaintiff was arrested and charged by Detective Sergeant Muxlow and Detective Senior Constable Metcalf with the offence of perverting the course of justice: FASOC, pars 12-13.

  6. The plaintiff entered a plea of not guilty but was committed to stand trial following which, on 22 April 2001, the plaintiff was convicted of this offence and sentenced by Dowd J to a period of 12 months periodic detention: FASOC, pars 15-17.

  7. The plaintiff appealed his conviction and on 11 February 2002, the Court of Criminal Appeal upheld the appeal and quashed his conviction: FASOC, par 18.

  8. The plaintiff alleges that he was falsely imprisoned, following his arrest, and was maliciously prosecuted: FASOC, pars 13, 20-26.

  9. The plaintiff also alleges that the engagement of the criminal processes in relation to both charges were abuses of process: FASOC, par 27.

  1. The plaintiff claims damages, including aggravated and exemplary damages: FASOC, pars 28-35.

  2. The 2002 proceedings are listed for hearing for 10 days commencing 7 July 2025.

The search warrant executed on 16 November 2023 and the child abuse material charges

  1. On 16 November 2023, two police officers (Senior Constable Reardon and Detective Senior Constable Shedden) attended the plaintiff’s residence in Forster, NSW for the purposes of conducting a home visit on the plaintiff who is, and was at that time, a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW).

  2. As the apartment block was gated, the officers buzzed the plaintiff’s unit number on the intercom, following which the plaintiff invited both officers inside. When inside the unit, the plaintiff handed Detective Senior Constable Shedden his mobile telephone (a Samsung Galaxy S10) and provided him with the PIN. The plaintiff’s telephone was then accessed by Detective Senior Constable Shedden who is said to have located four images of naked children that he deemed to be child abuse material (classified as “category 2 Child Abuse Material images”).

  3. The plaintiff’s mobile telephone was seized and he was placed under arrest.

  4. The plaintiff was taken to Forster police station where he was charged with one count of possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW) (‘the child abuse material proceedings’).

  5. That day, Senior Constable Reardon applied for, and was granted, a search warrant for the plaintiff’s residence in Forster. Following service of the occupier’s notice upon the plaintiff, a number of police officers attended the plaintiff’s residence and executed the search warrant, during which police seized a number of computers, hard drives and USB devices.

  6. On 30 November 2023, Senior Constable Reardon examined the USB drives that were seized from the plaintiff’s residence. One of the USB drives contained a number of “clips” depicting young children, including one which is reported to be a clip from “Tarzan, The Legend” showing a naked young boy swinging through the trees.

The child sexual assault proceedings

  1. On 31 January 2024, the plaintiff was charged with a number of child sexual assault offences (‘the child sexual assault proceedings’). There are eight counts involving two complainants: MS and CG. Each of the complainants have provided police statements.

  2. The conduct giving rise to the offences involving MS (counts 1-5) is alleged to have occurred in around August 1997. The conduct giving rise to the offences involving CG (counts 6-8) is alleged to have occurred in around June/July 1998.

The criminal proceedings in the Local and District Court

  1. The charges relating to the possession of child abuse material are listed for hearing in the Local Court at Taree on 24 October 2024.

  2. The plaintiff was refused bail following being charged with these offences on 16 November 2023 and a release application was refused on 26 August 2024.

  3. In relation to the child sexual assault proceedings, the plaintiff has been committed to the District Court for trial and the matter is next listed for mention on 23 October 2024 at the Downing Centre.

  4. The plaintiff is also bail refused on these charges.

The amended summons: the orders sought

  1. By the amended summons dated 9 August 2024, the plaintiff seeks eight orders. I will deal with each of them in the order contained in the amended summons, albeit that some of them can be dealt with together.

Leave under the Felons (Civil Proceedings) Act 1981 (NSW): prayer 1

  1. By prayer 1 of the amended summons, the plaintiff seeks leave, under the Felons (Civil Proceedings) Act 1981 (NSW) (‘the Act’), to “commence these proceedings”.

  2. Section 4 of the Act is in these terms:

4 Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

  1. The fact the plaintiff has already commenced proceedings does not mean the proceedings are a nullity but merely irregular: it is permissible for leave to be granted nunc pro tunc, if the pre-conditions to the making of an order under s 4 of the Act are established: Jol v State of New South Wales (1998) 45 NSWLR 283, 290.

  2. However, the Act simply does not apply. That is because the plaintiff is not in custody “as a result of having been convicted of, or found to have committed, a serious indictable offence” within s 4 of the Act. As I have pointed out, above, the plaintiff is in custody because bail was refused in connection with the child abuse material proceedings and the child sexual assault proceedings. He does not, thus, require leave under the Act to “institute” the amended summons. Ultimately, during the course of submissions, the plaintiff accepted as much.

  3. Prayer 1 of the amended summons will be dismissed.

The issue of a writ of habeas corpus: prayer 2

  1. By prayer 2 of the amended summons, the plaintiff applies for a writ of habeas corpus pursuant to s 71 of the Supreme Court Act 1970 (NSW) to facilitate his appearance “before the Court via Audio Video Link (AVL)”.

  2. To the extent the application for the issue of this writ was directed to securing the above, it should be dismissed because an order was made under s 77 of the Crimes (Administration of Sentences) Act requiring the plaintiff to be produced at the Court by AVL for the hearing of the amended summons and notice of motion and, self-evidently, that has occurred. The basis for seeking the issue of the writ is, thus, misplaced.

