Holloway v The Queen

[2015] NSWCCA 207

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Holloway v R [2015] NSWCCA 207
Hearing dates:	17 July 2015
Decision date:	05 August 2015
Before:	Leeming JA; Button J; Fagan J
Decision:	1. Grant leave to appeal.  2. Appeal dismissed.
Catchwords:	CRIME - interlocutory appeal from trial judge’s dismissal of applications to quash indictment and for a permanent stay - applicant was sued in civil proceedings for fraud - applicant defended the civil proceedings and was cross-examined - civil proceedings settled by judgment against applicant and admission of theft, stealing, embezzlement, defalcation or misappropriation - materials sent to police and applicant charged with offences under Crimes Act 1900 (NSW) ss 176A and 192E - whether s 556(2) of Crimes Act prevented prosecution - whether applicant charged with offences of which he “might have been convicted summarily without consent under this Act” - whether applicant was charged “on the information” of the plaintiff in the civil proceedings - whether unacceptable injustice or unfairness in prosecution based in part on evidence obtained in civil proceedings - appeal dismissed
Legislation Cited:	Australian Courts Act 1828 (9 Geo IV c 83) Crimes Act 1900 (NSW), ss 176A, 192E, 316, 476, 477, 493, 494, 495, 496, 499, 556 Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), ss 47, 260, Sch 1 Justices Act 1902 (NSW)
Cases Cited:	Australian Securities & Investments Commission in the matter of Northwest Resources Ltd v Craigside Company Ltd BVI [2013] FCA 201; 93 ACSR 176 Knezevic v Markovic (1985) 5 FCR 219 Peters & Heffernan v R (1995) 83 A Crim R 142 R v Edwards [2009] HCA 20; 83 ALJR 717 R v Steffan (1993) 30 NSWLR 633 Ritson v Myers [2013] NSWCA 176 TS v R [2014] NSWCCA 174 Walton v Gardiner (1993) 177 CLR 378
Texts Cited:	Crimes (Amendment) Bill 1955 (NSW) NSW Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at p 3231
Category:	Principal judgment
Parties:	Michael Robert Holloway (Applicant) Crown (Respondent)
Representation:	Counsel: FD Coyne (Applicant) N Adams (Respondent)   Solicitors: Tsolakis Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2013/63599
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 18 March 2015 Before: Baly SC DCJ File Number(s): 2013/63599

Judgment

1. THE COURT: This application for leave to appeal is made pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) from an interlocutory judgment of the District Court refusing applications (a) to quash an indictment pursuant to s 556(2) of the Crimes Act 1900 (NSW) and (b) for a permanent stay of proceedings. Applications of this nature fall squarely within s 5F(3): see R v Steffan (1993) 30 NSWLR 633 at 635. The primary judge heard submissions on the application over slightly more than one day and delivered judgment the following morning, following which she declined to certify that the case was a proper one for determination on appeal, within the meaning of s 5F(3)(b). Accordingly, the applicant requires leave to appeal.

2. For the reasons which follow, there should be a grant of leave, but the appeal must be dismissed.

Background and reasons of primary judge

3. Mr Holloway has been charged with committing 69 offences of defrauding a company contrary to (now repealed) s 176A of the Crimes Act and 10 offences of obtaining a financial advantage by deception contrary to s 192E of the Crimes Act. The maximum penalty for each offence is 10 years imprisonment. The offences are alleged to have occurred over a period of at least six years. On what was to be the first day of his trial before a judge and jury in the District Court, application was made to quash the indictment, based on s 556(2) of the Crimes Act. Application was also made for a permanent stay. Notice of those applications had only been given that morning; it was explained that legal aid had only been granted the previous week.

4. Both of ss 176A and 192E were “Table 1 offences” to which s 260 of the Criminal Procedure Act 1986 (NSW) applied. That section provides that indictable offences listed in Table 1 are to be dealt with summarily by the Local Court “unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment”.

5. It was not suggested that there was any error in the following introductory paragraphs of her Honour’s judgment, dealing with the essential background facts, which were relevantly as follows:

“[C]ivil proceedings were commenced against the applicant by B & H Worldwide in 2011. The proceedings concerned acts that took place between 2004 and 2011. That is the same time period as is covered by the indictment.

The proceedings were expedited at the request of B & H Worldwide.

Pursuant to the civil proceedings the applicant filed a defence and an affidavit of his evidence.

The civil proceedings were heard on the 2nd and 3rd of July 2012. The applicant was cross-examined.

