Stenner v Crime and Corruption Commission (No 2) - [2019] QSC 242

SUPREME COURT OF QUEENSLAND

CITATION:

Stenner v Crime and Corruption Commission & Ors (No 2) [2019] QSC 242

PARTIES:

MICHELLE STENNER

(applicant)

v
CRIME AND CORRUPTION COMMISSION

(first respondent)
and
CHAIRMAN OF THE CRIME AND CORRUPTION COMMISSION
(second respondent)
and
STATE OF QUEENSLAND
(third respondent)

FILE NO:

BS 2947 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

27 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Ryan J

ORDER:

The applicant pay the first, second and third respondents’ costs of and incidental to the application on a standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – COSTS OF AND INCIDENTAL TO PROCEEDING – where analogous issue to be argued in the District Court

Statham v Shephard [1974] 23 FLR 244
The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13

COUNSEL:

JR Hunter QC and AD Scott for the applicant

JG Rennick SC and R Withana for the first and second respondents
JM Horton QC for the third respondent

SOLICITORS:

Creevey Russell for the applicant

Crime and Corruption Commission for the first and second respondent
Crown Solicitor for the third respondent

For the reasons which follow, I order that the applicant pay the first, second and third respondents’ costs of and incidental to the application on the standard basis.
Background
The applicant, Ms Stenner is charged on an indictment, which is before the District Court of Queensland, with three counts of perjury under section 123(1) of the Criminal Code. Proof of the offence of perjury requires proof that a defendant knowingly gave false testimony in a judicial proceeding. The Crown alleges that the relevant judicial proceeding in the applicant’s case is a Crime and Corruption Commission hearing.
On Ms Stenner’s application, her criminal trial was adjourned to enable her to apply to this court for declarations, including a declaration that the CCC hearing was not a section 123 “judicial proceeding”. Such a declaration would have effectively ended the prosecution.
An alternative to the application to this court was a pre-trial application to the criminal court, under section 590AA of the Criminal Code, for a ruling that the hearing was not a judicial proceeding.
The applicant’s argument to this court was that the CCC hearing had not been lawfully authorised by the Chairperson of the CCC because, in making the decision to authorise the hearing, he failed to have regard to up-to-date information in accordance with the principle in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.
The first and second respondents responded to the substance of the applicant’s application (arguing essentially that the up-to-date information principle did not apply to the Chairperson’s decision to authorise the hearing). The first and second respondents also submitted that, even if I were persuaded to make the declarations sought, I ought to refuse to make them in the exercise of…

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.

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Details

Case: [2019] QSC 242
Decision Date: 27 September 2019

CaseChat Overview and Summary

The case of Stenner v Crime and Corruption Commission (No 2) involved Ms Stenner, who was charged with three counts of perjury under section 123(1) of the Criminal Code. The applicant sought a declaration from the court that the Crime and Corruption Commission (CCC) hearing was not a "judicial proceeding" within the meaning of section 123 of the Criminal Code, which would have effectively ended the prosecution. The first and second respondents argued that the anti-fragmentation principle should prevent the court from interfering in the criminal matter, while the third respondent, representing the interests of the Office of the Director of Public Prosecutions, also submitted that declaratory relief should be declined.

The court considered the anti-fragmentation principle, which dictates that the administration of criminal law should be left to criminal courts, and civil courts should refrain from interfering in criminal matters unless in exceptional cases. The court found that the arguments made by the first and second respondents, along with the third respondent's arguments, did not persuade it to deviate from the general rule that costs follow the event. Therefore, the court ordered that the applicant pay the first, second, and third respondents' costs of and incidental to the application on the standard basis.

In conclusion, the court found that the anti-fragmentation principle did not prevent it from making a costs order that followed the event, and ordered that the applicant pay the respondents' costs on the standard basis. The applicant's application for declaratory relief was dismissed, and the prosecution against her continued.

Orders

Orders of the court

The applicant pay the first, second and third respondents’ costs of and incidental to the application on a standard basis.

Background

Background to the litigation

For the reasons which follow, I order that the applicant pay the first, second and third respondents’ costs of and incidental to the application on the standard basis. Background The applicant, Ms Stenner is charged on an indictment, which is before the District Court of Queensland, with three counts of perjury under section 123(1) of the Criminal Code. Proof of the offence of perjury requires proof that a defendant knowingly gave false testimony in a judicial proceeding. The Crown alleges that the relevant judicial proceeding in the applicant’s case is a Crime and Corruption Commission hearing. On Ms Stenner’s application, her criminal trial was adjourned to enable her to apply to this court for declarations, including a declaration that the CCC hearing was not a section 123 “judicial proceeding”. Such a declaration would have effectively ended the prosecution. An alternative to the application to this court was a pre-trial application to the criminal court, under section 590AA of the Criminal Code, for a ruling that the hearing was not a judicial proceeding. The applicant’s argument to this court was that the CCC hearing had not been lawfully authorised by the Chairperson of the CCC because, in making the decision to authorise the hearing, he failed to have regard to up-to-date information in accordance with the principle in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24. The first and second respondents responded to the substance of the applicant’s application (arguing essentially that the up-to-date information principle did not apply to the Chairperson’s decision to authorise the hearing). The first and second respondents also submitted that, even if I were persuaded to make the declarations sought, I ought to refuse to make them in the exercise of my discretion, having regard to the anti-fragmentation principle. That principle is to the effect that the administration of the criminal law should be left to the criminal courts and, other than in exceptional cases, the civil courts should refrain from interfering in criminal matters. The third respondent, representing the interests of the Office of the Director of Public Prosecutions, made no submissions on the substance of the application, but submitted that I should decline the declaratory relief sought having regard to the anti-fragmentation principle. Each respondent provided written submissions on the anti-fragmentation principle, but only the third respondent made oral submissions about it. At the hearing, I asked the parties whether I ought to consider the substance of the application if I were to apply the anti-fragmentation principle and dismiss the application. The applicant asked me to do so. The third respondent submitted that I ought not to express an opinion on the substance of the application. Counsel for the first and second respondent could see some benefit in my considering the substance of the application (if there were to be an appeal) but ultimately submitted that his instructions were that I ought to say nothing about the substance of the applicant’s argument.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While there might have been some overlap in the arguments on the discretion between the submissions of the first and second respondents and the submissions of the third respondent, I did not consider that to be in any way unreasonable particularly having regard to the fact that counsel for the first and second respondents did not make further oral submissions on the discretion. Conclusion re costs of first and second respondents None of the arguments made by the first and second respondents persuade me that I ought to do other than to give effect to a costs order which follows the event.Summary The appropriate order is that the applicant pay the costs of each of the respondents, of and incidental to the application, on the standard basis.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Stenner v Crime and Corruption Commission & Ors (No 2) [2019] QSC 242
PARTIES:	MICHELLE STENNER (applicant) v CRIME AND CORRUPTION COMMISSION (first respondent) and CHAIRMAN OF THE CRIME AND CORRUPTION COMMISSION (second respondent) and STATE OF QUEENSLAND (third respondent)
FILE NO:	BS 2947 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	27 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Ryan J
ORDER:	The applicant pay the first, second and third respondents’ costs of and incidental to the application on a standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – COSTS OF AND INCIDENTAL TO PROCEEDING – where analogous issue to be argued in the District Court Statham v Shephard [1974] 23 FLR 244 The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
COUNSEL:	JR Hunter QC and AD Scott for the applicant JG Rennick SC and R Withana for the first and second respondents JM Horton QC for the third respondent
SOLICITORS:	Creevey Russell for the applicant Crime and Corruption Commission for the first and second respondent Crown Solicitor for the third respondent