  3. As I have earlier noted, during the course of submissions, the plaintiff advanced a different argument to justify the issue of this writ. The plaintiff’s argument was that it was not open for the Local Court to conclude that the four images the subject of the child abuse material proceedings were in fact child abuse material, within s 91FB of the Crimes Act, with the consequence that the plaintiff could not have committed any offence under s 91H(2). In aid of this argument, or additionally, the plaintiff relied upon the decision in Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653 (‘Yates’), arguing that the holding of Rothman J in that case mandated that this Court enquire into, and determine, whether the plaintiff had committed the offence: this enquiry, the plaintiff argued, would demonstrate that he was wrongfully detained.

  4. I do not accept either submission. In short, that is for two overlapping reasons: first, because, contrary to what the plaintiff argued, an application for the issue of the writ of habeas corpus does not permit an enquiry of the kind sought but is appreciably more circumscribed, relevantly here, to an enquiry into whether the plaintiff’s detention is illegal or unlawful; and, secondly, the plaintiff has not been illegally or unlawfully detained, thereby denying the basis for the issue of this writ. I will briefly explain my reasons for each of these conclusions.

  5. The issue of a writ of habeas corpus (ad subjiciendum) enables an applicant to secure their release from any illegal or unlawful detention: “[a] writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful”: Cheblak at 894. That statement about the purpose and function of the writ also identifies its limits: the “procedural purpose of habeas corpus is to bring the person before the court, but the substantive issue on application for the writ concerns the lawfulness of the applicant's detention”: State of New South Wales v TD (2013) 83 NSWLR 566; [2013] NSWCA 32 at [53]. Notwithstanding, the plaintiff’s argument sought to outflank these principles, and habeas corpus orthodoxy, suggesting that it was permissible in proceedings for the issue of a writ of habeas corpus for there to be a broader enquiry in substance directed to the legitimacy of the charges against him, inviting the Court to undertake it.

  1. That invitation is firmly rejected. In my view, where, as here, a person is held under an order of a court, the writ cannot be granted unless the court making the order exceeded its jurisdiction so that the order is a nullity: Ex parte Williams (1934) 51 CLR 545, 549‑50; Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; (1994) 123 ALR 478, 480 (‘Eastman’). That enquiry, which is neither an appeal nor judicial review, does not authorise a court undertaking a wider examination of the kind advocated by the plaintiff – that is, an enquiry into the plaintiff’s arrest, charging and the charges themselves. So much is clear from the decision in Eastman.

  2. In Eastman, the applicant was in custody pursuant to a number of orders made by the ACT Magistrates Court. He argued that his detention pursuant to those orders was, and remained, illegal “for the reason that his original arrest was illegal” – an argument that was rejected in these terms (at 480):

For the purposes of an application for a writ of habeas corpus, however, the answer to that claim is that, on each occasion when the matter came before a magistrate of the ACT Magistrates Court, the learned magistrate was required to consider and determine whether an order could properly be made, and whether an order should be made, that Mr Eastman be remanded in custody and that, on each occasion, the magistrate made such an order. Apparently, none of the orders so made has been overridden by a subsequent bail order or has subsequently been set aside in appellate proceedings.

The writ of habeas corpus is an important safeguard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority. It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. That being so, those orders, while they stand, provide an answer to Mr Eastman's present application.

  1. In my view, the plaintiff’s argument (which is substantively in the same terms as that advanced in Eastman) is answered, and foreclosed, by application of first principle and, in particular, the analysis in Eastman set out above. The decision in Re Stanbridge’s Application (1996) 70 ALJR 640, 643 is to the same effect. Further, the plaintiff’s application for the issue of the writ is also answered (and denied) by the fact that the plaintiff is not, and has not been, illegally or unlawfully detained, but held in consequence of orders made against him refusing him bail in connection with both sets of offences, as I next explain.

  2. In relation to the child abuse material proceedings, it was accepted that the plaintiff was refused bail following being charged with this offence and that he has been, since that time, bail refused. In connection with the child abuse material proceedings, there is a remand warrant dated 24 June 2024 authorising the detention of the plaintiff until 24 October 2024 and a court order notice dated 26 August 2024 confirming that an application for release had been refused. Separately, there is a remand warrant and a court order notice, each dated 26 August 2024, in connection with the child sexual assault proceedings, authorising the detention of the plaintiff. Thus, independently of the order and warrant issued in the child abuse material proceedings, the plaintiff’s detention is authorised by that further order and warrant. Whilst it may be accepted that the burden of justifying the plaintiff’s detention fell upon the State, it has done so. Further, “where there is a court order or a warrant which, if regular, provides a sufficient justification, it is for the applicant to show some basis for casting doubt upon its regularity”: Dacich v Commissioner of Corrective Services [2020] NSWCA 359 at [16] (‘Dacich’). The plaintiff did not, it should be noted, advance any challenge to the regularity or validity of the warrants and the orders.

  3. Given the above, there is a legal justification (or lawful authority) for the plaintiff’s detention by those orders, with the consequence that those orders, being on their face valid and regular, answer the writ of habeas corpus: Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262, 285; Eastman at 480; Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622, 627; Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 at [127].

