Abdou Khalil Nassar Draoui v District Court of South Australia

[2011] HCASL 186

ABDOU KHALIL NASSAR DRAOUI
v
DISTRICT COURT OF SOUTH AUSTRALIA & ANOR
[2011] HCASL 186
A10/2011

1. On 20 November 2006 the applicant was found unfit to stand trial on an indictment that charged him with 84 fraud offences. On 27 September 2007 Muecke DCJ made a supervision order pursuant to s 269O(1)(b)(ii) of the Criminal Law Consolidation Act 1935 (SA) ("the Act"). His Honour fixed a limiting term of 10 years[1].  The order provided for the applicant's release on licence, subject to compliance with specified conditions. 

   [1]Act, s 269O(2).

2. A supervision order automatically lapses at the end of the limiting term[2].  At any time during its currency, parties, including the Crown and the defendant, may bring an application before the court to vary or revoke the order[3].  

   [2]Act, s 269O(3).

   [3]Act, s 269P(1).

3. On 26 November 2008, the applicant filed an application before the District Court of South Australia to revoke the supervision order.  The hearing was scheduled for 12 November 2009.  On 12 August 2009, the applicant filed an application for a variation of the supervision order.  Muecke DCJ refused that application.  The applicant requested a directions hearing.  On 11 November 2009 a directions hearing was held before Muecke DCJ.  The applicant applied for his Honour to disqualify himself.  The application was refused.  The applicant's counsel informed the Court that the applicant would no longer pursue the application for revocation of the supervision order.  Nonetheless, the following day, on 12 November 2009, Muecke DCJ refused that application and ordered that no further application could be made to vary or revoke the supervision order for a period of 18 months[4].

   [4]Act, s 269P(2).

4. The applicant brought proceedings for judicial review before the Supreme Court of South Australia.  David J quashed the orders made on 12 November 2009, holding that Muecke DCJ committed jurisdictional error by determining an application that had been withdrawn.  His Honour also found that the applicant had been denied procedural fairness in that he had not been given an opportunity to be heard before the making of the orders.

5. The applicant filed a fresh application to revoke the supervision order.  The application came before Muecke DCJ.  The applicant applied to have his Honour disqualify himself from hearing the application on the ground of apprehended bias.  Muecke DCJ refused the application. 

6. On 24 December 2010 the applicant brought proceedings in the Supreme Court (Kelly J) for judicial review of Muecke DCJ's refusal to recuse himself. 

7. The basis of the asserted apprehension of bias is the conduct of the proceedings on 12 November 2009 that were the subject of David J's orders.  Kelly J considered that in the absence of the patent appearance of bias the Court should exercise restraint and not interfere in proceedings at an interlocutory stage[5].  She stood the proceedings over to enable the substantive proceedings before Muecke DCJ to be determined. 

   [5]Draoui v District Court of South Australia [2011] SASC 11 at [24].

8. The applicant sought leave to appeal to the Full Court against the making of Kelly J's orders.  The Full Court (Doyle CJ, White and Peek JJ) dismissed the application, holding that it was not reasonably arguable that Kelly J was wrong in the course that she had taken[6].  The Full Court characterised the ground on which the apprehension of bias is said to arise as "tenuous"[7]. 

   [6]Draoui v District Court of South Australia [2011] SASCFC 15 at [12].

   [7]Draoui v District Court of South Australia [2011] SASCFC 15 at [7].

9. The applicant applies for special leave to appeal, asserting that the Full Court erred in upholding Kelly J's decision.  The applicant's written outline of argument complains that Kelly J was wrong to approach the application for prerogative relief on the basis that it was premature.  This submission does not address the Full Court's reasoning respecting the exercise of restraint in the grant of discretionary relief involving the disruption of proceedings at an interlocutory stage[8].  The applicant submits that a grant of special leave to appeal is appropriate to enable this Court to "make clear the principle upon which an application for apprehended bias operates".  The principles are stated in Johnson v Johnson[9].  Nothing in the application supports the asserted need to clarify them.  There is no feature of this application that would justify the grant of special leave to appeal from the refusal of leave to appeal from an interlocutory decision not to grant discretionary relief.

   [8]Draoui v District Court of South Australia [2011] SASCFC 15 at [9].

   [9](2000) 201 CLR 488; [2000] HCA 48.

10. The application is dismissed.

11. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

J.D. Heydon
26 October 2011 V.M. Bell