The case was settled in B & H’s favour by way of judgment/order of the Supreme Court dated 4 July 2012.

In October 2012 the matter was referred to the police by B & H Worldwide. There is evidence before me from Rod Berry who is head of litigation at Atkinson Vinden Lawyers of Chatswood. That firm acted for the plaintiff B & H Worldwide in the civil suit. Mr Berry said that the directors of the company were concerned about their obligations under the Crimes Act and so, after having received advice from a criminal barrister, Ms Jo Gallagher, they went to the police.

All of the materials relied upon in the civil proceedings including the Supreme Court order were provided to police.

In the order and in other material provided including an affidavit sworn by the applicant and in his evidence in the civil suit, he made admissions including at paragraph 2 of the order that the losses were caused by theft, stealing, embezzlement, defalcation or misappropriation.

On 1 March 2013 the applicant was charged by police.”

6. Section 556 is as follows:

“556 Summary conviction a bar to further proceedings

(1) Where any person, summarily convicted under this Act, pays the sum or sums adjudged to be paid, together with costs, or receives a remission thereof from the Crown, or suffers the imprisonment provided for non-payment thereof, or the imprisonment adjudged in the first instance, he or she shall not be liable:

(a) to any other criminal proceedings for the same cause,

(b) to any civil proceedings for the same cause at the suit of the person laying the information upon which he or she was summarily convicted under this Act.

(2) Any person against whom civil proceedings have been taken in respect of any act or thing done or omitted to be done by him or her which is an offence of which he or she might have been convicted summarily without consent under this Act shall be released from all criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken.”

7. Her Honour considered that s 556(2) did not apply for two, cumulative reasons. First, her Honour took the view that the words “convicted summarily without consent under this Act” are to be read as extending to the provisions of the Criminal Procedure Act, s 260 and Table 1. Those provisions speak not in terms of the consent of the accused, but in terms of an election by either party. Her Honour considered that in that context, “consent is required in that there is no election by either party”. In other words, the learned judge thought that an offence on Table 1 which is “to be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects … to have the offence dealt with on indictment” (s 260(1)) is not an offence of which the defendant might be “convicted summarily without consent” (s 556(2)) – because the charge could only proceed in the Local Court if the defendant should refrain from electing. Implicitly her Honour equated refraining from making the election for indictable procedure with consenting to summary prosecution. On that view, non-election/consent would be necessary for Table 1 charges (such as those against Mr Holloway) to proceed to summary conviction and s 556(2) would not be engaged, on that ground alone.

8. Secondly, her Honour considered that the prosecution of Mr Holloway did not constitute “criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken”. Her Honour rejected Mr Holloway’s submissions that “information” bore its ordinary non-technical meaning, and that because the decision to prosecute was based solely upon materials supplied by B & H Worldwide, the section was engaged. Instead, her Honour held that “information” in this context bore its familiar meaning in the law of criminal procedure as an originating process. Hence, within the meaning of s 556(2) Mr Holloway is not being prosecuted “on the information of” B & H Worldwide (“the person by whom the civil proceedings were taken”). Rather, he was prosecuted in the Local Court “on the information of” the police officer who caused the issue and filing of Court Attendance Notices pursuant to s 47, Criminal Procedure Act. He is being prosecuted in the District Court “on the information of” the Director of Public Prosecutions.

9. Her Honour then rejected the application for a permanent stay of the indictment on the basis that it was an abuse of process because of what had occurred in the civil litigation. Her Honour reproduced the applicable principles in a way that has not been suggested to disclose any error, noting that (a) a permanent stay was an extreme remedy reserved for the most exceptional cases, (b) it was necessary to show that there was a fundamental defect going to the root of the trial of such nature that the trial judge could do nothing to relieve against its unfair consequences, and (c) the onus rested upon Mr Holloway to establish the factual basis for the order.

10. Her Honour noted that the case advanced was that Mr Holloway had participated in the civil proceedings, including swearing an affidavit, being cross-examined, and agreeing to the orders of the Court, without what was said to be the “usual” protections afforded to a person facing criminal prosecution. Her Honour recorded a complaint based on B & H Worldwide’s deliberate actions in pursuing its civil case and not reporting the case to the police at an earlier stage, but accepted the evidence that the company’s officers were conscious of their obligations in relation to discovery and material supplied under compulsion, and eventually took advice, three months after the trial, from a barrister.

