Agapis v Birmingham DCJ - [2013] WASC 329

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: AGAPIS -v- BIRMINGHAM DCJ [2013] WASC 329

CORAM: McKECHNIE J

HEARD: 29 AUGUST 2013

DELIVERED : 29 AUGUST 2013

FILE NO/S: CIV 2139 of 2013

BETWEEN: RAOUL AGAPIS
Applicant
AND
RONALD EDWARD BIRMINGHAM DCJ
First Respondent
ADAM GRIFFIN
Second Respondent
LAUREN PLUMMER
Third Respondent
JASON JOSEPH MERCER
Fourth Respondent
JASON PAUL CAMP
Fifth Respondent

Catchwords:

Courts and judges - Prerogative relief - Whether available in respect of District Court - Abuse of process - Collateral attack on conviction

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Respondent        :     No appearance
Fifth Respondent          :     No appearance

Solicitors:

Applicant:     In person
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Respondent        :     No appearance
Fifth Respondent          :     No appearance

Case(s) referred to in judgment(s):

Agapis v The State of Western Australia [2012] WASCA 132
Craig v State of South Australia (1995) 184 CLR 163
Day v The Queen (1984) 153 CLR 475
Hunter v Chief Constable of West Midlands Police (1982) AC 529
Re Judge Ackland; Ex parte Love (Unreported, SCWA, Appeal 139/89, Library No 8362, File No 1982/1988, 2 August 1988)
Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50
Reichel v Magrath (1889) 14 App Cas 665

McKECHNIE J:

The background

The applicant was charged:
On 18 September 2010 at Kallaroo Raoul Agapis, entered or was in the place of Adam Griffin without his consent, with intent to commit an offence therein
And that Raoul Agapis threatened to kill Adam Griffin and Lauren Plummer
And that immediately before the commission of the offence Raoul Agapis knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation
Between 10 and 13 May 2011 the applicant stood trial before Birmingham DCJ and a jury. He was convicted as charged except for the pleaded circumstance of aggravation of threat to kill which the jury found not proven. On 31 August 2011 he was sentenced to 1 year and 3 months' imprisonment which was suspended for 2 years.
The applicant appealed against his conviction unsuccessfully: Agapis v The State of Western Australia [2012] WASCA 132.

