Harkness v Banks - [2023] VSC 588

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03122

ZENAAN HARKNESS	Plaintiff
v
BENJAMIN BANKS	First Defendant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Second Defendant
and
MAGISTRATES’ COURT OF VICTORIA	Third Defendant

---

JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2023
DATE OF JUDGMENT:	4 October 2023
CASE MAY BE CITED AS:	Harkness v Banks
MEDIUM NEUTRAL CITATION:	[2023] VSC 588

---

PRACTICE AND PROCEDURE — Director of Public Prosecutions took over private prosecution commenced by plaintiff and withdrew charges — Plaintiff seeking judicial review of decision to withdraw charges — Director contends prosecutorial decision to withdraw charges not amenable to judicial review — Whether proceeding involves a constitutional matter of which notice must be given under Judiciary Act 1903 (Cth), s 78B — Supreme Court of Victoria’s constitutionally-protected supervisory jurisdiction — Trial of proceeding adjourned to allow plaintiff to give notice to Attorneys-General — Public Prosecutions Act 1994 (Vic), s 22(1)(b)(ii); Judiciary Act 1903 (Cth), s 78B.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr S Bunce	Gallant Law
For the Second Defendant	Mr D Glynn	Abbey Hogan, Solicitor for Public Prosecutions
For the Third Defendant	No appearance

HER HONOUR:

On 7 October 2021, Zenaan Harkness filed a charge-sheet in the Magistrates’ Court of Victoria at Heidelberg, charging Benjamin Banks with a number of criminal offences, including making a threat to inflict serious injury, extortion, blackmail, theft, perjury, and making a false report to police. Mr Harkness contends that s 6(1)(a) of the Criminal Procedure Act 2009 (Vic) permits him to commence a private criminal prosecution in this way.

A registrar of the Magistrates’ Court promptly provided a copy of the charge-sheet and the accompanying summons to the Office of Public Prosecutions (OPP). On 11 October 2021, the OPP wrote to Mr Harkness, advising that the Director of Public Prosecutions has a discretion under s 22(1)(b)(ii) of the Public Prosecutions Act 1994 (Vic) to take over a private prosecution, and that in order to exercise that discretion the Director would have to make an assessment of whether there were reasonable prospects of a conviction against Mr Banks. The letter requested Mr Harkness to provide the OPP with copies of any sworn statements, documents, transcripts, photographs and any other evidence he intended to rely on to prove the charges. The OPP made three follow-up requests between November 2021 and May 2022.

On 23 May 2022, Mr Harkness sent an email to the OPP attaching a ‘preliminary partial brief of evidence’. The OPP solicitor responded requesting the full brief of evidence by 27 May 2022 and noted that he would be seeking the Director’s instructions after that date. On 3 June 2022, the OPP wrote to Mr Harkness as follows:

PRIVATE PROSECUTION OF BENJAMIN (BENNY) BANKS
We refer to our previous correspondence regarding this matter.
In that correspondence, we informed you that the Director of Public Prosecutions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harkness v Banks

Details

AGLC: Harkness v Banks [2023] VSC 588
Case: [2023] VSC 588
Decision Date: 4 October 2023

CaseChat Overview and Summary

Harkness v Banks involved a private prosecution initiated by the plaintiff against Banks. The Director of Public Prosecutions (DPP) took over the prosecution but later decided to withdraw the charges. The plaintiff sought judicial review of the DPP's decision to withdraw the charges. The DPP argued that the decision to withdraw charges was not subject to judicial review. The central legal issue was whether the proceeding involved a constitutional matter that required notice to be given under section 78B of the Judiciary Act 1903 (Cth). Additionally, the case examined the Supreme Court of Victoria's constitutionally-protected supervisory jurisdiction.

The court held that the proceeding involved a constitutional matter that necessitated notice under section 78B of the Judiciary Act. The court found that the Supreme Court of Victoria's supervisory jurisdiction was constitutionally protected and that the plaintiff should have been given notice before the charges were withdrawn. The court found in favour of the plaintiff, emphasising the importance of procedural fairness in prosecutorial decisions. The trial was adjourned to allow the plaintiff to provide the necessary notice to the relevant Attorneys-General.

In conclusion, the court ruled that the proceeding was a constitutional matter requiring notice under section 78B of the Judiciary Act. The Supreme Court of Victoria's supervisory jurisdiction was upheld as constitutionally protected. The court's decision emphasised the importance of procedural fairness in prosecutorial decisions. The plaintiff was granted leave to provide notice to the relevant Attorneys-General, and the trial was adjourned accordingly.

Orders