  4. Separately, and contrary to what the plaintiff argued, the decision in Yates does not dictate a contrary conclusion. That decision is entirely orthodox, in my view: in that case, the order made by the District Court Judge remanding the applicant in custody was unlawful because only the Local Court (with whom the applicant entered the bond as part of the sentence imposed) was empowered, in the circumstances, to deal with the failure of the applicant to comply with a condition of his good behaviour bond: at [33], [35] and [50]. Thus, the applicant had been detained by an order of the District Court at a time when that Court had not determined that it had jurisdiction to deal with the matter (at [51]), and the conclusion of Rothman J was that the Court did not have such jurisdiction in the circumstances. Put simply, the District Court was found to have acted in excess of its jurisdiction, with the consequence that the detention of the applicant was unlawful. It was in those circumstances that the writ issued. So understood, the decision provides no support for the plaintiff’s broader argument nor the issue of the writ more generally.

  5. Finally, for completeness, I add the following. The plaintiff gave no attention to, or directed any argument towards, identifying the proper respondent to the application. Given the conclusion reached, that there is no basis for the issue of the writ, it is unnecessary to pursue that matter further. Nevertheless, consistent with what was said in Dacich at [6]-[11], there is some reason to doubt that the plaintiff correctly identified (and joined) the person answerable to the writ.

  6. These are the reasons for why I dismissed prayer 2 of the amended summons.

An order dismissing, setting aside or permanently staying the criminal proceedings: prayers 3 and 7

Introduction

  1. The plaintiff seeks one of three orders – an order dismissing, setting aside or permanently staying – that, in the result, will terminate favourably to him the child abuse material proceedings and the child sexual assault proceedings.

  2. In substance, the plaintiff sought an order that these proceedings be permanently stayed. He raises a range of matters that are argued to support the Court making those orders – as follows:

  1. First, the material seized – the four images – could not, on any view, be found to be child abuse material such that their possession could constitute an offence under s 91H(2) of the Crimes Act: the essential argument is that the combination of these matters “is clearly an abuse of process; alternatively a contempt of court” (plaintiff’s affidavit/submissions dated 26 September 2024 at [15]-[41]).

  2. Secondly, the plaintiff argues that the attendance by police on 16 November 2023 was undertaken contrary to the terms of s 16C of the Child Protection (Offenders Registration) Act because, in substance, that section only permitted two “visits” in any 12 month period following the making of an initial report, and the one that occurred on 16 November 2023 was the third such visit: the plaintiff argued that “anything that resulted from that unauthorised entry to my unit by police, on 16th November 2023, is inadmissible in any court. As such the charge and search warrant must be dismissed” (plaintiff’s affidavit/submissions at [42]-[53]).

  3. Thirdly, the plaintiff argued that the charges themselves – confirmed during submissions to extend to both the child abuse material proceedings and the child sexual assault proceedings – “are an abuse of process set in place by police to obstruct [the plaintiff’s] abilities to prosecute [his] statement of claim against police for previous prosecutions that terminated in [his] favour” (plaintiff’s affidavit/submissions at [63]).

  4. Fourthly, the plaintiff argues, in essence, that unfair prejudice arises given there has been delay and that the allegations date back more than 26 years (plaintiff’s affidavit/submissions at [54]ff).

  1. The first and second matters raised by the plaintiff relate only to the child abuse material proceedings and they are not unrelated. The thrust of them is that the access to the plaintiff’s premises on 16 November 2023 was unlawful with the consequence that the police had no authority to inspect his mobile telephone (and, as a corollary, the various steps put in place thereafter to search the plaintiff’s premises and seize material were equally unlawful). Further, and in any event, the images were not child abuse material. The third matter relates to both proceedings. The fourth matter relates to the child sexual assault proceedings.

  2. The State, by way of summary, argued that the application for a permanent stay of the criminal proceedings should be refused for two overarching reasons: first, because the application amounts to impermissible interference with, or fragmentation of, those proceedings and that the relief that the applicant seeks can, indeed should, be pursued in those courts; secondly, and in any event, there is no basis to grant the plaintiff the exceptional remedy sought (State submissions dated 8 October 2024 at [10]).

  3. Before dealing with the competing arguments, I will set out the relevant principles addressing the avoidance of fragmenting the criminal justice process and those that apply to a determination of whether to permanently stay criminal proceedings (this being the basis for the relief sought by the plaintiff).

Fragmenting the criminal justice process: the principles

  1. In this context, the avoidance of fragmenting the criminal justice process refers to the “longstanding and general reluctance” on the part of a civil court “in point of policy to make orders which would have the effect of fragmenting a criminal process which has already been set in train”: Obeid v The Queen [2016] HCA 9; (2016) 90 ALJR 447 at [15]. See also Sankey v Whitlam (1978) 142 CLR 1, 26; [1978] HCA 43; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, 599-600; Frugtniet v Victoria [1997] HCA 44; (1997) 71 ALJR 1598, 1602.

