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

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…

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 Holloway v The Queen

Details

AGLC: Holloway v The Queen [2015] NSWCCA 207
Case: [2015] NSWCCA 207
Decision Date: 05 August 2015

CaseChat Overview and Summary

The appeal in Holloway v The Queen involved the applicant, who had previously been sued in civil proceedings for fraud. The applicant defended these proceedings and was subsequently cross-examined. The civil case was settled by a judgment against the applicant, which included an admission of theft, stealing, embezzlement, defalcation, or misappropriation. Following this, materials from the civil case were sent to the police, resulting in the applicant being charged with offences under the Crimes Act 1900 (NSW) sections 176A and 192E. The applicant sought to have the indictment quashed and for a permanent stay of the prosecution, arguing that section 556(2) of the Crimes Act prevented the prosecution. The applicant also contended that the charges were based on information from the civil proceedings and that the prosecution was unfair as it relied on evidence obtained during those proceedings.

The legal issues before the court included whether section 556(2) of the Crimes Act applied to prevent the prosecution, whether the applicant was charged with offences that could have been dealt with summarily, and if the prosecution was based on information from the civil proceedings plaintiff. Additionally, the court needed to determine if the prosecution constituted an unacceptable injustice or unfairness given that it partly relied on evidence obtained during the civil proceedings. The court had to balance the public interest in prosecuting serious offences against the potential unfairness of relying on evidence from a previous civil case.

The court found that section 556(2) did not prevent the prosecution as it was not applicable to the circumstances of the case. It was also determined that the applicant could not have been charged summarily with the offences in question. Furthermore, the court held that the prosecution was not based on information from the civil proceedings plaintiff, and there was no unacceptable injustice or unfairness in proceeding with the prosecution. The evidence from the civil case was not the sole basis for the prosecution, and the court considered the public interest in ensuring that serious criminal offences are prosecuted. The appeal was dismissed, and the indictment and charges against the applicant were upheld.

The final orders of the court were that the interlocutory appeal was dismissed, and the applications to quash the indictment and for a permanent stay were refused. The prosecution against the applicant would proceed as originally charged under the Crimes Act 1900 (NSW) sections 176A and 192E.

Orders