11. Ultimately Mr Holloway’s submission was that he could not get a fair trial because the Crown was in possession of material given by him when no criminal proceedings were foreshadowed. It was said that this amounted to unfairness sufficient to warrant a permanent stay.

12. Once again, her Honour gave two reasons for dismissing the application. The first was that there was no unfairness. The primary judge noted that Mr Holloway’s participation in the civil proceedings had been voluntary, and occurred at a time when he was aware of his right not to incriminate himself. Her Honour noted that there had been no oppressive or unfair conduct on the part of those bringing the prosecution, putting to one side whether or not B & H Worldwide acted unfairly towards him.

13. Secondly, her Honour considered that even if there were unfairness, a balancing exercise had to be undertaken, between the rights of the accused against the rights of the community to expect that persons charged with criminal offences are brought to trial: see Peters & Heffernan v R (1995) 83 A Crim R 142. Her Honour was of the view that the balance was “firmly in favour of not exercising my discretion and the Court’s jurisdiction to grant a permanent stay of proceedings”.

14. Substantially the same submissions were advanced in support of leave to appeal. Each aspect is addressed in turn below.

Section 556(2)

(a) Legislative history

15. The predecessors of s 556(1) may readily be traced to the English provisions enacted in 1828 which were made applicable in the colony of New South Wales by the Australian Courts Act 1828 (9 Geo IV c 83). It is not necessary to summarise that history here, because that was done by Lockhart and Neaves JJ in Knezevic v Markovic (1985) 5 FCR 219 at 220-230. Their Honours’ analysis was described by the third member of the Court, Blackburn J, as a “searching examination of the legislative history”. For the limited purposes of this application for leave it suffices to say four things.

16. First, subsection (1) is readily traced to the 19th century, while subsection (2) was inserted in 1955 and has not been materially amended since. Subsection (2) was introduced at the same time as s 499(2), which was in very similar terms, and directed to a similar purpose. The Attorney General when introducing the Crimes (Amendment) Bill on 23 March 1955 said of s 499, which dealt specifically with the case of a person charged with assault:

“Hon members will probably be aware that by virtue of the Crimes Act, if summary proceedings for assault are taken in a court of petty sessions, and the accused is either convicted or acquitted, no civil proceedings may be taken in respect of the same assault. This section had its origin in English legislation enacted at least as early as 1861, and probably dates from a time when there was no established police force and it was left to the individual aggrieved to place the criminal law in motion. The purpose of the section in that context was to prevent multiplicity of action and to put the person aggrieved by the assault to his election to institute either civil or criminal proceedings, but not both.

...

However, it is provided that the conviction or acquittal is to be a bar only to proceedings at the suit of the person laying the information in the criminal proceedings. This will mean that a police prosecution for assault will not affect the victim’s civil remedy.” NSW Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3231.

17. The Attorney General added that a “corollary” was being inserted by the Bill:

“As a corollary, it is being provided that where a person is sued civilly for assault, criminal proceedings cannot be taken against him at the expense of the plaintiff. This is the position in Queensland.”

18. New s 499(2) and new s 556(2) were almost identical. New s 499(2) was as follows:

“(2) Any person against whom civil proceedings have been taken in respect of any act done by him which is an offence of which he might have been convicted under sections 493-496 both inclusive shall be released from all criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken.”

Sections 493-496 all made provision for various forms of assault, which were punishable summarily.

19. The insertion of s 556(2) was said by the Attorney to apply to a “somewhat similar situation” which “arises more generally” and was “dealt with in the same fashion”: see at 3231.

20. Secondly, subsection (2) of each of ss 499 and 556 put in place a prohibition in cases where civil proceedings had preceded criminal proceedings. The evident purpose was to prevent a duplication of civil and criminal proceedings, whichever be the order in which they were taken. Subsection (1) applied where a criminal prosecution preceded a civil action; subsection (2) applied when the civil action came first.

21. Thirdly, the new bars in ss 499(2) and 556(2) to criminal proceedings were doubly qualified. The first qualification was that they applied only to the subsequent criminal prosecutions for a limited class of offences, all relatively minor. The second qualification was that both applied only to criminal prosecutions “for the same cause on the information of the person by whom the civil proceedings were taken”.

22. Consistently with the foregoing, in Ritson v Myers [2013] NSWCA 176 at [12], Gleeson JA, with whom Macfarlan JA agreed, said that:

“The intent of s 556(2) of the Crimes Act is to prevent multiplicity of actions and to put the person aggrieved by the conduct constituting an offence to his or her election to institute either civil or criminal proceedings (see Knezevic v Markovic (1985) 5 FCR 219 at 231).”