  2. In Gamage v Riashi [2023] NSWSC 390 (‘Gamage’), the principle was explained and discussed in these terms (at [26]-[28]):

[26] In that setting, a broader principle is in play – viz., the undesirability, and discouragement, of fragmenting the criminal process by the bringing of concurrent proceedings in courts other than the trial court: the High Court has “repeatedly stressed the need for civil courts to avoid becoming involved in aspects of the criminal justice system”: Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145 at [7] (‘Jiang’); and it is a well-established principle “that criminal proceedings should not be fragmented by other courts' entertaining, except in exceptional or extraordinary circumstances, applications of various kinds by or against one or more of the participants in the criminal trial”: Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149, 187; [1996] FCA 16 (‘Flanagan’). More recently, this general principle was expressed in Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23], as follows:

With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle.  This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings…. The fragmentation of the criminal process is to be actively discouraged.  In any event, a declaration may be of limited utility where founded, as would be the case here, on facts admitted only for the purposes of the satellite litigation.

[27] The reasons why it is undesirable are “obvious”, and they “include delay and its effects”: The Queen v Rolfe (2021) 95 ALJR 975; [2021] HCA 38 at [32]. The reasons also include the importance of avoiding discontinuity and disruption of the procedures of the criminal law: Jiang at [8].

[28] It follows that, once “criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order”: Sankey v Whitlam (1978) 142 CLR 1, 26; [1978] HCA 43, or exceptional or extraordinary circumstances are demonstrated to warrant departure from the general principle: Flanagan at 187.

Permanent stay of criminal proceedings: principles

  1. The principles relevant to the grant of a permanent stay of criminal proceedings derive from a series of High Court decisions, and have been summarised in a number of decisions of the Court of Criminal Appeal, including Webb v The Queen; R v Webb [2012] NSWCCA 216; (2012) 225 A Crim R 550 at [64]-[71] (expressly relied upon by the State – ‘Webb’); Calleija v The Queen [2012] NSWCCA 37; (2012) 223 A Crim R 391 at [28]-[36]; Tootle v R [2017] NSWCCA 328 at [7]-[9]; La Rocca v R [2023] NSWCCA 45 at [34] and, drawing upon that decision, Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24 at [52] (‘Koschier’). It is convenient to refer to the summary of the (relevant) principles from Koschier at [52], as follows:

the remedy is an extraordinary one, only to be given in exceptional or extreme circumstances: R v Glennon (1992) 173 CLR 592 at 605; [1992] HCA 16 (Glennon); Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [33]-[35] (Dupas); Strickland at [166];

such a description recognises the powerful social imperative for those who are charged with criminal offences to be brought to trial: Strickland at [106], see also at [166]-[167], [262];

notwithstanding this, the categories or circumstances in which the exceptional remedy of a permanent stay of criminal proceedings may be granted are not and should not be closed: Strickland at [99];

there is no ‘definitive category’ of extreme cases: Dupas at [35];

each case accordingly must be decided according to its own facts: Moti v The Queen (2011) 245 CLR 456;[2011] HCA 50 (Moti) at [60]; Strickland at [99], [246], [261];

a permanent stay of criminal proceedings may be appropriate where to refuse such a remedy would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42; Moti at [10];

the administration of justice may be brought into disrepute in a number of different ways;

one example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton v The Queen (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46; Glennon at 605-606; Dupas at [35] …

  1. The following three matters should also be noted. First, an applicant for a permanent stay bears a “high burden”. As was explained in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [21] (‘GLJ’):

The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case.

  1. Secondly, as the State argued during the course of submissions, the approach when determining whether that “high burden” has been met does not involve a weighing or “balancing exercise” of factors and considerations: GLJ at [22]-[23].

  2. Thirdly, the Local Court (who is to determine the child abuse material proceedings by way of a summary trial) is empowered to stay the prosecution in that Court: Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, 134-135 and 139 (‘Shirvanian’); Director of Public Prosecutions (NSW) v Hamzy (2019) 101 NSWLR 405; [2019] NSWCA 314 at [49]. The District Court (who is to determine the child sexual assault charges) is similarly empowered to stay the prosecution in that Court: Jago v District Court (NSW) (1989) 168 CLR 23, 25, 31, 56, 75-76; [1989] HCA 46 (‘Jago’); Shirvanian at 134-135.

  3. I turn now to deal with the competing submissions.

Consideration and disposition

  1. I have earlier set out the essential matters argued by the plaintiff to support the orders sought. Given the overlap between the first and second matters raised – essentially that the images were not child abuse material and that, in any event, the police were not authorised to enter into his premises and thus access his mobile telephone and, thereafter, secure the issue of a search warrant, execute that warrant and seize the material – I will deal with them together and, thereafter, the third and fourth matters.

The pre-emptive determination argument

  1. As is apparent from the short summary of the plaintiff’s argument, the plaintiff seeks a determination from this Court that the four images seized could not be child abuse material, with the consequence that he could not be guilty of the offence with which he has been charged. As is also apparent from that short summary, this is the precise subject matter of the criminal proceedings that are listed for hearing on 24 October 2024. It is, therefore, not only a live issue that will arise in the proceedings, but the central one. The plaintiff thus seeks, pre-emptively, to have this Court embark upon that determination because, so he argues, the material is not of the requisite kind. The State, by way of response, argued that the principle requiring the avoidance of the fragmentation of the criminal justice process was a complete answer to the plaintiff’s argument.

