Stenner v Crime and Corruption Commission & Ors

In this proceeding, Ryan J considered whether to make a declaration in relation to matters relevant to a criminal trial for perjury before the District Court. Specifically, the applicant sought a declaration that a Crime and Corruption Commission hearing, at which it was alleged she had given false testimony, was unauthorised and therefore not a “judicial proceeding” for the purpose of the offence of perjury in s 123(1) of the Criminal Code. Justice Ryan dismissed the application, referring to the “anti-fragmentation principle”, which provides that “other than in exceptional cases, where there are special reasons in the interests of justice for the making of a declaratory order, the civil courts must avoid becoming involved in the criminal justice system”. Her Honour held that no such exceptional circumstances existed in this case.

Ryan J

21 August 2019

The applicant, Ms Stenner, was charged before the District Court with the offence of perjury under s 123(1) of the Criminal Code in relation to testimony given during a Crime and Corruption Commission hearing. [1]. That offence relevantly requires proof that the defendant knowingly gave false testimony in a “judicial proceeding”. [1]. The applicant argued that the decision of the Chairperson of the Crime and Corruption Commission, to authorise the hearing, was of no effect and, accordingly, that there was no jurisdiction to hold the hearing. [2]. The applicant therefore sought a declaration that the hearing was not a “judicial proceeding” for the purposes of s 123(1) of the Criminal Code. [3]. The applicant’s criminal trial was adjourned for the purpose of the application. [3].

The respondents argued, before Ryan J, that even if her Honour were to conclude there was no jurisdiction to hold the hearing, the declaratory relief should be refused because it would otherwise interfere with the criminal proceedings, contrary to the “anti-fragmentation principle”. [4]. According to that principle, “courts are reluctant to make declarations which bear upon criminal proceedings to ensure that criminal proceedings are permitted to take their course without disruption”. [42]. “Other than in exceptional cases, where there are special reasons in the interests of justice for the making of a declaratory order, the civil courts must avoid becoming involved in the criminal justice system”. [122].

The applicant argued that exceptional circumstances existed because:

(i) the Director of Public Prosecutions had consented to the adjournment of the criminal trial for the purposes of the application;

(ii) a declaration by the Supreme Court would have a decisive impact on the criminal proceedings; and

(iii) the issue raised was one of general importance and the Supreme Court was the appropriate forum for its resolution. [123].

Justice Ryan rejected each of these arguments. First, the Director did not actively participate in the application before the Supreme Court and his decision not to be joined did not provide a “special reason” for the Supreme Court’s intervention in the criminal proceedings. [85]–[89]. Secondly, while a declaration by the Supreme Court, favourable to the applicant, would have a decisive impact on the criminal proceedings, such a declaration would be no more decisive than a pre-trial ruling by the District Court on the same topic. [91]. Thirdly, although the issue raised by the application was not “merely an issue of the admissibility of evidence”, the issue arose in the particular circumstances of this investigation which were unlikely to be repeated and could not be said to be an issue of general importance. [127]. Moreover, contrary to the arguments of the applicant, her Honour was not persuaded that the District Court would be a “singularly inapt” forum for the determination of the issue. [128].

In the result, her Honour was not satisfied that exceptional circumstances existed to justify the Supreme Court involving itself in criminal proceedings and fragmenting the criminal trial process. [129]. The application was dismissed. [129]. Her Honour also refused to express a view on the substantive issue in the proceeding, namely, whether the Crime and Corruption Commission hearing was a “judicial proceeding” – her Honour reasoned that to do so would defeat the purpose of the ruling on the discretionary issue. [134].

J English