Why this matter comes for decision

The applicant has now applied for judicial review and seeks a writ of certiorari/mandamus and a declaration in respect of the decision of Birmingham DCJ. The grounds for the application are:
1.Gross Miscarriage of Justice based on the Trial Judge's Misdirection to the Jury renders the Verdict null and void (the Misdirection to the Jury).
2.The Lack of Jurisdiction of the Trial Judge and Jury on the grounds of Errors in law and Errors in fact, renders the Verdict null and void.
3.The Denial of Justice to the Applicant in the Trial process or the Lack of Procedural Fairness renders the Verdict null and void.
4.The Denial of the Applicant his Dietrich's Right to Counsel or the Applicant's Right to Defence or taking a Step in his Defence renders the Verdict null and void.
5.The Refusal of the Trial Judge to take into Account Relevant Considerations and NOT TO TAKE INTO ACCOUNT Irrelevant Considerations, thereby misdirecting the Jury and thus rendering the Verdict Null and Void (the 'Inferability' Issues).
Ground 5 is further particularised by complaints against witnesses who were said to have perjured themselves. The applicant requires leave to proceed.
The applicant did not file, as required, an affidavit in support of the applications.
For this and other reasons the applicant was advised that the application was listed for 12 August 2013. The hearing purpose was to show cause why the application for a writ of certiorari/mandamus should not be dismissed as incompetent.
The applicant sought and obtained an extension of time until 22 August 2013. The matter was relisted for 29 August 2013. The applicant wrote to the court on 13 August 2013 seeking a further adjournment until October 2013 and advising that he was spending every day in the Law Library researching the matter. He was unemployed and had been effectively homeless since he was sentenced.
The applicant advised that he was still completing his affidavit and submissions. He had completed and perfected 30 pages of material fact and evidence in relation to the affidavit and identified another 34 pages of material fact and evidence. He had compiled 64 pages from the first two days of transcript and still has another two days of transcript to decipher material fact and evidence.
In describing the reasons for his delay in lodging the supporting affidavit and submissions he said he was not a lawyer and had no experience and no idea when first starting, the mountain of work required to complete his task. He said he had been at the Supreme Court Library every day typing and researching from 12 June 2013 to complete his commitment. His resources are very limited. He is on the dole, facing abject poverty, and has been living in his car since 1 September 2011.
In order to avoid the applicant spending more time on what at first sight looked a hopeless application, the court wrote to the applicant indicating that time would not be extended and that the matter would proceed on 29 August 2013. The letter also drew attention to some of the legal issues that the applicant may care to address.
In response the applicant has filed what he entitles 'a notice regarding validity of application'. It is said to be from 'The living, breathing sovereign man, known as Raoul of the family Agapis'.
The notice offers reasons why his application should not be dismissed. The notice includes legally indefensible propositions such as:
1.1... As Australia has NO legislative Courts and only Chapter III Courts of the Commonwealth Constitution 1901, therefore, natural justice applies in all courts.
...
3.3I find that it is irrational and unlawful for the Judge to stop an originating process which is the inherent jurisdiction of the Supreme Court having regard to its constating statute which is the Supreme Court Act 1935 (WA). To do so would be a conspiracy of that judge with the trial judge to defeat justice.
3.4Also, as a Judicial Officer, you are now on Notice of the crimes associated with District Court Criminal Trial 349 of 2011 against me and if you do not take steps to rectify the injustice suffered by me then you become a party to the crime.
On 20 August 2013 Mr Agapis filed an affidavit which commences in somewhat unusual form:
I, the living, breathing sovereign man known as Raoul of the family Agapis, In the Care of 66 St George's Terrace, Perth, being of majority in age, competent to testify, my yes be yes and my no be no, do state that the truths and facts herein are of first hand personal knowledge are true, correct and complete so help me YHVH
The affidavit does not contain any fact but consists of definitions taken from the LexisNexis Concise Australian Legal Dictionary (4th ed).
On 27 August 2013 the applicant filed another affidavit. Again this affidavit does not contain facts but argument and reference to cases. I will treat it as submissions in support of the application.
The applicant refers to many High Court authorities and extracts from Quick & Garran.
There is no issue that the Supreme Court is invested with Federal power: Judiciary Act 1903 (Cth) s 39. The investiture brings it with the Constitution ch III.
However, that has no relevance to the validity of this application.
On 28 August 2013 the applicant filed another affidavit. This affidavit does assert facts. However, all the facts concern the conduct of and evidence in the trial. These are all matters that either were, or could have been, raised at the appeal.
The applicant filed 11 pages of submissions which replicate the material in the first two affidavits.
These affidavits and the submissions unfortunately illustrate the dangers that lie when an applicant, without the assistance of an experienced pilot, seeks to navigate the sometimes treacherous waters of legal principle and authority.
A litigant such as the applicant rarely has the knowledge or understanding of the inter‑relationship between various principles both of statute and the common law which students spend years acquiring at university.
While I do not doubt the assiduousness of the applicant's efforts as evidenced by his letter, to allow him to continue on a course which is doomed to fail would simply be cruel.

Disposition

There are in summary five reasons why this application is misconceived and must be dismissed:
•The District Court in its criminal jurisdiction, is a superior court not amenable to prerogative relief except to the extent that may be allowed under the District Court of Western Australia Act: Day v The Queen (1984) 153 CLR 475, 479; Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50; Craig v State of South Australia (1995) 184 CLR 163.
•There is no matter pending in the District Court so certiorari under the District Court of Western Australia Act s 81 is unavailable.
•No writ of mandamus can issue to a District Court judge: District Court of Western Australia Act s 84.
•No order in lieu of mandamus is possible as judgment has been entered and the judge's jurisdiction is complete.
•The application is a collateral attack on the conviction and therefore an abuse of process especially in circumstances where the applicant, having a right of appeal, exercised that right: Re Judge Ackland; Ex parte Love (Unreported, SCWA, Appeal 139/89, Library No 8362, File No 1982/1988, 2 August 1988) (Brinsden J); Reichel v Magrath (1889) 14 App Cas 665, 668 (Lord Halsbury); Hunter v Chief Constable of West Midlands Police (1982) AC 529, 541 (Lord Diplock).
Despite the applicant's impressive efforts and research the application is completely misconceived and an abuse of process.
It must be dismissed.