  2. The plaintiff did not dispute the engagement of the principle against fragmentation but, so far as I understood it, appeared to argue that the circumstances warranted this Court’s involvement in deciding the ultimate issue (and under the rubric of an application for a permanent stay). I do not accept that it is appropriate for this Court to be involved in that issue and, to be clear, I do not regard the circumstances, such as they are, to amount to “some special reason” in the interest of justice to require this; nor do I consider them to be “exceptional or extraordinary”, or anything approaching any of these matters, so as to displace the general principle against fragmentation. That is for the following reasons.

  3. First, as the State essentially submitted, the issue about characterising the images inevitably would involve a factual and normative assessment given the terms of ss 91FB(1) and (2) of the Crimes Act: the matters in s 91FB(2) are quintessentially for the tribunal of fact and trial court. It is thus not a case where, by way of illustration, a pure question of law is raised on undisputed facts that might lend itself to determination and possibly within an exception to the principle against fragmentation. The opposite is in fact so: there is a contest over the facts and how those facts fit within the statutory descriptions. I would add the following. There was no argument – at all – about the matters contained in s 91FB(2) and nor was there any suggestion that all the evidence necessary for the Court to embark upon an assessment of that issue had been tendered.

  1. Secondly, and following on from the above, to enter into that question would be likely to be productive of delay and, given there is an imminent hearing, the interests of justice favour that issue being resolved once all the evidence is tendered and following full argument, finally, in and by the criminal court. No injustice can possibly result from this, in my view.

  2. Thirdly, it is, at this point, worth emphasising that the plaintiff has filed multiple interlocutory applications in the Local Court seeking orders that will involve that Court determining, as a “preliminary point” (presumably, or at least possibly, at the commencement of the trial), the very issue that the plaintiff seeks to ventilate in this Court. Although the plaintiff argued that, despite filing those notices of motion, they have not been listed for hearing (or, perhaps, that the Local Court had declined to entertain them), I do not accept that the Local Court has declined to list them for hearing, or to entertain them. The position, I find, is that each of the notices of motion filed by the plaintiff (dated 27 November 2023 (Exhibit 5), 11 December 2023 (Exhibit 6) and 12 December 2023 (Exhibit 7)) have been stood over for hearing on 24 October 2024: the court order notice (Exhibit 4) dated 22 April 2024, together with the orders on JusticeLink (Exhibit 8), record that, in connection with each of the notices of motion filed, no orders have been made, but also contain the following notation: “[The plaintiff] agreed application needs to be made in trial proceedings”.

  3. The position is the same in respect of the plaintiff’s argument that the police were not authorised to attend and gain entry to his premises initially on 16 November 2023, as well as later that evening, notwithstanding that a search warrant had issued that purported to permit this. (Again, I would add that there was nothing approaching proper submissions on various legal arguments and some of the difficult issues that would fall to be determined). These issues are, in my assessment, intimately bound up with the first issue: if the access exercised by police on 16 November 2023 was not authorised, then a number of issues might arise about the admissibility of evidence that was secured following the initial access and, later, by execution of the search warrant. Any arguments that the plaintiff wishes to raise about such matters in my view, consistent with the principle against fragmentation, can and should be decided by the criminal court, not this one. As the State essentially argued, there is no prohibition on the criminal court determining these matters, if they are to be raised: Gamage at [31]-[36]. Thus, I do not regard the circumstances, such as they are, to amount to “some special reason” in the interest of justice to require this, nor do I consider them to be “exceptional or extraordinary”, or anything approaching any of these matters, so as to displace the general principle against fragmentation.

  4. It was for the above reasons that I refused to permit the plaintiff to cross-examine Detective Senior Constable Shedden in connection with the four images and related topics.

The criminal proceedings are instituted for an improper purpose argument

  1. In relation to the third argument, the plaintiff submitted that, in effect, him being charged with, and prosecuted for, possession of child abuse material and the child sexual assault offences was a result of police collusion with Detective Hatchwell. (In the course of submissions, the plaintiff indicated that Detective Hatchwell, whilst not expressly named in the FASOC, comes under the description “[o]ther police officers”, and thus within FASOC, par 2(c)). In short, the charges have been “drummed up” for the purpose of interfering with the prosecution of the fourth proposed amended statement of claim, with that interference being the seizure of the plaintiff’s “laptop computer and backup USB devices that contained all my material” (plaintiff’s affidavit/submissions at [38]).

  2. An aspect of that submission should be clarified. The argument advanced by the plaintiff was that the interference was in connection with the fourth proposed amended statement of claim. That document is dated 23 October 2023 and was served, according to the plaintiff, around that time. The plaintiff’s current version of the pleading is the FASOC filed 24 July 2020, subject to an amendment to paragraph 27 made by an order of Wright J on 16 April 2021. That is, the plaintiff is not pursuing relief based upon the fourth proposed amended statement of claim, but upon the FASOC filed 24 July 2020. Nevertheless, according to the plaintiff, the service of that document was the trigger for the police collusion resulting in the current charges.

  3. The factual basis to put such a submission was tenuous, at best. Given there was, not unexpectedly, no direct evidence of this, the plaintiff was asked to specifically identify the facts that might permit this inference to be drawn. By way of response, the plaintiff advanced the following five matters which he argued permitted an inference to be drawn that the charges were laid against him for that improper purpose (Tcpt, 14 October 2024, p 63(11)-(45)):

  1. Detective Hatchwell is named (in the manner described in [68], above) in the FASOC.

  2. The images on the plaintiff’s mobile telephone are not child abuse material.

  3. There was no lawful authority to visit his home on 16 November 2023.

  4. The plaintiff needed his laptop computer to aid him in the prosecution of the fourth further amended statement of claim, and this was communicated to Detective Senior Constable Shedden when he attended on 16 November 2023 with Senior Constable Reardon, and it was not suggested that there was anything on that computer relevant to the prosecution for the possession of the child abuse material.

