Henskens v Rudd - [2020] NSWSC 533

Supreme Court

New South Wales

Medium Neutral Citation: Henskens v Rudd [2020] NSWSC 533
Hearing dates: 8 May 2020
Decision date: 11 May 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Refuse leave to appeal.

(2)   Order the plaintiff to pay the sixth and seventh defendants’ costs of the proceedings.

(3)   Otherwise dismiss the second further amended summons filed on 6 April 2020.
(4)   Remove the seventh defendant as a party to the proceedings.
Catchwords:
APPEALS — Application for leave to appeal from Local Court to Supreme Court — magistrate refused permanent stay of criminal proceedings in the Local Court — assurance given to accused person that he would not be charged — police officer who gave assurance unaware of separate charges relating to the taking and distribution of visual images of the complainant
APPEALS — magistrate applied correct principles — factual findings open — principles of promissory estoppel do not apply in this context — leave refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3, 4, Sch 1
Crimes Act 1900 (NSW), ss 91P, 91Q
Crimes (Appeal and Review) Act 2001 (NSW), s 53
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 84, 91
Local Court Act 2007 (NSW), Pt 4
Cases Cited: Adler v DPP [2004] NSWCCA 352
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
L v Johnson & the DPP [2003] NSWSC 1246
R v Birks (1990) 19 NSWLR 677
Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 93 ALJR 1
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; [1988] HCA 7
Category: Principal judgment
Parties: Peter G Henskens (Plaintiff)
Detective Jarrad Rudd (Sixth Defendant)
Senior Constable Leah Hughes (Seventh Defendant)
Representation:
Counsel:
Self-represented (Plaintiff)
K Curry (Sixth and Seventh Defendants)
Solicitors:
Not applicable (Plaintiff)
Office of the General Counsel, NSW Police Force (Sixth and Seventh Defendants)

File Number(s): 2019/407914
Decision under appeal

Court or tribunal:

Local Court

Date of Decision:

9 December 2019

Before:

Chicken LCM

File Number(s):

2019/11018

Judgment

Introduction

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…

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 Henskens v Rudd

Details

AGLC: Henskens v Rudd [2020] NSWSC 533
Case: [2020] NSWSC 533
Decision Date: 11 May 2020

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Henskens appealed against a decision of a magistrate in the Local Court. The matter arose from an alleged assault on a woman, where the accused, Henskens, was initially given an assurance by a police officer that he would not be charged. The police officer was unaware of other charges that were being investigated relating to the taking and distribution of visual images of the complainant. When the police officer became aware of these charges, he sought to withdraw the assurance given to Henskens. The magistrate in the Local Court considered whether to grant a permanent stay of the proceedings but ultimately refused to do so. Henskens then sought leave to appeal to the Supreme Court, arguing that the magistrate had applied the wrong principles in denying the stay.

The primary legal issue before the Supreme Court was whether the magistrate had applied the correct principles in denying the permanent stay. The court also needed to determine whether the magistrate's factual findings were open to challenge and whether the principles of promissory estoppel applied in this context. Henskens argued that the magistrate should have granted the stay based on the assurance given by the police officer. The Crown contended that the magistrate had correctly refused to apply the principles of promissory estoppel to this situation.

The Supreme Court held that the magistrate had applied the correct principles in denying the permanent stay. The court found that the magistrate's factual findings were open and that the principles of promissory estoppel did not apply in this context. The court held that the assurance given by the police officer was not binding on the Crown and that the magistrate was correct in denying the stay. The court further found that the police officer's lack of awareness of the separate charges did not affect the validity of the decision. Consequently, the application for leave to appeal was refused.

The Supreme Court did not make any further orders beyond the refusal of leave to appeal. The decision of the Local Court magistrate to deny the permanent stay of the criminal proceedings remained in place.

Orders