23. Fourthly, the 19th and 20th century legislative amendments were all squarely directed to summary convictions. The legal meaning of “might have been convicted summarily without consent under this Act” in s 556(2) confined the protection to prosecutions for relatively minor offences. Section 499(2) only applied in relation to offences under ss 493-496, which could all be dealt with summarily.

(b) The meaning of “without consent under this Act”

24. In 1955, the regime for distinguishing between charges which should be determined summarily as opposed to by a jury was located in the Crimes Act itself, rather than the Criminal Procedure Act. Speaking generally, s 476 made provision for the Justice or Justices, if of the view that it were appropriate that charges of offences listed in s 477 be determined summarily, and if the subject matter did not amount to 250 pounds or more, to hear and determine the charge summarily, provided that “the accused consents to it being so determined”. The offences listed in s 477 were broadly similar to those now found in Table 1 of Sch 1 of the Criminal Procedure Act. In particular, they included the large majority of the offences specified in cl 3 of Pt 2 of Sch 1.

25. The words “without consent under this Act” in 1955 plainly excluded from the scope of s 556(2) those provisions which lie in Ch 1 of Pt XIV, which is headed “Indictable offences punishable summarily only by consent of the accused”.

26. It was common ground on the present application that with the relocation of the successor provisions to the Criminal Procedure Act, the reference to “without consent under this Act” must now be read as including a reference to that legislation. Without necessarily accepting the correctness of that construction, it is sufficient to proceed on that basis.

27. However, this is not merely a case of reorganisation of the former provisions in the Crimes Act into a new Act. The regime was substantially altered. The former case of an accused giving “consent” in a case where the Justice or Justices considered summary disposal to be proper was replaced by either party “electing” to have the offence dealt with on indictment, in the case of Table 1 offences, and in the case of Table 2 offences, by the prosecutor “electing” to have the offence dealt with on indictment.

28. While it is true that there is no longer any requirement to “consent” to summary disposal, there is no sound basis to conclude that the replacement of the former regime by one turning on the right of either party to “elect” (vastly) expanded the protection given by s 556(2). Many considerations tell against that result. One is the complete absence of any indication that that was the legislative purpose of replacing the “consent” procedure by one based on “election”. A second emerges from the structure of the section. The bar to civil proceedings conferred by subsection (1) is confined to summary convictions, and would not be available if, say, Mr Holloway had been found guilty by a jury in the District Court and was then sued by his company. Why then would Parliament have intended that the bar to criminal proceedings conferred by subsection (2) extend to criminal prosecution by way of indictment in the District Court if, as here, the civil litigation preceded the prosecution? At all times it has been plain that subsection (2) is the “corollary” to subsection (1). A third is the title to the section, which confirms that it is directed to summary convictions. A fourth is the unlikelihood of the result. Mr Holloway stands charged with serious criminality, involving a multi-million dollar fraud. The Crown proposes to call some ten witnesses, including at least two overseas witnesses. The trial was never conceivably going to take place summarily in the Local Court. Further support for this conclusion emerges from the second aspect of her Honour’s reasons, which is addressed immediately below.

(c) “Information” in s 556(2) bears its technical meaning

29. Subsection 556(2) is to be read with subsection (1). Subsection 556(1) uses the unmistakably plain language of “at the suit of the person laying the information”. The words in subsection (1) date from the 19th century and can only refer to the technical sense (“laying the information”); the similar words in subsection (2) bear the same meaning. The subsection, after all, is directed to the converse position, where the civil litigation has preceded the criminal prosecution.

30. Further, the express language of the Attorney General in 1955 when the subsection was inserted into the Act reproduced above confirms the position, as does the description of the subsection given by Gleeson JA much more recently in Ritson v Myers reproduced above. In 1955, the Justices Act 1902 (NSW) made provision for the laying of an “information” before a Justice in relation to a summary prosecution, and specified a form which should be used. It was to that document that the references in subs 556(1) and (2) referred in 1955, and there is nothing to suggest that by the effluxion of time the meaning of either subsection changed.

31. Accordingly, far from demonstrating any error, both aspects of her Honour’s reasons in relation to s 556(2) are plainly correct.

32. Having regard to the general importance of the point, and the fact that it was fully argued, there should be a grant of leave to appeal. However, her Honour was correct to conclude that s 556(2) did not prevent the prosecution.