  5. That at least one of the USB devices did not contain any relevant images on it and, in line with the above matter, it was not suggested that there was anything on that USB relevant to the prosecution for the possession of the child abuse material.

  1. I do not consider that these matters go anywhere near enabling the inference sought by the plaintiff to be drawn and, even if that were not patently so, it is an inference that I am quite unwilling to draw particularly having regard to the terms of s 140(2)(c) of the Evidence Act 1995 (NSW).

  2. I add the following. As I have noted above, the plaintiff is pursuing his claim for damages on the FASOC, not on any other version of the pleading. The plaintiff confirmed as much during the course of submissions. Those proceedings are listed for hearing in July 2025 and the plaintiff has served his evidentiary statement dated 17 November 2022 (that is, around one year prior to the events involving the seizure of the alleged child abuse material) in support of that claim. Notwithstanding, the plaintiff submitted that in order to frustrate the progress of that claim, the police (and necessarily the complainants, in relation to the child sexual assault proceedings) have colluded and falsely charged the plaintiff. It appears, according to the plaintiff, that these events were triggered by the service by the plaintiff (presumably on the Crown Solicitor’s Office, who act for the State) of the proposed fourth further amended statement of claim on 23 October 2023. And, by executing the search warrant, seized his laptop computer that is said in some unspecified way to deny his ability to progress his claim.

  3. In relation to the seizure of the laptop, the plaintiff did not identify, at least in clear terms, what material was on his laptop computer and how, and in what way, it extended beyond what had been served by him in the proceedings or was otherwise available in them. Separately, it was not suggested that, following the disposition of the proceedings on 24 October 2024, the laptop computer would not be returned; or, even if that were not so, it was not suggested that, if the plaintiff requested access to the material on the computer that he apparently stored there and requires in order for him to prosecute the 2002 proceedings, he would be denied this material, albeit the manner in which he might access that computer (or the material) would require careful consideration and, no doubt, regulation and supervision.

  4. To the extent that the plaintiff remains in custody after the hearing of the child abuse material proceedings, nothing in these reasons should be construed as supportive of the plaintiff’s alleged need for the laptop or the materials. As the State noted, issues of that broad kind are of some complexity, and were recently discussed in Commissioner of Corrective Services v Hamzy [2024] NSWCA 240. As the State also noted, there is no application of that kind here.

  5. Given I have declined to make any factual finding that would enable the plaintiff to make good the premise for this argument said to justify a permanent stay, it follows that there is simply no basis to grant one, as the plaintiff argued.

The delay and other matters said to demonstrate unfair prejudice argument

  1. The plaintiff’s fourth submission was directed to what were argued to be a series of matters that warranted this Court granting the exceptional remedy of permanently staying both sets of criminal proceedings. I will deal with the matters raised, in what follows.

  2. The plaintiff argued that there has been “unfair prejudice” produced as a result of the time between when the two complainants in the child sexual assault proceedings first complained to police, and the time at which he was charged for the offending: in relation to the first complainant (CG), he first formally complained to police, according to the plaintiff, on 25 March 2021, but the plaintiff was not charged until 22 April 2024; in relation to the second complainant (MS), he first formally complained to police, according to the plaintiff, on 10 February 2023, but the plaintiff was not charged until 22 April 2024 (plaintiff’s affidavit/submissions at [56]-[57]). The plaintiff submitted that the delays not only create “unfair prejudice”, but he alleges that the delays were both deliberate and malicious (plaintiff’s affidavit/submissions at [56]-[57]).

  3. The suggestion that the delay was deliberate and malicious is without foundation, and I reject it. There is nothing like, or even approaching, the necessary evidence on the current application to permit an inference of that kind to possibly be drawn.

  4. The fact that there is some delay between the time of the alleged offending and each of the complainants formally complaining to police does not, in and of itself, amount to unfair prejudice, as the plaintiff argued. A permanent stay will not be ordered merely because there has been delay (Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177 at [166]); rather, it must be shown that, by reason of the lapse of time, the trial conducted would necessarily be unfair such that any conviction would bring the administration of justice into disrepute: Jago at 34. It is true that the subject of each complaint occurred many years ago – as I have earlier noted, in the case of MS, the events are alleged to have occurred in around August 1997; and in the case of CG, the events are alleged to have occurred in around June/July 1998. But, again, that does not, in and of itself, amount to unfair prejudice, as the plaintiff argued. To the extent that any forensic disadvantage might arise at the trial by reason of delay, then as the State argued, directions and warnings would no doubt be given by the trial judge including those under s 165B of the Evidence Act. Further, on no view of what was argued could anything rise to the level of constituting an abuse of process so as to justify the exceptional relief sought.

  5. The plaintiff next argued that each of the complainants, in their police statements, “relied very heavily on their good mate, [CB] to support their allegations”, but that CB has since passed away: the plaintiff submits that, in consequence, he is “denied the ability to properly test the veracity” of the allegations made by each complainant (plaintiff’s affidavit/submissions at [58]).

  6. The premise of the plaintiff’s submission – that each of the complainants rely, or “heavily” rely, upon CB “to support their allegations” – is very much debatable, and I consider it to be inaccurate. It is true that CG refers to CB in his police statement, but the allegations made by CG against the plaintiff (counts 6-8 inclusive) involve acts that allegedly occurred when the plaintiff drove CG to his house and they were alone: see his police statement dated 25 March 2021, pars 12-23. In relation to MS, again I consider the premise of the plaintiff’s submission to be very much debatable. In relation to the complaints that constitute counts 1 and 2, although it appears that initially CB introduced MS to the plaintiff whilst at a local park, the alleged offending occurred following MS entering the plaintiff’s car and driving to another location when they were alone. The subsequent offending (counts 3, 4 and 5) is alleged to have occurred across two occasions when the plaintiff similarly picked up MS from the skate park and drove him to that same location where it is alleged he performed the sexual acts on the complainant. On each of these occasions, CB was not said to be present – only the complainant and the plaintiff were.

  7. In my view, it is not correct to say, as the plaintiff did, that each of the complainants rely “heavily” on CB to support their allegations: rather, their evidence is that they were subjected to the alleged offending conduct by the plaintiff whilst they were in the company of, and only in the company of, the plaintiff.

  8. In any event, even if CB had a greater involvement in supporting the versions given by each of the complainants than I have found, that does not amount to unfair prejudice, or render any trial unacceptably unfair, entitling the plaintiff to a permanent stay, as he argued, because CB has since died. It is well-established that the loss of primary evidence, including the death of a witness, does not, in and of itself, justify the exceptional relief that is now sought: R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 at [31]; Webb at [68]-[73].

  9. For completeness, although I have rejected each of the separate strands of the plaintiff’s argument directed to “unfair prejudice”, I also reject that a consideration of their combination amounts to “unfair prejudice”, thereby justifying a permanent stay.

  10. The plaintiff also argued that, had he been charged before he went to trial on 11 May 2009 (for other alleged offending), these charges would have proceeded at this time and if convicted, “then the sentence would have, more than likely, been the same” (plaintiff’s affidavit/submissions at [59]). Quite how this could or might eventuate was not explained by the plaintiff, but it appeared to be a submission that if he was convicted of these counts, then any sentence imposed by Norrish QC DCJ would inevitably have been wholly concurrent.

  11. The plaintiff identified his convictions by reference to the decision in Clark v R (No 2) [2015] NSWCCA 271, where it was noted that the applicant had been convicted of 23 sexual offences against children in that trial that resulted in him being sentenced to an overall term of imprisonment of 14 years and 5 months, with a non-parole period of 10 years and 9 months (plaintiff’s affidavit/submissions at [92]-[93]). The decision identified by the plaintiff refers to others that provide some further detail to the trial before Norrish QC DCJ: see PFC v R [2011] NSWCCA 275. From a review of that decision, it is apparent that the applicant was tried on an indictment containing 19 counts of sexual assault or acts of indecency involving six different complainants (amongst other charges): at [1].

  12. Putting to one side the difficulty of undertaking a predictive exercise as to what a sentencing judge in 2009 might have done had the plaintiff been prosecuted for the current child sexual assault charges and convicted of them, the argument is, in my view, contrary to principle and I do not accept it: it is, I consider, all but inconceivable, given there are different complainants and different acts giving rise to the offending, that a conviction for the type of offending alleged to have occurred involving CG and MS would not have increased the aggregate sentence imposed and any minimum term by way of the non-parole period: see Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].

  13. The plaintiff made a related submission, which I also reject. It was to the effect that, given he has been in custody since 16 November 2023, any sentence that might be imposed “would add little to the already 16 years I have already served in custody” (plaintiff’s affidavit/submissions at [62]). Self-evidently, how the plaintiff would be sentenced if convicted would depend upon a range of matters. Nevertheless, given the plaintiff has submitted that, in effect, he would not receive any significant sentence if convicted, it is necessary to deal, albeit briefly, with the submission. In my view, it is more than a little difficult to accept that, if convicted of this offending, the plaintiff would receive anything less than a significant custodial sentence for the predatory and sexually abusive conduct that he engaged in, involving children. It follows that, having rejected the premise of this argument, there is no basis to grant a stay of the criminal proceedings.

  14. Prayers 3 and 7 of the amended summons will be dismissed.

An order setting aside the search warrant executed on 16 November 2023: prayer 4

  1. By prayer 4 of the amended summons, the plaintiff seeks an order that the search warrant executed on 16 November 2023 “be set aside as false and an abuse of process”.

  2. As earlier noted, this prayer for relief mirrors prayer for relief 1 in the plaintiff’s notice of motion.

  3. In my view, prayer 4 of the amended summons (and the counterpart prayer in the notice of motion) should be dismissed. That must follow for each of the following reasons, as the State essentially argued. First, any relief, assuming there is a proper basis to challenge the issue and execution of that warrant, lacks utility given the warrant was executed on 16 November 2023. Secondly, assuming there is a proper basis to challenge the issue and execution of that warrant and the material secured in consequence, these are matters that, as the State argued, can and should be raised in the child abuse material proceedings in the Local Court: see Gamage at [31]-[36], and the cases there cited.