Permanent stay

33. It was not suggested that the primary judge misstated the applicable principles. In TS v R [2014] NSWCCA 174 at [63] and [64], Bellew J, with whom Leeming JA and Adams J agreed, said:

“[63] The categories of circumstance which may justify an order granting a stay of criminal proceedings are not closed, nor are they capable of exhaustive definition. However, it must be recognised that a stay of a criminal trial is an extreme remedy which will be reserved for the most exceptional cases; Barton per Wilson J at 475; Jago per Mason CJ at 582.

[64] The onus remains upon an applicant for an order for a stay to establish a factual basis for the order which is sought: Boulos v R [2008] NSWCCA 119 at [46]. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9].”

34. Further, in R v Edwards [2009] HCA 20; 83 ALJR 717 at [23], the High Court emphasized, by reference to what had been said in Walton v Gardiner (1993) 177 CLR 378, that the question was not merely that there was a risk of unacceptable injustice or unfairness but instead “whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness” or whether the “continuation of the proceedings would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process”.

35. The ultimate question is whether reviewable error is identified in the primary judge’s evaluative decision, made after reviewing a large volume of documentary evidence, taking evidence on a voir dire, and hearing full submissions from the parties and reserving overnight, in concluding that this was not an appropriate case for there to be a permanent stay.

36. There is force in the submission made by the Crown that:

“as in the proceedings at first instance the applicant has not articulated what actually constitutes the abuse of process and what is actually unfair to the applicant as the applicant was not compelled to give evidence, he was not compelled to make admissions as to his criminal conduct and there was no, for example, undertaking or indemnity provided by prosecuting authorities, at the time of the civil proceedings, that the criminal charges would never be laid”.

Confronted with this, Mr Coyne, who appeared for the applicant, articulated the unfairness as follows:

“The unfairness is that under threat of civil sanction and with no indication that there was going to be any following criminal proceedings, he took part in the civil proceedings. If he didn't do so, he would have got a default judgment against him. Here it goes further that when the applicant participated in that, he made an affidavit where he stated that his employer, Mr Bond, the chairman, had knowledge and consented and even participated in a number of these transactions. He did that before there was any evidence on from Mr Bond. Mr Bond had the secondary benefit of seeing the affidavit from Mr Holloway, reviewing it and responding to it two weeks before the civil proceedings. Had it been a criminal investigation, they certainly would have got a statement from Mr Bond as to the evidence he was giving. The applicant would have had an opportunity to respond to it. It reversed the whole thing.”

37. But, as Mr Adams, who appeared for the Crown, submitted, there was no compulsion in the relevant sense. In circumstances such as these, the ordinary course is to apply for a stay of the civil proceedings. The principles and many authorities may be seen in Australian Securities & Investments Commission in the matter of Northwest Resources Ltd v Craigside Company Ltd BVI [2013] FCA 201; 93 ACSR 176 at [10]-[23].

38. The majority judgment in Walton v Gardiner at 395-396 referred to the “weighing process” when a permanent stay of criminal proceedings is sought. Mason CJ, Deane and Dawson JJ identified as considerations “the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice”. Here those factors all pointed against a stay. Nothing from what had occurred in the civil litigation gave rise to any relevant unfairness to Mr Holloway, while the matters in the public interest tending against a stay were of heightened importance.

39. Simpson J (as her Honour then was) said, with the agreement of Gleeson CJ and McInerney J, in Peters & Heffernan that in circumstances where the accused had given evidence and had been cross-examined in a way which disclosed criminality different from that with which they had been charged, there was no basis for a stay of a subsequent prosecution following their acquittal based on that evidence.

40. In that case, the admissions came in the course of a trial seeking convictions for a much more serious offence. The fact that Mr Holloway’s admissions arose from civil litigation is not materially different. There was not established to be any breach of any legal obligation in the evidence being supplied to police. To the contrary, it is an offence to fail to bring information of a serious indictable offence to the appropriate authorities without lawful excuse: Crimes Act, s 316.

41. In Peters & Heffernan Gleeson CJ said at 143 that

“right-thinking members of the community would be very surprised if a person who, in sworn evidence at a trial, admits having committed a serious crime, were not later prosecuted for that crime”.

We respectfully agree. The same applies to the present facts.

42. No error is disclosed in the primary judge reaching the same conclusion. The appeal should be dismissed.

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Amendments

10 August 2015 - [37] - Second sentence, "criminal" deleted, "civil" inserted.

Decision last updated: 10 August 2015