  4. Prayer 4 of the amended summons will be dismissed.

An order requiring compliance with the notice to produce dated 22 April 2024 and the production of the material to the plaintiff: prayers 5 and 6

  1. By prayers 5 and 6 of the amended summons, the plaintiff seeks an order requiring compliance with the notice to produce dated 22 April 2024 that the plaintiff served upon the respondents (prayer 5) and, following such production, that the material be returned to the plaintiff forthwith (prayer 6). The notice to produce is expressed to require production of the documents and things referred to in it by 2 May 2024.

  2. As earlier noted, these prayers for relief mirror prayers for relief 2 and 3 in the plaintiff’s notice of motion.

  3. The material that is sought by the notice to produce, which was purported to be served in the 2002 proceedings under r 34.1 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), is as follows:

In relation to searches conducted on 16 November 2023 at the [plaintiff’s] residence at… Forster, New South Wales:

1. All electronic items, owned by the [plaintiff] and seized by the Police, containing material relating to the [plaintiff’s] Statement of Claim, and, in particular:

(a) [Plaintiff’s] Samsung Galaxy S10 smartphone,

(b) [Plaintiff’s] Acer laptop, and

(c) [Plaintiff’s] Portable USB devices.

2. Copies of all police evidentiary material relating to the search conducted on 16 November 2023 and, in particular:

(a) The body-cam video recordings taken by the police,

(b) Police reports, statements, summaries and file notes.

  1. There are a number of difficulties with the plaintiff’s approach, two of which should be emphasised.

  2. First, the notice to produce was issued in the 2002 proceedings. The issues raised by those proceedings have earlier been set out: see [13]-[15], above. As is clear from that summary, the circumstances giving rise to those causes of action are alleged by the plaintiff to reside in the conduct of certain police officers (for whom the State would be vicariously liable) arising in and around 2000 and, on the face of it, have no nexus whatsoever to the subject matter of the search warrant executed on 16 November 2023.

  3. Secondly, despite the sole defendant in those proceedings being the State, the plaintiff sought production, via the notice to produce issued under r 34.1 of the UCPR, from a range of respondents including the “NSW Commissioner of Police” and the “NSW Director of Public Prosecutions”. That approach is, so far as it relates to those respondents, impermissible as that procedure is available only inter partes. That is apparent from the terms of the rules dealing with notices to produce, being r 21.10 (‘Notice to produce for inspection by parties’) and r 34.1 (‘Notice to produce to court’): Wehbe v Giotopoulos [2022] NSWSC 1566 at [44]. Relatedly, by purporting to require the production via the notice to produce (rather than by a subpoena to produce, putting to one side for the moment the subject matter of the notice to produce), the plaintiff, being unrepresented, circumvented the requirement that a subpoena may not issue except by leave of the Court: r 7.3 of the UCPR. It follows, therefore, that the notice to produce as against the “NSW Commissioner of Police” and the “NSW Director of Public Prosecutions” would (but for the fact that no application for such an order has been sought) be set aside for this reason alone.

  4. In relation to issuing subpoenas (or a notice to produce), in order to justify a subpoena as having been issued for a legitimate forensic purpose, it need only be shown that the documents sought are “apparently relevant”: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65]. As was explained therein, apparent relevance will be demonstrated if the documents sought to be produced “by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist” (at [65] – emphasis in original). Further, the word ‘apparent’ “admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant”: at [68].

  5. In my view, the documents and things sought by the notice to produce do not have apparent relevance, or any relevance, to any matter in issue in the 2002 proceedings, as I have explained. The purpose of seeking this material is both in substance and form to aid the plaintiff in his defence of the criminal proceedings, notably the child abuse material proceedings. The position is not otherwise because the plaintiff has made allegations against police in the current application that I have found to be, on the material tendered, baseless and without foundation.

  6. It follows, therefore, that there is no entitlement, in circumstances where the notice to produce would be liable to be set aside, to have the respondents to that notice to produce comply with the terms of it.

  7. Prayers 5 and 6 of the amended summons will be dismissed.

An order for restitution: prayer 8

  1. Neither the plaintiff’s written submissions, nor his oral ones, identify the basis for seeking “restitution”, as the State noted in the written submissions they filed. The State submitted, at the hearing, that there is no foundation for relief of that nature, “whatever that is intended to mean” (Tcpt, 15 October 2024, p 98(46)-(47)). I agree.

  2. This prayer for relief will be dismissed.

The notice of motion: the orders sought

  1. Each of the prayers for relief in the notice of motion were replicated in the amended summons.

  2. For the reasons given, each of the prayers for relief in the notice of motion must be rejected and the notice of motion dismissed.

Orders

  1. For the above reasons, I make the following orders:

  1. Order that the plaintiff’s notice of motion filed 23 July 2024 be dismissed.

  2. Order that the plaintiff pay the respondents’ costs of, and incidental to, the notice of motion.

  3. Order that the amended summons dated 9 August 2024 be dismissed.

  4. Order that the plaintiff pay the respondents’ costs of, and incidental to, the amended summons.

  5. Direct that the Court forward a copy of this judgment to the plaintiff.

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Decision last updated: 22 October 2024

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Antunovic v Dawson [2010] VSC 377
Antunovic v Dawson [2010] VSC 377
Antunovic v Dawson [2010] VSC 377